Adoption of Burton, In re
| Decision Date | 20 December 1956 |
| Citation | 305 P.2d 185,147 Cal.App.2d 125 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ADOPTION of Maurice Lynn BURTON and William Darrell Burton, Minors. Civ. 5278. |
Jerry B. Riseley, Studio City, for appellant.
Launer, Chaffee & Launer, Fullerton, and Thomas J. Koerber, Van Nuys, for respondent.
This is an appeal from an order approving a stepparent adoption.
George Stanley filed a petition to adopt his wife's two sons by a former marriage. His petition alleges that he and Ruth Stanley, the mother of the boys, were married on June 2, 1946; formerly she was married to Maurice Burton, the father of these children, and obtained a divorce from him through a decree granted by the District Court of Rooks County, Kansas; by order of that court, in the divorce proceedings, the custody of the children was awarded to their mother; their father 'for more than a year prior to the filing of this petition, to wit: since the year 1946, * * * although able to do so * * * wilfully failed to pay for their care, support and education;' and their mother is desirous that petitioner adopt these children as his own.
On September 22, 1945, the District Court of Rooks County, in the divorce action referred to, ordered that the custody of the Burton children be awarded to their mother during the nine school months of the year, and to their father during the summer months, and directed the father to pay for their support. This order was amended on June 15, 1946, when the court awarded 'sole custody' to the mother, and directed that the father should have the right to visit the children at all reasonable times. On June 2, 1946, Mrs. Burton had married Mr. Stanley. Thereafter, the two boys, who then were five and seven years of age, respectively, lived with their mother and stepfather.
In August, 1952, Mrs. Stanley, the former Mrs. Burton, filed a petition in the said District Court asking permission to take the children to the state of California and alleging that Mr. Burton was 'in default of child support payments in the sum of approximately $2,700'; that her present husband was required to support the children; and, for this reason, they desired to move to California where he could earn more money. The court found that the allegations in the petition were true and granted the permission requested, providing Mrs. Stanley post a bond in the sum of $1,000, conditioned upon her returning the children to the state of Kansas should the court order such return.
Thereafter, the two boys, with their mother and stepfather, moved to California; lived together; continued to be supported by their stepfather; and received no communication or support from their father.
On October 13, 1954, the petition for adoption was filed and on December 19, 1954, Mr. Burton, the children's father, was served with a citation issued out of the Superior Court of Orange county, California, pursuant to the provisions of section 224 of the Civil Code. About two weeks later, he petitioned the District Court of Rooks county, Kansas, to modify the custody decree thereftofore entered. Service of the petition was made upon the mother's attorney in the divorce action. Thereupon, this attorney, purporting to act for Mrs. Stanley, the former Mrs. Burton, moved for and obtained an order from the Kansas court directing her former husband to pay her travel expenses to attend the hearing of the petition for modification. Subsequently, Mrs. Stanley discharged her Kansas attorney. On January 27, 1955, the Kansas court modified the former custody order by awarding custody of the children to their father 'for a period of at least thirty (30) days during the summer school vacation.'
A stipulation, dated January 24, 1955, agreeing that the hearing of the adoption be continued and stating that 'Maurice W. Burton does hereby appear' was filed in the California court on February 1, 1955.
On March 11, 1955, the children's mother signed and filed a written consent to their adoption by her husband, on the form and in the manner prescribed by section 226 of the Civil Code.
The petition for adoption was heard on March 15, 1955, at which time the boys' natural father appeared in person, and by an attorney, although no written objections or answer to the petition had been filed on his behalf. Evidence was introduced. The court found that it was for the best interests of the two boys that they be adopted by their stepfather; that the mother's consent alone was sufficient to effect such adoption; and that the natural father's consent thereto was not necessary as he had wilfully failed to pay for the care, support and education of his children, when able to do so, for a period of one year during the time they were in the custody of their mother by judicial decree.
The children involved in this proceeding had resided in California for almost two years prior to the filing of the petition for adoption. During all of this time they were in the sole custody of their mother under an order of the Kansas court. Residence is a question of fact involving 'very largely a matter of intention.' Dreher v. Superior Court, 124 Cal.App. 469, 476, 12 P.2d 671, 674. Upon substantial evidence the trial court found that these children were residents of California. This conclusion was legally sound, as the residence of the minor children whose custody has been awarded to their mother is determined by her residence. Titcomb v. Superior Court, 220 Cal. 34, 42, 29 P.2d 206. Contrary to appellant's contention, the finding in question is not in conflict with a further finding that the children were removed to California upon the posting of a bond conditioned upon their being returned to Kansas if the court of that state so ordered. Even though it be assumed, as argued, that the children's mother intended to return them to Kansas in the event the court of that state so ordered, this fact did not alter her intention to continue their residence in the state of California. As the children were residents of this state, the California court had jurisdiction over them, Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719; Titcomb v. Superior Court, 220 Cal. 34, 39, 29 P.2d 206, which attached at the time the petition was filed. Sampell v. Superior Court, 32 Cal.2d 763, 776, 197 P.2d 739.
The natural father contends that the order of adoption should be reversed because he did not consent thereto, as required by law.
The merit of this contention depends primarily upon an interpretation of the following provisions of section 224 of the Civil Code:
'A legitimate child cannot be adopted without the consent of its parents if living; however, after the custody of any child has by any judicial decree, been given to the mother, and the father for a period of one year shall wilfully fail to pay for the care, support and education of such child when able to do so, then the mother alone may consent to such adoption, but only after the father has been personally served with a copy of a citation requiring him to appear at the time and place set for the appearance in court * * *.'
'Where the meaning of the statute is plain, there is no room or justification for judicial interpreation, and the only function of the court is the application of the enactment to the facts at bar.' Riley v. Robbins, 1 Cal.2d 285, 287-288, 34 P.2d 715, 716. Where interpretation is in order it must be reasonable. Civ.Code, sec. 3542. The interpreation of a statute as a whole must be reasonable and In re Estate of Todd, 17 Cal.2d 270, 275, 109 P.2d 913, 915.
It is our opinion that the plain intent of said section 224 is to provide that a legitimate child may not be adopted without the consent of both parents, unless custody of such child has been given to the mother by judicial decree, and, during the time the child is in the custody of the mother, the father has wilfully failed to pay for the support, care and education of that child for a period of one year, when able to do so, in which event the child may be adopted with the consent of the mother alone, but only after the father is served with a citation requiring him to appear at the adoption hearing.
Appellant contends that the facts of this case do not bring it within those provisions of the code authorizing the adoption of a child with the consent of the mother alone. This contention is based upon the premise that, under the code section in question, the mother's consent alone is sufficient only if she has sole custody of the child to be adopted at the time she files her written consent with the court, and the father has wilfully failed to pay for the care of such child, having the ability to do so, for the one year period immediately prior to the filing of such consent. In the case at bar, after the petition for adoption had been filed but before the mother of the children to be adopted had signed and filed her consent to the adoption, as required by section 226 of the Civil Code, the order awarding her sole custody had been modified by the Kansas court, as heretofore noted.
Appellant cites the case of Miller v. Higgins, 14 Cal.App. 156, 111 P. 403, in support of his position. When that case was decided, under the provisions of section 224 of the Civil Code a child could be adopted without the consent of a parent adjudged guilty of cruelty and for such cause idvorced. However, the court conducting the adoption hearing was obliged to determine from the...
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