Pratt v. Bishop , 257 N.C. 486 ( 1962 )

126 S.E.2d 597 (1962) 257 N.C. 486

Geraldine F. PRATT for the adoption of Gerri Leigh Graham,
v.
George W. BISHOP.

No. 380.

Supreme Court of North Carolina.

July 10, 1962.

Eugene H. Phillips, Winston-Salem, for respondent-appellant.

Deal, Hutchins & Minor, Winston-Salem, for petitioner-appellee.

SHARP, Justice.

Respondent asked for a dismissal of this adoption proceeding or for a new trial on the basis of eighteen groupings of assignments of error. Only those which are properly presented will be expressly considered.

Assignments Nos. 3 and 5 through 8 relate to alleged errors in the admission or exclusion of evidence. We quote Assignment No. 7 which is typical:

"VII. The Court erred in refusing to permit Respondent to introduce evidence as to his plans and those of his wife about making a home for the child during the six months period immediately preceding the filing of this action, such evidence being material to the issue of his purported wilful abandonment of said child.

"As shown by Exceptions Nos. 36, 37, 38, 39, 44, and 45 (R. pp. 126, 127, 128 and 140)."

The following statement from Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294 is applicable here:

"Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555, as interpreted in the decisions of this Court, require: ``Always the very error relied upon shall be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is.' (Citing cases) The objectionable assignments in their present form would require the Court to undertake a voyage of discovery through the record to ascertain what the assignments involve. This the Court will not do."

Assignments of error Nos. 9 through 16 relate to alleged errors of commission or omission in the charge. As this court said in Darden v. Bone, 254 N.C. 599, 601, 119 S.E.2d 634, 636:

"Assignments of Error 9, 10, 11, 12, 13, 14, 15 and 16 relate to the court's charge and are insufficient in that they do not present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is and the particular portion of the charge to which the defendant objects is not specifically pointed out. ``The assignment must particularize and point out specifically wherein the Court failed to charge the law arising on the evidence.' (Citing cases)

"It is clear that the Rules of the Court have not been complied with in the assignments of error as herein above enumerated. Rule 21 requires an appellant to state briefly and clearly his exceptions. Rule 19(3) requires that the exceptions taken be grouped and the error complained of concisely but definitely set out as a part of the assignment. ``The Court will not consider assignments not based on specific exceptions and which do not comply with its rules.' Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94, 96. What the Court requires is that exceptions which are presented to the Court for decision shall be stated clearly and intelligibly by the assignment of error, and not be referring to the record, and therewith there shall be set out so much of the evidence or other matter of circumstance as shall be necessary to present clearly the matter to be debated. In this way the scope of inquiry is narrowed to the identical points which the appellant thinks are material and essential, and the Court is not sent scurrying through the entire record to find the matters complained of."

Assignment of error No. 4 is to the failure of the court to permit each paragraph of respondent's answer to be read to the jury. The assignment of error itself does not disclose which paragraphs were not read to the jury. However, it appears from an examination of the record that only paragraph 15 of the petition was read to the jury. Paragraph 15 alleged that Gerri Bishop was an abandoned child and raised the one issue in the case. Paragraph 15 of respondent's answer which denied the alleged abandonment was read to the jury. His further answer was likewise read except for certain portions which were clearly improper pleadings and which would have been stricken upon motion. No conceivable prejudice could have resulted to the respondent from the ruling of the court of which he complains in purported assignment of error No. 4.

The failure of the respondent to comply with the rules of practice limits consideration to assignments of error Nos. 1, 2, 3, 17 and 19. There is no assignment No. 18 in the record.

Respondent's assignment of error No. 1 is to the order of the judge overruling his demurrer to the petition. The demurrer is in writing and the only ground specified therein is "that no cause of action is stated in accordance with the laws governing adoption." G.S. § 1-128 declares that a demurrer must distinctly specify the grounds of the objection or it may be disregarded. A demurrer which merely charges that the petition does not state a cause of action is broadside and will be disregarded. Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555. However, in his assignment of error and brief, respondent states that the ground for the demurrer is that the petition contains no allegation substantially in the words of General Statutes 48-2(3) that respondent had wilfully abandoned the child for at least six consecutive months immediately preceding the institution of the action. In paragraph 15 petitioner clearly intended to allege that respondent had abandoned the child since birth. It would have been the better practice, and required fewer words, had petitioner alleged that Gerri Bishop was an abandoned child within the definition of the statute. Smith v. Crivello, 338 Ill.App. 503, 88 N.E.2d 107. Nevertheless, interpreting paragraph 15 of the petition liberally as we are required to do upon a demurrer, it is apparent that petitioner has sufficiently alleged the ultimate jurisdictional fact that Gerri was an abandoned child at the time of the institution of the proceeding. Long v. Love, 230 N.C. 535, 53 S.E.2d 661. Having alleged it, the burden then devolved upon the petitioner to prove at the trial the abandonment in conformity with the statute, i. e., that respondent had wilfully abandoned Gerri for at least six consecutive months immediately prior to the institution of the proceedings. This was the sole issue in the trial in the Superior Court. The adoption statute does not place the allegation with reference to abandonment in the same category as the divorce statute, G.S. § 50-8, places the allegation of residence and knowledge of the grounds of divorce. The demurrer was properly overruled and assignment of error No. 1 is not sustained.

In this court the respondent demurred ore tenus to the complaint because it showed that the mother's written consent to the adoption had not been executed at the time the petition was filed. The petition alleged in paragraph 12 that the mother had orally consented to the adoption and that her written consent would be filed. The record shows that her written consent was filed five days later. G.S. § 48-15(12) requires that the petition shall state "that there has been full compliance with the law in regard to consent to adoption." The respondent, in his answer to paragraph 12 of the petition which he verified on the 14th day of August, 1959, admitted that the mother had filed a written consent to the adoption. By this admission respondent supplied the omission in the petition and cured the defect. 71 C.J.S. Pleading § 590b; Johnson v. Finch, 93 N.C. 205; Shuford v. Phillips, 235 N.C. 387, 70 S.E.2d 193; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. The demurrer ore tenus is overruled.

Assignment of error No. 2 is to the failure of the judge to nonsuit the proceeding "in that no evidence was before the court, that respondent wilfully abandoned said child for six consecutive months immediately preceding the filing of the action as required by law." The effect of assignment of error No. 17 which relates to the judge's charge, is to allege that the failure of the judge to direct a verdict in favor of the respondent on the same grounds as specified in the motion of nonsuit was error. These two assignments will be considered together.

G.S. § 48-2 defines an abandoned child as "any child under the age of eighteen years who has been willfully abandoned at least six consecutive months immediately preceding the institution of an action or proceeding to declare the child to be an abandoned child."

This court in Truelove v. Parker, 191 N.C. 430, 438, 132 S.E. 295, discussed the abandonment which would remove the necessity for a parent's consent. In the Truelove case the mother of the child was never made a party to the adoption proceeding. Her written consent was not secured and there was no judicial determination of abandonment. In that opinion we find the following:

"In 1 C.J. 1387(76) it is said: ``To constitute such an abandonment by a parent as will deprive him of the right to prevent the adoption of his child, and dispense with the necessity of his consent, there must be some conduct on his part which evinces a settled purpose to forego all parental duties. But merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.' By the terms of the statute, it is necessary that such abandonment be willful; that is, accomplished purposely and deliberately, in violation of law."

To frame a precise definition of abandonment which would cover all cases would be difficult indeed. The most frequently approved definition is that abandonment imports any wilful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. 35 A.L.R.2d, Anno.: Adoption-Abandoned or Deserted Child, 662, 665, 668; 2 C.J.S. Adoption of Children § 21d(2). Wilful intent is an integral part of abandonment and this is a question of fact to be determined from the evidence. In Winans v. Luppie, 47 N.J.Eq. 302, 304, 20 A. 969, 970, the court said with reference to abandonment in adoption cases:

"It fairly may, and in our judgment does, import any conduct on the part of the parent, which evinces a settled purpose to forego all parental duties, and relinquish all parental claims to the child. Such a purpose, clearly manifested, certainly forms a more reasonable ground for permitting judicial discretion to decide whether another may assume these claims and duties, than [does] the signature of the parent, which a mere impulse may induce."

Abandonment has also been defined as wilful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child. In re Davison's Adoption, Sur., 44 N.Y.S.2d 763.

Certainly a continued wilful failure to perform the parental duty to support and maintain a child would be evidence that a parent had relinquished his claim to the child. However, a mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment. Explanations could be made which would be inconsistent with a wilful intent to abandon.

Abandonment requires a wilful intent to escape parental responsibility and conduct in effectuation of such intent. In re Bair's Adoption, 393 Pa. 296, 141 A.2d 873. In Bair's case the Pennsylvania Court said this:

"A parent's intent to abandon a child soon becomes evident, especially in the case of an infant, by reason of the inexorable circumstances attending its physical being. ``A child's natural needs for food, clothing and shelter demand that someone immediately assume the attendant responsibility which an abandoning parent has ignored; and, that responsibility endures constantly. It does not await the capricious decision of an uncertain parent, perhaps, years later' * * *.

"``Abandonment is not an ambulatory thing the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child.'"

Measured by the yardstick of any definition of abandonment to be found in the books, it is apparent that the petitioner in the instant case has offered sufficient evidence of respondent's abandonment of his child to require the issue to be submitted to the jury. The record is replete with testimony of a most damaging character. It tends to show that from the date of her birth respondent has been more interested in horses than in his child; more interested in gambling than in earning a livelihood which would enable him to fulfill his legal and natural obligations to his child; more interested in living a life of debauchery than in making a home for his child. Indeed he has shown a total lack of paternal interest. To him she has been merely "an ace up his sleeve" or "a pawn." It is a permissible inference from the evidence that his present ambulatory interest in Gerri is merely "to retain title to her" so that she may be bartered for sufficient cash to enable him to continue to frequent the races and live a profligate life. He did not pay the expenses of her birth. The petitioner and maternal grandmother have given the child the only affection she has ever known according to this record. It was the petitioner who rescued the terrified child from strange and cold surroundings and brought her back to the only home she has ever known.

Respondent's contention that his visit in the home of the petitioner where he saw the child at Christmas 1958, within six months of the institution of the adoption proceedings, conclusively refutes any abandonment on his part within six months is untenable. Such a visit to the child, if it could be called a visit to her under the circumstances shown by the evidence, would not be analogous to a marital visit within two years of the institution of a divorce action.

To constitute an abandonment within the meaning of the adoption statute it is not necessary that a parent absent himself continuously from the child for the specified six months, nor even that he cease to feel any concern for its interest. If his conduct over the six months period evinces a settled purpose and a wilful intent to forego all parental duties and obligations and to relinquish all parental claims to the child there has been an abandonment within the meaning of the statute. Winans v. Luppie, supra.

There was a superabundant excess of evidence to overrule the motion of nonsuit. Assignments of error Nos. 2 and 17 are overruled.

Assignment of error No. 3 is to the admission in evidence of the depositions of Detective Kuhn and Attorney Walter J. Stratton of New York City. The reason for the objection is stated as follows: "* * * the proffered testimony of each witness is concerned solely with events that transpired several months after the institution of the action and completely irrelevant to the issues raised by the petition and answer." For that reason respondent objected "to each and every question" and "each and every answer." The deposition is not set out in question and answer form anywhere in the record. It appears only in narrative form as a part of the admitted evidence.

Respondent's objection to the depositions, even though stated to be an objection to each and every question and answer, was a general, broadside objection and should have been overruled if any part of the evidence contained in the deposition was admissible. The court below did not rule upon the competency of the various questions and answers, and unless this had been done it is not given to us to make specific rulings thereon. The trial court merely overruled the broadside objection to the en masse contents of the deposition. Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807.

No objection was made to the deposition on the grounds of notice or irregularity in the taking. It was stipulated that the two depositions were taken in compliance with statutory requirements and that they were passed upon by the clerk after notice and without objection by the respondent at that time. No objection was made to any question or answer at the time the deposition was taken. The record shows that the trial of this proceeding was begun on the afternoon of January 24, 1961. The first objection to these depositions appeared in a written motion dated January 24, 1961. The record states: "Before jury impaneled the following proceedings occurred: (Respondent objected to the introduction of depositions of the following witnesses * * * Walter L. Stratton, Robert William Kuhn."

G.S. § 8-81 provides, inter alia, that "At any time before the trial, * * * any party may make a motion to the judge or court to reject a deposition for * * * incompetency of the testimony, * * *. The objecting party shall state his exceptions in writing."

The purpose of this section is to give the party in whose behalf a deposition has been taken notice of any objection to the deposition and of the grounds for same before the trial. Parties going to trial without such notice may be taken at a great disadvantage if this is not done. Ivey v. Bessemer Cotton Mills, 143 N.C. 189, 55 S.E. 613; Sugg v. St. Mary's Oil Engine Co., 193 N.C. 814, 138 S.E. 169. It has been uniformly held that objection to the incompetency of testimony and motion to reject the evidence must be made in writing before trial unless the parties shall consent to a waiver of this provision. Morgan v. Royal Fraternal Ass'n, 170 N.C. 75, 86 S.E. 975; Hudson v. Seaboard Air Line R. R., 176 N.C. 488, 97 S.E. 388; Bixler Co. v. Britton, 192 N.C. 199, 134 S.E. 488; Gulf States Steel Co. v. Ford, 173 N.C. 195, 91 S.E. 844; Grandy v. Walker, supra.

In Carroll v. Hodges, 98 N.C. 418, 4 S.E. 199, objection was made to the competency of the questions and answers in a deposition at the trial. Referring to the applicable statute, now G.S. § 8-81, the court said: "[Such a] provision is expedient, convenient, and not at all unjust. Fair opportunity is afforded to every litigant to make objection to the deposition in every aspect of it, not in the hurry of a trial or hearing, but upon deliberation and scrutiny. Unless such objection is made in apt time, the statute makes the deposition evidence." Houston v. Sledge, 98 N.C. 414, 4 S.E. 197.

The record does not state that respondent's motion was filed before the trial commenced or before the trial. It says, "before jury impaneled." When a trial commences is a difficult question, and the answer may vary according to the statute being construed and according to the circumstances in a particular case. "In general, it has been held that the trial begins when the jury are called into the box for examination as to their qualifications—when the work of impaneling the jury begins—and that the calling of a jury is a part of the trial." 53 Am.Jur., Trial, Section 4. Certainly the purpose of G.S. § 8-81 would not be served by a holding that the trial did not begin until after the jury was impaneled. Once the case is reached on the calendar and the jury called into the box, "the hurry of a trial" has begun and the time for deliberation and scrutiny of a deposition has passed.

On this record appellant has not shown timely objection to the admission of this deposition as evidence.

Furthermore, the respondent's objection to the entire deposition was based on the specific ground that it related to matters occurring after the institution of the action. "A specific objection, if overruled, will be effective only to the extent of the grounds specified. It makes no difference that there was another ground which would be found valid unless there is no purpose at all for which the evidence would have been admissible." Stansbury, Evidence, Section 27.

The substance of the evidence contained in these depositions was that respondent, in wilful violation of a restraining order entered by the Superior Court of Forsyth County in this proceeding and after it had been pending for about six months, obtained possession of the child by false pretenses and positive misrepresentations; that thereafter he took her out of the jurisdiction to the State of New York where he left the child without adequate clothing in strange, cold surroundings with Negro servants while he, through counsel, negotiated for her return to petitioner—first for $60,000.00, then $100,000.00 and finally $150,000.00; that he revealed the whereabouts of the child only after being arrested and forced to do so in a habeas corpus hearing before a Judge of the Supreme Court of New York.

Kidnapping his child and negotiating for her ransom is hardly the conduct of a father who expected to retain his paternal rights in the trial of this proceeding. We think that respondent's conduct, as evidenced by these depositions, tended to show such a lack of confidence in the merits and justice of his cause as to amount to an implied admission that he was not entitled to prevail.

In discussing "Conduct as Evidencing a Weak Cause", Wigmore in his monumental work on Evidence, 3rd Edition, Sections 276 and 278, concluded that from the conduct of a party which indicates a consciousness on his part that his cause is a bad or weak one, the jury may infer the fact that it is bad or weak. "* * * such conduct in a party opponent even if treated as a plain assertion, is at any rate an ad mission and is therefore receivable as such in any case"; Vol. II, p. 95.

In support of this reasoning, inter alia, Wigmore quotes from the following authorities:

"1870, Cockburn, C. J., in Moriarty, v. R. Co., L.R. 5 Q.B. 319: ``The conduct of a party to the cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defence if he is defendant, is honest and just,— just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that recourse to falsehoods leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue.'"

"1905, Phillimore, J., in R. v. Watt, 20 Cox Cr. 852: ``The principle is in fact well established. * * * It is this, that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him.'"

In criminal actions it is universally conceded that the fact of an accused's flight and his related conduct, are admissible as evidence of consciousness of guilt and thus of guilt itself. Wigmore, Section 276. In civil actions, says Wigmore in Section 278, "It has always been understood—the inference, indeed, is one of the simplest of human experience—that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit." (Emphasis added)

As similar conduct Wigmore lists, inter alia, concealment of material objects. He cites also the conveyance of property during litigation as evidence of the transferror's consciousness that he ought to lose. Wigmore, Section 282. In State v. Kincaid, 142 N.C. 657, 55 S.E. 647, it was held competent to ask a defendant upon his trial for seduction if he had not transferred his property to avoid the result of the indictment. He admitted it, and the court said, "It would have been equally as competent to ask him if he had not fled from the charge."

In the instant case the respondent denied that he had abandoned the child during the period prescribed by the statute. Whether or not he had was the one issue in the case. In violation of a restraining order, and before the trial in which the issue of abandonment was to be judicially determined, the respondent fraudulently spirited the child out of the jurisdiction of the court and attempted to bargain with petitioner for her return. Instead of waiting for the jury to vindicate his parental right to his child, he offered to relinquish his claim and return the child for a sum of money. The jury might logically infer from such conduct that respondent lacked confidence in the merit of his cause. It certainly qualified for inclusion in Wigmore's list of similar conduct.

Assignment of error No. 3 must be overruled both on the merits and on procedural grounds.

Assignment of error No. 19 charges that the trial judge failed to instruct the jury "that to constitute an abandonment the same must be accomplished purposely and deliberately in violation of law." An examination of the charge reveals that the judge told the jury many times that in order to answer the issue "Yes" they must find the abandonment to have been wilful. He explained that "wilful means that the abandonment would be without just cause or excuse, unjustifiable and wrong; that the respondent had a purpose to do it without authority, careless of whether he had a right or not." This was sufficient. State v. Hinson, 209 N.C. 187, 183 S.E. 397. Assignment of error No. 19 is overruled.

Although the respondent's assignments of error did not properly present his objections to the charge we think it appropriate to say that we have carefully examined it. When considered as a whole, the charge discloses no error prejudicial to the respondent. It appears that the judge stated every contention in behalf of respondent's case which could be culled from the evidence. On the evidence the jury decided against him. In the trial below we find no error. The order of Judge Crissman judicially decreeing Gerri Leigh Bishop an abandoned child and remanding the cause to the special proceeding docket for further action by the clerk in accordance with provisions of the adpotion law is

Affirmed.