Stawicky v. Stawicky, A--735

• Decision Date: 26 February 1951
• Docket Number: No. A--735,A--735
• Citation: 12 N.J.Super. 72,79 A.2d 72
• Parties: STAWICKY v. STAWICKY. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 72

12 N.J.Super. 72

79 A.2d 72

STAWICKY v. STAWICKY.

No. A--735.

Superior Court of New Jersey.

Appellate Division.

Argued Feb. 5, 1951.

Decided Feb. 26, 1951.

Marcus Blum, Elizabeth, argued the cause for plaintiff-respondent (William Bruder, Elizabeth, attorney; H. Harding Brown, Elizabeth, on the brief).

Abe Sander Schwartz, South River, argued the cause for defendant-appellant (Joseph B. Schwartz, Perth Amboy, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

Plaintiff divorced defendant on grounds of extreme cruelty. The decree Nisi entered in the former Court of Chancery included a provision awarding plaintiff custody of the infant child of the marriage with visitation privileges to defendant and also the privilege to have the child every other week end. Plaintiff married William Miller after the entry of the final decree on October 1, 1945. On April 29, 1948, plaintiff filed a petition in the cause alleging that Miller desired to adopt the child (who was under the age of 14 years) but that defendant refused to consent and praying the court's consent in lieu thereof. Under the adoption statute, R.S. 9:3, N.J.S.A., an adoption under such circumstances cannot be granted in the County Court unless written consents of both parents to the adoption, acknowledged or proved in the manner required by law for deeds to real estate, are presented with the complaint for adoption, except that under R.S. 9:3--4(c), N.J.S.A. the consent of one parent suffices 'if the other is * * * mentally incompetent, or has forsaken parental obligations or been divorced from the father or mother of the child because of his or her adultery or desertion or extreme cruelty; Provided, however, that when the consent of one parent is not presented with the petition by reason of divorce, if the court granting the divorce has made an award of the custody of the child, consent of such court to the adoption must be presented with the petition'.

An order to show cause issued and was served on defendant. He did not contest the petition but filed an assent to the prayer thereof by an instrument addressed to his attorney and directing the latter 'not to contest this application for consent to adoption and to inform the court that I agree and consent to the adoption of my son.' Thereupon without hearing and upon defendant's filed assent the former Court of Chancery made on order entered July 13, 1948, that Miller and the plaintiff 'be given consent of the Court of Chancery to adopt the said Stephen Stawicky, Jr.' Subsequently defendant successfully applied to the Middlesex County Court to stay the determination of adoption proceedings in that court pending an application to the Chancery Division for an order 'revoking the consent.' The motion was heard in the Chancery Division on affidavits and answering affidavits and was denied by order entered June 20, 1950, 9 N.J.Super. 472, 75 A.2d 521 (Ch.Div. 1950). Defendant appeals from the last mentioned order.

Appellant argues that the consent of the former Court of Chancery was irregularly entered notwithstanding his assent thereto because the order of July 13, 1948, was made without a hearing, '* * * that due process of law * * * would have required at least that much because it is a judicial fact to be determined by the judge from extrinsic evidence whether the court's consent should be given to the adoption' as being 'what was best for the child,' that the giving of the consent without such hearing and inquiry was 'diametrically opposed to the inherent spirit and fundamental purpose of a court of equity, particularly when the right and custody of a minor child is concerned.' His brief views the consent as having the effect of an order which 'conclusively disposed of the rights of the defendant and the child.'

Appellant's argument misconceives the purpose of the requirement for the Chancery consent and its effect in the adoption proceedings in the County Court and the scope of the inquiry to be made by the Chancery Court upon the application for that consent.

Adoption was unknown to the common law and is purely statutory. Gardner v. Hall, 132 N.J.Eq. 64, 26 A.2d 799 (Ch. 1942), affirmed 133 N.J.Eq. 287, 31 A.2d 805 (E.&A. 1943). The only court with statutory jurisdiction to grant an adoption is the County Court of the county wherein the petitioner or the child to be adopted is domiciled. R.S. 9:3--1, N.J.S.A. The primary object of the hearing in the County Court is to ascertain as far as practicable whether the best interests of the child will be promoted by the adoption. R.S. 9:3--7, N.J.S.A. There must be presented with the complaint for adoption the required consents without which the County Court cannot make a valid judgment of adoption. R.S. 9:3--4, N.J.S.A.; Luppie v. Winans, 37 N.J.Eq. 245 (Prerog. 1883), reversed on other grounds, Winans v. Luppie, 47 N.J.Eq. 302, 20 A. 969 (E.&A. 1890). Further, the County Court cannot grant an adoption until a report is returned by an agency appointed by it, either the Department of Institutions and Agencies or an orphanage, children's home or society incorporated under the laws of New Jersey, which report shall state the findings of the agency's investigation into the truth of the allegations of the complaint and reveal such facts as may be necessary to determine the condition and antecedents of the child and of the adopting parents, in order that it may be ascertained whether the child is a proper subject for adoption, and whether the person or persons desiring to adopt the child and their home are suitable for the proper rearing of...