KESTER, J.
This is an appeal by John Hunt from an adoption decree, under which his three minor daughters were declared to be adopted by their maternal grandparents, Carl Anton Julius Omlie and Brynhild Omlie. Hunt’s wife, Alice Olene Omlie Hunt, the mother of the children and daughter of the petitioner-respondents, died on September 28, 1952. The petition for adoption was filed on October 20, 1952, at which time the girls were aged approximately two, five, and six years respectively. The adoption decree was entered on November 30,1954.
[474] The adoption decree was entered without Hunt’s consent, and over his objection. OES 109.320(1) provides:
“The parents of the child, or the survivor of them, shall, except as provided in subsections (1), (2), (3), (6) and (7) of this section and in OES 109.330, consent in writing to the adoption of the child * * * ”
Jurisdiction here is predicated on paragraph (6) of OES 109.320, which provides:
“If either parent * * * has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition for adoption, the court shall proceed as if such parent were dead * *
It is agreed that during the statutory one-year period John Hunt failed to provide proper care and maintenance for the children. He denies, however, that such neglect was willful, and denies that there was any willful desertion. Both willful neglect and willful desertion are required by the statute,(1) and the questions on appeal are: (a) Was there a desertion for the one-year period? and (b) if so, were the desertion and neglect willful? In the absence of an affirmative answer to both questions there was no jurisdiction for an adoption.
A preliminary question of procedure requires consideration. The case was originally tried before the late Judge Kimmell, who passed away before rendering a decision. Thereafter the parties entered into the following stipulation:
“(1) That the testimony and evidence submitted by the parties hereto in the trial hereof to the late [475] Honorable Rex Kimmell be transcribed and that a copy of said transcript of testimony be submitted to the Honorable Joseph B. Felton for re-trial based upon said transcript of testimony without the court receiving any additional evidence.
“(2) That the court shall interview the respective parties hereto and make such further inquiry from them as the court may desire.
“(3) That said matter shall likewise be submitted to the court upon the briefs or law memoranda heretofore submitted to the late Honorable Rex Kimmell.”
The adoption decree recites:
“The Court having considered said transcript and the briefs or law memorandums heretofore submitted, and interviewed the respective parties in accordance with said stipulation and now being fully advised in the premises finds that said petition for a decree of adoption should be granted; * *
Because of the fact that Judge Felton interviewed the parties, and the record does not disclose the contents of those interviews, respondent contends that the decree is not appealable, relying on Rea v. Rea, 195 Or 252, 245 P2d 884, 35 ALR2d 612.
The Rea case arose out of a motion for change of child custody in a suit for divorce. Pursuant to stipulation of the parties, the trial court made or caused to be made an independent investigation, the results of which did not appear in the record. Upon appeal it was held that the case would not be tried de novo, because the full record was not before the reviewing court. In effect, the parties waived their right of appeal by consenting to the trial court’s receipt of evidence dehors the record. By its own language the effect of the opinion was limited in the following manner:
“* * * it should be stated that our inquiry is strictly limited to cases in which the independent [476] investigation relates to the single question of child custody — to the determination by the court of the welfare of a child who is a ward of the court.” (195 Or at 257).
In our opinion the Eea case is not applicable here. The stipulation here expressly recited that the case was to be submitted to Judge Felton “for re-trial based upon said transcript of testimony without the court receiving any additional evidence.” To avoid internal inconsistency, that provision must be construed as limiting the permission given to “make such further inquiry from them as the court may desire.” The trial court’s decree recites that he interviewed the parties “in accordance with said stipulation” — i.e., without receiving any additional evidence. To hold that additional evidence was received by means of the interview would be to impute to the trial court violation of the stipulation under which he was acting.
The interview may well have assisted the trial court in determining the character and fitness of the respective parties, in the event that the facts otherwise disclosed the willful desertion and neglect that were jurisdictional for an adoption. That was the kind of purpose the interview served in the Eea case. But it does not follow that the interview had evidentiary value on the existence of the jurisdictional facts. Like a view of the premises, it could assist the trial court in understanding the evidence, without itself constituting evidence. Molalla Electric Co. v. Wheeler, 79 Or 478, 484,154 P 686.
Hence, so far as the issues on appeal are concerned, we must assume that the trial court decided the case on the transcript of testimony, as he was required to do by the stipulation. And since the trial court did not have the benefit of actually seeing and hearing the [477] witnesses at the time their testimony was given, the nsnal reason for attaching weight to the trial court’s finding does not exist. Difficult as it is, this court must decide for itself whether the evidence shows willful desertion and neglect by the natural father.
The record shows that in April, 1950, Alice Omlie Hunt, mother of the children, sustained a paralytic stroke which affected her left side. It is not clear where the Hunts were living at that time, although they had lived both in Vanport and in Portland. Prom September to December, 1950, the Hunts and the two older children were living with the Omlies at Eickreall, while awaiting the birth of the youngest child. She was born in Portland on December 18, 1950. After the baby was born, John and Alice and the three children spent Christmas, 1950, with the Omlies at Eickreall.
After Christmas, John and Alice took the three children to Vancouver, Washington, where they lived in an apartment for about two weeks. Between the 7th and 10th of January, 1951, Alice returned to the Omlies, bringing the three children with her. Alice was nervous and upset at that time, and according to her father, “in very bad condition.” The only explanation in the record for her having left John is that given by him, to the effect that she was perturbed over the fact that they had her father’s car, with which he had difficulty, and “she thought I wasn’t doing things just right.” While John was out on an errand in the evening, he had car trouble which caused him to be late; and when he returned, Alice and the children had taken a taxicab to Eickreall.
After the car was repaired, John brought it back to the Omlies; and he testified that from then until March of 1951 they stayed part of the time with the Omlies, part of the time John was in Vancouver, and [478] part of the time Alice was in a hospital or at Breitenbnsh Springs. John explained that they stayed with the Omlies because Alice was unable to take care of the home.
In March, 1951, Alice became paralyzed from another stroke, and her parents arranged for her treatment at the Kabat-Kaiser institute in Santa Monica, California. Her treatment at the institute was paid for by the Omlies, as they were able to do so, and John was not. It is clear from the record that the Omlies did not care for John and had disapproved of the marriage. Therefore, when they sent Alice to California, they attempted to discourage her from seeing him.
However, Alice wrote to John asking him to come to Santa Monica, which he did in April, 1951. After staying there one week he returned to Vancouver and sold their household furniture, and he then returned to Santa Monica in May, 1951, where he rented an apartment and obtained employment. He testified that from that time on they intended to make their home in California. When Alice went to California, the children had remained with her parents at Rickreall, pursuant to an arrangement between Alice and the Omlies. When John went to California, he made no further provision for their care. He testified that he did not tell the Omlies where he was going, because they had said that if John went to California, they would take Alice out of the hospital.
The foregoing events all occurred more than one year prior to the filing of the petition for adoption, but they are necessary background for a proper understanding of the period between October 20, 1951, and October 20, 1952, which is directly in issue.
While Alice and John were in Santa Monica they [479] sent several packages to the children in Bickreall, including a package of clothes and presents sent in November, 1951. During a part of the time the Omlies had other people caring for the children. Alice’s condition gradually improved, up until December, 1951, and at Christmastime that year she travelled to Rickreall for a visit. During that visit she asked her parents to adopt the children if anything happened to her.
Her accommodations at the sanitarium were such that she could have two of the children with her, so when she returned to the institute on January 4,1952, she brought the two older children along, apparently at her mother’s suggestion. The youngest remained at Bickreall. Upon arrival at Santa Monica, John met them at the airport, and Alice and the two children stayed overnight at John’s apartment. The next afternoon Alice and the children went to the institute, where they lived until March 28,1952.
While Alice and the children were at the institute, John visited them; and occasionally he would take the children to a show, or a park, or to lunch. He said that he had them “practically every weekend.” He purchased some clothes for the two children, he arranged for them to attend a nursery school for a period of about three weeks, and he paid the school’s charges, including breakfast and dinner for the children at the school. However, the expense for the children at the institute was included in Alice’s bill, which was paid by the Omlies.
John testified that the Omlies never asked him for any help in caring for the children, and that he had offered assistance, but it had been refused, because the children didn’t need anything. Mrs. Omlie said that in April (apparently 1952) John asked if the children needed blouses, and she replied that they had [480] more than enough clothes. She testified that the children had never wanted anything and have had the very best of everything. Mr. Omlie testified that after Alice died, John asked: “Is there anything I can do to help Í” and Mr. Omlie replied: “Nothing now, the children have got all they need right now.-”
In January, 1952, Alice had a miscarriage, and on January 22, she had another stroke. At that time John took a week off from his work and stayed with her at the institute all week, except for nights. Her mother, Mrs. Omlie, went down to the institute and stayed with her and the children from February 1 to March 28, 1952. John testified that during that time he visited them every few days, but Mrs. Omlie said it was not more than once a week. She testified that on some occasions when John came he was under the influence of alcohol, but John said that while he may have visited there after having had a drink, he was never intoxicated at such times.
On March 28, it appearing that further treatment would be of no assistance, Mrs. Omlie took Alice and the two children home with her to itickreall. The evidence is in dispute as to whether John knew that they were going at that particular time, John testifying that he came to the institute to visit them and was surprised to find them gone, although he knew that they were intending to go. Mrs. Omlie testified that John knew the date they were planning to leave. Within a few days after they arrived at the Omlies’, John telephoned and talked to Mr. Omlie and the two oldest children.
Thereafter the Omlies purchased a home in Salem in order better to care for Alice and the children. John remained in Santa Monica, but he telephoned the Omlie residence several times. On one occasion, in May, 1952, [481] he was in Portland for his employer and didn’t have time to come to Rickreall, but he phoned to inquire about Alice and the children.
In July, 1952, the day after they moved into the Salem home, Alice had another stroke and was in a hospital in Salem until September 17, 1952. On that date she was taken back to her parents’ home, where she died on September 28,1952. John did not know of this stroke, or that she was in the hospital, nor did he know of her death, until later. He said, however, that the Omlies had his address and phone number and could have reached him at any time.
Mrs. Omlie testified that she attempted to phone John, to tell him of Alice’s death, but was unable to reach him. She had not tried to call him when Alice went to the hospital for the last time; but Mr. Omlie said that he asked some of John’s friends to get in touch with him, as he did not know John’s whereabouts. John learned of his wife’s death from his own mother around October 10, 1952; and as soon as he knew of it he came to Salem and spent two nights (October 12 and 13) at the Omlie residence, where he visited with the children. Thereafter he returned to Santa Monica, and about October 19 he talked to the Omlies and to the children by phone. He again visited the children at Eastertime in April, 1953.
Although the petition for adoption had been signed on October 3, 1952, John was not advised of it at the time of his visit to Salem on October 12, nor in his phone conversation about October 19. The petition was filed October 20, 1952, citation was served by publication, and an adoption decree was entered by Judge Kimmell on May 19, 1953, by default, upon the representation that John’s whereabouts were unknown, [482] notwithstanding his visit with the children in Salem at Eastertime in April, 1953.
There had been conversations between John and Mr. Omlie about John’s ultimately having the children back after John had settled down and established a home. On June 28 or 29, 1953, after John had remarried, he came back to Salem to get the children, and then for the first time learned of the adoption decree of May 19.
John filed a motion to set aside the decree, evidence was taken, and then by stipulation the original decree was set aside. Another hearing was held on the question of desertion, at which the former testimony was incorporated by reference, but before a decision Judge Kimmell passed away. Then, as previously pointed out, the case was resubmitted to Judge Felton, who allowed the adoption.
It is clear (and in fact, admitted) that during the year prior to October 20, 1952, John did not contribute in a significant way to the support of the children. However, mere failure to support, particularly when the children are otherwise receiving adequate care, is not in itself proof of desertion, nor does it necessarily prove that the neglect is “willful.” It is ordinarily relevant evidence on those questions; although some cases have gone so far as to hold that nonsupport may not even constitute a factor tending to establishing abandonment, where it is excused by the circumstances. Numerous cases are collected in the Annotation in 35 ALR2d 662, at 680 et seq.
Desertion or abandonment, with respect to children is usually defined as conduct which evinces a settled purpose to forego all parental duties and to relinquish all parental claims to the child. Anno, supra, [483]*48335 ALR2d at 665; 1 Am Jar 643, Adoption § 42; 2 CJS 388, Adoption § 21.
In the present case we are unable to agree with the trial court that the evidence shows willful desertion by the natural father. While his conduct leaves much to be desired, it must be judged against the background of a difficult situation: The illness of his wife, so that she could not care for the children adequately; her sojourn in the sanitarium, where the family could not all be together; the fact that her parents disapproved of him and discouraged his wife from seeing him, so that he felt his moving to California to be with her should be kept secret; the fact that the Omlies were well able to care for the children without help from him, whereas he was of modest means; and the fact that Alice and the Omlies apparently made their own arrangements, without consulting him.
Although the outward evidence of John’s interest in the children was sporadic, and perhaps feeble, we cannot say that it was entirely lacking. And at least as to the two older children, his partial provision for them while they were in Santa Monica would interrupt the continuity of the one-year period required by the statute, cf. Luper v. Luper, 61 Or 418, 422, 96 P 1099.
In our opinion the evidence is consistent with the view that the children were left with their maternal grandparents by mutual consent, or at least acquiescence, because Alice’s illness made it impossible for her to care for them adequately, and because the Omlies were able to provide them with better care than was John. The attitude of the respective parties can be illustrated by the following excerpts from their testimony:
John testified as follows:
“Q Will you state whether or not you and Mr. [484] and Mrs. Omlie, during the period of time that your wife, the mother of these children, was ill — will you state whether or not you and the Omlies ever had any discussion about where the children should be?
“A No, sir, we have never discussed that, due to the fact that the reason why the Omlies had the children — well, I didn’t have any place to take care of them and the wife was ill, so to take the burden off of my family, which I appreciated very much, Mr. and Mrs. Omlie and their daughter, my wife, conferred, and my wife decided to leave the children with their grandparents because they were — well, you know, the kids like their grandparents and the grandparents like the children, and — well, you know how it goes. The in-laws stepped in to take the burden off of me because I didn’t have a place to take care of the children and no one to take care of them. But that’s the reason why the children were brought back to California, because we were going to make our home in California.” (Italics ours.)
Mrs. Omlie testified:
“Q And did you also feel that John Hunt wasn’t a proper person to raise your grandchildren?
“A Absolutely.
“Q And, therefore, you took over and gave them everything they should have? .
“A I didn’t took over. She come and left the children. It was either me or the welfare to take care of them.” (Italics ours.)
With reference to Mrs. Omlie bringing Alice and the children back from Santa Monica, she said:
“A Yes, I told him I was going to take Alice home and take the two children home, and I told him when I come home I was taking Janice and I was going to raise the three sisters up and I didn’t want them parted.
[485] “THE COURT: You didn’t want them parted?
“A Yes, and so he said he didn’t know. He said, ‘Do you want Janice too?’ And I said, ‘Yes, I am going to take all three.’ ”
Mr. Omlie testified:
“Q Mr. Omlie, you are asking the court here to grant a decree of adoption, do you have love and affection for these grandchildren?
“A Well, I have a selfish motive. I am not interested in the children whatsoever, but I am willing to take care of them so they will not be objects of this court. I don’t need the children. I have had all the children I needed, but that is why we are trying to take care of them. I want to be boss because I have spent so much money on them. When he first started to get married I wanted him to prove himself so I knew he was good enough and then I was going to see he got the children .back, but I don’t want them thrown to the fellow and the wishes of the mother was contrary to giving them back to him. I never wanted them to keep, but just to care for them and the only way we could do that was adopt them.”
It will be noted from the italicized portions of the above quotations that it was apparently Alice who decided, after conferring with the Omlies, to leave the children with them in April, 1951. She was, of course, as fully entitled to the custody of the children as was John. ORS 109.030; Bryant v. Dukehart, 106 Or 359, 371, 210 P 454.
And when Mrs. Omlie was taking Alice from Santa Monica to Rickreall in March, 1952, it was Mrs. Omlie who declared that she was going to take the children and rear them. At that time John had apparently established a domicile in California, and the domicile of the children, of course, followed that of the father. [486] Bryant v. Dukehart, supra, 106 Or at 367. At that point it was not a case of John leaving the children (speaking of the two older ones), hut rather that Alice and Mrs. Omlie were taking them.
Considering the state of Alice’s health, it is a reasonable inference that John may not have wanted to upset her by interfering with the plans which she and her mother had made. In the circumstances of this case we cannot hold that John willfully deserted his children by merely acquiescing in an arrangement for their care made between his wife and mother-in-law.
We do not wish to be understood as in any way criticizing the Omlies. They have responded generously to the situation, and there is no question — in fact it is agreed in appellant’s brief — that the Omlies have provided an excellent home for these children, that they are suitable persons to act as adoptive parents, and that the children’s financial future would be much more secure with them than with their natural father. However, in an adoption proceeding the court is not authorized to take children from their natural parent merely because it believes the adoptive parents will provide a better home life. Hessner v. Bilyeu, 210 Or 266, 310 P2d 305, decided April 24, 1957.
While there is evidence from which we might infer that the welfare of the children would be served by leaving them with the Omlies, we must remember that such an issue was not tried in the lower court. The issue there was expressly limited to the question of willful desertion, and we do not know what the evidence might have been if the trial had been at large upon the question of the best interests of the children. It begs the question to say that the primary purpose of adoption is to promote the welfare of the children, because [487] there is no jurisdiction for an adoption here unless willful desertion is first established.
If it is contended that John Hunt is not a fit person to have custody of his children, that question can be determined in a proceeding which directly raises the issue, cf. Larson v. Wellner, 97 Or 513, 191 P 671.
The adoption decree is reversed, with costs to appellant.