Cribbs v. Floyd

• Decision Date: 15 November 1938
• Docket Number: 14769.
• Citation: 199 S.E. 677,188 S.C. 443
• Parties: CRIBBS et al. v. FLOYD et al.
• Court: South Carolina Supreme Court

199 S.E. 677

188 S.C. 443

CRIBBS et al. v. FLOYD et al.

No. 14769.

Supreme Court of South Carolina

November 15, 1938

Appeal from Common Pleas Circuit Court of Marion County; E. C Dennis, Judge.

Action by Blanche F. Cribbs and others against Donnie S. Floyd Mattie Lou F. Ashley and others for partition of land among the heirs at law of Sam G. Floyd, deceased. From a judgment upholding the validity of prior proceedings in another state by decedent and Donnie S. Floyd for adoption of defendant Ashley, plaintiffs appeal.

Affirmed.

Joel I Allen, of Mullins, for appellants.

Eugene Hinson, of Mullins, and F. W. Floyd, of Fairmont, N. C., for respondent.

FISHBURNE Justice.

On or about June 5, 1933, Sam G. Floyd, a resident of Marion County, died intestate, seized in fee and possessed of a tract of land containing 160 acres. The issues presented by this appeal grow out of an action for the partition of this land among his heirs at law. Sam G. Floyd left no issue, and the case turns upon whether or not proceedings instituted by him on December 24, 1921, before the Clerk of the Superior Court of Robeson County, North Carolina, for the adoption of his niece, the defendant Mattie Lou F. Ashley, are valid.

The appellants are sisters and brothers of Sam G. Floyd, and the children of a sister, who predeceased him. The defendants are the widow of Sam G. Floyd (Donnie S. Floyd), and the children of W. Pink Floyd, a deceased brother of Sam G. Floyd.

The appellants challenge the regularity of the adoption proceedings had before the Superior Court upon several grounds, and contend that although the Superior Court of Robeson County, North Carolina, is a court of general jurisdiction, in its exercise of this power, it is a Court of special and limited jurisdiction where no presumptions are indulged, its power in adoption proceedings being derived solely from the Statute.

The defendant, Mattie Lou F. Ashley, is the daughter of W. Pink Floyd. If the adoption proceedings are declared void she will inherit an interest in the land equal to an undivided 1/70 part, as an heir at law of her father, W. Pink Floyd. If the adoption proceedings are sustained, the widow, Donnie S. Floyd, will inherit an undivided one-third thereof, and the adopted daughter, Mattie Lou F. Ashley, will inherit an undivided two-thirds thereof.

The issues were referred to the Probate Judge for Marion County, and he found against the validity of the decree of adoption, upon the ground that the Superior Court did not have jurisdiction of Mattie Lou F. Ashley, who was actually in Marion County, South Carolina, at the time the letters of adoption were issued, and that she was neither personally present at the hearing before the Court nor within its territorial limits. Upon exceptions to the Circuit Court, his honor, Judge Dennis, in a well considered decree, reversed the Probate Judge, and upheld the validity of the adoption proceedings.

W. Pink Floyd lived near Marietta, in Robeson County, North Carolina, with his wife and children, and had been living there about twenty years prior to the institution of the adoption proceedings. His wife died when their infant child, Mattie Lou, was about five months old. About two weeks after her death, Sam G. Floyd and his wife, Donnie S. Floyd, with the consent of W. Pink Floyd, assumed the temporary custody of the child, and took her to Marion County, South Carolina, to live with them. She continued to live with them for seventeen years, after which time she married, and moved to Fairmont, North Carolina.

The adoption proceedings were commenced when Mattie Lou F. Ashley was six years of age, and while she still lived with her foster parents.

The adoption statute of North Carolina (Section 174, North Carolina Revisal of 1905) provides: "Any person desiring to adopt any minor child may file a petition in the superior court of the county wherein such child resides, setting forth the name and age of such child and the name of its parents, whether the parents or either of them be living, and if there be no living parent, the name of the guardian, if any, and if there be no guardian, the name of the person having charge of the child or with whom such child resides, the amount and nature of the child's estate, if any, and especially if the adoption is for the minority or for the life of the child."

On December 31, 1921, the Clerk of the Superior Court of Robeson County, upon the verified petition of Sam G. Floyd, issued letters of adoption to Sam G. Floyd and his wife, Donnie S. Floyd, which authorized and empowered them to "take charge of said child, Mattie Lou Floyd, and enter upon their duties as parents of said child for life, to the end that the relationship of parent and child may be fully established between the said S. G. Floyd and wife, Donnie Floyd, and Mattie Lou Floyd, minor child, aggreeably to an order made by the Court."

It is not suggested that the petition, which purported to be that of S. G. Floyd and his wife, but which was signed and verified by S. G. Floyd alone, does not fully comply with the requirements of the North Carolina law, except that the point is made that the petition should also have been signed by the wife, Donnie S. Floyd. The further objection is made, however, that the proceeding was not brought in the county of the child's residence. The proceeding was commenced in Robeson County, and named W. Pink Floyd, the father of the child, as respondent.

In the record introduced before the lower Court, there is included a written request addressed to the Clerk of the Superior Court and signed and sworn to by W. Pink Floyd, requesting that Court to issue the letters of adoption to S. G. Floyd and Donnie S. Floyd, and this request included the statement that the adopting parents were fully able to provide for and educate the child. W. Pink Floyd also signed his consent at the foot of the decree of adoption. The record before the Court showed that Mrs. W. Pink Floyd, the mother of the child, died when the child was five months old.

The Supreme Court of North Carolina, in the case of Truelove v. Parker, 191 N.C. 430, 132 S.E. 295, had occasion to construe the adoption statute which we have herein set out. In that case the order of adoption was held void because the record did not show the consent of the mother of the child, who had apparently abandoned it, and was living in another state.

The Court, in construing the statute, held that the petition must set forth the names of the parents of the child to be adopted, and, if both are living, their consent is, as a rule, prerequisite to an order granting the letters; or, if one is dead, the consent of the survivor must be shown.

There is no merit in the contention that the Court did not have jurisdiction of W. Pink Floyd, the father of the child. He was a party to the proceeding, and not only appeared in person before the Court, but signed his full consent to all that was done.

It will be noted that the North Carolina statute does not contain any provision that the child be made a party to the proceeding, nor that it be present at the hearing, nor that its consent be obtained. There being no such statutory requirement, there is no necessity to meet these conditions. 2 C.J.S., Adoption of Children, p. 383, § 20; 1 Am.Jur. page 640.

But it is said that the requirements of the statute were not complied with, in that the petition was not filed in the Superior Court of the County wherein such child resides, it being admitted that at the time of the filing of the petition and for about six years prior thereto, Mattie Lou F. Ashley resided in Marion County, South Carolina, with Sam G. Floyd and Donnie S. Floyd.

We are of the opinion that for the purposes of the adoption statute, the words "reside" and "residence", which appear to be words of elastic meaning, do not necessarily refer to the place of actual abode, but mean the domicile or legal residence of the child. The fact that Mattie Lou F. Ashley was temporarily living in Marion County, South Carolina, does not, standing alone, constitute such county the place of her legal residence or domicile, within the meaning of such a statute, 2 C.J.S., Adoption of Children, p. 417, § 35.

There is substantial uniformity of decision that an infant cannot, of its own volition, change its domicile. 19 C.J. page 411; and see cases cited in the notes. The rule of law is universally recognized that, every person at birth has his or her domicile in the country or place in which, at the time the person on whom the infant is legally dependent is then domiciled, whether it be at the place of the birth, or elsewhere. This domicile of origin, which in case of legitimate children is the domicile of the father if living, and if not that of the mother-continues to be the legal domicile of the child, unless changed by the parent during infancy, until he or she, upon attaining majority, or perhaps after being emancipated by the parents, acquires another. During dependency, the legal home or the place of domicile follows that of the child's parents, and it is well settled that if both parents be dead, the domicile of the child will be that of its origin, or if that has been changed by the parents, that of its last surviving parent. Van Matre v. Sankey, 148 Ill. 536, 36 N.E. 628, 23 L.R.A. 665, 39 Am.St.Rep. 196; and see Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, 90 A.L.R. 924, overruling Yarborough v. Yarborough, 168 S.C. 46, 166 S.E. 877.

The Supreme Court of the United States in the Yarborough Case said [page 185]: "It is contended that the order for permanent alimony is not binding upon Sadie [she was the minor daughter of W. A. Yarborough, of Georgia] because she was not a resident...