Olney v. Gordon, 5--3873

• Decision Date: 09 May 1966
• Docket Number: No. 5--3873,5--3873
• Parties: Boyd D. OLNEY, Appellant, v. Frederick L. GORDON et ux., Appellees.
• Court: Arkansas Supreme Court

Page 651

402 S.W.2d 651

240 Ark. 807

Boyd D. OLNEY, Appellant, v. Frederick L. GORDON et ux., Appellees.

No. 5--3873.

Supreme Court of Arkansas.

May 9, 1966.

Rehearing Denied June 6, 1966.

Warner, Warner, Ragon & Smith, Fort Smith, for appellant.

Bethell & Pearce, by Donald P. Callaway, Fort Smith, for appellees.

GEORGE ROSE SMITH, Justice.

On June 10, 1963, the appellees, Frederick L. Gordon and his wife, obtained a decree in Oklahoma by which they purportedly adopted the nine-day-old son of the appellant, Boyd D. Olney. That decree was entered without the father's knowledge and without any notice whatsoever to him that such a proceeding was pending. To this day, a fair as the record shows, Olney has never laid eyes on his son. For almost three years he has been continuously engaged in litigation, first to learn the whereabouts of his child and then, having at last found his son, to establish his right to take the little boy home with him.

This appeal is from a decree holding that the Oklahoma adoption decree is entitled to full faith and credit in the courts of Arkansas. That means that this father is forever deprived of the right even to see his son. We hold that the chancellor was wrong in his conclusion that the Oklahoma decree is valid and therefore immune to attack.

The facts are best narrated in chronological sequence. Olney and the child's mother, Betty Ingland, were married in Kansas on June 15, 1962, and lived there until their separation in the following November. Betty filed suit for a divorce in Liberal, Kansas, alleging extreme cruelty. Olney signed an entry of appearance, but he did not employ an attorney or contest the case. On February 15, 1963, the Kansas court awarded a divorce to Betty. She was then expecting a child, but the decree made no reference to that fact, merely reciting that no children had been born of the marriage.

On June 1, 1963, the Olneys' child was born in a hospital in Hugoton, Kansas, even though the city of Liberal, where Betty was living, had its own hospital. In the court below Olney testified without contradiction that he did not learn of the birth of his son until about two weeks later. By then the Oklahoma adoption decree had already been entered.

Frederick and Virginia Gordon, a childless couple, were living in Seminole, Oklahoma, when the Olney child was born. Virginia had once worked for Herbert Hobble, a lawyer in Liberal, Kansas. Hobble told the Gordons about the Olney baby. The Gordons employed an Oklahoma attorney to handle the adoption proceeding. Betty Olney gave her written consent to the adoption. Hobble accompanied the Gordons when they went to the Hugoton hospital to obtain the baby. The hospital authorities, however, made no record of the Gordons' identity.

The adoption proceedings, in Seminole, all took place on one day, June 10, and seem, to say the least, to have been perfunctory. The petition alleged that Boyd D. Olney was the child's father, but it was asserted, and the court found, that he was not required to consent to the adoption for the reason that he had been divorced for extreme cruelty. Hence Olney was not given notice of the proceeding. Upon the filing of the petition the court ostensibly appointed a deputy sheriff to investigate the matter. This deputy (whose name Gordon did not recognize at the trial below) at once recommended, 'after a proper investigation of the facts,' that the petition be granted. A decree of adoption was accordingly entered.

Back in Kansas Olney learned a few days later that his son had been born in the Hugoton hospital and had been taken away by attorney Hobble and an unidentified couple. Hobble refused to disclose the name or address of his clients. Olney was compelled to file suit against Hobble to get that information. After more than a year of litigation Olney won his case in the Supreme Court of Kansas. Olney v. Hobble, 193 Kan. 692, 396 P.2d 367 (1964).

There was some additional delay before Olney was finally told that his son was in the custody of the Gordons, who were said to be living in Irving, Texas. Actually they had left Irving, but Olney's inquiries traced them to Fort Smith, Arkansas. There Olney filed the present petition for a writ of habeas corpus to obtain the custody of the child. This appeal, as we have said, is from a decree holding that the Oklahoma adoption proceeding is entitled to full faith and credit under the Constitution of the United States.

For affirmance of the decree the Gordons rely mainly on an Oklahoma statute which provides that although a child cannot ordinarily be adopted without the consent of its parents consent is not required from a parent who has been divorced on the ground of cruelty. 10 Okl.St.Ann. §§ 60.6 and 60.7 (Supp.1965). Inasmuch as the Kansas divorce was grounded upon an allegation of cruelty it is argued that Olney's consent to the adoption of his child was not necessary.

This argument is without merit. In a recent case the Supreme Court of the United States unanimously declared that an adoption decree entered without notice to the child's father 'violated the most rudimentary demands of due process of law' and was therefore void. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). That case controls this one.

The appellees' position might have merit if the Olney divorce decree had been rendered by an Oklahoma court. In that situation it might be said that Olney, by failing to defend an allegation of cruelty, risked the loss of his right to object to the adoption of his expected child. The divorce proceeding, however, took place in Kansas. The Kansas statutes do not purport to dispense with a parent's consent to adoption when that parent has been divorced for cruelty. K.S.A. §§ 59--2102 and 60--1610 (1964). Hence Olney had not the slightest reason to suppose that his failure to contest his wife's complaint might result in the permanent loss of his expected child. It was unquestionably a denial of due process of law, under the Armstrong case, supra, for the Oklahoma court to attempt to read the Oklahoma statute into the Kansas divorce decree. It is too plain for argument that Olney did not have notice of the proposed adoption in the Kansas case, and hence that case cannot be used as a basis for dispensing with notice in the subsequent Oklahoma proceeding. The Oklahoma decree is void.

The appellees' other arguments do not call for an extended discussion. It is suggested that Olney's present suit is barred by our two-year statute of limitations. Ark.Stat.Ann. § 56--112 (1947). This argument overlooks the fact that the Gordons' conduct in spiriting the child away from Kansas and in failing to give the required notice of the adoption proceeding had the effect of concealing Olney's cause of action. In the circumstances he cannot fairly be accused of having slept upon his rights. The statute did not begin to run until Olney discovered the Gordons' identity. See Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942).

Finally, counsel for the appellees argue that it would be to the child's best interest for him to remain with the Gordons, because they have cared for the infant almost all his life. Such a holding would enable the Gordons to prevail in the dispute by reason of their own misconduct (though doubtless motivated, we realize, by illconsidered advice of counsel).

In divorce cases, it is true, the best interest of the child controls the award of custody. But such cases involve disputes between parents or other blood relatives who have a recognized legal claim to the right of custody. Those precedents are not in point here. The right of natural parents to the custody of their children, as against strangers, is 'one of the highest of natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent.' Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953).

In the Woodson case we said that 'abandonment by a parent, to justify in law the adoption of his child by a stranger without his consent, is conduct which evinces a settled purpose to forego all parental duties.' By that standard Olney has certainly not abandoned his child. In the oral argument it was suggested that in the Kansas divorce proceeding Olney was remiss in not insisting that his wife's attorney insert in the decree some provision requiring Olney to support the child after its birth. That suggestion is much too unrealistic to be taken seriously. For almost three years, in the face of dismaying legal and practical obstacles, Olney has steadfastly persevered in the search for his child. Upon the facts before us it would be little short of absurd to say either that Olney has attempted to avoid his obligations as a father or that he has shown any inclination to surrender the privilege of bringing up his own son.

The decree is reversed and the cause remanded with directions that the writ of habeas corpus be issued, vesting in the appellant the exclusive right to the care and custody of his child.

HARRIS, C.J., and AMSLER, J., concur.

McFADDIN, J., dissents.

BLAND, J., disqualified.

HARRIS, Chief Justice (concurring).

I am forced to agree that, under the law, Mr. Olney is entitled to the custody of hid child, though, from the record offered, I sincerely feel that the youngster would be better off to remain with the Gordons. The record, relative to Mr. Olney's background, habits, character, stability, and reputation, is indeed meager, but the evidence, such as it is, does not leave me overly impressed.

Appellant has been married twice, and each time, was divorced in less than a year. Mr. Olney admitted that he was aware of the fact that his second wife was pregnant at the time the divorce was granted; in fact, he testified that she had told him that the child would be born the last of May. He was, admittedly, aware of the fact that someone would have to pay the...