Petition of Martensen, 17169

• Decision Date: 01 March 1954
• Docket Number: No. 17169,17169
• Citation: 129 Colo. 125,267 P.2d 658
• Parties: Petition of MARTENSEN. FULTON v. MARTENSEN et ux.
• Court: Colorado Supreme Court

Page 658

267 P.2d 658

129 Colo. 125

Petition of MARTENSEN.

FULTON v. MARTENSEN et ux.

No. 17169.

Supreme Court of Colorado, En Banc.

March 1, 1954.

Carpenter, Videon & Mosley, Craig, for plaintiff in error.

C. R. Monson, Robert H. Gleason, Steamboat Springs, for defendants in error.

BRADFIELD, Justice.

This is an adoption proceeding which was tried in the county court of Routt county, Colorado. In the trial court plaintiff in error was respondent was defendants in error were petitioners. They will be herein designated as in the trial court, namely, petitioners and respondent.

Petitioners filed a petition for the adoption of a minor child, Charlotte May Fulton. Petitioner Lula Lee Martensen, formerly Lula Lee Fulton, was the natural mother, petitioner Eldon A. Martensen the stepfather, and respondent Charles E. Fulton the natural father of said child.

In the petition it was alleged that respondent father had abandoned said child and failed to provide it reasonable support. Respondent Fulton answered alleging: (1) That the petition fails to state the right to adopt without the consent of the father; (2) denies he abandoned the child; (3) admits he did not contribute to the support of the child but that the petitioner mother is independently wealthy; that in her decree of divorce from him she was granted the custody of the child, but had neither asked for nor was awarded any amount for support of the child. Trial was to the court. Findings and a decree were entered for the adoption by petitioners. The cause is presented in our Court for review of the proceedings.

Colorado's present adoption law is set forth in Session Laws of 1949, p. 206, chapter 106, as amended by Session Laws of 1951, p. 152, chapter 73. The pertinent sections involved in this proceeding are set out in Session Laws of 1951, pages 152, 154, chapter 73:

Sec. 1.

'* * * (2)(b) Both natural parents, * * * if they are alive and have not lost their parental rights through court action or voluntary relinquishment, abandonment, or by reason of having failed without cause to provide reasonable support for such child for a period of one year or more.'

Sec. 4.

'* * * (1)(d) The fact that the best interests of the child will be served by said adoption * * *.'

The related questions of fact here presented are: (1) Did respondent abandon his child? (2) Did he fail, without cause to provide reasoanble support for such child for the period of one year or more? (3) Was the adoption for the best interest of the child? There are numerous Colorado cases in point, as follows:

Graham v. Francis, 83 Colo. 346, 352, 265 P. 690, 692:

'Paternal rights may be forfeited by abandonment of the child. C.L.1921, § 5512', amended by S.L.1949, c. 106, and S.L.1951, c. 73.

Moreau v. Buchholz, 124 Colo. 302, 309, 236 P.2d 540, 543:

'Abandonment is primarily a question of intent. It is more often determined by what one does rather than by what he says. * * * There are other features by which the court might determine the failure of proper interest and lack of affection and regard on the part of the defendant for this child.'

Desch v. Desch, 55 Colo. 79, 81, 132 P. 60:

'A decree of divorce at the suit of the wife for his misconduct, which gives the custody of the children to her, but is silent as to their support, does not relieve him of this obligation. * * * the law implies a promise on his part to pay her for necessaries to this extent.'

People ex rel. v. Bolton, 27 Colo.App. 39, 43, 146 P. 489, 490:

'In this jurisdiction it has long been held that every child is under the control of the state, and...