Adoption of Earhart, In re

• Decision Date: 15 April 1961
• Citation: 190 N.E.2d 468,117 Ohio App. 73
• Parties: , 23 O.O.2d 156 In re ADOPTION OF EARHART. *
• Court: Ohio Court of Appeals

Page 73

117 Ohio App. 73

190 N.E.2d 468, 23 O.O.2d 156

In re ADOPTION OF EARHART. ^*

Court of Appeals of Ohio, Second District, Miami County.

April 15, 1961.

Faust & Harrelson, Troy, for appellants Harold Earhart and Evelyn earhart.

Scharrer & Porter, Dayton, for appellee Dorothy Wood.

KERNS, Judge.

This is an appeal on questions of law from a judgment of the Probate Court of Miami County.

On November 19, 1959, Harold and Evelyn Earhart filed an amended petition for leave to adopt Cathy Jane Wood, a child born on February 4, 1957, at Troy, Ohio. The name of the father of the child is unknown and the name of the mother of the child is Dorothy Wood. The amended petition alleges, inter alia, that the mother 'has willfully failed to properly support and maintain said child for a period of more than two years immediately preceding the filing of the amended petition.'

Section 3107.09, Revised Code, provides in part:

'(4) If it is alleged in the petition that one or both of the parents have willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition, the court shall cause notice of the filing of said petition and the allegations of such failure to be given such parents as provided in sections 2101.26 to 2101.28, inclusive, of the Revised Code. After such notice has been given, the court shall determine the issue as to such failure to properly support and maintain the child. The consent of a parent found by the court to have willfully failed to properly support and maintain the child for such period shall not be required.'

Pursuant to this provision of the statute, the trial court determined the issue in favor of the respondent, appellee herein, and entered judgment denying the amended petition for adoption.

In the appeal to this court, the appellant claims that 'the court erred in admitting evidence over the objection of the petitioners.' This assignment of error is predicated upon facts which show that, some time after the hearing of the case but before judgment, the appellee changed attorneys; that new counsel prepared a paper designated 'stipulation of facts'; that such paper was presented to counsel for petitioners, who refused to sign it; that a motion was then made to reopen the case for submission of the so-called 'stipulation of facts' as evidence; and that that motion was sustained over the objection of the appellants. The evidence so admitted shows the filing dates and status of two habeas corpus proceedings instituted by the appellee in the Court of Common Pleas of Miami County and the filing dates and disposition of two criminal actions brought against the appellee in the Municipal Court of Troy as the result of attempts by her to secure the possession of her child. All these actions were commenced within two years prior to the filing date of the petition for adoption, and were undoubtedly submitted for the purpose of showing that the failure of the appellee to maintain and support her child was not willful, intentional or voluntary.

Generally, it is within the sound discretion of a trial court, in the interest of justice, to permit either party to reopen the case and introduce further evidence, although all parties have rested. 3 Ohio Jurisprudence (2d), 751, Section 772; 39 Ohio Jurisprudence, 650, Section 76.

Here there is no serious dispute concerning the content of the so-called 'Stipulation.' In fact, appellants' counsel admitted in oral argument to this court that the content thereof is substantially true. This being so, and it also being apparent that the evidence admitted after the reopening...