Adoption of Rule, In re, 25000

• Decision Date: 02 December 1968
• Docket Number: No. 25000,25000
• Citation: 435 S.W.2d 35
• Court: Missouri Court of Appeals
• Parties: In the Matter of the ADOPTION OF Mark Russell George RULE, a minor. Robert L. SISEMER and Caroline B. Siemer, Respondents-Petitioners, v. Gallagher RULE, Appellant-Defendant.

Page 35

435 S.W.2d 35

In the Matter of the ADOPTION OF Mark Russell George RULE, a minor.

Robert L. SISEMER and Caroline B. Siemer, Respondents-Petitioners, v. Gallagher RULE, Appellant-Defendant.

No. 25000.

Kansas City Court of Appeals, Missouri.

Dec. 2, 1968.

Robert E. Coleberd, Wayne Kuhlman, Liberty, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel, for appellant.

Louis Lombardo, Kansas City, for respondents.

MORGAN, Judge

This case involves the appeal of a natural father to have set aside a decree of adoption of his son by the present stepfather of the child. The decree entered in the Juvenile Division of the Circuit Court of Clay County, Missouri, sustained the petition of Robert L. Siemer and Caroline B. Siemer, husband and wife, to adopt Mark Gallagher Rule, now 12 years of age, who was the son of defendant, Gallagher Rule, and petitioner, Caroline B. Siemer, by their previous marriage.

All of the parties were present at the hearing and the record reflects those circumstances leading to the present controversy. The mother was a native of Milwaukee, Wisconsin, and she and the natural father were married there on December 23, 1950. They suffered the tragic loss of their first child when he fell from a fifth floor window of an apartment house at the age of approximately 2 years. Mark, now 12 years of age, is the sole remaining child of this marriage. By a decree of the Circuit Court of Milwaukee County, wisconsin, the natural parents were divorced on December 19, 1958. The mother, as plaintiff, obtained the divorce, and although designated by the decree as a default proceeding, the father was represented of record by counsel. In view of the decree providing a detailed division of the properties, both real and personal, it appears to incorporate either a prior property settlement or at least an agreement of the parties for such a division. It provided the mother was to have custody of Mark, then 2 years of age, with the father to have the usual rights oif visitation. The father was to pay the mother $50.00 per month for child support. Only one other provision is of interest here. It provided that the mother was to take title to a jointly owned residence with the father to have an equitable lien thereon to assure payment to him of $1,500.00, which represented a portion of their equity. This payment was to be made when the house was sold or in any event within two years of the divorce.

Both of the parties are now remarried The father remarried in December, 1959, and his wife is a native of Zurich, Switzerland. They have no children and live on a farm in Oklahoma near the Kansas line with their address being Arkansas City, Kansas. The mother married the petitioner, stepfather, in September, 1962. One child has been born to this marriage and they are residents of Clay County, Missouri.

The natural father is a graduate of Marquette University with a major in Philosophy. He did not have a degree in engineering, but estimated approximately 3 years of his education at both Marquette and Oklahoma State University pertained to engineering. His experience also included service in the U.S. Marine Corps and he is a Major in the reserve. His employment from 1958 to 1966 was in the field of engineering with a firm manufacturing papermaking machines and as an electronics maintenance engineer with Bendix Corporation. Except for a training period of several months in Beloit, Wisconsin, his duties required he live in Switzerland, Spain, Turkey, Libya and Chile. During the time he was in the United States at Beloit, and prior to the remarriage of the mother, he visited the child in Milwaukee. Although he testified some appointments for visiting failed because of her absence from the home, and she testified he failed to keep some of the appointments, the conflicts were not too severe and appeared to have been the usual aftermath of a divorce proceeding. He explained it was the policy of his employer to permit employees to return home (United States) one month every two years. After the remarriage of the mother, his first occasion to return was in July, 1963. He testified that after locating the petitioners in Porterfield, Wisconsin, they reluctantly allowed him to visit Mark after he had insisted upon this right. His next return from his overseas assignment was in August, 1965. He assumed the boy was at this time in Paola, Kansas, since his parents had visited Mark there several months earlier. After not finding him in Paloa, the father further testified that he mailed a birthday present to Mark at Paola and requested a return receipt. After it came back with a Missouri address, he came to Kansas City and found the address of the petitioners in the telephone book. He and his wife went to the home of petitioners on August 21, 1965, which was a Saturday. Estimates by the parties of the time of their arrival varied from 7 to 10 A.M. Since some of the legal questions raised in this appeal must be resolved around the actions and reactions of the parties on this date, some details are required. The father testified Mark came to the door, recognized them, and invited them inside. They declined and asked that he have his mother come to the door for the purpose of planning a visit. Some 15 minutes later the stepfather came to the door and talked with him. When he asked to visit Mark, the reply was '* * * it was inconvenient.' He summarized the further statements of the stepfather as implying there would be no visiting until he 'caught up' on child support payments. The father then went to the police station and, after not finding an answer to his problem, returned to petitioners' residence some 30 minutes later. At this time it appeared no one was at home. The stepfather placed their arrival at 8 A.M. and confirmed he had told the father it would be inconvenient and when asked if he explained why, replied, 'I didn't feel it was necessary.' When asked how the conversation was terminated, he replied, 'I just told him that was it, and there was no further discussion; and I walked in the house and closed the door.'

The father further testified he then wrote the court in Milwaukee that had granted the divorce. He stated that after explaining that he had complied with the divorce decree and had been denied visitation, '* * * I told them that the only way I had of seeing my sone again was to withhold the payments until they felt good enough to let me see my son.' After this incident, the father made no further payments, and contributed only 'my good wishes, my thoughts, my prayers.' Soon thereafter, in May, 1966, he terminated his employment overseas to join his brother and father in a beef and grain farming operation in Oklahoma. He expressed his love for the boy and his continuing desire to have visits with Mark and his hopes that sometime he might be able to have the boy visit with him on the farm. He expressed a willingness to cooperate with petitioners in his efforts to retain his visitation rights. He further testified that he had written Mark on each birthday and Christmas as well as sending presents. The mother said, 'There have been several gifts * * *' but recalled only one letter, which she placed in evidence. It was dated July 31, 1967, and indicated an enclosure of $5.00 as a birthday present for Mark and expressed the hope he would take an active interest in the Boy Scouts. He was allowed to see his son the night before the adoption.

We look now to his financial contribution toward Mark's support. The trial court in its finding declared that support payments had been paid up to and including December 1, 1965. This is approximately 7 years after the divorce, and we note by this finding the father was not delinquent when denied the visit in August, 1965. The trial court accepted the father's explanation an agreement had been made to apply the $1,500.00 due him under the divorce decree on the monthly payments.

The mother testified Mark and his stepfather had an excellent relationship, that he had taught the boy to use power tools, worked with him in Cub, Webelos and Tenderfoot scouting, appeared as a father at school functions, taught him to shoot, gave him his golf clubs, assisted in school 'home work' and particularly arithmetic, and has been most helpful in times of turmoil resulting from childhood accidents. She recalled it was closer to 7 A.M. when the father asked to visit Mark in August, 1965. She testified she was not dressed at the time and, 'I * * * had no reason to go to the door.' She testified the father had not written to inquire of the child's welfare.

The stepfather testified he was a graduate of the Naval Academy with a degree in mechanical engineering and had a degree in foreign trade from the American Institute of Foreign Trade in Phoenix, Arizona. He was now engaged as a quality control engineer in a plant of the Ford Motor Company. His base salary and overtime earnings were approximately $1,400.00 a month. He has had an excellent relationship with Mark, and said, 'He has become as much a son to me as Gregory.' The latter being the son born of his present marriage. He expressed a willingness to support and educate Mark and give him moral and religious training. His two previous marriages had culminated in divorce and at the time of the hearing he was 52 years of age.

The study of petitioners' home required by Section 453.070, V.A.M.S., revealed some additional facts. The stepfather had served in the regular Navy from August, 1933, to August, 1952, and holds the rank of Captain in the inactive Naval Reserve. Prior to his employment the last three years with Ford Motor Company, he was employed six months in Paola, Kansas, and before that time had employment in Milwaukee. He had no church affiliation but when possible attended church with the family. At the time of his first divorce, a child by that marriage was placed in the custody of its mother. No children were born to his second...