In Re Adoption of Moriarty , 260 Iowa 1279 ( 1967 )

Moore, J.

This is an adoption proceeding involving Angelia Kay and Julie Kay Moriarty, minor children of David D. Moriarty and Jayne R. Moriarty, now Postlethwait. The father and mother were divorced and exclusive care, custody and control of the two children was given to the father. The mother was granted reasonable rights of visitation. About two years later the father’s brother, George P. Moriarty, and wife, Mary J., filed a petition for adoption of the two children. A verified consent by the natural father was attached thereto. The mother’s whereabouts was then unknown to petitioners. Later she was located and given notice. She appeared in person and by her counsel at the hearing and resisted the adoption following which a decree of adoption was entered granting petitioners the rights of adoptive parents. The natural mother has appealed. We affirm.

The natural father of Angelia Kay; born December 21, 1961, and Julie Kay, born June 9, 1963, was granted a divorce from the natural mother on September 21, 1964, in the District Court in and for Calhoun County, Iowa. The father was then a member of the United States Armed Forces. He was still so engaged at trial time in the case at bar. The natural mother appeared and was represented by counsel. She consented to the provisions of the divorce decree which included: “It Is Further Ordered that the plaintiff David D. Moriarty, is hereby given the exclusive care, custody and control of the children of this marriage, Angelia Kay Moriarty and Julie Kay Moriarty, and that the defendant, Jayne R. Moriarty, shall have reasonable rights of visitation with said children at all reasonable times and places.”

Following divorce the father placed the two children in the home of his parents at Rockwell City and returned to service. The natural mother soon thereafter left Iowa. The children remained in the grandparents’ home until August 1966 when because of ill health the grandmother was unable to continue caring for them.

After some conference the children, with the father’s consent, were placed in the care of the brother, George P. Moriarty, and wife at Lake Park, Dickinson County, where they have remained. This was done with an understanding the two children would become members of the George P. Moriarty family and would be adopted.

On September 22, 1966, this petition for adoption of the two girls, then age three and five, was filed in Dickinson County. Attached thereto was the natural father’s consent and his request the adoption be granted. It contained no consent or notice to the natural mother. On the same date the Dickinson District Court entered a decree of adoption.

After learning the natural mother’s address, petitioners obtained a reopening of the adoption proceedings for the purpose of giving her notice and setting a hearing on their adoption petition.

The natural mother, now resister-appellant, first filed a motion to dismiss the adoption proceedings on the ground her consent was required. The trial court overruled this motion.

She then filed an answer denying generally the allegations of the petition for adoption and alleging her consent was required, the best interests of the children would not be served by the adoption and that she had filed an application in the Calhoun District Court asking the divorce decree be modified and that she be granted custody of the children. She further alleged the court was without jurisdiction to hear and determine the adoption proceeding.

Petitioners’ reply denied the affirmative allegations of resister’s answer and alleged they had filed a special appearance in the Calhoun District Court.

The case at bar was tried and submitted to the trial court on December 12. 1966. The resister appeared, testified and was represented by her present counsel. Nothing further was filed or done until the trial court on January 9, 1967, filed detailed findings of fact, conclusions of law and entered a decree granting the adoption. Resister-appellant filed notice of appeal on January 11, 1967.

She assigns two propositions for reversal, (1) the trial court erred in ruling her consent was not required and (2) the trial court abused its discretion in determining the best interests of the children would be served in granting the adoption with the knowledge a custody hearing was pending in Calhoun County.

The evidence submitted to the trial court establishes no real factual disputes. David D. Moriarty, the natural father, related the facts which we have already set out regarding the marriage, birth of the children, the divorce decree, the care of the children and his placing them in the home of petitioners. He testified the children were happy and well cared for in petitioners’ home and requested the adoption be granted. He testified he learned a week previously his ex-wife had remarried and ivas living in Jefferson, Iowa. Over petitioners’ objections he testified on cross-examination he had attended a custody hearing with reference to the children in Calhoun District Court on December 5, 1966, and heard testimony the resister would make a good mother for the children.

Petitioner, George P. Moriarty, testified he was 29 and his wife 30 years of age, they have four daughters, 12, 11, á and 2 years of age, a son, age 8, he earned in excess of ten thousand dollars a year as assistant manager of a grain and fertilizer company, he was carrying insurance to help finance the future education of the children, including the two subject children, all attend church every Sunday, the two children are treated like their own, the two children are healthy, happy and fit perfectly into the family. He stated the subject children call him father and his wife mother and often expressed and showed love and affection. On cross-examination he expressed his awareness of the responsibility and expense of rearing and educating the children and his willingness to assume this burden. He stated he first learned the natural mother was attempting to get custody of the children when two notices of hearing were received in the mail. He further testified he had filed a special appearance which had not been ruled on. He was not aware of the natural mother’s whereabouts or her remarriage until after the adoption petition was filed.

The other petitioner, Mary J. Moriarty, gave substantially the same testimony. She testified she was capable of expending the energy necessary to be a mother of seven and there were no disciplinary problems with the children.

Hope McCown, Director of Dickinson County Department of Social Welfare, testified in great detail of her investigation of the petitioners’ home, reputation, finances and the care being given the children. She had called at petitioners’ house without advance notice, found a large clean, adequate home, a bed for each child and happy, well disciplined children. Her investigation included interviews with the family doctor, county sheriff and a member of the board of supervisors. All spoke highly of petitioners, their home, reputation and family life. She reported the home was suitable and recommended the adoption be granted.

The natural mother, resister-appellant here, testified the divorce decree was entered with her full knowledge and consent, thereafter she went to Texas where she worked as a waitress, she married Mr. Postlethwait on February 27, 1966, and then moved to Jefferson, Iowa, where her husband was employed at the Greene County Eural Electric Coop Company. She testified they moved to Iowa intending to gain custody of her two daughters. She had visited them in the grandmother’s home six or eight times. She testified she was able to furnish the children a good home, be a good mother, continue the children’s religious faith and teaching and her husband was willing to do the same.

Fern Cripe, resister-appellant’s mother and grandmother of the two subject children, testified she had lived in Rockwell City for seven years, at the time of the divorce Jayne was young and immature and although David was in the military service she thought the order placing the children in his custody was a good order and for the best interest of the children. She stated since February Jayne and her husband had moved to Iowa, Jayne had matured and wanted desperately to have custody of and rear her two children. Mrs. Cripe expressed the opinion her daughter and husband would be very good parents.

This we believe is a fair summary of the records submitted to the trial court which we must review on this appeal. As we shall point out infra the printed record and the briefs and arguments refer to several matters and records in the Calhoun District Court which were not brought to the attention of the trial court in the case at bar or raised as issues in the lower court.

I. This adoption proceeding is governed by equitable rules and is here triable de novo. Burrell v. Burrell, 256 Iowa 490, 493, 127 N.W.2d 78, 80. This requires a review of the evidence and a consideration of the question of the best interest of the children. In re Adoption of Perkins, 242 Iowa 1374, 1378, 1379, 49 N.W.2d 248, 250, and citations. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the trial court but are not bound by them. Citation of authority is unnecessary. Rule 344(f) (7), Rules of Civil Procedure.

II. Adoptions and the procedure therefor are statutory and are found in chapter 600, Code of 1966. Section 600.3, omitting immaterial parts, provides: “* * * The consent of both parents shall be given to such adoption * * * unless the parents are not married to each other * * * or unless one or both of the parents have been deprived of the custody of the child by judicial procedure because of unfitness to be its guardian. If not married to each other, the parent having the care and providing for the wants of the child may give consent. * *

It is essential we look to the statutes to determino the procedure to be followed. A failure to follow them in any material respect is fatal to the power of the court to decree an adoption. Welfare of the child alone is not sufficient ground for an adoption. There must be compliance with the statutory requirements pertaining to consent before the question of the best interests of the child is reached. In re Adoption of a Baby Girl, 248 Iowa 619, 623, 624, 80 N.W.2d 500, 503.

Resister-appellant argues her consent to adoption of her two daughters was necessary before the trial court could consider granting the adoption. Under the particular facts and her restricted rights under the divorce decree we are unable to agree. Construction of Code section 600.3 has been given in many of our opinions as to when a divorced parent’s consent to an adoption is or is not required. They are reviewed rather extensively in Burrell v. Burrell, supra, 256 Iowa 490, 497 et seq., 127 N.W.2d 78, 82, 83, which need not be repeated here.

The rule is now well established that mere right of visitation is not enough to require consent of a divorced parent. In re Adoption of Alley, 234 Iowa. 931, 934, 14 N.W.2d 742, 745; In re Adoption of Karns, 236 Iowa 932, 935, 20 N.W.2d 474, 476; In re Adoption of Chinn, 238 Iowa 4, 10, 11, 25 N.W.2d 735, 738.

Judge Harvey Uhlenhopp, of the Eleventh Judicial District, in his comprehensive study of the law of Adoption in Iowa, 40 Iowa Law Review 228, in considering when consent is necessary at page 245 says: “In divided custody cases the consent of both parents appears necessary, for each parent has substantial care and provides materially for the child’s wants. But mere rights of visitation are not enough.” (Emphasis added.) See also annotation, 47 A. L. R.2d 824, section 4.

Resister-appellant’s right of visitation without any showing she materially provided for the children was not such as to require her consent to the adoption.

III. Resister-appellant’s answer raises some question of jurisdiction of the Dickinson District Court as the divorce was granted in Calhoun District Court where she filed and had pending an application to modify the child custody provision. Her application was filed subsequent to the adoption petition.

“Adoption does change the status of a child and may affect incidents of a divorce decree involving parental duties and privileges. But where the conditions and circumstances prescribed by. chapter 600 as warranting adoption are shown to exist, the fact that the adoption may affect certain incidents of a prior divorce decree is not a bar to such adoption. * * * [T]he fact that a child is under the jurisdiction of a court in divorce proceedings between its parents does not prevent even another court from having jurisdiction of the same child for its adoption on the. consent of the parent to whose custody it has been given.” (Citations) In re Adoption of Chinn, supra, 238 Iowa 4, 9, 25 N.W.2d 735, 738. See also In re Adoption of Ellis, 260 Iowa 508, 149 N.W.2d 804, 808.

In In re Adoption of Alley, supra, 234 Iowa 931, 936, 937, 14 N.W.2d 742, 745, we say: “Defendant suggests that the terms of the divorce decree regarding care of the children may be changed, * * A It is sufficient response to this contention that we have uniformly held a divorce decree is final and conclusive until such a change is made and the possibility of future changes in the decree does not affect the parties’ status under the decree. Walters v. Walters, 231 Iowa 1267, 1270, 3 N.W.2d 595, 596, and citations; Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, and citations.”

The record before the trial court in the case at bar shows no more than a possibility of a future change of the decree entered in Calhoun District Court. We hold the Dickinson District Court had jurisdiction in the adoption proceeding.

IY. Resister-appellant’s next attack is entirely outside the record made before the trial court. The printed record and the briefs and arguments refer to a modification order made by the Calhoun District Court granting Jayne custody of the children after submission of the ease at bar but before entry of the decree of adoption. Reference is also made to entry of default against petitioners and an order after entry of the adoption decree setting aside the default due to the Calhoun District Court’s oversight of their special appearance. The order modifying the divorce decree between the natural parents was allowed to stand.

We would no doubt be faced with additional problems as the result of the orders made by the Calhoun District Court if at anytime they had been called to the attention of the trial court in the case at bar. Resister-appellant must rely on the record made in the trial court.

This court has held so many times a question not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal that citation of decisions is unnecessary. See, however, In re Adoption of Karns, supra, 236 Iowa 932, 938, 20 N.W.2d 474, 477; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563; Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Associates Discount Corp. v. Held, 255 Iowa 680, 684, 123 N.W.2d 869, 871; Verschoor v. Miller, 259 Iowa 170,143 N.W.2d 385, 389. Accordingly we decline to consider contentions made by resister-appellant for the first time in this court.

Y. The record is completely devoid of any statement derogatory to petitioners. The evidence establishes without dispute Angelia Kay and Julie Kay are happy, healthy, well adjusted children in petitioners’ home. They are considered and treated like the other children. They have security for the first time.

Resister-appellant appeared and without any objection submitted the issues of the adoption proceeding to the trial court. No motions were made asking a delay or reconsideration of a decision on the merits. The trial court had no alternative other than decide the issues submitted.

We are not unmindful of the natural mother’s desire to regain custody of her two daughters and to care for them in her newly established home but after careful review of the record we conclude the trial court’s decree should be affirmed.— Affirmed.

Garfield, C. J., and Larson, Snell and Rawlings, JJ., concur. Becker, Stuart and Mason, JJ., dissent.