Boslund v. Rice (In re Rice)

• Decision Date: 06 February 1923
• Parties: IN RE RICE. BOSLUND v. RICE ET AL.
• Court: Wisconsin Supreme Court

179 Wis. 531

192 N.W. 56

IN RE RICE.BOSLUND

v.RICE ET AL.

Supreme Court of Wisconsin.

Feb. 6, 1923.

Appeal from Pierce County Court; Otto W. Arnquist, Judge.

Proceedings for adoption of Helena Schwalen by James A. Rice and another, opposed by Gertrude Boslund. From a judgment for petitioners, opponent appeals. Reversed, with directions to dismiss petition.

It appears that the appellant, Gertrude Boslund, is the mother of Helena Schwalen, an infant of the age of 4 years at the time of the order appealed from. The appellant was married in the year 1915, at the age of 16 years, to Louis Schwalen. They lived at Hudson, Wis., for a time, and then moved to South Dakota. There were two children born of the marriage, a boy, in 1916, and Helena, in 1918. In 1918 the parents separated and the mother returned to Elmwood to live with her mother, taking the two children with her. They resided at Elmwood for some time, the appellant here and her mother working and taking care of the two children. In July, 1919, the appellant went to St. Paul to secure employment. She gave her little boy into the care of her sister, who lived at Crosby, Minn., and the little girl she left in the care of her mother. She worked in various restaurants and eating houses in St. Paul from that time until March, 1921, when she was married to Christian Boslund, and since then has resided in an apartment in St. Paul.

In the meantime, in October, 1919, her former husband, Louis Schwalen, obtained a divorce from his wife in South Dakota. Service was obtained upon his wife by publication. The court ordered the custody of the children to the husband, but as the children and wife were outside his jurisdiction, the judgment to that extent was void. While the mother of Helena was working in St. Paul, she frequently returned to Elmwood to visit her mother and the child. It seems that appellant's mother owned her own home and had some money in the bank, but that she went out doing washings at times and when she did go, she left the child with her sister, Mrs. Margaret Rice, one of the respondents herein. This arrangement continued for some time, when by some mutual understanding the clothing and bed of the child were taken to Mrs. Rice's, and the child remained there. While the child was at her mother's and later while she was with Mrs. Rice, the appellant frequently visited the child, and at such times showed a motherly affection for the child, although she gave nothing for its support. The appellant was earning in St. Paul from $9 to $15 a week, besides part of her meals. After her marriage to Mr. Boslund she sought to obtain the custody of the child, which was denied her by the respondents. She thereupon sought to get possession by habeas corpus proceedings, and failed, whereupon the respondents herein made application to the county court to be allowed to adopt the child, and the father of the child consented to its adoption. The mother opposed the adoption and a hearing was had. The county court made an order permitting the respondents to adopt the child, and the mother appeals.W. G. Haddow, of Ellsworth, for appellant.

John E. Foley, of Ellsworth, for respondents.

CROWNHART, J. (after stating the facts as above).

[1][2] Adoption proceedings are provided by statute. It is provided that no adoption shall be made without the written consent of the living parents of such child, unless the court shall find that one of the parents has abandoned the child or gone to parts unknown, when such consent may be given by the parent, if any, having the care of the child. In case of abandonment, consent may be given by the court or next of kin. The issue turns in this case solely on the question of abandonment. The county judge found that the mother had abandoned her child, and the question is, did the evidence justify the finding?

[3] On the hearing the written opinion of the county court, its findings of fact and conclusions of law, together...