Adoption of Graham, In re

• Decision Date: 18 December 1962
• Citation: 27 Cal.Rptr. 163,377 P.2d 275,58 Cal.2d 899
• Court: California Supreme Court
• Parties: , 377 P.2d 275 In re ADOPTION of Frederick Elmer GRAHAM et al., Minors (two cases). Frederick Elmer GRAHAM, Plaintiff in Intervention and Appellant, v. Loretta Moe SULSER et al., Defendants In Intervention and Respondents; State Department of Social Welfare et al., Defendants and Respondents. Joseph MONIS et al., Petitioners and Appellants, v. STATE DEPARTMENT OF SOCIAL WELFARE et al., Defendants and Respondents. S. F. 20833, 20834.

Page 163

27 Cal.Rptr. 163

58 Cal.2d 899, 377 P.2d 275

In re ADOPTION of Frederick Elmer GRAHAM et al., Minors (two cases).

Frederick Elmer GRAHAM, Plaintiff in Intervention and Appellant, v. Loretta Moe SULSER et al., Defendants In Intervention and Respondents;

State Department of Social Welfare et al., Defendants and Respondents.

Joseph MONIS et al., Petitioners and Appellants, v. STATE DEPARTMENT OF SOCIAL WELFARE et al., Defendants and Respondents.

S. F. 20833, 20834.

Supreme Court of California, In Bank.

Dec. 18, 1962.

Johnson, Thorne, Speed & Bamford and H. Reed Searle, San Jose, for plaintiff in intervention and appellant and petitioners and appellants.

Stanley Mosk, Atty. Gen., Harold B. Haas, Asst. Atty. Gen., Elizabeth Palmer, Deputy Atty. Gen., Spencer M. Williams, County Counsel (Santa Clara), and Joseph G. Schumb, Deputy County Counsel for defendants and respondents.

WHITE, Judge pro tem.

Consolidated appeals are taken by Frederick Elmer Graham, plaintiff in intervention, from that portion of a judgment to the effect that he failed to legitimate his two minor children, the subject of the instant adoption proceedings, and by Joseph and Ruth Monis, husband and wife, from that portion of the judgment dismissing their petition for the adoption of the said minors.

The facts are not in dispute. In 1951, Jessie Rinella Graham obtained an interlocutory decree of divorce from Frederick Elmer Graham, but no final decree was entered until 1960 as hereinafter appearing. Loretta Moe Sulser was married to John Moe in 1953, and that marriage was annulled in 1958. Between dates in 1954 and 1958 Frederick and Loretta lived together while their aforesaid marriages to other persons during the period of their cohabitation were still in effect. Two children, Frederick, Jr. and Frank, were born to them in 1955 and 1956, respectively. In 1958 Loretta left Frederick and the minor boys were placed in a foster home. Shortly thereafter Frederick removed them from the foster home and on March 23, 1959 placed them in the custody of the Stant Clara County Welfare Department. On March 15, 1960, after their marriage had been annulled, Loretta and John Moe signed relinquishments of the boys of the Santa Clara County Adoption Agency for adoption. John Moe relinquished the boys as their presumptive father, as he was Loretta's husband at the time of the birth of both boys (Civ.Code § 193), and the presumed legitimacy of the boys continued after the annulment. (Civ.Code § 84.) The relinquishments were filed with the State Department of Social Welfare on March 17, 1960. (See Civ.Code § 224m.)

On April 1, 1960, Joseph and Ruth Monis, who as foster parents had the children in their home for a short period of time, filed the instant petition for the independent adoption of the boys, alleging that they were the legitimate children of Frederick and Loretta. A petition was thereafter filed in that action in behalf of the Santa Clara County Adoption Agency praying that it be jointed as a necessary party and that the petition for adoption be dismissed on the ground that the boys had been effectively relinquished to the agency for adoption. The agency was joined by stipulation.

On June 24, 1960, the aforesaid complaint in intervention was duly filed by Frederick Elmer Graham and John Moe in the adoption proceedings. It was alleged therein that John, although married to Loretta at the time of the birth of the boys to her, was neither their natural nor their legal father, and that Frederick was the natural father and had publicly acknowledged them and received them into his family. Plaintiffs in intervention prayed that the court declare the parental facts as alleged, and further declare both minors to be the legitimate children of Frederick.

Proceedings were pending as described when Jessie obtained her final decree of divorce from Frederick on October 26, 1960. The decree was entered nunc pro tunc as of June 2, 1952, under the provisions of section 133 of the Civil Code. ¹ The statutory provision, on its face, purports to authorize that termination of the marriage on a date, which, in this instance, pre-existed the births of the minor children herein.

Thereafter, on November 21, 1960, the State Department of Social Welfare, pursuant to Civil Code section 226, filed its report recommending that the petition for adoption by Joseph and Ruth Monis be denied on the ground that the children had been duly relinquished to a licensed adoption agency and were no longer available for adoption except through the agency. The report further stated that it was in the best interests of the children that they be adopted by persons other than Mr. and Mrs. Monis. On a trial solely on the issues raised by the complaint in intervention the trial court found that John Moe was not the natural or adoptive father of the children; that Frederick Elmer Graham was the natural father of the children but that he had not legitimated them pursuant to Civil Code section 230 ² for the reason that he had received them into his home only when legally married to Jessie and she had not consented thereto. The court concluded that the relinquishments executed by Loretta and John Moe were valid when executed and continued to be valid and, accordingly, that the Monis' petition for adoption must be denied in the absence of the agency's placement of the children with them.' (Civ.Code § 224n ³.)

The determinative issue herein relates to the breadth of the effect to be given to the nunc pro tunc character of the final decree of divorce of Jessie from Frederick. It is contended by the appellants that due to the retrocative effect of the final decree Frederick's marriage had been terminated at a time prior to the births of the children; that he must be deemed to nave been a single man; that Jessie's consent to the adoption and legitimation of the children by Frederick was, therefore, not required; that the children were thus the legitimate and adoptive children of Frederick, he having satisfied all other requirements of section 230 of the Civil Code; and that the children could not be relinquished for adoption by others without his participation. (See Civ. Code § 224.) If the contentioin with respect to the retrocative effect of the nunc pro tunc order is valid, it is manifest that the appellant's conclusions would naturally follow therefrom.

It might be noted that the individual parties involved herein urge the determination of the issues primarily on grounds other than what might be in the best interests of the children. This is not a controversy between natural parents each of whom wants the children. Neither natural parent nor the presumptive parent seek to maintain any custody or control over the children. The natural and presumptive fathers claim that the natural father has a right to consent to or relinquish for the adoption of the children, evidently by the Monises. On the other hand the respondent agencies claim that a relinquishment by the presumptive parents, valid when made and filed, remains valid despite the retroactive effect of the nunc pro tunc decree and the claimed legitimation by the natural father. These agencies claim that the interests of the children will be best served through an adoption by others not parties to t his action. A proper resolution of the issues herein does not require an application of that policy of the law which favors legitimation, as whatever the result in the instant case it appears that the children will be deemed to have been legitimated or, in any event, will become legitimate by adoption hereafter.

While section 133 of the Civil Code is to be liberally construed to effectuate its object, its operation may not destroy a vested right. (Ringel v. Superior Court, 54 Cal.App.2d 34, 128 P.2d 558; Macedo v. Macedo, 29 Cal.App.2d 387, 84 P.2d 552.) Moreover, a close examination of section 133 reveals that the Legislature intended to emphasize the retroactive effect of a nunc pro tunc order only in certain areas. The statute, after authorizing the entry of the final decree nunc pro tunc, then purports to provide for the effect of the decree in the following words: 'Upon the filing of such final judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment * * * shall be valid for all purposes as of the date affixed to such final judgment * * *.' (Emphasis added.) The purpose of the statute has been said to 'validate otherwise void marriages and thus relieve the parties to such marriages from the stigma and other consequences of bigamous relationships into which they might innocently fall by reason of oversight or neglect to have a final decree entered.' (Estate of Hughes, 80 Cal.App.2d 550, 553, 182 P.2d 253, 256.)

While the foregoing unquestionably states a most obvious purpose of the statute we are not prepared to hold that the statute serves no other purpose than to validate a later marriage. In different and proper circumstances it might well serve to legitimate children and to establish parent-child status even in the absence of such a marriage. But in the instant case we are faced with an intervening and concededly proper relinquishment of the children, and we are not prepared to hold that such relinquishment has failed to create rights which cannot be divested by the operation of section 133. Meeting head on the policy that section 133 is to be liberally construed to effectuate its purpose is the more compelling...