Zalis v. Ksypka

• Decision Date: 02 February 1944
• Citation: 53 N.E.2d 104,315 Mass. 479
• Parties: ZALIS v. KSYPKA et al. ZALIS et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 479

53 N.E.2d 104

ZALIS

v.KSYPKA et al.

ZALIS et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 2, 1944.

Proceeding by Vincenta Zalis against Edward J. Ksypka and another to revoke a decree granting respondents leave to adopt Virginia Anna Ksypka, and a proceeding by Joseph and Vincenta Zalis against Edward J. Ksypka and another for leave to adopt Virginia Anna Ksypka. From a decree in the first proceeding revoking the decree granting respondents leave to adopt the child, and from a decree in the second proceeding granting petitioners leave to adopt the child, the respondents appeal.

Decree in first proceeding affirmed and decree in second proceeding reversed.Appeal from Probate Court, Suffolk County; Wilson, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

A. E. Schoepfer, of Boston, and E. C. Sweet, of Medford, for petitioners.

S. L. Segal and G. T. Lanigan, both of Boston, for respondents.

DOLAN, Justice.

These two cases come before us on appeals from decrees entered in the Probate Court. In the first case the appeal is from a decree revoking a decree whereunder the respondents, husband and wife, were granted leave to adopt Virginia Anna Ksypka, the minor child of the respondent Edward, her surviving parent, and of Jennie Zalis Ksypka, deceased, his former wife. In the second case the appeal is from a decree granting leave to the petitioners, Joseph and Vincenta Zalis, the maternal grandparents of Virginia, to adopt her.

The evidence is not reported, but at the request of the appellants the judge made a report of material facts found by him with respect to the subject matter of the appeals. He also included in his report of material facts his action in denying the petition of the respondents for revocation of a decree dated May 7, 1942, appointing the maternal grandparent Vincenta guardian of the person and estate of Virginia. It does not appear, however, that any appeal was taken by the respondents from the decree denying revocation of this grant of guardianship. Since the evidence is not reported, the findings of fact of the judge must be accepted as true unless self-contradictory, and the only question presented is whether the decrees entered by him could lawfully entered upon the pleadings and findings. Mongeau v. McKay, 281 Mass. 101, 102,182 N.E. 349, and cases cited.

The matterial facts found by the judge may be summed up as follows: The appellant Edward J. Ksypka, hereinafter referred to as Edward, married Jennie Zalis, the daughter of the petitioners, in July, 1937. He then took up his abode with her in the petitioners' home. The child, Virginia, was born on May 21, 1938. Her mother died on September 5, 1941. A few weeks thereafter Edward left the petitioners' home, but Virginia has always continuedto live with them and ‘has been very happy.’ Edward met his present wife, the respondent Rose, in January, 1942, and they became engaged in May, 1942. Meanwhile Edward was out of work and on the four visits he made to the petitioners' home, during 1942, he borrowed various sums totalling $27 from the petitioner Vincenta. Vincenta was appointed guardian of the person and estate of Virginia on May 7, 1942, with the written consent of her father, Edward. Due to the fact that Edward was ‘paying nothing whatever toward the support of his child, he was brought into the District Court and on October 23, 1942, given two months in the House of Correction, which he appealed. On November 9, 1942, in Suffolk Superior Court, he was placed on probation for six months; on the previous day, November 8, 1942, he was married to the respondent, Rose. * * *’ He ‘never paid one cent for his child's support until court proceedings forced him to do so.’ On November 24, 1942, the respondents Edward and Rose filed a petition for the adoption of Virginia. This petition was allowed on February 4, 1943. No notice of this proceeding was given to the petitioner Vincenta, who was the guardian and custodian of Virginia. This ‘was not due to any inadvertence or mistake on the part of * * * [these] petitioners' (for adoption) who had advised their counsel of the guardianship. On February 11, 1943, the maternal grandmother filed a petition for revocation of this decree of adoption, and on February 23, 1943, the petitioners filed a petition for the adoption of Virginia. The respondents opposed both petitions. After the judge had filed his report of material facts, the respondents, on May 1, 1943, filed a motion that he amend his report by ‘stating the date when, after the date of the death of the child's mother, the said Edward J. Ksypka started making payments for the support of said child when ‘Court proceedings forced him to do so.’' On August 19, 1943, the judge made the following ‘voluntary report of further material facts'; ‘I further find that the father, Edward J. Ksypka, willfully deserted his child and I further find that at no time has the said Edward J. Ksypka provided proper care and maintenance for such child,’ and on the same day denied the respondents' motion above referred to ‘in view of voluntary Report of Further Material Facts.’ It appears, however, from the findings of the judge that ‘court proceedings' were not begun to compel Edward to support Virginia until October 23, 1942, which was just four months before the date of the petition of the grandparents for leave to adopt Virginia.

In view of the conclusion we reach, it is unnecessary to recite the many findings of the judge which would support the conclusion that Edward was not a suitable person to have the custody of Virginia and the decree entered by the judge denying the petition for revocation of the decree appointing the maternal grandmother guardian of her person and estate, from which latter decree no appeal appears to have been taken.

There was no error in...