Emmons v. Dinelli, 29408

• Decision Date: 27 March 1956
• Docket Number: No. 29408,29408
• Citation: 235 Ind. 249,133 N.E.2d 56
• Parties: Lucille M. Galloway EMMONS, Appellant, v. Hazel L. DINELLI, Sharon Lee Dinelli, Mary Alice Galloway Dinelli, Hazel L. Dinelli, as Guardian ad litem of Sharon Lee Dinelli, and Mary Alice Galloway Dinelli, Appellees.
• Court: Indiana Supreme Court

Page 56

133 N.E.2d 56

235 Ind. 249

Lucille M. Galloway EMMONS, Appellant, v. Hazel L. DINELLI, Sharon Lee Dinelli, Mary Alice Galloway

Dinelli, Hazel L. Dinelli, as Guardian ad litem of

Sharon Lee Dinelli, and Mary Alice

Galloway Dinelli, Appellees.

No. 29408.

Supreme Court of Indiana.

March 27, 1956.

Samuel Schulman, Paul V. Paden, South Bend, F. LeRoy Wiltrout, Elkhart, for appellant.

Albert L. Doyle, Mishawaka, for appellees.

ACHOR, Judge.

Albert Dinelli, now deceased, and his wife Hazel L. Dinelli filed a petition in the St. Joseph Probate Court on January 19, 1951 for the adoption of Mary Alice Galloway, a minor child of the appellant by her deceased husband. Said petition alleged that the appellant had abandoned and deserted Mary Alice for more than six months prior to the filing of the petition and therefore her consent to the adoption should be dispensed with. The appellant appeared and resisted the granting of said petition primarily on the ground that she had not abandoned or deserted her child within the meaning of the Indiana statutes governing adoption. The court, however, found that she had 'abandoned and/or deserted' the child, and decreed the adoption of the child without the consent of appellant.

The decision is challenged on the ground that it is not sustained by sufficient evidence and is contrary to law. Albert Dinelli having died in the meantime, this controversy has become one between his widow Hazel Dinelli and the appellant, and our use of the word 'appellee' hereafter refers to Hazel Dinelli only.

The evidence taken at the trial is voluminous and characterized by many marked conflicts in the testimony. The contrast in the testimony of the parties is likened to that of a single canvas painted on both sides. However, inasmuch as the trial court, who saw the witnesses, observed their demeanor and heard the testimony from their lips, decided these conflicts in favor of appellee, it is not within the province of this court to weigh the evidence but to consider only that evidence most favorable to appellee and the reasonable inferences drawn therefrom, and to determine therefrom whether that evidence is sufficient to sustain the decision of the court within the standard of proof required by the law. Pokraka v. Lummus Co., 1952, 230 Ind. 523, 104 N.E.2d 669; New York Central Ry. Co. v. Milhiser, 1952, 231 Ind. 180, 106 N.E.2d 453, 108 N.E.2d 57; State ex rel. Roberts v. Graham, 1953, 231 Ind. 680, 110 N.E.2d 855; Johnnie J. Jones Exposition Co. v. Terry, 1945, 116 Ind.App. 189, 63 N.E.2d 159.

The evidence presents us with the circumstances where a young mother, whose husband died on December 10, 1946, was left with two small children, Carol Anne, aged four years, and Mary Alice aged four months, to care for and support. At the time of her husband's death, Carol Anne was staying with a paternal uncle and aunt, Mr. And Mrs. Hubert L. Keith, where she has remained ever since without support from the appellant. After her husband's death, appellant moved in with the Keiths and stayed there during the remainder of the month of December, 1946. During this time she would leave in the morning and return in the evening. She did not take care of her children nor contribute to their support. In January, 1947, appellant took her infant daughter, Mary Alice, and moved in with her mother and father, where they stayed until the month of March.

Appellant then placed the child in the home of appellee, also a paternal aunt, under the following circumstances:

Appellant sent word to appellee that her father had 'kicked her out,' and that she had 'no place to go' and that unless appellee would take Mary Alice she 'would have to put her in an orphans' home.' Appellant now says that she and Mary Alice 'could have stayed with them (her parents), but didn't.' Confronted with this representation, appellee reluctantly agreed to take the baby, then seven months of age, with the understanding that appellant would help take care of her, and that appellant would take her back and make a home for her on June 1, 1947, when she finished a beauty course.

Having thus placed her children, appellant moved out of the home of her parents and into the home of her mother-in-law, Mary Galloway, where she lived until July, 1949. There was no understanding regarding payment of support for the child except that the social security payments received by reason of her father's death, which were not sufficient for the child's actual expenses of support, were made payable to appellee. Appellant did not finish her beauty course on June 1, and then asked appellee to keep the child until September 1, when the course would be completed. This appellee agreed to do. However, after completing her beauty course on September 1, appellant did not take her child as agreed and appellee continued to keep and care for her, except on week-ends and holidays, when appellant took the child at the insistence of appellee. On these occasions appellant would take the child to the home of Mrs. Galloway, where she enjoyed the free use of the home. On every such occasion appellant dressed up and went out, leaving Mrs. Galloway to take care of the child. She would return after Mrs. Galloway and the baby were in bed. When she had the children appellant would 'nag them,' 'abuse them,' 'slap them,' 'call them names,' and say she was going 'to put them in the orphans' home.' Mary Alice would be returned dirty, her clothes soiled and 'a mess.'

On Thanksgiving and Christmas, 1947, appellee asked appellant to take Mary Alice and get Carol Anne so that she could have the children together. On both of these occasions the child was returned sick at her stomach, followed by violent vomiting during the night. On the latter occasion, appellant told appellee that the child 'had been a hell all day,' and she was glad to bring her back. Following these unfortunate incidents, Mrs. Galloway contacted appellee and urged her not to let appellant have the baby again on account of the way she abused the child when she had it with her. Following these experiences, appellee told appellant 'never take Mary Alice again and bring her back sick,' that 'when you take her again it will have to be for good.' After Christmas, 1947, appellant never took the child from appellee's home for any period of time, and never again asked for the child except on two occasions in 1950. On each of these occasions appellant was reminded of her former treatment of the child and was told, 'If you take Mary Alice, you will have to keep her.' Appellant left without the child on each of these occasions.

During 1947 the relationship between appellee and appellant was friendly. Thereafter it was indifferent. Appellant visited the child almost every week in 1947 and 1948. However, in 1949, the visits began 'tapering off.' Appellant 'would come once a week, miss two or three weeks * * * come every week, then skip a month.' The visits were usually short. They often occurred while the child was asleep. On other occasions she would 'pick up the child' but 'there was little show of affection.' There were no visits by or communications from appellant between Christmas 1949 and Valentine's Day, 1950. Thereafter for a few months appellant and Mr. Emmons would stop by every two or three weeks, and on these visits appellant would occasionally lay down a five dollar bill and say, 'This is for Mary.' On May 30, 1950, appellant gave appellee a ten dollar bill and stated: 'This is Mary's room rent,' to which appellee replied, 'You are not paying room rent for Mary, you never have.' The money was returned to appellant and appellant thereafter neither offered nor contributed anything toward the child's support, although she did bring her gifts on three occasions prior to the filing of these proceedings on January 19, 1951.

Facts in evidence regarding appellant's financial position are as follows: After payment of the debts and funeral expenses of her husband, her material assets consisted of her household furnishings and slightly more than $2,000 cash. Appellant had no earnings until September, 1947. From September, 1947 to January, 1948 she made $15 a week as a beauty operator. From January to June, 1948, she worked at Ball Band Rubber Company, where she made approximately $45 a week. From June, 1948, until after the filing of these proceedings on January 19, 1951, appellant worked at Bendix, where she made $85 a week except for short layoffs. Appellant lived with Mrs. Galloway from March, 1947, to July 1950, but paid no rent. She paid no support to the Keiths for Carol Anne and gave appellee occasional 'gifts' for Mary Alice, totalling 'about $200.00.'

Further evidence bearing on appellant's attitude toward her child is the fact that although the child had the usual children's diseases such as chickenpox, measles, mumps, etc., appellant did not take care of her during any of these periods and, on one occasion in 1948, when appellee asked for relief, appellant refused, stating she might catch the disease herself.

Appellant and Jack Emmons were married on October 29, 1950. In the early part of December, 1950, appellee and the Keiths arranged for a conference with appellant, then Mrs. Emmons, for the purpose of determining her intentions regarding her children. Mr. and Mrs. Emmons were living in the basement of a house they were building, doing all the work themselves on evenings and week ends. Appellant was reminded that she had been married for several weeks and that 'nothing had been said about plans for the children.' To this inquiry, appellant replied: 'Well, you have been taking care of her all the time. Why all of a sudden do you want us to take her? We want to have a home, furniture and everthing before we take the children, maybe we can take them when school starts.' Appellant was then told, 'If you do not want the children,' appellee would adopt Mary Alice and the Keiths would adopt Carol Anne. Appe...