Davey v. Evans

• Decision Date: 04 December 1980
• Docket Number: 59680,Nos. 59679,s. 59679
• Citation: 156 Ga.App. 698,275 S.E.2d 769
• Parties: DAVEY et al. v. EVANS et al. EVANS v. DAVEY.
• Court: Georgia Court of Appeals

Page 769

275 S.E.2d 769

156 Ga.App. 698

DAVEY et al. v. EVANS et al.

EVANS v. DAVEY.

Nos. 59679, 59680.

Court of Appeals of Georgia.

Argued April 15, 1980.

Decided Dec. 4, 1980.

W. Morgan Akin, Cartersville, for appellants.

Henry J. Heffernan, Roy D. Tritt, Charles C. Stebbins, III, Augusta, for appellees.

SMITH, Judge.

This case arises out of a dispute over the adoption and custody of Mary Angela Evans, age 3. The Daveys are her maternal aunt, uncle and grandparents, all residents of Cartersville, Bartow County, Georgia. The Evanses are her paternal aunt and uncle, who reside in Richmond County, Georgia. The child had been living with her parents in Tennessee. On April 5, 1979, the parents left Tennessee for a brief vacation in Florida. They left Mary Angela with her paternal grandparents, in Richmond County, Georgia. Tragically, the parents died in an automobile collision. For several months thereafter, the parties to this action shared custody of the child. Other than the individuals mentioned above, she has no known living relatives willing to care for her. On August 4, 1979, the Evanses filed a petition for adoption. The adoption was granted over appellants' objections. The issues presented are 1) whether the trial court had jurisdiction to enter an adoption decree and 2), assuming the court had jurisdiction, whether it erred, under the circumstances of this case, in granting the adoption. We affirm.

1. Under both Georgia and Tennessee law, it appears that Mary Angela was a domiciliary of Tennessee at the time of her parents' death. See Code § 79-404; Hayslip v. Gillis, 123 Ga. 263, 51 S.E. 325 (1905); Sailors v. Spainhour, 98 Ga.App. 475, 479, 106 S.E.2d 82 (1958). Appellants, citing Huff v. Moore, 144 Ga.App. 668, 242 S.E.2d 329 (1978), and Herrin v. Graham, 87 Ga.App. 291, 73 S.E.2d 572 (1952), contend that, since the child's domicile is in Tennessee, the Georgia courts are without jurisdiction to grant an adoption. Appellees argue that, under current Georgia law, the domicile of the child is not controlling.

The asserted domicile requirement has its origin in Former Code § 74-402, which provided: "The petition for adoption ... shall be filed ... in the superior court of the county in which said child shall be domiciled ..." See Portman v. Mobley, 158 Ga. 269 123 S.E. 695 (1924). In 1941, the adoption jurisdiction statute was amended. The new law provided: "All petitions for adoption shall be filed in the county in which the adopting parent or parents reside, except that upon good cause being shown, the court ... may allow the petition to be filed in the county of the child's domicile, or in the county in which is located any licensed child-placing agency having legal custody of the child..." Although the adoption jurisdiction statute no longer required that the child be domiciled in a county of this state, this court continued to adhere to the requirement that the child reside or be domiciled in Georgia. In Herrin v. Graham, supra at 292, 73 S.E.2d 572, this court held: "It would seem, 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." Several subsequent opinions of this court expressly relied on the holding in Herrin. See Altree v. Head, 90 Ga.App. 601, 604, 83 S.E.2d 683 (1954); Carpenter v. Forshee, 103 Ga.App. 758, 120 S.E.2d 786 (1961); Huff v. Moore, supra. In Carpenter v. Forshee, supra at 761-762, 120 S.E.2d 786, the court stated: "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' is in conflict with the above 1941 act, it is not necessary in this case to pass upon this contention."

We now address this contention and hold that the residence or domicile of the child in this state is not a jurisdictional prerequisite to adoption where the adoption proceeding is brought in the county of the adopting parents' residence. Rather, jurisdiction for adoption is governed by the express language of Code § 74-401: "The superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption, except such jurisdiction as may be granted to the juvenile courts. All petitions for adoption shall be filed in the county in which the adopting parent(s) resides, except that upon good cause being shown, the court of the county of the child's domicile or of the county in which is located any licensed child-placing agency having legal custody of the child sought to be adopted may, in its discretion, allow the petition to be filed in that court." "If the statute is silent as to any requirement of residence of the person who petitions for the adoption, or of the residence of the child within the state, it is generally held that such terms will not be implied, and the mere presence of the parties appears to be sufficient basis for jurisdiction." 2 Am.Jur.2d 901, Adoption, § 50. Our holding is consistent with the position adopted in other jurisdictions whose statutory provisions are similar to our own (see Pascual v. O'Shea, 421 F.Supp. 80 (D.Hawaii 1976); Petition of J. E. G. and M. K. G., 357 A.2d 855 (Dist.Col.App.1976); Annot. 33 ALR3d 176), and clearly reflects the intent of the legislature. ¹ To the extent that Huff v. Moore, supra, Carpenter v. Forshee, supra, Altree v. Head, supra, and Herrin v. Graham, supra, conflict with the views expressed herein, they are overruled.

It is undisputed that Mary Angela has lived in Georgia since her parents' death, spending most of this time in Richmond County. She is not in this state by virtue of any wrongful conduct. Appellees are residents of the county in which the adoption petition was filed. We conclude that the trial court had jurisdiction over the adoption proceedings. See McCall v. VanPopering, 124 Ga.App. 149, 183 S.E.2d 411 (1971). In view of the fact that Mary Angela has been physically present in Georgia at all times since her parents' death, we need not decide here whether, or the circumstances under which, a child must be physically present in Georgia in order for an adoption case to proceed.

2. Appellants assert that Mary Angela cannot be adopted until a guardian is duly appointed. We cannot agree. Although the adoption petition must state "whether the child has a guardian of its person" (Code § 74-407(a)), we are aware of no requirement that a guardian must be appointed before an adoption is legally permissible. "In adoption proceedings ... the best interest of the child is always a prime factor to be considered by the court." Owens v. Griggs, 151 Ga.App. 730, 261 S.E.2d 463 (1979). In the absence of any evidence showing that the failure to appoint a guardian is not in the best interest of the child, the failure to appoint a guardian is not cause for reversal.

3. Appellants challenge the adoption on the merits. However, "(t)he trial judge, who has the opportunity to observe the adults and children involved in a proceeding for adoption, and to listen to their testimony, has a wide discretion in determining whether the petition should be granted, and if the judgment is supported by any substantial evidence it should be affirmed by this court. Nix v. Sanders, 136 Ga.App. 859, 223 S.E.2d 21 (1975)." Weaver v. Deen, 151 Ga.App. 152, 259 S.E.2d 156 (1979). There being substantial evidence to support the trial court's determination that granting the adoption is in the best interest of the child, we will not interfere.

4. In their cross-appeal, appellees challenge the trial court's finding that "Mary Angela Evans remains a resident and domiciliary of the State of Tennessee." In view of our holding in Division 1 of this opinion, appellees' cross-appeal is moot and is therefore dismissed. See Peacock v. Cox, 243 Ga. 261, 253 S.E.2d 728 (1979).

Judgment affirmed on main appeal; cross-appeal dismissed.

SHULMAN, BANKE, BIRDSONG, CARLEY and SOGNIER, JJ., concur.

QUILLIAN and McMURRAY, P. JJ., concur in the judgment only.

DEEN, C. J., dissents.

DEEN, Chief Judge, dissenting.

An analysis of the cases sought to be overruled is in order. In the first of them, Herrin v. Graham, 87 Ga.App. 291, 73 S.E.2d 572 (1952) it was stated (p. 293) that "it is clear that the child's domicile was changed from Tennessee to Georgia" prior to the adoption proceeding. In Altree v. Head, 90 Ga.App. 601, 83 S.E.2d 683 (1954), the child, although English by birth, was "legally in the custody of the applicant whose domicile was shown to be in" the county of domicile of the adoptive parents, being the county where the petition for adoption was filed. The third case, Carpenter v. Forshee, 103 Ga.App. 758, 120 S.E.2d 786 (1961), the natural father, a nonresident, had appeared and defended the case and was found to have abandoned the child, who was domiciled in the county of the adopting parent, and that case specifically stated that it was not necessary to pass on the contention that there was a conflict of law between the present statute and the jurisdictional statement that the child must be a resident of or domiciled in the state also. In the fourth case, Huff v. Moore, 144 Ga.App. 668, 242 S.E.2d 329 (1978), the child was neither domiciled nor a resident in Georgia when the petition was filed, and this court properly held that the Superior Court of Richmond County had no jurisdiction of the subject matter of the suit. An adoption changes status. It is a proceeding in rem, and the child is the res. Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778, 83 A.L.R.2d 941; 2 Am.Jur.2d, Adoption, § 48, pp. 898, 89 et cit. That this is a salutary rule, see an extended...