Mahoney v. Linder

• Jurisdiction: Oregon
• Parties: In the Matter of the Adoption of Rebecca Jean Linder and Douglas Robert Linder, Minors. Ronald G. MAHONEY and Sally J. Mahoney, Appellants, v. Robert L. LINDER, Jr., Respondent.
• Citation: 514 P.2d 901,14 Or.App. 656
• Court: Oregon Court of Appeals
• Decision Date: 08 October 1973

Page 901

514 P.2d 901

14 Or.App. 656

In the Matter of the Adoption of Rebecca Jean Linder and

Douglas Robert Linder, Minors.

Ronald G. MAHONEY and Sally J. Mahoney, Appellants, v. Robert L. LINDER, Jr., Respondent.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1973.

Decided Oct. 8, 1973.

James C. Farrell, Roseburg, argued the cause for appellants. With him on the brief were Washburn, Farrell & Spence, Roseburg.

Donald A. Dole, Roseburg, argued the cause for respondent. With him on the brief were Thomas W. Kolberg and Long, Neuner, Dole & Caley, Roseburg.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

This adoption proceeding was brought by the natural mother and stepfather of two minor children born to her and her former husband. The mother had been awarded the custody of the children in the divorce suit. The former husband filed an appearance objecting to the adoption. This proceeding was based on the alleged wilful failure of the father, without just and sufficient cause, to provide proper care and maintenance for the children for more than one year, and upon 'wilful' desertion. ORS 109.324. ¹

The trial court concluded that the showing required to establish either wilful desertion wilful failure to support without just and sufficient cause had not been made dismissed the petition. The mother and stepfather then appealed.

We note initially that the record here indicates some confusion concerning whether the father was represented by counsel in this matter, and, if so, by whom. At the time of the final hearing on the merits, counsel for the grandparents vigorously sought a continuance on the ground that the father did not have personal notice that the hearing on the merits was to be held on that--or any other--day. Counsel for petitioners took the position that the father was represented by the attorney who appeared for the grandparents. In view of the due process concern inherent in the question of notice of the hearing, we think it necessary to decide this question.

For an understanding of the problem, it is first necessary to set out portions of the transcript made on the day of the hearing on the merits, to-wit, August 30, 1972:

'MR. DOLE (counsel appearing on behalf of the objecting paternal grandparents): Excuse me, I need to make a record. The court would normally ask counsel if you are ready and you did not. In that respect might I say that I at this point and time would like the record to show that I am here with the paternal grandparents, that for some period of time--and this is reflected in the welfare report--the father of these children, Robert Linder--we haven't known where he has been. He was located through various means--I learned of his whereabouts this morning at 11:45. He was in Quincy, California. This is the first opportunity he has had of any notice of the time and place of this hearing. It is with these circumstances--and I wish it understood by the court that I personally have not talked to Mr. Linder although I have placed phone calls since 11:45 on two occasions to the number that I have. I would like the record to show that I request the record to show that I would request a postponement until a later time.

'* * * 'MR. FARRELL (counsel for mother and stepfather): Your Honor, he may not have had notice of this hearing. If was through no fault of either Mr. Dole or the court. He wouldn't let anybody know where he was at.

'MR. DOLE: Actual notice is what it is. I had notice of this hearing.

'MR. FARRELL: This particular hearing here.

'MR. DOLE: And likewise I don't think he had actual notice of the prior hearing.

'* * *

'MR. DOLE: I understand what you are saying, but he has had no notice and opportunity to be here today. I'm making my point that it's actual notice.

'THE COURT: Well, either you represent him or you don't, so I would have to ask you to state whether you do or don't.

'MR. DOLE: If you put the question to me that way, I do not. I have had no such contact, I filed the original documents on behalf of the grandparents in his interest, I think is the language I used. I have never personally discussed this matter with Robert Linder, Jr.'

It is clear that if Mr. Dole represented Robert Linder, Jr., in this proceeding, notice to Mr. Dole of the time and place of the hearing was sufficient. ORS 16.800, 9.310, 9.320. The relationship between an attorney and client is that of principal and agent. Lehman v. Knott, 100 Or. 240, 187 P. 1109 (1920). No challenge under ORS 9.340 or ORS 9.350 is here made to Mr. Dole's authority.

The record shows that on February 17, 1972, a two-page document entitled 'Petition' was filed in this proceeding. It was prepared on legal-size, numbered paper bearing thereon the imprint 'Long, Neuner, Dole & Caley, Attorneys at Law,' together with the firm's address. It set forth the reasons why, in the opinion of the father, Robert Linder, Jr., the adoption should not be granted. It was signed by him and acknowledged before a notary in California. Below the acknowledgment appears the following:

'I do hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing a copy thereof, properly certified, addressed with postage prepaid, to the following parties or their attorneys of record.

Dated: 2--17--72'

The certificate is signed 'Donald A. Dole, of attorneys for petitioner.'

Prior to the date of the hearing on the merits, another hearing was held before the court. Both counsel were present, as were the mother and stepfather and the paternal grandparents. The father was not. The record reveals the following:

'MR. DOLE: Mr. Farrell raises the issue that Robert Linder, Jr., is not here. I believe my original petition states that I was appearing on his behalf. I guess to this extent my part of this stipulation, on the authority of his parents, I guess binds him to it to that degree, though the court should make note I have nad no contact with Robert Linder, Jr.

'MR. FARRELL: The record should show that there was a petition filed by Robert L. Linder, Jr.,

'THE COURT: Well, he has made an appearance here.

'MR. FARRELL: Wherein Mr. Dole represents him.

'* * *

'MR. DOLE: In any event, Mr. Farrell is correct. I think in the first petition I ostensibly say 'in behalf of him'.'

At the time of the hearing on the merits Mr. Dole conceded that he had received proper notice of that hearing.

We conclude from the foregoing that Mr. Dole did appear as counsel in this matter on behalf of the father, Robert Linder, Jr. Thus, notice to Mr. Dole of the time and place of the hearing held in this proceeding was, under the foregoing authorities binding upon the father. The court did not here abuse its discretion in refusing to grant the motion for continuance made on the morning of the trial. A litigant may not avoid the orderly processes of the law simply by failing to keep his attorney advised of his whereabouts. No showing was made here of any other reason which would support the request.

An examination of the facts is necessary to a determination of the issues presented.

Following the divorce in 1969, respondent father, at the instigation of his own parents, petitioned for and was granted visitation rights to have the children one weekend each month, every other holiday, plus two weeks in July, and Christmas Day until the end of the holiday season. The extent of his exercise of these rights is not clearly shown. It appears he lived with his parents during the first year following the divorce. The children stayed at their paternal grandparents' house several times during this year, and the grandfather testified he and respondent picked the children up.

During the first year following the divorce respondent became delinquent in his child support payments but brought them up-to-date through a bank loan co-signed by his father. The grandfather testified respondent failed to repay the full amount of the loan.

On July 1, 1969, the mother married her present husband and co-petitioner in this adoption proceeding. In July 1970, respondent and the grandparents took the children camping for a week at the coast. Respondent has neither seen his children nor contributed to their support since them.

On October 18, 1971, petitioners filed this petition for adoption of the children. Respondent, not having consented to the adoption, was cited by the petitioners to show cause why the adoption should not be granted. Service of citation on respondent was initially had by publication. Later, personal service was eventually obtained. In the meantime the paternal grandparents filed an objection to the adoption.

Thereafter, on February 17, 1972, respondent father filed an objection to the adoption. He alleged therein:

'* * * That * * * Sally J. Mahoney by devious and insidious ways frustrated the visitation privileges afforded to me by creating difficult, hostile and adverse conditions concerning visitation privileges, and that the said Sally J. Mahoney and Ronald G. Mahoney advised me that they did not want me to visit the children, and that I should stay away, and that if I stayed away, refraining from exercising my visitation privileges, that they would make no claim for support. That because of the attitude and manifestations of the said Sally J. Mahoney and Ronald G. Mahoney and their requests, demands and threats, I refrained from exercising visitation and have, therefore, also not paid support. * * *'

On May 3, 1972, a hearing was held on the petition for adoption, at which time the respondent father did not appear. Pursuant to a stipulation between counsel for petitioners and counsel for the father and the grandparents, an order was entered directing the Children's Services Division to conduct an investigation into the matter of the adoption. It was further stipulated that the results of the investigation were to be received as evidence at the hearing on the merits. On August 30,...