Opinion
No. 4049.
Decided July 9, 1951.
The fact that the parents of a minor child are divorced does not dispense with notice and consent of the parents as required by statute in proceedings for adoption of such child. The statutory provision (Laws 1947, c. 34, s. 2) that a "wife of . . . a man residing in another state" who has resided in this state for six months separate from her husband shall have exclusive care, custody and guardianship of her minor children living with her in this state has no application to adoption proceedings by a wife who divorced the father of the child, and remarried here.
PROBATE APPEAL, from an order denying a motion by the appellant to set aside a decree of adoption and change of name of Curtis Lucius. Curtis, who is under fourteen years of age, is the child of the appellant and of the appellee Evelyn, who were divorced in Vermont while resident there, by a decree dated June 22, 1948.
Custody of the child was originally granted to Evelyn but upon subsequent petition by the appellant, after hearing at which Evelyn was present, a decree was entered by the Vermont Superior Court granting custody to the appellant.
At some time after the divorce Evelyn removed with the child to New Hampshire where she married the appellee Floyd Wistner. On their petition to the Grafton County Probate Court a decree of adoption and change of name was entered on February 8, 1949.
The appellant was not notified of the adoption proceedings and did not consent thereto. The necessity for his consent was not dispensed with under R.L., c. 345, s. 2, by reason of illegitimacy of the child, or abandonment or insanity on the part of the appellant.
Upon learning of the adoption decree the appellant moved to set the decree aside. The motion was denied and appeal was taken to the Superior Court. The Trial Court (Grimes, J.) ruled: "Assuming, but without deciding, that Evelyn Wistner had custody of the child at the time of the adoption proceedings . . . the adoption was invalid due to the lack of notice to or consent of the appellant., All questions of law raised by the exception of the appellees to this ruling were reserved and transferred.
Leahy Denault, for the appellant, furnished no brief.
Hazen K. Sturtevant, for the appellees, furnished no brief.
The ruling by the Trial Court that the adoption was invalid is founded upon the statutes relating to adoption. By section 2 of chapter 345 of the Revised Laws, as amended by Laws 1943, c. 127, s. 3, it is provided that the parents of the child shall consent in writing to the adoption subject to certain exceptions which are not applicable to this case. No provision is made for dispensing with the consent of either parent where there has been a divorce. Section 3 of the same chapter, as amended, dispenses with notice of the proceedings in certain instances where consent is given as provided in section 2, and concludes: "In all other cases notices shall be given before hearing." Laws 1943, c. 127, s. 4. Section 4, relating to the decree of adoption, provides for its ultimate entry "if the requirements of the preceding sections have been complied with." Id., s. 5.
The appellee Evelyn claims that the decree of adoption was valid because she had custody of the child. She asserts that the decree of the Vermont Superior Court awarding custody to the appellant is not binding upon her because she was never served with notice in accordance with Vermont statute. She further claims custody by reason of the statutory provision contained in R.L., c. 340, s. 9, as amended by Laws 1947, c. 34, s. 2, providing that "the wife of . . . a man residing in another state," who has resided in this state for six months successively separate from "her husband," shall have the exclusive care, custody and guardianship of her minor children living with her in this state.
Since the appellee Evelyn Wistner is the wife of the appellee Floyd Wistner and not of the appellant, the last mentioned statutory provision is inapplicable.
Whether or not the Vermont decree giving custody to the appellant is binding upon Evelyn need not be determined. The question presented is governed by the statutes relating to the proceedings of the Probate Court in this jurisdiction. Under R. L, c. 345, s. 3, supra, notice to the appellant of the proceedings for adoption was required in the absence of his consent in writing. The decree of divorce did not terminate his parental rights with respect to the minor child. Notice of adoption proceedings is required by the statute, even in cases where by reason of insanity or abandonment on the part of one parent the consent of the other alone is sufficient.
"It has been held commonly that the interest of a parent in his child cannot be divested by adoption unless he is given notice and an opportunity to be heard, except in instances where by gross misconduct, or waiver, or perhaps for other fault, he has forfeited his rights in this respect. . . . The Legislature has wide discretion in determining the acts or conduct of a parent which may forfeit this right to notice or dispense with it." Hersey v. Hersey, 271 Mass. 545, 552.
In the exercise of its discretion, our Legislature has not made the circumstances disclosed by this record ground for forfeiture of the appellant's right to notice, but has expressly required that he be notified. R.L., c. 345, s. 3, supra. Since notice was not given the adoption was invalid. See anno. 76 A.L.R. 1077. Under the statute the lack of consent was equally fatal. Broman v. Byrne, 322 Mass. 578; anno. 91 A.L.R. 1387. There was no error in the ruling of the Trial Court.
Exception overruled.
All concurred.