Cline v. Hartzler

• Decision Date: 17 February 1967
• Citation: 227 A.2d 210
• Parties: Myra J. CLINE, Petitioner Below, Appellant, v. H. Richard HARTZLER, Respondent Below, Appellee.
• Court: Supreme Court of Delaware

Page 210

227 A.2d 210

Myra J. CLINE, Petitioner Below, Appellant, v. H. Richard HARTZLER, Respondent Below, Appellee.

Supreme Court of Delaware.

Feb. 17, 1967.

Appeal from the Orphans' Court in and for New Castle County.

Thomas S. Lodge, of Connolly, Bove & Lodge, Wilmington, for appellant.

Harvey Porter, of Biondi & Porter, Wilmington, for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, C.J.:

This is an appeal by Cline, the petitioner mother, from an order refusing to terminate Hartzler's, the father, parental rights in their son, Andrew.

Cline and Hartzler were formerly husband and wife. Born to the marriage in 1956 was the child in question. In 1961, Cline and Hartzler were divorced and the child lived with the mother except for a period from February, 1962 to June, 1963, when he lived with his father.

Cline was awarded legal custody of Andrew in the divorce proceedings. Thereafter, Cline and Hartzler agreed in 1962 that Andrew would live with Hartzler, and that another child would live with Cline and her new husband.

The parties originally lived together as husband and wife in West Virginia. Cline moved to Delaware with her new husband. In June, 1963 Andrew came to Delaware for a two-week visit with Cline. Thereafter, Cline refused to return Andrew to Hartzler.

Cline, in her appeal, contends that Hartzler abandoned Andrew within the meaning of 13 Del.C. § 1101, which provides, Inter alia:

' § 1101. Definitions

'As used in this chapter--

"Abandoned' shall be interpreted as referring to any child who, for a period of one year, has not received any regular and reasonable financial help from or any substantial visits from his parent or parents or any person having parental rights or responsibility and on whose behalf no substantial contracts have been initiated by his parent * * *.'

The testimony was, on behalf of Cline, that Hartzler had not contributed anything toward Andrew's support since June, 1964, although prior to that date sporadically he sent checks to Cline for the support of Andrew pursuant to an order of nonsupport entered against him in West Virginia.

The trial judge held that, by a literal application of 13 Del.C. § 1101, Hartzler may technically have abandoned Andrew. However, he refused to terminate Hartzler's parental rights in Andrew by reason of other circumstances appearing in the record.

Briefly, these circumstances are that several of the checks forwarded by Hartzler to Cline were returned to him uncashed. Hartzler, a college professor, lived in Massachusetts, which made it difficult for him to make short-term visitations to his son. Hartzler continually asked for visits with his son, which were either denied or ignored by Cline. Hartzler sent Andrew Christmas and birthday gifts in 1964 and 1965. At least one reason why Hartzler did not press for visitations was his desire not to cause conflict and turmoil in the life of Andrew. Under the circumstances, the trial judge concluded that no order of termination of parental rights should be entered, with the expressed hope that the parties would thereafter adjust their emotional ill will toward each other, and work out a means by which the father could see and support his son.

This appeal basically rests upon the proposition that the trial judge found, by a literal application of § 1101, that Hartzler had in fact abandoned Andrew. We have doubt that such was the judge's ruling but, in any event, we do not think this is the complete answer to the appeal.

It is clear that the abandonment of a child by a parent is evidenced preliminarily by any conduct on the part of the...