Carpenter v. Forshee

• Decision Date: 31 May 1961
• Docket Number: No. 38792,No. 1,38792,1
• Parties: D. E. CARPENTER v. C. W. FORSHEE et al
• Court: Georgia Court of Appeals

Page 786

120 S.E.2d 786

103 Ga.App. 758

D. E. CARPENTER v. C. W. FORSHEE et al.

No. 38792.

Court of Appeals of Georgia, Division No. 1.

May 31, 1961.

Syllabus by the Court.

1. The superior Court of the county in which the adopting parent resides has jurisdiction of the subject matter and is the proper venue for an adoption. Ga.L.1941, p. 300, as amended, Ga.L.1956, pp. 695, 696 (Code Ann. § 74-401).

2. The existence of facts rendering unnecessary a parent's consent to his child's adoption, though alleged in the petition, must be judicially determined, and notice to the parent is therefore an essential prequisite to a decree of adoption cutting off his rights. However, when a parent, who has not been served or notified of adoption proceedings, files objections and moves to revoke an ex parte interlocutory order determining as a fact that said parent's consent to the adoption is not necessary, and thereupon the court reopens the proceedings and affords the parent a full hearing and thereafter, on the basis of the evidence at the hearing in which the parent participated, enters an order adjudicating that the parent's consent is not necessary, thereby revoking the order previously entered ex parte, the parent is not harmed by the erroneous ex parte order.

3. In the provision of the Georgia Adoption Act (Ga.L.1941, p. 301, as amended, Ga.L.1950, pp. 289, 290; Code Ann. § 74-404), making unnecessary the father's consent to an adoption when the father has wantonly and wilfully for 12 months or longer failed to comply with a decree of a superior court ordering him to support the child, 'wantonly and wilfully' means without reasonable excuse, with a conscious disregard of duty, willingly, voluntarily, and intentionally. The evidence, set out in the opinion, supports a finding that the father wantonly and wilfully failed to comply with such a decree.

The defendant in error filed a petition in the Superior Court of Fulton County for the adoption of a child. The petition to which was attached the written consent of the child's mother, alleged that the petitioner was a resident of Fulton County; that the mother of the child was the petitioner's wife; that the petitioner and his wife did not know the whereabouts of the child's father; that the father for more than twelve months had wantonly and wilfully failed to comply with a decree of the Superior Court of Cobb County, ordering him to make weekly payments for the support of the child, and that therefore his consent was not required. Upon presentation of the petition, the court entered an order for interlocutory hearing, setting a date for hearing and directing that 'service be perfected upon the party or parties whose written consent to the adoption is required, unless service of said petition and notice has been or will be duly waived in writing.' The recore does not show any service (personal, by registered mail or by publication) upon the father. On the date set for hearing the court entered a temporary order, reciting that after the examination of the parties interested, in chambers, under oath, and after giving consideration to the investigation and report made by the State Department of Public Welfare, it appeared that the adoption was for the best interest of the child; ordering that the prayers of petitioner be granted and that temporary custody of the child be awarded petitioner; and that the matter be set down for final hearing after the expiration of six months. Before the final hearing, the plaintiff in error, the natural father of the child, filed the following: (1) a plea to the jurisdiction on the grounds (a) that the courts of Colorado, where the father resided, and not the courts of Georgia had jurisdiction of the subject matter of the adoption, because the child's residence follows that of his father; and (b) that the father had not consented to nor been served or received notice as required by Georgia law; (2) a general demurrer on the grounds that the petition did not show (a) facts constituting adandonment or the father's consent; (b) that the child was a resident of Fulton County; (c) that service was made as provided by law, or; (d) that the father was a resident of Fulton County or had forfeited his parental rights and thereby that the court had jurisdiction; (3) an answer and objection praying that the adoption be denied and the interlocutory order be revoked, in which he denied and sought to refute the contention that he had wilfully and wantonly failed to comply with the court order for support of the child and that his consent was not necessary, and showed that he never received a conformed copy of the adoption petition and order for interlocutory hearing. The evidence adduced on the plea to the jurisdiction related to the domicile and residence of the natural father, the residence of the natural mother, the child, and the petitioner; support furnished by the natural father, his visits to Georgia and efforts to see the child. In this pleading the father appears to have followed the procedure provided by Code § 74-415 permitting the court, at any time before entry of a final decree, to revoke its interlocutory order for good cause shown. From the wording of the father's answer and the evidence presented in its support his position appears to be based on his contention that he had not wilfully and wantonly failed to comply with the support decree; and he contends therefore that his consent to the adoption was required; and that therefore the provisions of the statute for service, either on nonresidents (mailing a conformed copy), or on persons whose residence is unknown (by publication) should have been followed. After hearings on each the court took all of these matters under advisement, and thereafter overruled the father's plea to the jurisdiction and general demurrer. The court entered an 'Order on Application for Adoption' reciting that 'after hearing evidence the court is of the opinion that * * * the natural father of said minor has wantonly and wilfully failed to comply with the order of the Superior Court of Cobb County, Georgia, * * * to make weekly payments for the support of said child, for a period of more than twelve months, therefore the consent of said party is not necessary in order that the adoption be consummated * * * the objection of * * * the natural father * * * is overruled and denied and it is ordered that adoption proceedings proceed as the law provides.' To the three orders, overruling the plea to the jurisdiction and the general demurrers and denying the objections to the adoption, the father excepts.

James E. Hardy, Atlanta, William N. Robinson, Marietta, for plaintiff in error.

Joseph Lefkoff, Heyman, Abram & Young, Atlanta, for defendants in error.

HALL, Judge.

1. Plaintiff in error's objection that the Fulton Superior Court lacked jurisdiction because the child's residence was not in Fulton County, but in Colorado where his father resided, is without merit. The father and mother of this child were divorced by a decree of the Superior Court of Cobb County on May 16, 1951. This decree awarded permanent custody of the child to the mother. The decree was introduced as evidence on the plea to the jurisdiction. The father testified that the mother was awarded custody of the child and that the child had been in the State of Georgia since 1951. The evidence showed that the petitioner, the child's mother, and the child resided in Fulton County, and that the child was in the mother's custody.

When the mother of a child has been awarded its custody by a divorce decree and she actually exercises custody, the domicile of the child follows that of the mother. 28 C.J.S. Domicile § 12, p. 21; 17A Am.Jur. 248, § 69; 13 A.L.R.2d 306, 313. cf. Crowell v. Crowell, 190 Ga. 501, 9 S.E.2d 628; Beavers v. Williams, 199 Ga. 113 127, 33 S.E.2d 343; Dutton v. Freeman, 213 Ga. 445, 99 S.E.2d 204.

As to the questions of jurisdiction over the subject matter and venue, Ga.L.1941, p. 300, as amended Ga.L.1956, pp. 695, 696 (Code Ann., § 74-401), provides: 'The superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption, except such jurisdiction as shall be granted to the juvenile courts. All petitions for adoption shall be filed in the county in which the adopting parent or parents reside * * *.' Here the adopting father resided in Fulton County. It is clear therefore that the Fulton Superior Court had jurisdiction of the subject matter (adoption) and was the proper venue for this suit.

While the defendant in error contends that the language found in Portman v. Mobley, 158 Ga. 269, 273, 123 S.E. 695; Herrin v. Graham, 87 Ga.App. 291, 292, 73 S.E.2d 572; and Altree v. Head, 90 Ga.App. 601, 604, 83 S.E.2d 683 to the effect that 'in order for a superior court of Georgia to have jurisdiction of an adoption proceeding, the child to be adopted must be domiciled in, or be a resident of this State' [87 Ga.App. 291, 73 S.E.2d 573] is in conflict with the above 1941 act, it is not necessary in this case to pass upon this contention.

2. The statutory provisions for service in adoption cases are as follows: '* * * one conformed copy of the petition together with a copy of the court's order [setting an interlocutory hearing] thereon, shall be served on the party or parties whose written consent to the adoption is required under Sections 74-403 to 74-406, unless service of said petition and notice has been duly waived in writing. If any such party or parties be a non-resident of the State, then the clerk shall send to said party or parties by registered mail a conformed copy of said petition and order; but if the address be unknown, then notice shall be given by publication once a week for four weeks in the official organ of the county where such proceedings are pending.' (Emphasis supplied). Ga.L.1941, pp. 300, 302 (Code Ann., § 74-408).

'At any time after the expiration of six months from...