Ross v. Pick

• Decision Date: 14 February 1952
• Docket Number: No. 101,101
• Citation: 86 A.2d 463,199 Md. 341
• Parties: ROSS et ux. v. PICK.
• Court: Maryland Court of Appeals

Page 341

199 Md. 341

86 A.2d 463

ROSS et ux. v. PICK.

No. 101.

Court of Appeals of Maryland.

Feb. 14, 1952.

George E. Brown, Jr., and Howard E. DeMuth, Jr., both of Baltimore, for appellants.

Francis J. Valle, Baltimore (George W. Della, III, Baltimore, on the brief), for appellee, Helen R. Pick.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

This is a controversy over the right to the custody of William R. Dick, 11-year-old son of Robert L. Dick and his former wife, Helen R. Dick, now Helen R. Pick. The mother's petition for custody of her son was opposed by appellants, Alfred W. Ross and Mary Elizabeth Ross, his wife, formerly residents of West Virginia, but now of Dundalk, Baltimore County, who had his custody for nearly ten years.

The Dicks were married in 1937. At that time Mrs. Dick was 17 years old. The couple had two children, Robert L. Dick, Jr., born in April, 1938, and William R. Dick, born in March, 1940. The conditions under which the family lived were deplorable. Dick was an habitual alcoholic who spent most of his salary for liquor. It was reported that when Mrs. Dick arrived home one night, she found that her husband had sold all of their possessions except the bedroom furniture and the kitchen stove. It was also reported that when Mrs. Dick was pregnant before William's birth, she did not have enough food to eat, and in consequence the child was so puny at birth that he was left in the hospital for about a month for observation.

In January, 1942, Dick took the two children to Elk Garden, a village with a population of about 300 in Mineral County, West Virginia, to confer with his sister and her husband, the Rev. George Burkhardt. The Burkhardts promptly took the children to the home of their daughter and her husband, appellants, in Cresaptown, Allegany County Maryland. In April, 1942, after Mrs. Dick got a job at a luncheon counter, Dick made a trip to Cresaptown to reclaim the boys, but he brought only Robert back to Baltimore. In the summer of 1943 Mrs. Dick went to Cresaptown to bring William back. She stayed with the Rosses overnight, but they told her that she could not take William unless she had her husband with her.

The Dicks separated in November, 1943. Dick instituted a suit for divorce in the Circuit Court of Baltimore City. Mrs. Dick filed a cross-bill. In January, 1945, the court granted Mrs. Dick a divorce, awarded her the custody of Robert and ordered her husband to pay $6 a week for his support, and reserved the matter of William's custody for the future action of the court.

In 1946 Mrs. Dick married Charles Wood, a ship worker. In November, 1948, Wood was killed while working on a ship at the Maryland Dry Docks. In July, 1949, Mrs. Wood married Charles W. Pick, a native of Scotland, 28 years old, a first class petty officer in the Navy. In February, 1951, Mrs. Pick filed a petition in the divorce proceedings in the court below asking for the custody of her son William.

Mrs. Pick's first husband, the father of the child, did not answer the petition. Mr. and Mrs. Ross answered that they had adopted the child in West Virginia. Ross had served in the United States Navy for several years, but received his discharge in February, 1946. In October, 1946, accompanied by his wife and the boy, he went to Green Lane, Pennsylvania, to attend the Eastern Bible Institute. They returned to Elk Garden in January 1948. In July, 1948, the Rosses filed a petition in the Circuit Court of Mineral County, West Virginia, for the adoption of the child. From January until April, 1949, Ross attended a business school in Cumberland, and his wife and the child lived with him in that city. On May 16, 1949, the Circuit Court of Mineral County found that the child's father consented to adopted, and that the child's mother had abandoned and deserted him for a period of more than seven years and had shown no interest in his welfare, and accordingly decreed that he was the adopted son of Mr. and Mrs. Ross. In May, 1949, they moved to Dundalk, where they have since resided.

At the conclusion of the testimony, the court announced that, in accordance with recommendations of the Probation Department, the Rosses would be given custody of the boy during the sessions of school, while Mrs. Pick would have his custody in summer and at week-ends, so that after the boy reaches the age of 15 and is able to make up his mind, he can decide for himself with whom he wants to live. Shortly after announcing that decision, the court was informed that Pick had been ordered to Florida and that Mrs. Pick planned to follow him. That change of residence made it impracticable to carry out the recommendations of the Probation Department. On July 10, 1951, the court awarded the sole care and custody of the child to Mrs. Pick.

In any divorce case in Maryland in which the care and custody of the children of the parties forms a part of the relief prayed, the court has the power to order who shall have the guardianship and custody of the children and be charged with their support and maintenance, and may at any time thereafter annul, vary or modify such order in relation to the children. Code 1939, art. 16, sec. 41, as amended by Laws 1949, ch. 370; Sause v. Sause, Md., 69 A.2d 811; Chillemi v. Chillemi, Md., 78 A.2d 750; Bennett v. Bennett, Md., 79 A.2d 513.

Mrs. Pick earnestly contended that the West Virginia court lacked jurisdiction in the adoption proceedings for two reasons: (1) that the child's domicil was in Maryland, and (2) that she had no actual notice of the adoption proceedings.

The West Virginia Code of 1949 contains the following provisions on the subject of adoption:

Sec. 4756. 'Such petition shall set forth the name, age and place of residence of the petitioner or petitioners, and of the child * * *; whether such child has either father or mother, or both, and if he, she or they are alive, then the name or names, and place of residence of such father or mother, or if such be the fact, that the same are unknown to the petitioner or petitioners.'

Sec. 4757. 'Upon the day so appointed the court or judge thereof shall proceed to a full hearing of the petition and examination of the parties in interest, under oath and of such other witnesses as the court or the judge thereof may deem necessary to fully develop the standing of the petitioners and their responsibility, and the status of the child sought to be adopted * * *.'

Sec. 4760. 'A parent or guardian of a minor, when a minor is adopted under the provisions of this article, who had no notice of the proceedings, may, at any time within a year after receiving notice thereof, apply by petition to the circuit court in which the petition * * * was filed, praying that the adoption may be vacated.'

The decree of the West Virginia court must be given full faith and credit under Article 4, Section 1, of the Constitution of the United States. Smithsonian Institution v. St. John, 214 U.S. 19, 29 S.Ct. 601, 603, 53 L.Ed. 892. However, the Full Faith and Credit Clause does not preclude inquiry into the jurisdiction of the court in which the judgment is rendered over the subject matter, or the parties affected by it, or into the facts necessary to give such jurisdiction. Complete inquiry is permissible into the circumstances of a judgment of a sister State to determine whether it binds the person against whom it is invoked. Thormann v. Frame, 176 U.S. 350, 20 S.Ct. 446, 448, 44 L.Ed. 500.

It is well settled that a decree of adoption has all the force and effect of a judgment and is not subject to collateral attack except for want of jurisdiction. Villier v. Watson, 168 Ky. 631, 182 S.W. 869, L.R.A.1918A, 820; Milligan v. McLaughlin, 94 Neb. 171, 142 N.W. 675, 46 L.R.A.,N.S., 1134; Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620. It is generally held that, unless a parent has forfeited his rights in relation to his child by some misconduct, he is entitled to notice of proceedings to adopt it, and, in the absence of such notice, the proceedings are invalid as against the parent. Lacher v. Venus, 177 Wis. 558, 188 N.W. 613, 24 A.L.R. 403, 416. The interest of a parent in his child cannot be divested by adoption unless he is given notice and an opportunity to be heard, except in instances where by gross misconduct, or waiver, or perhaps for other fault, he has forfeited his rights in this respect. The Legislature has wide discretion in determining the acts or conduct of a parent which may forfeit this right to notice or dispense with it, for the Legislature has power to enact reasonable legislation to provide for the care, custody and maintenance of children within its borders. Glass v. Glass, 260 Mass. 562, 157 N.E. 621, 53 A.L.R. 1157.

It is true that a minor child's domicil, in the case of divorce of its parents, is that of the parent to whose custody it has been legally given; and if there has been no legal fixing of custody, its domicil is that of the parent with whom it lives; but if it lives with neither, it retains the father's domicil. Restatement, Conflict of Laws, sec. 32. But it is also accepted that the status of adoption is created by either (1) the law of the State of domicil of the adopted child, or (2) the law of the State of domicil of the adoptive parent, if it has jurisdiction over the person having legal custody of the child, or if the child is a waif and subject to the jurisdiction of the State. Restatement, Conflict of Laws, sec. 142.

In Stearns v. Allen, 183 Mass. 404, 67 N.E. 349, 351, 97 Am.St.Rep. 441, the Supreme Judicial Court of Massachusetts had under consideration the Massachusetts statute which provided that the consent of parents to the adoption of their child shall not be required in certain cases of imprisonment of the parent, or of willful desertion of the child by the parent, or if the parent has suffered the child to be supported for more than two years continuously...