Horlock v. Oglesby, 30841

• Decision Date: 20 December 1967
• Docket Number: No. 30841,30841
• Citation: 249 Ind. 251,231 N.E.2d 810
• Parties: Alton Elverdo HORLOCK, Appellant, v. James Raymond OGLESBY, Doris Jean Oglesby, Appellees.
• Court: Indiana Supreme Court

Page 810

231 N.E.2d 810

249 Ind. 251

Alton Elverdo HORLOCK, Appellant, v. James Raymond OGLESBY, Doris Jean Oglesby, Appellees.

No. 30841.

Supreme Court of Indiana.

Dec. 20, 1967.

John D. Clouse, Evansville, for appellant.

Theodore Lockyear, Evansville, for appellees.

JACKSON, Chief Justice.

This appeal comes to this Court by opinion of the Indiana Appellate Court made pursuant to Acts 1901, ch. 247, § 9, p. 565, as amended by Acts 1963, ch. 279, § 1, p. 424, being § 4--214 Burns, 1963 Replacement. (See Horlock v. Oglesby (1965), Ind., 210 N.E.2d 56).

This appeal stems from an action instituted in the court below by a petition filed by appellees, husband and wife, for the adoption of the wife's minor child born as a result of her former marriage. The original action was filed August 7, 1963. The court examined the petition, found the same in proper form and directed the clerk of the court to forward one copy of the petition to the State Department of Public Welfare and one copy to the Vanderburgh County Department of Public Welfare.

Thereafter on the 16th day of December, 1963, the petitioners filed their amended petition for the adoption of such child. Such petition, omitting formal parts, signatures and jurat, reads as follows:

'James Raymond Oglesby and Doris Jean Oglesby, husband and wife, being residents of Vanderburgh County, State of Indiana, and desirous of adopting Monte Alan Horlock, a minor child of the age of seven (7) years, petition the Court and show as follows:

1.

'That said minor child, Monte Alan Horlock, is caucasian, male child, born in Evansville, Vanderburgh County, Indiana, on July 14, 1956. That said child has been with the parties hereto at all times since their marriage on the 13th day of February, 1960. That since January, 1963, these petitioners have resided at 1908 Rhode Island Drive, Evansville, Indiana. That James Raymond Oglesby is an iron worker and he and his wife and said child have had temporary residences in North Dakota, California, Arizona and Kentucky during said period of time but have at all times maintained Vanderburgh County, Indiana, as their permanent residence and home.

2.

'That said minor child does not possess any property, real or personal, nor anything of value.

3.

'That the name of the adopting parents herein are: James Raymond Oglesby, now aged 31 years, and who was born in Beach Creek, Muhlenberg County, Kentucky, on November 25, 1931, and Doris Jean Oglesby, now aged 27 years, and who was born in Marengo, Crawford County, Indiana, on August 25, 1935. That these parties were united in marriage on the 13th day of February, 1960, in Shawneetown, Gallatin County, Illinois, and that they presently reside at 1908 Rhode Island Drive, Evansville, Indiana.

4.

'Petitioners would further show the same minor child was born as a result of a marriage between Doris Jean Horlock and Alton Elverdo Horlock. That said marriage ended in divorce on the 23rd day of May, 1958.

5.

'Petitioners would further show to the Court that the natural father of said minor child is Alton Elverdo Horlock.

6.

'Petitioners would further show to the Court that the consent of the natural father, Alton Elverdo Horlock, to the adoption herein should be dispensed with for the reason that said Alton Elverdo Horlock has for more than six months immediately preceding the date of the within petition, deserted and abandoned said minor child, and has failed and neglected for a period of more than one year immediately prior to the filing of the within petition for adoption, to pay any support money for said minor child, or to support said child in any manner whatsoever.

7.

'Petitioners would further show to the Court that James Raymond Oglesby is employed as an iron worker and is financially able to provide a good and proper home to rear said child.

8.

'Petitioners would show to the Court that should this adoption herein prayed for be granted, it is the desire that this minor child be given the name of Monte Alan Oglesby.

'WHEREFORE, petitioners pray the Court to examine this petition and determine whether the same is in proper form, and if found to be in proper form, to order the Clerk to forward one copy of said petition to the State Department of Public Welfare and one copy of said petition to the Vanderburgh County Department of Public Welfare for investigation and to hear evidence on this petition and to determine whether or not this adoption should be granted as prayed, and that this Court order notice to be issued to Alton Elverdo Horlock herein, and for all other just and proper relief in the premises.'

On February 6, 1964, appellant filed his answer to the petition herein, which answer in pertinent part reads as follows:

'1.

'That he denies the allegations of rhetorical paragraphs 1, 2, 3, 6, 7 and 8 of said Amended Petition.

2.

'That he admits the allegations of rhetorical paragraphs 4 and 5 of said Amended Petition.

'WHEREFORE, said natural father prays that said Amended Petition for Adoption be denied.'

Thereafter, on May 26, 1964, appellant filed to said amended petition, his second paragraph of answer, such answer in pertinent part reads as follows, to-wit:

'That the statute of the State of Indiana which permits the adoption of minors where the natural father has not supported said child is in violation of the 14th Amendment, the due process of law and equal protection thereto to the Constitution of the United States thereto, and also in violation of the State of Indiana, Article I, section 12, the due course of law section of said Constitution, said statute being void and unconstitutional both upon its face and also in its application herein. That said statute does not permit adoption without consent when a father does not pay support if he is able and refuses to do so but it permits adoption without consent whether or not the father is able to pay support. That the laws of the State of Indiana provide adequate remedies both by civil contempt process and criminal jurisdiction when the father does not support his child and further provide remedies wherein a father has removed himself from the state.

'WHEREFORE, respondent prays that petitioners take nothing by their petition.'

The record shows that on the 23rd day of December, 1963, the Vanderburgh County Department of Public Welfare filed its written report of its investigation and recommendation in said cause, the same in pertinent part reads as follows:

'The Vanderburgh County Department of Public Welfare has read the petition of James Raymond Oglesby and Doris Jean Oglesby for the adoption of Monte Alan Horlock.

'Due to the circumstances as stated in the petition, in which Doris Jean Oglesby, wife of James Raymond Oglesby, is the natural mother of this child and gives her consent herewith, it is recommended that the petition be granted.'

On the 26th day of May, 1964, on the issues formed by the amended petition and appellant's answers thereto, the cause was tried to the court without the intervention of a jury, resulting in a judgment in favor of appellees, which judgment in pertinent part reads as follows:

'* * * said cause now being at issue, proceeds on for trial, finding and judgment, and the Court having heard the evidence and being duly and sufficiently advised, in the premises finds that the allegations of petitioners' petition are true and finds that the respondent shall take nothing by way of his First Paragraph of Answer or of his Second Paragraph of Answer.

'The Court further finds that it is to the best interest of said child that the petition prayed for herein be granted; that the adopting parents are of sufficient ability to rear and furnish suitable support and education for said minor child. The Court further finds that said child was born on July 14, 1956, in Evansville, Vanderburgh County, Indiana; that the adopting father was born in Beech Creek, Muhlenberg County, Kentucky, on November 25, 1931, and the adopting mother was born in Marengo, Crawford County, Indiana, on August 25, 1935. That said adopting father and mother now reside at 1908 Rhode Island Drive, Evansville, Indiana, and that the petitioners were duly married on 13th day of February, 1960.

'The Court further finds that from and after the making of this order of adoption, said minor child shall thereafter take the name prayed for in said petition to-wit: Monte Alan Oglesby, and that said child shall be entitled to receive all rights and interests in the estate of such adopting parents, by descent or otherwise, which such child would be entitled to receive if he had been the natural heir of such adopting parents.

'IT IS THEREFORE ORDERED BY THE COURT that the petition for the adopting of Monte Alan Horlock, a minor, be and it is hereby granted and that said child take the name prayed for in said petition for adoption to-wit: Monte Alan Oglesby.

'IT IS FURTHER ORDERED that said child shall be entitled to receive all rights and interests in the estate of the adopting parents herein, by descent or otherwise, which such child would be entitled to if he had been the natural heir of such adopting parents.

'The Clerk of this Court is directed to certify copies of this order to the State Department of Public Welfare and to the State Board of Health at Indianapolis, Indiana.'

Thereafter, on the 10th day of June, 1964, appellant filed a motion for a new trial. Such motion was based on each of the following two grounds, viz:

'1.

'The decision of the Court is not sustained by sufficient evidence.

'The decision of the Court is contrary to law.'

The court overruled the appellant's Motion For New Trial on October 14, 1964.

Appellant's Assignment of Errors is the single ground:

'The court erred in overruling appellant's motion for a new trial.'

A short re sume of the evidence most favorable to the appellees discloses that appellant and appellee Doris Jean Oglesby are the parents of Monte Alan Horlock (Oglesby) who was born during and as the...