In re McAvoy v. Ekberg

• Decision Date: 14 June 1943
• Docket Number: No. 20298.,20298.
• Citation: 173 S.W.2d 108
• Parties: IN RE ADOPTION OF JERRY McAVOY, A MINOR, WILLIAM THELEN AND DOLORES THELEN, APPELLANTS, v. ELMER EKBERG AND EVELYN EKBERG, RESPONDENTS.
• Court: Missouri Court of Appeals

173 S.W.2d 108

IN RE ADOPTION OF JERRY McAVOY, A MINOR, WILLIAM THELEN AND DOLORES THELEN, APPELLANTS, v. ELMER EKBERG AND EVELYN EKBERG, RESPONDENTS.

No. 20298.

Kansas City Court of Appeals, Missouri.

June 14, 1943.

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

Chas. N. Sadler for appellants.

(1) Statutes relating to adoption being in derogation of the common law must be strictly, or at least substantially complied with. Lamb v. Feeban, 276 S.W. 71, 78; Fineup v. Stauer, 28 S.W. (2d) 437, 439. (2) Trial in juvenile court is upon the rules, customs and practice in equity cases. Sec. 9674, R.S. 1939. (3) Mother of illegitimate child is entitled to its custody. Neiter v. Houser et al., 84 S.W. (2d) 977. (4) Before custody of child can be taken from parents there must be a finding, based upon substantial evidence, of unfitness upon their part to care for child. In re Scarritt, 76 Mo. 565; Tomlinson v. French Institute, etc., 109 S.W. (2d) 72-75; Abel v. Ingram, 24 S.W. (2d) 1048; State ex rel. v. Ellison et al., 196 S.W. 1140; Orel v. Moller, 121 S.W. 1102; Smith v. Young, 117 S.W. 628; Thelen v. Ekberg, 167 S.W. (2d) 645. (5) When the custody of a child is awarded to a person it cannot be changed except upon a change of conditions which have arisen since the award was made. Fernbaugh v. Clark, 163 S.W. (2d) 999, 1005-6. (6) The order of this court made August 19, 1942, awarding the custody of said Jerry McAvoy to appellant Dolores Thelen (his mother) fixes her right to the custody of said child at said date and is res adjudicata to all things occurring before that date, and custody could not be changed by trial court, except upon proof of changed conditions after that time, which the decree fails to show, therefore it is void. Fernbaugh v. Clark, 163 S.W. (2d) 999, 1005-6; North v. North, 100 S.W. (2d) 537; Tossier v. Tossier, 33 S.W. (2d) 985. (7) Preference of child under fourteen years of age, as to custody is not a determining factor. State ex rel. v. Ellison et al., 196 S.W. 1140.

Duvaul P. Strother for respondents.

(1) Statutes relating to adoption shall not be so narrowly construed as to defeat the manifest purposes of the law. Thompson et al. v. Arnold et al., 230 S.W. 322, 324; In re McFarland, Green et al. v. Kellett et al., 12 S.W. (2d) 523, 525. (2) Order of this court made August 19, 1942, awarding custody to his mother is not res judicata. To be res judicata there must be complete adjudication between the parties on the merits. Garrett v. Greenwell, 92 Mo. 120, 123; Baldwin et al. v. Davidson et al., 139 Mo. 118, 126; State ex rel. Poole v. City of Willow Springs, 183 S.W. 589; Orey v. Moller, 121 S.W. 1102; Ex parte Smith, 200 S.W. 681, 683. (3) Trial court may pass on the findings on abandonment of child. Sec. 9609, R.S. Mo. 1939; Orey v. Moller, 121 S.W. 1102, 1103.

SPERRY, C.

This is an appeal from a judgment whereby adoption of Jerry McAvoy, a minor, by Elmer Ekberg and Evelyn Ekberg, husband and wife, was decreed and application for adoption by William Thelen was denied. William Thelen and Dolores Thelen, husband and wife, appeal.

The Ekbergs gave testimony to the following effect, and their evidence was fully corroborated by the testimony of Jane McAvoy-Connelly, the mother of Mrs. Ekberg and Mrs. Thelen, and by Robert and Leo McAvoy, their brothers, to-wit:

That Jerry McAvoy was born July 5, 1932, in Kansas City, Missouri; that his mother, Dolores McAvoy, now Dolores Thelen, was then twenty years of age, and was unmarried; that Evelyn McAvoy, now Evelyn Ekberg, is a sister of Dolores, and was then unmarried but was engaged to Elmer Ekberg; that Elmer Ekberg lived at the home of Jane McAvoy, later Jane Connelly, and that the latter's children, Evelyn, Dolores, Robert, and Leo, also lived there; that Elmer and Evelyn, together with Dolores and her mother, and the other members of the family, discussed the expected birth of Dolores' child and Dolores agreed that she could not care for the child and that she would give said child to Elmer and Evelyn, and that they should receive, adopt, and rear it as their own; that Elmer Ekberg took Dolores to the hospital, where the child was born; that on July 16, 1932, he brought Dolores and Jerry back to the family home, where Jerry was immediately delivered into the care and keeping of Elmer and Evelyn; and that on that date Elmer prepared, and Dolores signed, a paper writing in words as follows:

                                       "July 16, 1932
                

"This is to certify that I Dolores McAvoy do here by give in adoption my son born July 5th 1932 of which I give up all rights unto Mr. and Mrs. E.E. Ekberg.

                     "Signed Dolores McAvoy
                     "Adopting Parents Elmer Ekberg
                               "(Mrs.) Evelyn Ekberg
                "Witnesses C.L. McAvoy
                  "Jane McAvoy."
                

There was evidence which tended to prove that Elmer and Evelyn took the child into their exclusive care and keeping from and after July 16, 1932; that they consulted a physician and prepared and administered food according to a prescribed formula; that they clothed him and nursed and attended him exclusively; that they were married about two or three weeks after receiving the child; that on October 10, 1932, they took the above-mentioned paper writing to a notary public and delivered same to him for the purpose of having it acknowledged, under seal, by Dolores McAvoy; that Dolores, personally, in the presence of the notary, acknowledged her signature and the execution of the instrument; and that the notary attached his seal thereto, together with the following certificate:

                "State of Missouri
                "County of Jackson
                

"On this the 10th day of October 1932 personally appeared before me Dolores McAvoy to me known to be the party who executed the foregoing instrument and she further declares that she executed same as her own free act and will.

"In witness where-of I.J.N. Harrell Notary Public of Jackson County Missouri. I have affixed my seal at my office in Kansas City Missouri on this the day 10th of October 1932.

                  "My Commission expires April 4, 1933
                               "James N. Harrell
                                    "Notary Public"
                

The evidence further established that, when Jerry was about one year of age, the Ekbergs caused him to be baptised and christened, "Jerry Ekerg," in the Catholic Church which the entire family regularly attended; that they have always provided him with suitable necessities at their own exclusive cost, and have reared him as their own child; that they only told him who his natural mother is about a year before this trial; that they have a good income and live in a comfortable rural home which they own; and that Jerry has cows, pigs and other pets of his own. He definitely expressed, in open court, a desire to be adopted by the Ekbergs, for whom he professed more affection than for his mother.

The evidence further tended to prove that Dolores McAvoy and William Thelen were, prior to the birth of the child, keeping company, and that they were married on October 13, 1932; that they have, ever since, lived together as husband and wife and have two children, a boy about one year younger than Jerry, and a girl about five years of age; that Dolores has seen Jerry a number of times, at irregular intervals, during the years, until June 10, 1942; that she did not provide him with any food, clothing, or other necessities but she gave him a few presents on birthdays and holidays; and that she never asked or sought his care or custody prior to June 10, 1942.

William Thelen testified that when they were married he was willing to take the child into their home but that Dolores stated that she did not want to bring him there for fear that it might cause trouble between her and her husband. Dolores testified that she only agreed to give the child to the Ekbergs because she had no home except that of her mother and that her mother told her that she could not support both Dolores and the child; and that she chose to give the child to the Ekbergs rather than give him to an institution. She testified that, while she wanted the child at all times, the reason she did not move sooner to get him was that she thought she could not legally secure his custody.

Sometime prior to June 10, 1942, the Ekbergs received a letter notifying them, for the first time, that Dolores claimed custody of Jerry. Until that time, they testified, they entertained no doubt but that they had legally adopted Jerry. They immediately consulted an attorney and negotiations were entered into between counsel for the respective parties in an effort to avoid litigation. The Ekbergs testified that they wanted to retain custody but hoped that they could prevent litigation and publicity that would be injurious to Jerry's welfare. While these negotiations were going forward, and on June 10, there was filed in juvenile court an application for adoption by William Thelen, accompanied by a "written consent" signed by Dolores. No notice of the filing of said application was served on the Ekbergs and the court was not informed of any of the foregoing circumstances of Jerry's birth, custody and rearing. On June 11, a judgment was entered whereby adoption was decreed in favor of William H. Thelen, and Jerry's name was decreed to be "Gerald Thelen." Thereafter, demand was made for custody and the Ekbergs refused to surrender the boy. Notice was served on Thelens, through their attorney, that a motion would be filed to set aside the decree. The parties then entered into negotiations looking toward a settlement of the matter. There was evidence offered in this case tending to prove that Dolores stated that she was, at that time, chiefly interested in giving Jerry a name, rather than in securing his custody; that Thelens' attorney requested that no motion to set aside be filed pending the outcome of the negotiations, and that he prepared and submitted to the Ekbergs an unsigned stipulation providing for divided custody, which...