In re Adoption of a Minor, 11855.

• Decision Date: 06 May 1954
• Docket Number: No. 11855.,11855.
• Citation: 214 F.2d 844
• Parties: In re ADOPTION OF A MINOR.
• Court: U.S. Court of Appeals — District of Columbia Circuit

214 F.2d 844 (1954)

In re ADOPTION OF A MINOR.

No. 11855.

United States Court of Appeals District of Columbia Circuit.

Argued December 7, 1953.

Decided May 6, 1954.

Petition for Rehearing Denied September 2, 1954.

Mr. John Geyer Tausig, Washington, D. C., for appellant.

Mr. Leon Pretzfelder, Washington, D. C., with whom Mr. John F. Cooney, Washington, D. C., was on the brief, for appellees.

Before WILBUR K. MILLER, PRETTYMAN and WASHINGTON, Circuit Judges.

Petition for Rehearing In Banc Denied September 2, 1954.

WASHINGTON, Circuit Judge.

This is an appeal from a judgment of the District Court, allowing the adoption of a child by its natural mother and her present husband. The child's natural father appeals.

Appellant and respondent (the child's mother) were married in 1947.¹ They had a son — the subject of this litigation — in 1948. In 1949 they separated, and on February 17, 1950, entered into a separation agreement. This agreement provided that the mother should have the "entire control and custody of the child," but that the child "may visit and see appellant * * * as they may desire and as the parties hereto may agree." A property division was also contained in the agreement. And appellant agreed to pay $75.00 a month for the maintenance of the child during his minority. To secure this obligation the agreement provided for the creation of a trust with a corpus of $16,000. The trust, created simultaneously with the separation agreement, provided for monthly payments until the child's twenty-first birthday; at that time the corpus is to go over to the child. Other provisions of the trust will be described on later pages.

After separating from respondent, appellant established a Florida residence and in May of 1950 commenced an action for divorce in that state. Respondent was represented by counsel. An absolute divorce was granted to appellant on May 29, 1950. The final decree of the Florida court incorporated by reference the "property settlement agreement between the parties executed the 17th day of February, 1950 * * *."

Respondent remarried in 1951. On May 6, 1952, she and her present husband petitioned the District Court for permission to adopt. Appellant answered requesting that the District Court allow the adoption "only if this Court determines that said adoption will be in the best interests of * * * the child and only if this Court determines that the balance of the above-mentioned trust corpus should be returned" to appellant.

The District Court in an order of summary judgment and a final judgment of adoption allowed the adoption, finding it to be in the best interests of the child. It did not, however, order the return of the trust corpus.

The District of Columbia adoption statute provides generally that no decree of adoption shall be made without the consent of the natural parent.² There are, however, several statutory exceptions. The District Court in allowing adoption relied on the exception reading: "The consent of a natural parent, or parents * * * may be dispensed with * * * (2) where they have been permanently deprived of custody of the adoptee by court order * * *." D.C.Code, Title 16, § 202, 1951. It held that the Florida decree incorporated the custody provisions of the separation agreement and, consequently, "permanently" deprived appellant of custody. Appellant challenges this holding on three grounds: first, that the Florida court had no jurisdiction to award custody of the child because, says his counsel, the child was not then within the State of Florida; second, that the court did not purport to award custody of the child since it incorporated in its decree only the "property settlement" of the parties; and, third, that since appellant retained a right of visitation under the terms of the separation agreement he has not been "permanently" deprived of custody within the meaning of the District adoption statute.

We cannot accept these contentions. No question as to the jurisdiction of the Florida court was raised in the District Court. Under the circumstances, sound judicial practice leads us to decline to consider the point.³ Litigation must have an end: parties must make full use of their day in court, and not seek to overturn an adverse judgment by raising new issues on appeal. Of course, in unusual circumstances, to prevent a clear miscarriage of justice, an exception will be made. See Mulligan v. Andrews, 1954, 93 U.S.App.D.C. 375, 211 F.2d 28; Schaff v. R. W. Claxton, Inc., 1944, 79 U.S.App.D.C. 207, 144 F. 2d 532. But no such case is before us now. This is, in fact, a strong case for assertion of the established rule. The record does not support appellant's contention: it contains no proof that the child was not in Florida when the Florida decree was rendered. Certainly we cannot presume that a jurisdictional prerequisite was absent.⁴ On the contrary, "A judgment presumes jurisdiction over the subject matter and over the persons." Cook v. Cook, 1951, 342 U.S. 126, at page 128, 72 S.Ct. 157, 159, 96 L.Ed. 146. Under the Full Faith and Credit Clause, "The burden of undermining the verity" of the decree of a sister jurisdiction "rests heavily upon the assailant." Williams v. North Carolina, 1945, 325 U.S. 226, at pages 233-234, 65 S.Ct. 1092, at page 1097, 89 L.Ed. 1577. Here the appellant has not begun to meet the burden. Consideration of appellant's argument would, therefore, require us to remand the case for the taking of further evidence and the making of new findings. This is a serious interference with orderly administration; much more so than merely deciding a question of law not raised in the trial court. True, a court may at any time, even on its own accord, raise questions pertaining to its own jurisdiction. But a lack of jurisdiction in the Florida court in this case could in no way affect the jurisdiction of the courts of the District of Columbia.⁵

Appellant was the plaintiff in the Florida action. He invoked the jurisdiction of the court, received a favorable judgment, and presumably was instrumental in the formulation of the decree. In this situation he may well be estopped from attacking the jurisdiction of the Florida court in a collateral proceeding.⁶ His present attack on the Florida decree, moreover, is not to regain custody of the child, or to set aside the substance of the decree in any other way. Apparently he is quite satisfied to have the child remain with its mother. Appellant's objective is to cast doubt on the Florida decree for the limited purpose of avoiding the application of the District of Columbia adoption statute. We need not decide whether he is technically estopped from making such a challenge. It is enough to say that under the circumstances we are not inclined to grant him the affirmative privilege of raising his contention here when he did not do so in the trial court.

We also think that the District Court correctly held that the Florida court in incorporating by reference the "property settlement agreement" meant to include and did include the custody provisions. Provision for the trust, for custody and for a division of property all appeared in the same document. This was labeled simply "Agreement." Surely if the Florida court had desired to incorporate only a part of the document it would have said so. We think that the Florida court meant by the property settlement agreement the document as a whole.

Appellant's other objection — that a natural parent is not "permanently" deprived of custody so long as visitation rights are retained — is new to the District of Columbia.⁷ Several cases, taking varying positions, have been decided on the point in other jurisdictions. They interpret, of course, statutes of varying text. A Washington statute, for example, dispensed with consent where the parent was "unconditionally" deprived of custody.⁸ And a Washington case interpreting that statute held that parental consent, so long as visitation rights are retained, is necessary.⁹ A Kansas statute read: "If the parents * * * have been divorced, `the consent of the parent to whom custody * * * shall have been awarded shall be necessary * * * but the consent of the other parent * * * shall not be necessary.'" And a Kansas case decided under that statute held that the consent of a parent having visitation rights may be dispensed with.¹⁰

Our statute, of course, speaks of a decree "permanently" depriving a parent of custody. A right of visitation may perhaps be so definite in its terms and so substantial in its scope and effect as to render unreasonable a holding that the parent enjoying that right has been permanently deprived of custody. But this is a question we need not decide, for no such situation is before us in this case. Here the mother was given "entire control and custody." The contract imposed no real limitation on that sweeping grant, in favor of appellant. It was the child who was to be entitled to "visit and see appellant * * * as they may desire and as the parties hereto may agree." No doubt this last provision was not altogether illusory: appellant would be at least entitled to good faith consideration of his requests for visitation. But in the cases relied upon by appellant the visitation provisions were far more definite. They granted the parent the right to visit at stated times or at all reasonable times.¹¹ We note also the allegation of the complaint that at no time did appellant make "any effort to arrange to see" the child. Appellant did not deny this, though he said he has "reasons" for his attitude. Whatever right or privilege of visitation the agreement granted thus remained unclaimed, unexercised, and unclarified by conduct. Under the circumstances, we think that the District Court could properly find that the decree of the Florida court "permanently deprived" appellant of custody.

As to appellant's claim for revocation of the trust, we think the District Court's decision was correct. The trust is by its...