Altree v. Head, 34938

• Decision Date: 08 July 1954
• Docket Number: No. 34938,2,Nos. 1,34938,s. 1
• Citation: 90 Ga.App. 601,83 S.E.2d 683
• Parties: Renee H. H. H. ALTREE et al. v. Nanny B. HEAD
• Court: Georgia Court of Appeals

Page 683

83 S.E.2d 683

90 Ga.App. 601

Renee H. H. H. ALTREE et al. v. Nanny B. HEAD.

No. 34938.

Court of Appeals of Georgia, Division Nos. 1, 2.

July 8, 1954.

Rehearing Denied July 30, 1954.

Syllabus by the Court

It appearing from the record in this case that the natural mother of the child sought to be adopted had by a voluntary contract relinquished her parental rights in the child to the applicant, and that the adoptive father, the husband of the natural mother, had forfeited any parental rights to the child that he might have had by reason of cruel treatment of the child while she was legally in his custody, and it appearing that, because of such facts, the child was legally in the custody of the applicant whose domicile was shown to be in Bartow County, the superior court of that county had jurisdiction to hear the adoption case; and it further appearing that the applicant is a morally fit person and financially able to have custody of the child, the court did not err in entering a final decree in favor of the applicant.

This is an adoption proceeding filed by Mrs. Nannie Head in Bartow Superior Court. A caveat was filed by Mrs. Renee Altree and Arthur Altree of Middlesex County, England. After hearing the case, the trial judge entered a final decree permitting Mrs. Head to adopt the child therein named. The Altrees excepted to this decree and brought the case here by direct bill of exceptions.

The record reveals the following facts: In 1945, to Mrs. Renee Hutchinson, wife of an English soldier residing in Middlesex County, England, a little girl was born. An American soldier (one Naith Head) paramour of Mrs. Hutchinson, was the child's reputed father. When the child was born, Naith Head and returned to America. Hutchinson returned from abroad where he had spent the two previous years in defense of King and Country, and divorced Renee. She then married Arthur Altree, also of Middlesex. Naith took a wife in Florida. The Altrees sent little Pearl Louise (the child in question) to Florida and consented for her to be adopted by Naith Head and his wife. Naith was unwilling to go forward with the adoption, and Pearl Louise was unhappily in his home. Naith's mother, Mrs. Nannie Head, visited Naith, came in contact with the child and carried her back to Bartow County. There she began the adoption proceedings. All that is stated above is undisputed.

On the hearing of the adoption case, the evidence submitted in behalf of Mrs. Head consisted of various letters written by the child's maternal grandmother, a Mrs. Harmon, picture of Pearl Louise before and after she was brought to this country, a report of the Welfare Board showing that Mrs. Nannie Head was a woman of good health, able to earn a livelihood for herself and Pearl Louise, and that she was a responsible person from a moral standpoint and saw to the child's attending divine services. Mrs. Head and the little girl both testified in Mrs. Head's behalf. Mrs. Head testified that she received from Mrs. Altree a letter prior to the filing of the adoption proceedings and before the child was sent to the United States, in which Mrs. Altree stated that her husband was not kind to the child and mistreated her, that she herself did not love the child as she should, and that she would be glad to send the child to the United States for either Mrs. Head or Naith to rear, provided her transportation to this country was paid. Mrs. Head further swore that Mrs. Naith Head originally paid for the child's transportation from England, but that when she visited Naith and saw the little girl unhappily in his home, she reimbursed Mrs. Naith Head the amount that the latter had spent for Pearl Louise's passage; that she had taken the child into her home, provided her with a plenty of food and clothing, and made her Christmas happy with gifts. Mrs. Head corroborated the last statement with a picture showing the little girl happily posed among toys and dolls. Mrs. Head testified that the child was happy and growing normally. She gave as evidence of her good faith in the matter the fact that she had made a will leaving Pearl Louise her home worth $6,000. Pearl Louise testified that she was happy in the home of Mrs. Head and wanted to remain there, that when she was with the Altrees, Arthur beat her until she was black and blue; that she was hungry most of the time and cold when the weather was cold.

The altrees introduced various letters tending to establish their respectability financial ability and competency to rear the child, and one or two to the effect that they had not been cruel to or mistreated the child. They introduced a certified copy of the English decree by which Arthur Altree adopted Pearl Louise, and in an affidavit denied that Arthur had been cruel to the child or that she had been neglected, or lacked food; and stated that their domestic life was tranquil, and that they were morally fit and financially able to take care of Pearl Louise and had never consented to her adoption by Mrs. Head.

The assignments of error contained in the bill of exceptions clearly present the matters for consideration by this court. They read as follows: '(1) Plaintiffs in error insist that the Bartow Superior Court was without jurisdiction to enter the adoption decree ordering the adoption of a minor, illegitimate child, born in England, a citizen of Great Britain, and whose domicile and residence is that of her natural mother, Renee Altree, a citizen and resident of Great Britain.

'(2) Plaintiffs in error insist that the Bartow County Superior Court was without jurisdiction to enter the adoption decree in this case because the petitioner did not comply with the jurisdictional prerequisite of giving the natural mother or adoptive father, the required notice of the date set for the final hearing in this matter.

'(3) Plaintiffs in error insist that the Bartow County Superior Court erred in rendering the judgment and decree of adoption of a minor illegitimate child without (a) the written consent of the natural mother and adoptive father who are opposing the adoption, or (b) introducing before the court evidence sufficient to show a legal abandonment of the minor child by her natural mother or adoptive father.

'(4) Plaintiffs in error insist that the Bartow County Superior Court erred in granting the adoption decree.'

Finley & Henson, Corbitt & Shaw, Cartersville, for plaintiff in error.

Davis & Cullens, Cartersville, for defendant in error.

QUILLIAN, Judge.

1. In reviewing this case it is first necessary to decide whether the trial court had jurisdiction to entertain the adoption proceedings. The acts of 1941, Ga.L.1941, p. 300, as embodied in Code Ann.Supp. § 74-401, provide in part that 'The superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption. All petitions for adoption shall be filed in the county in which the adoption parent or parents reside,' except for certain immaterial particulars not germane to this case. This court held in Herrin v. Graham, 87 Ga.App. 291, 73 S.E.2d 572, that a proceeding for adoption in which the child is not domiciled in this State is void. So, the jurisdiction of the Superior Court of Bartow County depended upon whether the child was legally domiciled in that county at the time the proceedings were begun. Code, § 79-404 provides that the domicile of a minor child is that of his parents.

Code, § 74-108 reads: 'Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power shall be lost by: 1. Voluntary contract, releasing the right to a third person. 2. Consenting to the adoption of the child by a third person. 3. Failure of the father to provide necessaries for his child, or his abandonment of his family. 4. Consent of father to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time. 5. Consent to the marriage of the child, who thus assumes inconsistent responsibilities. 6. Cruel treatment of the child.' As was held in Shope v. Singleton, 196 Ga. 506, 27 S.E.2d 26, 27, "Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody and control, is legally entitled thereto." In Durden v. Johnson, 194 Ga. 689(2), 22 S.E.2d 514, it is held: 'Where, after the death of the father, the mother becomes entitled to the custody and control of a child, such parental power and right may be lost by her just as in the case of the father, * * * and a clear, definite, and certain voluntary contract releasing her right to the child to a third person becomes binding upon her, and is not subject to revocation without good cause shown.' And, in Manning v. Crawford, 8 Ga.App. 835(3), 70 S.E. 959, this court held: 'The contract by which it is sought to establish that a parent has relinquished his parental rights must be clear, definite, and certain; but, though these essentials are required in order to create and constitute the contract of relinquishment, it is not required that the evidence as to the contract shall be undisputed. If the evidence by which it is sought to establish a contract to relinquish parental control is itself vague and indefinite, or shows that the minds of the contracting parties failed to meet, or that there was a variance between the offer and the answer thereto, then a failure to prove the contract results. But a mere denial on the part of the defendant that the contract was made, or an assertion that the terms of the contract differed from those asserted by the plaintiff (even though supported by proof), raises merely an issue of fact as to whether the contract or gift sought to be asserted, if it be clear, definite, and certain in its terms, was or was not made.'

It is patent, under the authorities above cited, that the domicile of Pearl Louise, the child...