Blum v. Probate Court

590 F.2d 407

• Court: Court of Appeals for the Second Circuit
• Decided: January 17, 1979
• Docket: Nos. 497, 498, Dockets 77-7215, 77-7267
• Status: Published

Opinion

PER CURIAM:

Jay Blum’s petition for rehearing questions the basis for the district court finding that Blum had received notice of, but chose not to attend, the hearing in the Massachusetts court that determined custody of his son. We relied on that finding in affirming the dismissal of Blum’s amended complaint. 2nd Cir., 575 F.2d 50 (1978).

Blum’s amended complaint, according to his second attorney, should have omitted paragraph 14, on which the district court based its finding that Blum deliberately by-passed the Massachusetts hearing. The amended complaint also alleged, in paragraph 18, that “at no time was an evidentiary hearing held prior to the entry of the decree dispensing with Jay Blum’s consent” to the adoption of his son.

The district court never resolved the inconsistency between paragraphs 14 and 18 before dismissing Blum’s complaint, nor was the matter brought to our attention at oral argument at which Blum, whose attorney was at the time snowbound in Vermont, argued his own case. Accordingly, we remand to the district court for a determination of what happened with respect to the proceedings in the Massachusetts court and for further consideration in light of such determination as the court may make. Pending advice as to the further action of the district court, we vacate our opinion affirming its dismissal of Blum’s complaint.