Walthall v. Hime

• Decision Date: 27 May 1963
• Docket Number: No. 5-3019,5-3019
• Citation: 236 Ark. 689,368 S.W.2d 77
• Parties: W. O. WALTHALL et ux., Appellants, v. Harold Henry HIME, Appellee.
• Court: Arkansas Supreme Court

Page 77

368 S.W.2d 77

236 Ark. 689

W. O. WALTHALL et ux., Appellants, v.Harold Henry HIME, Appellee.

No. 5-3019.

Supreme Court of Arkansas.

May 27, 1963.

McKay, Anderson & Crumpler, Magnolia, for appellants.

Harry B. Colay, Magnolia, for appellee.

HARRIS, Chief Justice.

This is an adoption proceeding.Harold Henry Hime, a Baptist minister, was the husband of Billie Jo Walthall Hime, and Billie Jo died on September 25, 1957, eight days after the birth of the couple's third child, Sarah Margaret Hime.W. O. Walthall and Lula Walthall, his wife, parents of Billie Jo, and appellants herein, took the baby home from the hospital, along with the two older minor sons.Mr. Hime also lived in the Walthall home while teaching at Bradley; after about six weeks, he became pastor at Bradley, and moved from appellants' home.Hime, according to the testimony, at first, returned to the Walthall home on Friday nights, and subsequently on Saturdays, at which times he would see the children and get clean clothes.In September, 1958, appellee remarried, and took the boys with him to the parsonage at Bradley.Sarah Margaret remained with her grandparents.Mr. Hime, his wife, and sons, remained in the parsonage until January, 1960.During that period, the grandparents visited in his home on several occasions, at which time they took Sarah Margaret with them, and on several occasions returned the boys back to their home for a visit.Mrs. Walthall testified that appellee never did ask for Sarah to spend the night at his home, nor did he take Sarah out when visiting appellants, or ask to do so.A girl baby was born to Mr. Home and his second wife in September, 1959.Thereafter, appellee and family left Bradley and moved to Fort Worth.Sarah Margaret remained in the home of the grandparents.According to Mrs. Walthall, the Himes, at first, came back for a visit during the summer, and the two families always had Christmas dinner together.She testified that Sarah never did visit with her father, and that no request was made for such a visit.Early in 1961, appellee commenced sending $30.00 per months to the Walthalls for the benefit of the child, the money being a portion of Social Security money (or some fund from the Government) which Hime recieved in behalf of the child.In May, 1962, the Walthalls received a letter from appellee to the effect that he desired to take his daughter home with him to live.Mr. Walthall directed a letter to Hime, stating that appellants intended to keep Sarah Margaret.In June, appellee filed an action in Habeas Corpus to obtain custody of the child.On the day that this matter was to be heard, appellants filed a petition in Probate Court, seeking to adopt Sarah Margaret, alleging that Hime had abandoned the child for more than six months immediately prior to the filing of their petition for adoption.A motion was also filed by them to continue the Habeas Corpus hearing until after the adoption petition was heard.The motion was granted, ¹ and subsequently the petition for adoption was heard by the Probate Court.At the conclusion of the hearing, the judge of that court entered a lengthy and studious opinion, wherein he found that the petition for adoption should be denied.In accordance with this finding, an order was entered dismissing appellant's petition, and denying the adoption.From such order, comes this appeal.

Section 56-106, Ark.Stats., dealing with adoption, provides as follows:

'(a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:

'(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:

'(I) The parent has abandoned the child for more than six (6) months next preceding the filing of the petition.

'(II) The parent cannot be found.

'(III) The parent is insane or otherwise incapacitated from giving consent.

'(IV) A guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child's natural parents.In this case, the written verified consent of the guardian shall be sufficient.

'(V) For five (5) years next preceding the filing of the petition for adoption, the child has resided in this State in the sole custody of one of its parents and the other parent has not, during that period contributed to its support, care or maintenance, then the appearance and consent of such other parent, whether or not his or her residence is known, shall not be necessary, and the court may order the adoption upon the consent of the parent who has had the custody, support, care and maintenance of the child.

'(c) In case of illegitimacy, the consent of the mother shall suffice except where paternity has been established by judgment or order of a court of competent jurisdiction.

'(d) The minority of a parent shall not bar or in any way vitiate his consent to an adoption.'

Appellants rely upon Provision (I), and in proceeding under this theory, endeavored to establish that appellee had 'given' the child to its grandparents.Four ladies testified that during the first Mrs. Hime's last illness, appellee had told them that if his wife died, he would give the child to Mrs. Walthall; however, on cross-examination, one of the witnesses (Mrs. Fritch) stated that he was 'letting them keep Sarah.'Two of the other ladies, who testified that Hime 'gave' the child to appellants, added that he did not indicate he was abandoning Sarah Margaret, and the fourth testified that he seemed rather perturbed at the...