Pratt v. Bishop

• Decision Date: 10 July 1962
• Docket Number: No. 380,380
• Parties: Geraldine F. PRATT for the adoption of Gerri Leigh Graham, v. George W. BISHOP.
• Court: North Carolina Supreme Court

Page 597

126 S.E.2d 597

257 N.C. 486

Geraldine F. PRATT for the adoption of Gerri Leigh Graham, v. George W. BISHOP.

No. 380

Supreme Court of North Carolina.

July 10, 1962

Eugene H. Phillips, Winston-Salem, for respondent-appellant.

Deal, Hutchins & Minor, Winston-Salem, for petitioner-appellee.

SHARP, Justice.

Respondent asked for a dismissal of this adoption proceeding or for a new trial on the basis of eighteen groupings of assignments of error. Only those which are properly presented will be expressly considered.

Assignments Nos. 3 and 5 through 8 relate to alleged errors in the admission or exclusion of evidence. We quote Assignment No. 7 which is typical:

'VII. The Court erred in refusing to permit Respondent to introduce evidence as to his plans and those of his wife about making a home for the child during the six months period immediately preceding the filing of this action, such evidence being material to the issue of his purported wilful abandonment of said child.

'As shown by Exceptions Nos. 36, 37, 38, 39, 44, and 45 (R. pp. 126, 127, 128 and 140).'

The following statement from Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294 is applicable here:

'Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555, as interpreted in the decisions of this Court, require: 'Always the very error relied upon shall be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is.' (Citing cases) The objectionable assignments in their present form would require the Court to undertake a voyage of discovery through the record to ascertain what the assignments involve. This the Court will not do.'

Assignments of error Nos. 9 through 16 relate to alleged errors of commission or omission in the charge. As this court said in Darden v. Bone, 254 N.C. 599, 601, 119 S.E.2d 634, 636:

'Assignments of Error 9, 10, 11, 12, 13, 14, 15 and 16 relate to the court's charge and are insufficient in that they do not present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is and the particular portion of the charge to which the defendant objects is not specifically pointed out. ' The assignment must particularize and point out specifically wherein the Court failed to charge the law arising on the evidence.' (Citing cases)

'It is clear that the Rules of the Court have not been complied with in the assignments of error as herein above enumerated. Rule 21 requires an appellant to state briefly and clearly his exceptions. Rule 19(3) requires that the exceptions taken be grouped and the error complained of concisely but definitely set out as a part of the assignment. ' The Court will not consider assignments not based on specific exceptions and which do nto comply with its rules.' Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94, 96. What the Court requires is that exceptions which are presented to the Court for decision shall be stated clearly and intelligibly by the assignment of error, and not be referring to the record, and therewith there shall be set out so much of the evidence or other matter of circumstance as shall be necessary to present clearly the matter to be debated. In this way the scope of inquiry is narrowed to the identical points which the appellant thinks are material and essential, and the Court is not sent scurrying through the entire record to find the matters complained of.'

Assignment of error No. 4 is to the failure of the court to permit each paragraph of respondent's answer to be read to the jury. The assignment of error itself does not disclose which paragraphs were not read to the jury. However, it appears from an examination of the record that only paragraph 15 of the petition was read to the jury. Paragraph 15 alleged that Gerri Bishop was an abandoned child and raised the one issue in the case. Paragraph 15 of respondent's answer which denied the alleged abandonment was read to the jury. His further answer was likewise read except for certain portions which were clearly improper pleadings and which would have been stricken upon motion. No conceivable prejudice could have resulted to the respondent from the ruling of the court of which he complains in purported assignment of error No. 4.

The failure of the respondent to comply with the rules of practice limits consideration to assignments of error Nos. 1, 2, 3, 17 and 19. There is no assignment No. 18 in the record.

Respondent's assignment of error No. 1 is to the order of the judge overruling his demurrer to the petition. The demurrer is in writing and the only ground specified therein is 'that no cause of action is stated in accordance with the laws governing adoption.' G.S. § 1-128 declares that a demurrer must distinctly specify the grounds of the objection or it may be disregarded. A demurrer which merely charges that the petition does not state a cause of action is broadside and will be disregarded. Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555. However, in his assignment of error and brief, respondent states that the ground for the demurrer is that the petition contains no allegation substantially in the words of General Statutes 48-2(3) that respondent had wilfully abandoned the child for at least six consecutive months immediately preceding the institution of the action. In paragraph 15 petitioner clearly intended to allege that respondent had abandoned the child since birth. It would have been the better practice, and required fewer words, had petitioner alleged that Gerri Bishop was an abandoned child within the definition of the statute. Smith v. Crivello, 338 Ill.App. 503, 88 N.E.2d 107. Nevertheless, interpreting paragraph 15 of the petition liberally as we are required to do upon a demurrer, it is apparent that petitioner has sufficiently alleged the ultimate jurisdictional fact that Gerri was an abandoned child at the time of the institution of the proceeding. Long v. Love, 230 N.C. 535, 53 S.E.2d 661. Having alleged it, the burden then devolved upon the petitioner to prove at the trial the abandonment in conformity with the statute, i. e., that respondent had wilfully abandoned Gerri for at least six consecutive months immediately prior to the institution of the proceedings. This was the sole issue in the trial in the Superior Court. The adoption statute does not place the allegation with reference to abandonment in the same category as the divorce statute, G.S. § 50-8, places the allegation of residence and knowledge of the grounds of divorce. The demurrer was properly overruled and assignment of error No. 1 is not sustained.

In this court the respondent demurred ore tenus to the complaint because it showed that the mother's written consent to the adoption had not been executed at the time the petition was filed. The petition alleged in paragraph 12 that the mother had orally consented to the adoption and that her written consent would be filed. The record shows that her written consent was filed five days later. G.S. § 48-15(12) requires that the petition shall state 'that there has been full compliance with the law in regard to consent to adoption.' The respondent, in his answer to paragraph 12 of the petition which he verified on the 14th day of August, 1959, admitted that the mother had filed a written consent to the adoption. By this admission respondent supplied the omission in the petition and cured the defect. 71 C.J.S. Pleading § 590b; Johnson v. Finch, 93 N.C. 205; Shuford v. Phillips, 235 N.C. 387, 70 S.E.2d 193; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. The demurrer ore tenus is overruled.

Assignment of error No. 2 is to the failure of the judge to nonsuit the proceeding 'in that no evidence was before the court, that respondent wilfully abandoned said child for six consecutive months immediately preceding the filing of the action as required by law.' The effect of assignment of error No. 17 which relates to the judge's charge, is to allege that the failure of the judge to direct a verdict in favor of the respondent on the same grounds as specified in the motion of nonsuit was error. These two assignments will be considered together.

G.S. § 48-2 defines an abandoned child as 'any child under the age of eighteen years who has been willfully abandoned at least six consecutive months immediately preceding the institution of an action or proceeding to declare the child to be an abandoned child.'

This court in Truelove v. Parker, 191 N.C. 430, 438, 132 S.E. 295, discussed the abandonment which would remove the necessity for a parent's consent. In the Truelove case the mother of the child was never made a party to the adoption proceeding. Her written consent was not secured and there was no judicial determination of abandonment. In that opinion we find the following:

'In 1 C.J. 1387(76) it is said: 'To constitute such an abandonment by a parent as will deprive him of the right to prevent the adoption of his child, and dispense with the necessity of his consent, there must be some conduct on his part which evinces a settled purpose to forego all parental duties. But merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.' By the terms of the statute, it is necessary that such abandonment be willful; that is, accomplished purposely and deliberately, in violation of law.'

To frame a precise definition of abandonment which would cover all cases would be difficult indeed. The most frequently approved definition is that abandonment imports any wilful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. 35 A.L.R.2d, Anno.: Adoption-Abandoned or Deserted Child, 662, 665, 668; 2 C.J.S. Adoption of Children § 21d(2). Wilful intent is an integral part of abandonment and this is a question of fact to be...