Volz v. Abelsen

225 P.2d 768, 224 P.2d 213, 190 Or. 319, 1950 Ore. LEXIS 234

• Court: Oregon Supreme Court
• Decided: November 14, 1950
• Status: Published

Opinions

LATOURETTE, J.

This is an appeal from the order of the circuit court of Multnomah county denying the petition of appellants for the adoption of their grandson, a lad of the age of seven years. The boy’s mother, a daughter of petitioners, died January 3, 1949.

The mother and the child’s father, the objector and respondent, were divorced in November, 1945. Tinder the terms of the divorce decree, the mother was awarded full care, custody and control of the child. On the date of the birth of the child, the father was in the armed services, and the mother took said child to her parents ’ home where the child has resided for his entire life. The father remarried in November, 1946, and from such marriage there have been born three children. The father is employed by The Journal Publishing Company and earns a salary of $300.00 per month.

After the death of the mother and on the 1st day of February, 1949, the petitioners filed a petition for the adoption of the child, which petition, upon hearing, was dismissed. The court, however, on its own motion, reopened the divorce proceedings and awarded the temporary care and custody of said child to the petitioners and ordered the father to pay into the registry of the court the sum of $20.00 per month for the support and maintenance of said child, the first, payment to be made on the 10th day of March,-1949. At the hearing in the divorce proceedings concerning the custody of the child, it was stipulated by all parties that the court should conduct an investigation into the future planning of change of custody of said minor child; however, it does not appear from the record that any investigation was ever had. On the 11th day of April, 1950, the petitioners filed another petition for the adoption of said child, and, upon a hearing, such petition was denied, thus bringing about this appeal.

Section 63-402, O. C. L. A., reads in part: ‘ ‘ The parents of the child, or the survivor of them, shall, except as herein provided, consent in writing to such adoption.”

Section 63-403, O. C. L. A., reads as follows:

“If either parent is insane or imprisoned in the state prison, under a sentence for a term not less than three years, or 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, the court shall proceed as if such parent were dead, and in its discretion may appoint some suitable person to act in the proceedings as next friend of the child, and give or withhold the consent aforesaid.”

It is the position of petitioners that the consent of the father to the adoption is unnecessary since he 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. We quote from the petition for the adoption the salient portions referring to such alleged desertion and neglect:

“VIII.

“That since the 28th day of February, 1949, the objector has been and now is in contempt of said order issued under Case No. 165-314 in that he has failed to make any of the payments provided for in said decree.

“IX.

“That since the 26th day of March, 1949, the objector has made one visit with the said minor child, namely in November, 1949. That he failed to give the said minor any Christmas present and has in all respects abandoned said minor child. That the objector prior to the original adoption proceeding remarried and had two additional children by his second marriage.”

Referring to Paragraph VIII of the petition above quoted, it may be inferred from the language that the father neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, but by no reasonable construction of the language in Paragraph IX aforesaid can it be said that petitioners alleged the jurisdictional fact that the father has willfully deserted the child for one year next preceding the time of filing the petition. All that is alleged is that the father made one visit to the minor during the period involved and failed to give the son any Christmas present. Treating the “abandonment” of said minor child as synonymous with “willfully deserting said child,” the period of such abandonment is nowhere stated in said petition. To give the court jurisdiction in the absence of the consent of the father, two requirements under the law must be fulfilled: (1) willful desertion for one year next preceding the time of the filing of the petition, and (2) neglect to provide proper care, etc., for a like period of time. The court necessarily acquires jurisdiction through the allegations of the petition, and the petition being devoid in the respects pointed out, the court, for want of the father’s consent, lacked jurisdiction to order an adoption and properly entered an order of dismissal.

No appearance for respondent.

Affirmed.