Lee v. Thomas

• Decision Date: 23 June 1944
• Citation: 297 Ky. 858,181 S.W.2d 457
• Parties: LEE v. THOMAS et ux.
• Court: Kentucky Court of Appeals

181 S.W.2d 457

297 Ky. 858

LEE v. THOMAS et ux.

Court of Appeals of Kentucky

June 23, 1944

Appeal from Circuit Court, Kenton County, Common Law and Equity Division; Rodney G. Bryson, Judge.

Adoption proceedings by J. Walter Thomas and wife against Edith Esther Lee and her child, commenced in county court. The judgment of the county court in favor of plaintiffs was affirmed by the circuit court, and the defendant mother appeals.

Affirmed.

Harry J. Luedeke, of Newport, for appellant.

H. G Hightower, of Cincinnati, Ohio, and John H. Klette and Andrew W. Clark (guardian ad litem), both of Covington, for appellee.

THOMAS Justice.

This is an adoption procedure, filed in the Kenton County Court on October 13, 1942, by appellees, J. Walter Thomas and his wife, Edith Thomas, against appellant, Edith Esther Lee, and her illegitimate boy child, John Milton Lee the latter of whom was then about fifteen months old. The mother--to whom we shall hereafter refer to as such--resisted the adoption, but the court overruled her objections and entered an order sustaining the prayer of plaintiffs' petition. The mother appealed to the Kenton circuit court wherein the case was again heard, and that court approved the judgment of the county court sustaining the motion for adoption with the name of the infant child changed from John Milton Lee to John Milton Thomas. This appeal by the mother is from that judgment.

The governing statute for such procedure is contained in sections 405.140 to and including 405.990 of the Kentucky Revised Statutes. It is conceded that the provied practice of such an action was literally followed except, perhaps, as is insisted by counsel for the mother, that subsection 4 of section 405.170 was not complied with, but that contention will be answered later on in this opinion. The case does not differ from all other classes of litigation, in that each case should be determined on its own particular facts. The task of deciding such controversies is always a delicate one and sometimes unpleasant, but the rights of the parties concerned must be determined and settled howsoever great the displeasure in doing so may be.

The mother at the time of testifying was 31 years of age. Prior to 1940 she married one Lawrence Day from which union a male child was born, but following its birth and in 1910, the couple was divorced, the court giving to the mother the custody of the infant child. After the divorce, and possibly before then, the Days were living with the parents of Mrs Day at some mining camp in Perry County in more or less squalid and limited quarters, there being a number of other occupants of the cabin home, and which created considerable crowding and corresponding discomfort.

The mother left her legitimate child after a period following the divorce and obtained work as a housemaid in or near Hyden Leslie County, Kentucky. She also performed some services periodically, for which she received slight compensation, in a restaurant in Hyden. While she was so employed she met a Mr. Bowling to whom she surrendered herself and became pregnant by him. Some five months afterwards the progress of her condition became such that she quit her job at Hyden and returned to the home of her parents and where, as we have stated, her legitimate child, then some three years of age, had its home. The same crowded condition still existed at that home and the mother became aware of the necessity of providing not only a suitable place for the birth of her prospective illegitimate child--it being practically impossible for it to be born at the home of her parents--but she also desired to keep the matter as much as possible a secret from other members of her family and from the public. At the same time she was practically pernniless and did not have the means with which to make the necessary provisions, including the fees of the attending physician.

At this time (5 months following pregnancy) she applied to the Captain of a Salvation Army camp located at Hazard, the county seat of Perry County, whose name was then L. B. Lemaster, but who has since married Walter Zvoda. Mrs. Zvoda in her testimony in this case stated that appellant laid the facts before her substantially as we have stated and requested that witness interest herself in solving the problem confronting the prospective mother, which witness cheerfully consented to do. She told the mother about the maintenance in the city of Louisville by the Salvation Army of a lying-in hospital and that she would get in contact with it, and would see what could be done. Accordingly, she learned that there would be a charge of $50 and she so informed appellant who promised to endeavor to raise the amount before the time for the birth, but later on appellant reported to her that she could not raise exceeding $40. Witness then notified the hospital in Louisville and received the answer that they could not take care of appellant at all because the institution was already filled. Immediately following that information the Salvation Army Captain contacted Mrs. F. C. Symonds, the wife of Dr. F. Campbell Symonds, who then lived in Hyden, Kentucky, and had been since February, 1938. Her husband was 'Director of the Leslie County Parrish, under the board of missions of the Presbyterian Church,' having three missions under his charge. His wife was an enthusiastic worker in assisting her husband in discharging his duties and particularly did she devote her attention to assisting and providing for prospective mothers situated as was appellant.

In the meantime separate conversations were had between appellant and the two witnesses to whom we have referred, as well as conversations where both of them were present and in all of them appellant positively stated to the two witnesses that she did not want her prospective child in her home with her legitimate child; that she was unable to care and provide for the prospective newcomer, and that she wanted them, in addition to assisting her in the manner above outlined, to seek a home for her illegitimate child after it was born, and for it to be adopted by the occupants thereof. Accordingly Mrs. Symonds made preparation with the Snyder Hospital in Hazard to take care of the mother during her lying-in period and likewise provided for all charges and fees to the hospital and for the physician, the amount of which was later paid by appellees. Some day or two before the birth of the child appellant and her mother appeared in Hazard and the former went to the Snyder Hospital followed by the birth of her child on August 20, 1941. Three or four days later the mother signed a written consent, duly notarized as required by statute, for the child to be adopted, as she had previously expressed as her wish long before the occasion of the child's birth. In the meantime Mrs. Symonds contacted a physician in Cincinnati with whom she was well acquainted and to whom she imparted the information that a child would soon...