White v. Davis, 22065
| Decision Date | 19 June 1967 |
| Docket Number | No. 22065,22065 |
| Parties | Kenneth Q. WHITE, Plaintiff in Error, v. W. Bancroft DAVIS, Defendant in Error. |
| Court | Colorado Supreme Court |
Robert Swanson, Neef, Swanson & Myer, Denver, for plaintiff in error.
W. Bancroft Davis, Julesburg, Sherman E. Walrod, Holyoke, for defendant in error.
The plaintiff in error, Kenneth Q. White, filed in the lower court his Motion to Vacate Decrees of Adoption of his three minor children by W. Bancroft Davis, who after divorce between White and Rae Anne White, had married White's former wife, mother of the children. Davis challenged this motion by moving to strike it on the ground that White's attempt to vacate the decrees of adoption was barred by C.R.S. 1963, 4--1--16 quoted as follows:
'Limitation on annulment of adoption.--No attempt to invalidate a final decree of adoption by reason of any jurisdictional or procedural defect shall be received by the court, or by any court of this state, unless regularly filed with such court within two years following the entry of the final decree.'
The lower court granted Davis' motion to strike White's motion to vacate the decrees of adoption and denied a motion for rehearing. The resultant effect was therefore a denial of an evidentiary hearing on White's motion to vacate the adoption decrees.
By this writ of error, White claims the court erroneously applied the limitations of C.R.S.1963, 4--1--16, supra, to these adoption decrees, which White alleges are void since he, as the natural father, had no notice of the pendency of the adoption proceeding, and that his whereabouts, although known to Davis and the natural mother, Rae Anne Davis, formerly Rae Anne White, were concealed from the adoption court.
For an adequate consideration of the issues on this writ of error, a brief description of the proceedings predating the final decrees of adoption is set forth as follows:
On August 13, 1958, Davis filed Petitions for Adoption of the three children in the County Court of Sedgwick County. Consent to the adoption of each child by the natural mother is evidenced in the record as of August 14, 1958. Final decrees of adoption were filed and signed by the court on August 20, 1958. More than a year later, on November 3, 1959, an order was entered by the court vacating these final adoption decrees. On the same day, Davis on the basis of his previous petitions of adoption, filed a request that Kenneth Q. White, the natural father, be served by publication. In the request for authority to obtain service by publication, it was stated that the last known address of White is unknown to the petitioner or to the mother of the children. Service by publication was ordered and proof of publication was filed December 28, 1959 and thereafter on January 6, 1960 final decrees of adoption were entered by the court.
On March 5, 1965, White obtained an order from the lower court for the inspection of files and records pertaining to the adoption proceedings and thereafter filed his motion to vacate these decrees of adoption alleging inter alia: that it was not until after the death in December 1964 of the natural mother, Rae Anne Davis, that he learned of the adoption proceeding; that he did not then consent nor has he ever consented to said adoptions; that he did not receive sufficient notice or any notice of the adoption proceedings; that he had no opportunity to appear in said matter and contest the same; that at the time said decrees were entered, the petitioner and the natural mother were well aware of his residence in California; and that the order of publication of service was wrongfully...
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People v. District Court of Colorado's Seventeenth Judicial Dist., 92SA168
...respect to the waiver of trial by jury, Davis, 794 P.2d at 211, due process takes precedence over legislation. White v. Davis, 163 Colo. 122, 125, 428 P.2d 909, 911 (1967). Thus, where the prosecution objects to defendant's waiver of trial by jury, 8 and a defendant contends that trial by j......
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