Tomlinson v. O'Briant

Decision Date06 May 1982
Docket Number12396,Nos. 12015,s. 12015
Citation634 S.W.2d 546
PartiesElmer TOMLINSON and Ruth Tomlinson, his wife, Petitioners-Respondents, v. Bonny O'BRIANT, Respondent-Appellant. Southern District, Division Three
CourtMissouri Court of Appeals

King E. Sidwell, Blanton, Rice, Sickal, Gilmore & Sidwell, Sikeston, for respondent-appellant.

Michael B. Hazel, Caruthersville, for petitioners-respondents.

HOGAN, Judge.

In this adoption case, the petitioners, to whom we shall refer as the plaintiffs, sought to adopt the children of their deceased son Thomas. Separated from his second wife, Thomas and his children were living with the plaintiffs at the time of Thomas' death on February 13, 1980. On March 7, 1980, plaintiffs filed a two-count petition in the juvenile division of the Circuit Court of Pemiscot County. In Count One, plaintiffs averred: 1) that they were husband and wife, residents of Pemiscot County; 2) that they desired to adopt E, a female child 10 years of age, and M, a male child 8 years old, and that both children were residing with them; 3) that their son died February 13, 1980, and they were the children's paternal grandparents; 4) that respondent, whom we shall call the defendant, had willfully abandoned and willfully neglected to provide the children with maintenance for at least 1 year next preceding the filing of the petition; 5) that transfer of custody of the children and their subsequent adoption would be in the children's best interest. In Count Two, plaintiffs incorporated and realleged the averments of Count One, adding that they desired to adopt the children and praying entry of a decree of adoption 9 months after entry of an order transferring custody. Defendant was served and filed a responsive pleading. The trial court held two hearings. On August 22, 1980, the court heard evidence on the petition for custody and awarded custody to the plaintiffs. On July 7, 1981, it heard further testimony and entered a decree of adoption. Defendant appeals from both orders.

In appeal number 12015, defendant argues that the trial court was without jurisdiction to award plaintiffs the custody of the children. The thrust of her first point is that in the circumstances of this case, the court should have required the plaintiffs to proceed under the Termination of Parental Rights Act, now codified as §§ 211.442-211.492, RSMo 1978, 1 rather than permitting them to proceed under the provisions of § 453.010. Defendant concedes the order of August 22, 1980, was not an appealable order. Marsch v. Williams, 575 S.W.2d 897, 898(3) (Mo.App.1978).

The difficulty with this point is that the objection made here was not presented in the trial court. In her responsive pleading, defendant averred that the trial court was without jurisdiction and the question of the trial court's jurisdiction of the subject matter is properly preserved for review. Rule 55.27(a); Greenwood v. Schnake, 396 S.W.2d 723, 726 (Mo.1965). Nevertheless an appellant is not entitled to alter or broaden the scope of his objection on appeal, Cowden v. Sun Oil Co. of Pennsylvania, 583 S.W.2d 547, 549(5) (Mo.App.1979), and the first point is not properly before this court.

The second point advanced is that the trial court lacked jurisdiction of the subject matter because the Termination of Parental Rights Act provided plaintiffs an exclusive remedy by which to obtain custody of the children. Defendant asserts that the provisions of § 211.442 are repugnant to the provisions of § 453.040 and § 211.442 must be considered controlling. We decline to pursue this argument at length. Legislative concern for the integrity of the family unit and the welfare of minor children has resulted in the enactment of a welter of "dependency" or "termination" statutes, some of which have proved unsatisfactory. See Note, 68 Geo.L.J. 213, 230-240 (1979). The literature immediately available to us indicates that "termination" statutes were originally intended only to provide an additional procedure by which parental rights might be terminated to protect the children or to foreclose the validity of parental consent before a petition for adoption is filed. See 9A U.L.A. § 47 and Commissioner's Note thereto.

However that may be, it is clear from the precedents that in this case, the juvenile division of the Circuit Court of Pemiscot County had jurisdiction of the adoption. When defendant and the children's father were divorced, defendant was awarded custody of the children. However, the decree was modified in 1973 and principal custody was awarded to the father. At the time of the father's death, the defendant had not fully exercised her right to part-time custody and visitation for some time. When the father died in 1980, the continuing jurisdiction of the divorce court abated. In re Wakefield, 365 Mo. 415, 422, 283 S.W.2d 467, 471(2) (banc 1955); Schumacher v. Schumacher, 223 S.W.2d 841, 845 (Mo.App.1949). No court of competent jurisdiction was obliged to defer, in 1980, to whatever presumption of fitness was created by a decree rendered in 1972. See: In re Duncan, 365 S.W.2d 567, 570-571(2)(3, 4), 4 A.L.R.3d 1270, 1274-1275 (Mo.banc 1963); McCoy v. Briegel, 305 S.W.2d 29 (Mo.App.1957). When this action was commenced, both plaintiffs and the children were residents of Pemiscot County; the plain terms of § 453.010 conferred authority to hear the adoption proceeding upon the juvenile division of the circuit court of that county, and the decree is not void for want of jurisdiction of the subject matter. State ex rel. Catholic Charities of St. Louis v. Hoester, 494 S.W.2d 70, 73(3) (Mo.banc 1973); State ex rel. Grimstead v. Mueller, 361 Mo. 92, 96-97, 233 S.W.2d 700, 701-702 (banc 1950); In re Adoption of K., 417 S.W.2d 702, 707-708(5) (Mo.App.1967).

Appeal number 12396 is defendant's appeal on the merits. Preliminarily, we note and set two matters aside because they are not dispositive of the appeal on its merits. Upon trial it was shown that the defendant has been married five times. This suggests that her domestic situation has been unsettled, but there is nothing in the record to indicate the defendant has been guilty of any immoral conduct which would make her an unfit custodian of her children, nor to suggest that the children would be subject to any debasing or immoral influence in her home. The plaintiffs were 60 years of age. The children were 10 and 8. If the children were placed with the plaintiffs, plaintiffs would be nearly 70 years of age at the time the children reached maturity. Usually, children should be cared for by individuals who are of such age as those who normally bear children, but advanced age does not, of itself, disqualify a prospective adopting parent. In re Adoption of K., supra, 417 S.W.2d at 711-712(16, 17). The record indicates both the plaintiffs and the defendant and her present husband are financially able to care for the children. The trial court was not presented with a contest between a fit custodian and an unfit custodian.

The decisive question is whether the evidence established that the defendant abandoned her children within the meaning of § 453.040(4). "Abandonment" within the intent of § 453.040(4) is a voluntary and intentional relinquishment of custody of the child to another with the intent to never again claim the rights or perform the duties of a parent. In the Matter of K. M. B., 544 S.W.2d 590, 592(4) (Mo.App.1976); In re Adoption of J, 396 S.W.2d 257, 261(3, 4) (Mo.App.1965); In re Adoption of J. M. K., 363 S.W.2d 67, 72-73 (Mo.App.1962). It is true that § 453.040(4) states alternative grounds for dispensing with parental consent, In re Adoption of J, supra, 396 S.W.2d at 261, but in this case we are not concerned with "willful neglect to provide" for the children. From 1973 to 1980, the children were in their father's custody. The record shows beyond cavil that during that period, the father was both legally and morally bound to support the children, and there is no evidence they were ever in want. So, to reiterate, our question is whether the evidence supports a finding that the defendant abandoned her children. We approach the question bearing in mind that adoption statutes must be strictly construed in favor of the natural parent. Adoption of R. A. B. v. R. A. B., 562 S.W.2d 356, 360-361(5) (Mo.banc 1978).

The defendant married the children's father in 1970. By our calculation, she was then 19 years old. She and her first husband became parents of two children before they were divorced in 1972. The divorce court awarded custody of the children to the defendant. The children's father was ordered to pay the sum of $100 per month as child support. Defendant testified the father made only one support payment.

At the time of the divorce, defendant and the children's father lived in St. Louis County. Shortly after she was divorced, defendant moved to California. She kept the children with her. Seventeen months after the divorce, defendant found herself unable to support herself and her children. Her "job skills" were not sufficient for her to find employment sufficiently remunerative to care for the children "without receiving help from the welfare department and/or (sic) their father." The father asked defendant to return the children to him. He "had ... more" than the defendant, was about to marry another woman, and "they and his two parents could care for (the children) twice as well as (defendant) could by herself."

Defendant was reluctant to surrender custody of the children, but decided that her former husband was in a better financial position than she was and "did feel that he loved the children and ... would (properly) care for them." The father filed a motion to modify the divorce decree in 1973. Defendant did not appear in person and did not have counsel. The motion was disposed of by stipulation, apparently...

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  • B.R.F., In re
    • United States
    • Missouri Court of Appeals
    • March 20, 1984
    ...decree abated. Id. at 845. Our present Dissolution Act has not changed these principles and their corollaries. See Tomlinson v. O'Briant, 634 S.W.2d 546, 548 (Mo.App.1982); See Leventhal v. Leventhal, 629 S.W.2d 505, 507 (Mo.App.1981). Accordingly, in the present case, the Missouri Court's ......
  • Marriage of Carter, In re
    • United States
    • Missouri Court of Appeals
    • August 16, 1990
    ...When, in the case at bar, the mother died, the continuing jurisdiction of the divorce court over custody abated. Tomlinson v. O'Briant, 634 S.W.2d 546, 548 (Mo.App.1982). The present Dissolution Act has not changed those principles. In re B.R.F., supra at 244." In re Marriage of Tuttle, 764......
  • H.J.P., In Interest of
    • United States
    • Missouri Court of Appeals
    • April 4, 1984
    ...H on the ground that it was improperly marked. She may not alter or broaden the scope of her objections on appeal. Tomlinson v. O'Briant, 634 S.W.2d 546, 548 (Mo.App.1982); Cowden at 549. Appellant's fourth point is We now consider appellant's points relative to the juvenile court's finding......
  • A.L.H., Matter of
    • United States
    • Missouri Court of Appeals
    • August 15, 1995
    ...of proving the existence vel non of a condition obviating parental consent by clear, cogent and convincing evidence. Tomlinson v. O'Briant, 634 S.W.2d 546, 551 (Mo.App.1982). However, no Missouri case we have found discusses what the petitioners must do to meet their burden. A sensible allo......
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