Hamby v. Hamby, 20041

• Citation: 216 S.E.2d 536,264 S.C. 614
• Decision Date: 18 June 1975
• Docket Number: No. 20041,20041
• Court: United States State Supreme Court of South Carolina
• Parties: Irwin Lynn HAMBY, Respondent, v. Linda Snelson HAMBY, natural mother of Shelley Denise Snelson; Shelley DeniseSnelson, a minor under the age of Fourteen (14) years, and Robert DavidSnelson, natural father of Shelley Denise Snelson, of whom Robert David Snelsonis, Appellant.

Page 536

216 S.E.2d 536

264 S.C. 614

Irwin Lynn HAMBY, Respondent, v. Linda Snelson HAMBY, natural mother of Shelley Denise Snelson; Shelley DeniseSnelson, a minor under the age of Fourteen (14) years, and Robert DavidSnelson, natural father of Shelley Denise Snelson, of whom Robert David Snelsonis, Appellant.

No. 20041.

Supreme Court of South Carolina.

June 18, 1975.

Edward A. Harter, Jr., Columbia, for appellant.

James R. Barber, III, Columbia, for respondent.

LEWIS, Justice:

This is an adoption proceeding, brought pursuant to Section 10--2587.1 et seq. of the 1962 Code of Laws, as amended.

The sole question to be decided is whether the lower court was in error in holding that appellant, the natural father, abandoned his child so as to permit her adoption without his written consent. There is no dispute as to the governing legal principles. The issues are primarily factual. It is necessary, therefore, to determine, at the outset, the extent of our review of the factual findings of the lower court.

Code Section 10--2587.16 provides for an appeal from any final order in an adoption proceeding 'in the manner provided for appeals from such court in other civil matters.' While an adoption proceeding is statutory, Driggers v. Jolley, 219 S.C. 31, 64 S.E.2d 19, it is equitable in nature and review of judgments in such cases is controlled, in general, by the principles which govern review of judgments in equity matters.

Accordingly, the findings of fact by the trial judge will not be disturbed by this Court unless it appears that such findings are without evidentiary support or are against the clear preponderance of the evidence. However, this principle must be applied in the light of our holding in Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398, that 'in determining matters of this kind a wide discretion must be allowed the trial judge who sees and observes the parties and, of necessity, acquires a peculiar knowledge and comprehension of the situation from close contact with it.'

The defendants Linds Snelson (now Hamby) and Robert David Snelson were married in January 1965 and the child involved in this proceeding was born to them on August 18, 1965. They were separated at the time of the birth of the child and apparently never lived together again. The marriage ended in divorce on November 27, 1968. The court granted custody of the child to the mother and visitation rights to the father and required the father to provide support. The mother subsequently married the plaintiff, Irwin Lynn Hamby, on February 20, 1969, and the child has lived with the mother and stepfather since that time, apparently adjusting well in the new home.

This action was instituted by the plaintiff-stepfather in March 1974 to adopt the child of his wife by the prior marriage. The natural father refused to give his consent to the adoption but, after hearing the testimony, the trial judge concluded that the father had abandoned the child, making it unnecessary to have his consent. This appeal by the matural father challenges the finding that he had abandoned his child.

Recognizing that the question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances, we have held that, 'abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child,' 2 Am.Jur. (2d), Adoption, Section 32; but 'does not include an act or course of condut by a parent which is done through force of circumstances or dire necessity,' 2 Am.Jur. (2d), Adoption, Section 33. Bevis v. Bevis, supra, 254 S.C. 345, 175 S.E.2d 398; McCormick v. McMurray,260 S.C. 452, 196 S.E.2d 642.

The child was nine (9) years of age at the time of the hearing in this matter in the lower court, and the father has been in prison for the greater portion of the time since her birth. He was first placed in jail in August 1966, about one year after the child was...