Ackenhausen, In re
Decision Date | 15 October 1962 |
Docket Number | No. 782,782 |
Citation | 146 So.2d 37 |
Parties | In re William B. ACKENHAUSEN, Applying for Adoption of Children Under 17 Years of Age: Rick Edward Trascher and Toni Curtis Trascher. |
Court | Court of Appeal of Louisiana — District of US |
Milton E. Brener, New Orleans, for plaintiff-appellee.
George T. Oubre, Norco, for defendant-appellant.
Before SAMUEL, MOSS, and PICKETT, JJ.
October 4, 1961, William B. Ackenhausen petitioned the Juvenile Court for the Parish of Jefferson to adopt Rick Edward Trascher, born October 10, 1953, and Toni Curtis Trascher, born February 18, 1956, issue of the marriage of Edward John Trascher, Jr., and Martha Elena Blake Trascher.
The applicant for adoption alleges he is the husband of Martha Elena Blake Trascher, who was granted a divorce from Edward John Trascher, Jr., September 18, 1957, in Clark County, Nevada, in which proceedings, the mother was granted the care, custody, and control of her said minor children, in accordance with an agreement entered into between the parties September 10, 1957, which included the right of reasonable visitation to the father, and provided that the father should pay the sum of $60.00 per month alimony for each of said minors, for their maintenance and support. Petitioner further alleged that the said minor children had resided continuously in his home since his marriage to their mother, March 7, 1959, during which time he has supported and maintained them with all the necessities of life.
Edward John Trascher, Jr., appeared and opposed the adoption. The case was tried, and the trial court granted the adoption to petitioner, William B. Ackenhausen. Trascher has appealed from the adverse judgment.
Counsel for Trascher, the appellant, insists that in this case the consent of both natural parents must be given in order that the children may be adopted. On the other hand, opposing counsel contends that the facts in this case are such that the consent of the father is unnecessary, because of the provisions of LSA-R.S. 9:422.1, which provides:
'If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the following conditions exist: (1) The spouse of the petitioner or the grandparent or grandparents have been granted custody of the child by a court of competent jurisdiction and (2) The other parent has refused or failed to comply with a court order of support for a period of one year or more.'
It is well recognized in the jurisprudence of this State that an adoption is a creature of the statutory law, and in order to establish such a relation, the statutory requirements must be strictly carried out. The Supreme Court of Louisiana in Green et ux. v. Paul, 212 La. 337, 31 So.2d 819, said:
The appellee in his petition alleged a factual situation which, if true, would entitle him to adopt the children he sought to adopt. It is not disputed that appellee's spouse is the legitimate mother of the children sought to be adopted; and that said children have resided in the home of the appellee for a period in excess of six months prior to the filing of the petition for adoption.
There only remains for the consideration whether (1) the custody of said minor children was with Mrs. Ackenhausen; and (2) appellant, Edward John Trascher, Jr., refused or failed to comply with the judgment of the Nevada Court ordering him to pay alimony for said minors, within the meaning of LSA-R.S. 9:422.1.
Counsel for appellant insists the word 'custody' as used in the above cited statute, in order to make the consent of the non-custody parent unnecessary in the adoption proceeding, must be of such an absolute and unconditional nature, that the non-custody parent's rights in the children are completely extinguished. He first contends that by a modification of the original custody judgment of the Nevada Court, appellant was granted additional rights of visitation which included the right to have the custody of the children for one month of each year, during summer vacation; and that the original judgment as modified was the equivalent of divided custody. Appellant instituted a proceeding in Jefferson Parish to have the original custody judgment recognized and enforced in Louisiana; but at the time of the trial of this case his suit had not been tried. The modified custody judgment having been obtained in the Nevada Court, while Mrs. Ackenhausen and her children were domiciled and residing in the State of Louisiana, could not be accorded full faith and credit in Louisiana. A Court cannot modify its decree where it has no jurisdiction of the parties. The Louisiana Supreme Court had a somewhat similar situation under consideration in State ex rel. Huhn v. Huhn, 224 La. 591, 70 So.2d 391, and in that connection quoted with approval from the opinion of the United States Supreme Court in State of New York, ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, as follows:
'If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause.'
But counsel insists that if the modified custody degree of the Nevada Court is not recognized, the visitation privileges included in the original Nevada divorce judgment, gave appellant rights in the custody of his children that renders his consent to their adoption necessary. In support of that contention appellant cites Downey v. Downey, 183 La. 424, 164 So. 160. In the Downey case the Louisiana Supreme Court had before it for consideration...
To continue reading
Request your trial-
Lynn v. Lynn
... ... This contention is in accord with the decisions of the Louisiana Supreme Court in State ex rel. Huhn v. Huhn, 224 La. 591, 70 So.2d 391 (1954); and with that In re Ackenhausen (La.App. 4 Cir., 1962) 146 So.2d 37, affirmed by the Louisiana Supreme Court in 244 La. 730, 154 So.2d 380 (1963). Both of the cited cases quoted from the United States Supreme Court case of People of State of N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, in which it ... ...
-
Lege v. Lege
... ... Huhn v. Huhn, 224 La. 591, 70 So.2d 391; State ex rel. Girtman v. Ricketson, 221 La. 691, 60 So.2d 88; Emery v. Emery, La.App.4th Cir., 223 So.2d 680; Brewer v. Macaluso, La.App.4th Cir., 221 So.2d 343; State ex rel. Cahill v. James, La.App.1st Cir., 172 So.2d 299; In re Ackenhausen, La.App.4th Cir., 146 So.2d 37 (affirmed, without discussion of foreign court's modification jurisdiction, 244 La. 730, 154 So.2d 380) ... See also: Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); People of State of New York ex rel. Halvey v. Halvey, 330 U.S ... ...
- Ackenhausen, In re
-
Stewart v. Stewart
... ... This contention is in accord with the decisions of the Louisiana Supreme Court in State ex rel. Huhn v. Huhn, 224 La. 591, 70 So.2d 391 (1954); and with that in In re Ackenhausen (La.App. 4 Cir., 1962) 146 So.2d 37, affirmed by the Louisiana Supreme Court in 244 La. 730, 154 So.2d 380 (1963). Both of the cited cases quoted from the United States Supreme Court case of People of State of N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, in which it ... ...