Novak, In re, 59141

• Decision Date: 05 May 1976
• Docket Number: No. 59141,59141
• Parties: In re Lucjan Houston NOVAK. Johan NOVAK and Janina Novak, Appellants, v. Jacquelyn B. NOVAK, Respondent.
• Court: Missouri Supreme Court

Page 33

536 S.W.2d 33

In re Lucjan Houston NOVAK.

Johan NOVAK and Janina Novak, Appellants, v. Jacquelyn B. NOVAK, Respondent.

No. 59141.

Supreme Court of Missouri, En Banc.

May 5, 1976.

David L. Campbell, St. Louis, for appellants.

Allan F. Stewart, Legal Aid Society of City and County of St. Louis, Clayton, for respondent.

FINCH, Judge.

This is an appeal from an order entered October 15, 1973, by the Circuit Court of St. Louis County setting aside an earlier adoption decree whereby Lucjan Houston Novak was adopted by appellants, Johan and Janina Novak, his paternal grandparents. The appeal went to the Missouri Court of Appeals, St. Louis District, which reversed the action of the trial court in setting aside the decree of adoption. On application we ordered the case transferred here, and we now decide it as though on direct appeal. We affirm.

On January 25, 1971, Johan and Janina Novak filed their petition for 'Transfer of Custody and Adoption' of Lucjan, the three year old son of Joseph and Jacquelyn Novak, son and daughter-in-law of the petitioners. The petition alleged that the petitioners desired to adopt the child, that they had the ability to care for, maintain and educate him, and that it was in his best interests. It requested the court to transfer the custody of Lucjan to them for the purpose of adoption nine months later. On the same date, a consent of parents to adoption, executed by Joseph and Jacquelyn Novak, was filed.

A guardian ad litem was appointed, and on June 10, 1971, a hearing was held on the request for transfer of custody. The grandparents, the child, his guardian ad litem, and Jacquelyn Novak, the mother, were present. Evidence offered included testimony that the grandparents at that time had actual custody of the boy. At the conclusion of the hearing, custody of Lucjan was ordered transferred to the grandparents.

Subsequently, on March 17, 1972, a hearing on the petition to adopt was held. Present were the grandparents, the boy and his guardian ad litem. The grandparents both testified of their continuing desire to adopt and their ability to care for the boy and that they had been in touch with their son and daughter-in-law about the adoption. They stated that there had been no change in circumstances. A decree of adoption then was entered which made various findings of fact, including a finding that the boy 'has been in the lawful and actual custody of the petitioners for a period of at least nine months prior to the entry of the decree'.

Some seven months later, on October 11, 1972, the natural mother, Jacquelyn Novak, filed in the circuit court her motion to set aside the decree of adoption entered in March. She alleged, among other things, that she and her husband had been involved in marital difficulties and it had been felt that it would be in the best interests of their marriage and of the child if he was placed temporarily in the custody of the grandparents. She alleged that 'representation was made to her that in order for the Novaks to properly care for the child, it was necessary for her to sign a consent to adoption', that she was informed that 'this consent * * * was not to be actually used in the adoption matter but was to help reunite herself and her husband' and that she was 'coerced' by the Novaks to such an extent that she did not fight the transfer of custody. She further alleged that she had had the actual custody of the child all of his life. This included the years 1971 and 1972, except for certain short periods of time when he was with the paternal grandparents.

A hearing on the motion to set aside the decree of adoption was held on April 10, 1973, before Judge Hoester, the same trial judge who had entered the decree of adoption. Mrs. Jacquelyn Novak testified in support of her motion that there had been trouble between her and her husband and that the adoption was proposed by the paternal grandparents as a way to reunite her and her husband. She also testified in support of her allegations that she had been misled and coerced by the grandparents in connection with the consent to adoption she signed and with respect to consummation of the adoption proceedings but we need not and do not consider the sufficiency thereof as we decide the case on other grounds.

The mother testified that the boy had been in her actual custody during most of the period of time between the order transferring custody and the decree of adoption and had not been in the actual custody of his paternal grandparents except for brief periods. She stated that the boy was with the grandparents for a four week period during the spring of 1971, for about five days in August 1971, when she and her husband, Joseph, went to Minneapolis to look for housing, and for a few days in March 1972, at the time her husband took him to St. Louis. This was at the time when the adoption hearing was held. In addition, the boy, along with his parents and a half sister (a daughter of Jacquelyn Novak by a previous marriage), spent about three weeks visiting the elder Novaks during the 1971 Christmas season. During all of the rest of the time, Lucjan either was with his mother and father, Jacquelyn and Joseph Novak, or with his mother during the various periods when Jacquelyn and Joseph were separated. Up until the end of August 1971, they were living in St. Louis County (they had their own place and lived in a different locality than the grandparents) and after the latter part of August 1971, they lived in Minnesota. As a matter of fact, although Joseph, the father, took Lucjan to St. Louis in March 1972, at the time the adoption hearing was held, he was returned to the actual custody of Jacquelyn after the adoption decree on March 17, 1972, and remained with her in Minneapolis until he was taken from her without her consent on October 7, 1972, by Joseph and two men who had accompanied him to the place where Jacquelyn and the boy were then living.

On October 15, 1973, Judge Hoester entered an order setting aside the decree of adoption on the basis that it was null and void. The order also directed that the boy be returned to the court for a further hearing on the question of custody.

This case has been reviewed pursuant to Rule 73.01 as construed in Murphy v. Carron, Mo., 536 S.W.2d 30, decided concurrently herewith.

Adoption was unknown at common law and exists only by virtue of statutory authorization. Lumb v. Feehan, Mo., 276 S.W. 71 (1925). Adoptions are now governed by Chapter 453 ¹ of our statutes which establishes procedures and requirements.

Sec. 453.080 is the section with which we are concerned in this case. It provides as follows:

'If the court, after due hearing, is satisfied that the allegations of the petition are true, that the person sought to be adopted if a minor, has been in the lawful and actual custody of the petitioner or petitioners for a period of at least nine months prior to the entry of the adoption decree, and that it is fit and proper that such adoption should be made, a decree shall be entered setting forth the facts and ordering that from the date of the decree the person sought to be adopted shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and the court may decree that the name of the person sought to be adopted be changed, according to the prayer of the petition.' (Emphasis supplied.)

As noted, it provides that a decree of adoption may be entered only if the court is satisfied after hearing that the minor whose adoption is sought has been in the 'lawful and actual custody' of the prospective adoptive parents 'for a period of at least nine months prior to the entry of the adoption decree.' In this case we have uncontradicted, undisputed evidence that Lucjan Novak, the boy who was to be adopted, had not been in the actual custody of the adopting parents for at least nine months prior to the adoption decree. He had been in their custody only about one month during that period. During the rest of the time he was with both of his natural parents or with his mother, much of the time in another state. Consequently, it becomes important to determine the effect of non-compliance by the prospective adopting parents with the statutory prerequisite of nine months lawful and actual custody prior to entry of an adoption decree.

In the case of In re Adams, 248 S.W.2d 63 (Mo.App.1952), the court discussed this requirement and its purpose, saying at 66:

'One of the salutary objects of the General Assembly in lately introducing this new requirement into the adoption laws was to provide a sufficiently long period prior to the adoption hearing to allow the foster parents and the child sought to be adopted to become thoroughly adjusted to each other in the prospective home and to provide time for investigation so that the court at the hearing may be fully informed as to the advisability of making the temporary placement permanent. The time period specified refers to the period immediately preceding the hearing.' ²

Subsequent cases hold that compliance with this statutory requirement of nine months custody which is both lawful and actual is jurisdictional. In State ex rel. Dorsey v. Kelly, 327 S.W.2d 160, 161 (Mo. banc 1959), this court so recognized when it said:

'* * * contention that the child has not been in the lawful and actual custody of petitioners for a period of at least nine months which, under the provision of section 453.080, is a jurisdictional prerequisite to the entry of a decree of adoption.'

In State ex rel M.L.H. v. Carroll, 343 S.W.2d 622, 626, 627 (Mo.App.1961), the court quoted §§ 453.070 and 453.080 and then stated:

'Under these two sections of the adoption statute it is readily seen that the matter of the lawful and actual custody of a child is an inherent part of any adoption proceeding. In re Mayernik, (Mo., 292 S.W.2d 562) supra; and In re Davis' Adoption, Mo.App., 285 S.W.2d 35.

'Before the Juvenile Court can...