Petition for Adoption of an Infant by Vermeulen

• Decision Date: 06 August 1959
• Docket Number: No. B-28,B-28
• Citation: 114 So.2d 192
• Parties: Matter of the PETITION FOR ADOPTION OF AN INFANT BY RICHARD T. VERMEULEN and Lucille P. Vermeulen. Anson A. CARRIER, Appellant, v. Richard T. VERMEULEN et al., Appellees.
• Court: Florida District Court of Appeals

Page 192

114 So.2d 192

Matter of the PETITION FOR ADOPTION OF AN INFANT BY RICHARD T. VERMEULEN and Lucille P. Vermeulen.

Anson A. CARRIER, Appellant, v. Richard T. VERMEULEN et al., Appellees.

No. B-28.

District Court of Appeal of Florida, First District.

Aug. 6, 1959.

Rehearing Denied Sept. 8, 1959.

Edward L. Bush, Palatka, for appellant.

E. L. Eastmoore, Palatka, for appellee.

WIGGINTON, Chief Judge.

Appellants seeks review of a final decree entered in an adoption proceeding by which the prayer for adoption was denied but the care, custody, control and education of appellant's minor daughter was awarded to appellees.

There is no essential dispute in the material facts on which the decision must turn. Appellant is the natural father of the minor, Susan Ruth Helen Carrier, whose custody forms the subject of this appeal. Appellant married the child's mother in 1947, and thereafter established their home in Portland, Oregon, where Susan was born. Marital difficulties arose between the parents which culminated in a final decree of divorce entered by the Circuit Court of Multnomah County, Oregon, on May 16, 1951. By the final decree appellant father was granted a divorce from his wife and awarded the complete custody and control of their minor daughter, Susan, who at that time was approximately two and one-half years old.

On the day prior to the entry of the final divorce decree appellant's wife, in violation of an order entered in the cause, took the child from a custodial home in which she had been placed by the court pending final disposition of the divorce proceedings and fled the State of Oregon. Within his limited means appellant endeavored through inquiry, correspondence and the aid of law enforcement agencies to learn the whereabouts of his former wife and his daughter, but all efforts in this regard were unsuccessful.

After leaving Oregon appellant's former wife went to the State of Alabama, where she remained a short while with her parents before moving to Florida. Here she married her present husband and bore him two additional children.

For a period of four years preceding the institution of this proceeding, the mother's poor condition of health necessitated a series of surgical operations which to a large extent incapacitated her from discharging her normal household duties. During such periods of illness and recuperation, the mother permitted Susan to visit with her neighbors the appellees, who are unrelated to the child either by blood or marriage. Appellees have no children of their own and quite naturally became attached to the child, and her to them. Because of the mother's continued illness and dim prospects for permanent recovery she consented to the adoption of Susan by appellees.

Appellees instituted this proceeding for the purpose of securing a decree of adoption. An investigation by the State Welfare Board disclosed that the child had a living father, the appellant, who had not consented to the adoption. Upon receiving notice of the suit appellant promptly came to Florida, engaged counsel, filed in the cause his answer objecting to the adoption of his child by appellees, and praying that the child be restored to him as its legal custodian in accordance with the decree of the Oregon court.

From the evidence it affirmatively appears that appellees are fit and proper persons, able to take care of the child and provide for her a suitable home, proper training and education. On the other hand it is undisputed that appellant is an equally fit and proper person in an even better position now to care for and rear his child than he was at the time when the child's custody was awarded to him by the Oregon court in 1951.

After the special examiner's report was prepared and filed the chancellor called and examined the child who at the time of trial was nine years old. She stated that she loved and was very happy living with appellees and wished to remain with them. She testified that she did not know her father and did not want to return with him to live in Oregon.

By his final decree the chancellor held that the record fails to justify an order permanently eliminating all legal rights of the father to the child, so the prayer for adoption was denied. The care, custody, control and education of the child was awarded to appellees, preserving to appellant the right of reasonable visitation, provided the exercise of such right does not disturb the child or interfere with the custody awarded appellees.

Appellant contends that by his decree the chancellor failed to accord full faith and credit to the custody decree entered by the Oregon court, and furthermore, abused his discretion in depriving the natural father his child's custody under the evidence contained in the record.

Jurisdiction of the Oregon Court to award custody of the minor to appellant is unquestioned. The full faith and credit clause of the United States Constitution ¹ is, however, applicable only to final as distinguished from temporary or interlocutory orders, judgments or decrees of foreign states. ² A decree awarding custody of a minor is universally subject to modification from time to time as the interest of the minor may require. It is established in this jurisdiction that judgments and decrees affecting the custody of minors, not being final, occupy a different status from those affecting divorces and property rights, and may be modified as circumstances warrant without doing violence to the full faith and credit requirements of the Federal Constitution. ³

The custody of the minor involved in this case was fully adjudicated by a court of competent jurisdiction in Oregon. Although the decree entered therein does not require enforcement in Florida under the full faith and credit clause of the Federal Constitution, it is entitled to great weight and respect under the doctrine of comity absent a showing by clear and convincing evidence that such new conditions have arisen since rendition of the decree as would justify a change in custody of the child, or that old facts have come to light which had they been known to the chancellor would have impelled a different conclusion. ⁴ And the facts and circumstances of such changed conditions must relate to the one to whom custody of the child was awarded, ⁵ who in this case is appellant.

The record before us is devoid of evidence tending to show that since the entry of the Oregon decree appellant's circumstances have so changed as to render him incapable of caring for and rearing his child. In fact the evidence shows to the contrary. Nor is there any proof of such misconduct on the part of the appellant as would justify a forfeiture of the custodial rights granted him by the court of original jurisdiction.

It is clearly evident from an examination of the decree under assault that the chancellor's discretion was largely controlled by the expressed wishes of the child to remain with appellees. Such feeling on the child's part is a natural reaction motivated by the fact that appellees have taken good care of her for a number of years and have bestowed on her the kind of loving affection so essential to the welfare and normal development of a young child. We cannot close our eyes, however, to the grave injustice which has been done appellant where through no fault of his own, he and his child have been deprived of the opportunity of...