Evans v. Rosser

• Decision Date: 22 September 1966
• Docket Number: 6 Div. 358
• Parties: Robert Julian EVANS v. Louis R. ROSSER et al.
• Court: Alabama Supreme Court

Page 716

190 So.2d 716

280 Ala. 163

Robert Julian EVANS v. Louis R. ROSSER et al.

6 Div. 358.

Supreme Court of Alabama.

Sept. 22, 1966.

Corretti, Newsom & Rogers, Birmingham, for appellant.

Ling & Bains, Bessemer for appellees.

MERRILL, Justice.

This appeal is from a decree of the Probate Court of Jefferson County granting adoption of a young boy, James Rickey Evans, by his grandparents, the Rossers, who are the appellees. The appellant is the adoptive father of the boy who had been divorced by the boy's mother. The appellant contends that the adoption proceedings are a nullity because he did not consent.

The boy, James Rickey Posey, was born November 3, 1959, to James A. Posey and Olivia Rosser Posey, who were married on January 13, 1959, and divorced August 17, 1959, before the birth of the child. His mother married appellant in November, 1960, and appellant adopted James Rickey in December, 1961. Appellant and Olivia were divorced in January, 1965, with Olivia being given the custody of the child and appellant being denied visitation rights. Appellant appealed and we affirmed, Evans v. Evans, 278 Ala. 573, 179 So.2d 320.

On February 16, 1965, the Rossers, appellees and maternal grandparents of James Rickey, filed a petition for his adoption to them. Appellant filed a motion to dismiss the petition because, as the adoptive father, he had not given his consent. This motion was denied and the decree approving the adoption of James Rickey by the Rossers was entered December 27, 1965.

Appellant argues under proper assignments of error that the court erred in not dismissing the petition and in entering the decree of adoption because appellant, the legal adoptive parent, did not consent to the adoption.

In Alabama, the right of adoption is purely statutory and in derogation of the common law, and the probate court acts as a court of limited jurisdiction in adoption proceedings, and unless the statute by express provision or necessary implication confers the right of adoption, such right does not exist. Doby v. Carroll, 274 Ala. 273, 147 So.2d 803.

The applicable statute is Tit. 27, § 3, Code 1940, which provides in part:

'No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, or who cannot be found, or who is insane or otherwise incapacitated from giving such consent, or who has lost guardianship of the child, through divorce proceedings, * * * may be dispensed with, * * *.'

The petition for adoption in the instant case did not aver that the appellant had abandoned the child, could not be found, was insane or otherwise incapacitated. It did not, in fact, mention his name, but said:

'* * * That the names and addresses of the parents or next of kin of said child are as follows:

'Olivia Rosser Evans, Route 14, Box 1396, Birmingham, Alabama the mother, who was awarded custody of said child by decrees of the Circuit Court of Jefferson County, Alabama, Bessemer Division, in Case No. 17785 and Case 21010 'That said child is in the custody or guardianship of Olivia Rosser evans.'

The necessary implication from the averment in the petition is that the mother had the custody or guardianship of the child and that it was so awarded by the divorce decree. We think this averment sufficiently met the statutory requirement and 'the jurisdiction of the probate court was properly invoked because the petition filed in the probate court contained all the allegations necessary to give the court jurisdiction.' Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100.

But appellant argues that we cannot reach such a conclusion because of the holding in McGowen v. Smith, 264 Ala. 303, 87 So.2d 429, that the probate court was without jurisdiction to grant adoption when the consent of the natural father was not obtained, and the mother was awarded custody of the child under a divorce decree, but the father was permitted visitation rights under the same decree.

The facts here are easily distinguished from McGowen v. Smith,supra. Here, the appellant, the adoptive father, had no rights of visitation. Here, where the divorce of the mother of Rickey from appellant was on the ground of cruelty, and the testimony was that appellant had beaten Rickey with a belt on several occasions, the trial court denied visitation rights to appellant and stated that all matters pertaining to the visitation privileges of appellant with James Rickey were reserved pending the conduct of appellant. The decree went further and enjoined appellant from going on the premises where his wife was living...