Smith v. Smith, 7324

• Citation: 180 P.2d 853,67 Idaho 349
• Decision Date: 15 May 1947
• Docket Number: 7324
• Parties: SMITH v. SMITH
• Court: United States State Supreme Court of Idaho

180 P.2d 853

67 Idaho 349

SMITH v. SMITH

No. 7324

Supreme Court of Idaho

May 15, 1947

Appeal from District Court, Seventh District, Washington County; A O. Sutton, Judge.

Judgment modified and, as modified, affirmed.

George Donart and D. L. Carter, both of Weiser, for appellant.

An order of adoption regular on its face is not subject to collateral attack. Finn v. Rees, 65 Idaho 181, 141 P.2d 976, at page 980; Neville v. Bracher, 94 Colo 550, 31 P.2d 911; Pepin v. Meyer, 53 Mont. 240, 163 P. 104 at page 106; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 262 P. 887; In re Zupancis' Heirship (Zupancis v. Zupancis), 107 Colo. 323, 111 P.2d 1063.

When a decree of divorce is granted and custody of a child awarded and such child is subsequently adopted by order of a Probate Court, the order of adoption determines the status of the child and the District Court loses jurisdiction to make any further order on such custody. In re Hardesty's Adoption, 150 Kan. 271, 92 P.2d 49, at page 52.

Herman Welker, of Payette, and Frank D. Ryan, of Weiser, for respondent.

The question as to the disposition of minor children in divorce actions is in the first instance committed to the discretion of the Trial Court and, in the absence of an abuse of that discretion, the judgment will not be disturbed. Donaldson v. Donaldson, 31 Idaho 180, at page 186, 170 P. 94.

"It is settled that 'an application for a modification of an award of custody is addressed to the sound legal discretion of the Trial Court, and its discretion will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion'." McKee v. McKee, 76 Cal.App. 728, 174 P.2d 18, at page 20; Munson v Munson, 27 Cal.2d 659, 166 P.2d 268, 272; Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719, 724.

Courts of equity possess a continuing jurisdiction over the custody of children, and an inherent power to amend, modify or annul orders of custody, which, in their nature, are but temporary, as the welfare of such children under changing conditions may demand. Stewart v. Stewart, 32 Idaho 180, at page 185, 180 P. 165.

Budge, Chief Justice. Givens and Ailshie, JJ., concur. Miller, J., concurs in the conclusion. Holden, Justice, dissenting.

OPINION

Budge, Chief Justice.

The facts in this case are not materially in conflict. Briefly stated, they are substantially as follows:

September 19, 1941, appellant was granted a default decree of divorce from respondent. The decree provided that appellant should have the custody of Julia Smith, minor child of the parties, subject to the right of respondent to see said minor child at reasonable times and places. October 3, 1945, respondent filed a petition for an order to show cause In re Application for Modification of Decree and, among other things, set up that September 19, 1941, the court awarded appellant a decree of divorce; that since the granting of the decree conditions and circumstances surrounding the parties and the child had materially changed; that appellant had remarried and was a resident of Ada County; that for more than a year last past his former wife had completely abandoned said child to its grandparents, who reside in Weiser, Washington County; that appellant had given up all parental control over said child, and was no longer giving her the motherly care she needed and deserved. Respondent also set out that he has fully complied with the decree and is not in default thereunder; that appellant refused to permit respondent the right of visitation with said child at reasonable times and places or otherwise; that appellant has influenced the child's mind against her natural father, thereby wilfully and maliciously alienated the affection of said child; that respondent repeatedly made attempts to visit the child, and each time appellant or her agents, the grandparents of the child, refused respondent the right of visitation. There are other allegations in the petition to the effect that the grandparents had prejudiced the child's mind so that she refused to accept presents from respondent, refused to associate with him as she had formerly done, and had apparently lost all regard and affection for him due to the acts and conduct of appellant and the grandparents.

It is further alleged that January 13, 1945, Lenore Sanders Weeks, husband of appellant, petitioned the Probate Court of Washington County for an order of adoption of the minor child, Julia Cecil Smith, alleging, among other things, that the custody of the child was given to Lucille Smith Weeks, his wife, by the decree of divorce heretofore referred to and, further, that consent of adoption was filed by appellant, together with an agreement of adoption signed by Lenore Sanders Weeks. The petition for adoption of the minor child, the agreement, the consent of appellant to the adoption, and the order of adoption were all filed January 13, 1945. No time was set for the hearing of said petition, and no notice of said hearing was served upon respondent, the natural father, and he had no knowledge of said proceedings until the 19th day of September, 1945. The order of adoption changed the name of the minor child from Julia Cecil Smith to Julia Ann Weeks, and effectively and absolutely deprived respondent of his child.

The petition for adoption alleges, inter alia, "that Julia Cecil Smith is a minor of the age of 5 years * * * and is domiciled in Washington County, Idaho." The petition does not allege the domicile or residence of the petitioner Weeks. The order of adoption recites, independent of any allegation in the petition, that Weeks, the petitioner, "is an inhabitant and resident of the County of Washington, State of Idaho." The petition is silent as to the domicile or residence of the mother of the minor child, now Mrs. Weeks. There is no allegation of abandonment contained in the petition, although abandonment is recited in the order, the order, therefore, not being sustained by the petition.

Nonsupport and abandonment are not synonymous. Nonsupport, in and of itself, does not constitute abandonment.

"In the second place we are persuaded to say that the mere failure of the parents of a minor child, in the custody and under the care of a third party, to contribute while it is in such custody and care, to the support and maintenance of such child for a period of one year, does not itself constitute an abandonment of the minor within the purview of said section of the Code. [sec. 224, C.C., same as our sec. 31-1104, I.C.A.] If the rule were otherwise -- that is, if an adjudication of abandonment could legally be predicated on the mere failure by the parents to support their minor children -- the result, in inumerable instances, would be to work a manifest wrong upon parents. It is not difficult to conceive of circumstances wholly beyond the control of parents having the deepest affection for their children which would render it impossible for them to support their children or care for them in a proper way. It would, indeed, be a harsh rule which would, under such circumstances, authorize a judicial determination by which the natural right of the parents to the custody and control of their children would be forever severed." In re Kelly, 25 Cal.App. 651, 145 P. 156, 158. See, also, Platt v. Moore, Tex.Civ.App., 183 S.W.2d 682.

The record in this case shows the father of the child made all payments of support money prior to the application for modification of the decree, consequently he was not in contempt.

In respondent's petition for modification of the decree it is alleged that the proceedings and order of adoption had and entered in the Probate Court of Washington County are void.

This appeal is, first, from the judgment declaring the probate proceedings heretofore referred to, void and, second, from the order of the court modifying the decree of divorce awarding the custody of the minor child to Lucille Smith Weeks during each regular school year, and that Virgil Smith, respondent here, should have the custody of said minor child during the summer vacation period during the minority of said child, otherwise the decree to be and remain as heretofore.

The two questions, as above stated, are here for determination. If the proceedings in the probate court were valid and not subject to collateral attack, no necessity would exist for deciding the second question, namely, modification of the decree of divorce.

Directing our attention to the first question, can the order of adoption be collaterally attacked, appellant's contention is that the order made and entered by the probate court is regular on its face therefore cannot be attacked collaterally; that said order determined the status of the child, and the district court was without jurisdiction to change or modify said decree of divorce, having been divested of its jurisdiction.

In the opinion of the writer, in a proceeding of this nature which must be strictly construed, the order of adoption is not regular on its face. The recitals in the order, as pointed out, are not alleged in the petition for adoption. Abandonment, which under certain circumstances may be urged as obviating the necessity for personal service or notice, is not alleged in the petition. It is not alleged nor contended that the father is not a fit and proper person to have custody of the child. The respondent, not being made a party to the adoption proceedings, had no right of appeal. The method pursued to attack the illegality of the order was available to respondent. Hay v. Hay, 40 Idaho 159, 232 P. 895. The order of adoption was void ab initio.

The rule is that an attempted adoption of a minor child by its mother and her second husband without the consent of the natural father, from whom the mother...