Adoption of Perkins, In re

• Decision Date: 18 September 1951
• Docket Number: No. 47866,47866
• Citation: 49 N.W.2d 248,242 Iowa 1374
• Parties: In re Adoption of PERKINS et al.
• Court: Iowa Supreme Court

Page 248

49 N.W.2d 248

242 Iowa 1374

In re Adoption of PERKINS et al.

No. 47866.

Supreme Court of Iowa.

Sept. 18, 1951.

Rehearing Denied Nov. 16, 1951.

Russell Decker, of Ames, for appellant.

Gerald O. Blake, of Jewell, for appellee.

WENNERSTRUM, Justice.

This action involves the adoption proceeding of Larry Gail Perkins and Jerry Lee Perkins, minor children of La Verne B. Perkins and Florence Perkins, now Green. The mother and father were divorced and the custody of the children was given to the mother, subject to certain conditions. Cass E. Green, to whom the mother of the children was later married, made an application to adopt them. Following a hearing in which LaVerne B. Perkins resisted the application, a decree of adoption was entered granting to petitioner the rights of an adoptive parent. The father of the children has appealed from the decree entered.

The parents of the children involved in this action were married in December, 1935. To this union two children were born, Larry Gail Perkins on March 27, 1938 and Jerry Lee Perkins on September 3, 1941. Mr. Perkins was in the army at the time of the marriage and so continued until after the close of hostilities of World War II. In February, 1949 Mrs. Perkins brought an action for divorce. In this proceeding the husband and wife were represented by counsel and as a result of negotiations between the parties and their representatives, a stipulation was entered into which provided that in case a divorce was granted, Mrs. Perkins was to have custody of the children and that Mr. Perkins was to pay $60 per month for their support, '* * *, the first such payment to be made on the fifth day of the month following the obtaining of a decree herein and a like amount on the fifth day of every month thereafter until the youngest child reaches the age of eighteen years, graduates from high school, or reaches his majority, or in the event plaintiff remarries, whichever occurs first.' It was also provided that Mrs. Perkins should be given the ownership of a certain residence property in Ames, Iowa upon which there was a mortgage. Upon trial of the divorce action a decree was entered in conformity with the stipulation agreed upon by the parties.

Subsequent to the signing of the divorce decree on March 18, 1949, the appellant herein, LaVerne B. Perkins, paid into the office of the Clerk of the District Court of Story County, Iowa $60 for each of the following months: April, May, June, July and August, 1949. Florence Perkins and the petitioner appellee were married in Missouri on September 12, 1949. Since that time they have lived, with the two boys, on a farm west of Jewell. The farm of the appellee, Green, comprises a quarter section of land which, he testified, is mortgaged for less than fifty per cent of its value. He also stated that his stock and farm equipment are not mortgaged. The mother, Florence Perkins Green, filed in this action a consent to the adoption of her children by her present husband. Notice of the pendency of the petition for adoption was served on LaVerne B. Perkins, the appellant herein, on October 4, 1950 and thereafter he filed a resistance in this proceeding wherein he alleges that he has not failed to carry out the terms of the stipulation, the provisions of which were later incorporated in the divorce decree; that he has not abandoned the children nor waived nor relinquished any right for their care or control; that he does not consent to the proposed adoption; that Florence L. Perkins Green has violated said decree by refusing to allow the appellant herein reasonable rights of visitation and has, in fact, secreted the children from him. He asks that the petition for adoption be dismissed at the cost of the petitioner.

In addition to the facts heretofore set forth, the record shows that the children are attending the Jewell Public Schools. The petitioner testified that he knew that under the terms of the divorce decree Mr. Perkins' obligation to contribute to the support of the children would cease upon his marriage to the former Mrs. Perkins. He also testified that Mr. Perkins '* * * has visited the children once since they have been in my home. * * * He has attempted to visit them at other times. It is true that at those additional times when he attempted to visit the children that I would not allow him on the place.' The petitioner appellee also testified that Mr. Perkins had bought a Palomino pony for one of the boys which was delivered to the Green farm. This pony was later sold by Mr. Green for $85. He stated that this money was invested in a cow and calf. In his testimony, however, he admitted that he bought the cow with a part of the boys' money and a part of his own money. It is his claim, however, that the children's money is in the bank, although he stated that he does not have a separate bank account in their name. When asked whether on several occasions he had refused to allow Mr. Perkins to come on the farm, he answered: 'No, I never refused to let him come on the farm and my wife said he wasn't wanted there and I agreed with her in his presence.'

The father was given the right under the decree to visit the children at reasonable times. Relative to this matter the mother testified: 'Yes, I said he couldn't come.'

In the adoption hearing the father of the boys testified that he terminated the payments after August, 1949 because he was told that his former wife had remarried. He stated that he would have made another payment if he had known that she did not get married until in September and that he was ready and willing to make the payment due in September and that he wants to comply with the decree.

It is also shown by the testimony of the appellant, Perkins, that the equity in the home property aqt the time of the divorce decree was approximately $1900. He also stated that he did not want the children adopted because under those conditions he would not have the right to see them. In his testimony he stated: 'I want the court to understand that I would like to have those children stay as my children with my name. I would like to have the opportunity of doing for those children whatever I can and whatever Mrs. Green will allow me to do for them. I would like to have the right to visit those children. * * *'

It is shown that the appellant is employed as a mail and fright handler by the Chicago and Northwestern Railway Company at Ames and that he has never been discharged or laid off for intoxication or for any other reason. He stated that he feels he has a permanent job. It is also shown by the record that he has several thousand dollars worth of life insurance and that the children are named as beneficiaries of most of these policies.

There was other testimony in the record, much of which pertained to conditions existing at or prior to the time of the divorce and which involved claimed misconduct on the part of both Perkins and his former wife. However, these facts have no bearing on the particular matter before us.

I. It is said that adoption proceedings are cognizable neither at law nor in equity. 2 C.J.S., Adoption of Children, § 34, page 415. However, the rule seems to be established in Iowa that the procedure is governed generally by equitable rules. Specifically, and of importance in this case, upon appeal the cause is triable de novo. In Re Adoption of Karns, 236 Iowa 932, 939, 20 N.W.2d 474, 478, in discussing the question of what was for the best interest of the children, we said: 'Nor are we prepared to interfere with the trial court's finding on this issue. * * *' Again on page 940 of 236 Iowa and at page 478 of 20 N.W.2d, we said: '* * * The finding of the trial court is, of course, entitled to weight and it had some discretion in deciding this issue. * * *'

These statements are evidence that this court could and should review the facts as well as the law; in other words, try the case de novo.

A close analogy appears also in the numerous habeas corpus cases we have considered which involve child custody. In these cases we have for many years uniformly held that equitable procedure is to be followed. Watt v. Dunn, 236 Iowa 67, 73, 17 N.W.2d 811; Wooley v. Schoop, 234 Iowa 657, 658, 12 N.W.2d 597, 598; Barnett v. Blakley, 202 Iowa 1, 5, 209 N.W. 412. The reason for rule, which applies in adoption matters as forcefully as in the class of habeas corpus causes previously referred to, is well stated by Evans, J. in Jensen v. Sorenson, 211 Iowa 354, 367, 233 N.W. 717, 723 where it is stated: '* * * Where the issue turns upon the best welfare of the child and involves the overturning of presumptive parental rights in the interest of the child, we have found it difficult to separate questions of law from questions of fact, * * *. We have necessarily recognized the fact that the determination of such issues carries us into the field of equity, and that it is indispensable that principles of equity be applied. * * *'

II. By reason of the statements heretofore made we proceed to consider the instant cause de novo. This requires a review of the evidence and a consideration of the question of the best interest of the children. The parties agree that this is the matter for primary consideration. We have often so held. In re Adoption of Karns, supra; In re Adoption of Burkholder, 211 Iowa 1222, 1226, 233 N.W. 702. § 600.1, 600.2 and 600.5, 1950 Code, I.C.A., which are part of our present adoption statutes, all support this view.

The record shows that one of the children involved is now thirteen years of age, the other approximately ten. Both are boys. There is some evidence relative to drinking by all three adult parties concerned in this case. The divorce decree gave the custody to the mother with the father having rights of visitation. The question which we must determine at this point is whether it will be for the best interest of these boys if the adoption be permitted, in which case they will...