In re Adoption of Abelsen

• Citation: 225 P.2d 768,190 Or. 319
• Parties: In re Adoption of ABELSEN. VOLZ et al. v. ABELSEN.
• Decision Date: 19 December 1950
• Court: Oregon Supreme Court

225 P.2d 768

190 Or. 319

In re Adoption of ABELSEN.

VOLZ et al. v. ABELSEN.

Supreme Court of Oregon.

December 19, 1950

Larry Landgraver and Leo Levenson, both of Portland, for petitioner.

No appearance for respondent.

Before LUSK, C. J and BRAND, ROSSMAN, HAY, LATOURETTE and WARNER, JJ.

LATOURETTE Justice.

Petitioners have filed a petition for rehearing and urge that the court, in its opinion, erred in holding that: 'The court necessarily acquires jurisdiction through the allegations of the petition.' It is argued that 'There is a presumption of jurisdiction which attaches to courts of general jurisdiction.' Counsel cites 1 Am.Jur § 33, 636, and 1 Am.Jur. § 34, 637, and In re Grazzini's Estate, 31 Cal.App.2d 168, 87 P.2d 713.

A close analysis of the text in 1 Am.Jur., § 33, supra, reveals that counsel has sequestered a portion of the text in his quotation of the rule which gives what is called the modern tendency of the courts in adoption matters. Had he read further from such § 33, he would have found, quoted at p. 637 that: 'Other courts regard adoption proceedings, even in a court of general jurisdiction, as being a special and summary power conferred upon the court not after the course of the common law, and therefore regard the action of such a court in adoption proceedings as being similar to that of a court of limited and special jurisdiction in that all jurisdictional facts must appear affirmatively by the record. There can be no presumption, in such case, that jurisdiction was obtained over the parent of the child if the record of the adoption is silent on the subject.'

If counsel had taken the trouble to run down the Oregon authorities, he would have discovered In re Frazier's Estate, 180 Or. 232, 238, 177 P.2d 254, 256, 170 A.L.R. 729, wherein this court, after calling attention to 1 R.C.L., Adoption of Children, § 4, 595, repudiated the so-called modern tendency of the courts doctrine in the following language: 'As recently as Williams v. Capparelli, 180 Or. 41, 175 P.2d 153 [decided December 10, 1946], this court held that, the right of adoption being of civil origin and unknown to the common law, statutes of adoption must be strictly construed. See, to the same effect, Long v. Dufur, 58 Or. 162, 170, 113 P. 59; Furgeson v. Jones, 17 Or. 204, 217, 20 P. 842, 11 Am.St.Rep. 808, 3 L.R.A. 620.'

In the case of In re Grazzini's Estate, supra, the modern tendency rule was adopted, which, as above stated, is not the law in Oregon.

The court's attention is also called to Furgeson v. Jones, supra. In that case the child's mother, who had been awarded the custody of the child in a divorce proceeding, gave her consent to the adoption. The child's father, who resided without the state of Oregon, was not served with notice. This court, speaking of the jurisdiction of the county court in ordering the adoption, 17 Or. at page 210, 20 P. at page 845, said: 'To give its decree any force or effect, jurisdiction must have been acquired by the court (1) over the persons seeking to adopt the child, (2) over the child, and (3) over the parents of such child.'

In that case the court was referring to the jurisdiction of the person and not of the subject matter. In the present case we are concerned only with the jurisdiction of the subject matter.

We find in 2 C.J.S., Adoption of Children, § 37, 419, the following: 'Under statutes authorizing adoption without the natural parent's consent where he has abandoned the child or is unfit to have custody of it, it is generally held that a petition alleging such abandonment or unfitness must comply with the statutory requirements in order to confer jurisdiction.'

In the case of State ex rel. v. Frentz, 256 Ill.App. 259, involving a collateral attack on the order of adoption, that court held that the petition for adoption of a child, setting forth as a ground the abandonment of the child for a period of three years by the surviving parent, was insufficient under the law in not averring abandonment for a period of six months next preceding the filing of the petition and ruled the adoption void.

In the case of Truelove v. Parker, 191 N.C. 430, 132 S.E. 295, the court held that a petition in an adoption proceeding, alleging abandonment of child by parents, must comply strictly with the provisions of the statute relating to such abandonment.

After drafting and printing the petition for rehearing in the instant case, petitioners attached an appendix to the smae in which it is stated:

'* * * we believe the court further erred in failing to consider Section 63-402, O.C.L.A., which provides that in case the legal custody of such child shall have been awarded in divorce proceedings, the consent of the person to whom such custody has been so awarded may be held by the court sufficient, but in such case citation to show cause shall be served upon the person not having the custody, and the objections of such parent shall be heard, if appearance be made. In this case the petitioners have been awarded the custody of the child.

'Therefore, it is not a question of jurisdiction in this case, as the natural father's consent was not legally essential.'

This question has not heretofore been before the court in the instant case, and we will now consider the same.

To understand the question before us, we will recount the facts applicable to the matter. Upon the divorce between the father and the mother of the child, the mother was awarded the child's custody. The mother died, whereupon, petitioners, on the 1st of February, 1949, filed a petition for the adoption of said child. Upon a hearing the court denied the adoption, whereupon, on the 11th day of April, 1950, a petition for the adoption of said child in the instant case was filed.

From such petition we find that the court, on its own motion, after all of the evidence was in, issued an order in the divorce case between the father and mother of said child, because of the death of the mother of said minor, vesting the care, custody and control of the minor in the petitioners, i. e., the maternal grandparents.

The question before us turns upon the legality of the modification of the divorce decree awarding the custody of the child in question to the petitioners.

When the wife died in the instant case, the divorce court ceased to have jurisdiction over the divorce proceedings as to any further or future action in the matter. In 17 Am.Jur. § 689, 524, we find: 'The general rule is that where the custody of children is granted to one spouse, such custody does not forever cut off and bar the other spouse's right to their custody so long as the decree is unmodified, but only establishes the right between the two spouses during their lives; and upon the death of the one to whom the custody of the child was awarded, his or her right does not descend nor can it be transmitted, and therefore the right of the other spouse to the custody of the child revives or attaches as against third persons, provided, of course, he or she is a suitable person. In other words, upon the death of one of the parties diviorced by judicial decree, the divorce proceeding falls so far as concerns any further right to the custody of children.'

The case of LeClerc v. LeClerc, 85 N.H. 121, ...