In re Adoption of Perkins

Wennerstrum, J. This action involves the adoption proceeding of Larry Gail Perkins and Jerry Lee Perkins, minor children of LaVerne B. Perkins and Florence Perkins, now Green. The mother and father Avere divorced and the custody of the children was given to- the mother, subject to certain conditions. Cass E. Green, to whom the mother of the children was later married, made an application to adopt them. Following a hearing in which LaVerne- B. Perkins resisted the application, a decree of adoption was entered granting to petitioner the rights of an adoptive parent. The father of the children has appealed from the decree entered. The parents of the children involved in this action were married in December 1935. To this union two- children were born, Larry Gail Perkins on March 27, 1938, and Jerry Lee Perkins on September 3, 1941. Mr. Perkins was in the Army at the time of the marriage and so continued until after the close of hostilities of World War II. In February 1949, Mrs. Perkins brought an action for divorce. In this proceeding the husband and wife were represented by counsel and as a result of negotiations between the parties and their representatives, a stipulation was entered into Avhich proAdded that in case a divorce was granted, Mrs. Perkins was.to have custody of the children and that Mr. Perkins Avas to- pay $60 per month for their support, — 1376 — “* * * the first such payment to be made on the fifth day of the month following the obtaining of a decree herein, and a like amount on the fifth day of every month thereafter until the youngest child reaches the age of eighteen years, graduates from high school, or reaches his majority, or in the event plaintiff remarries, whichever occurs first.” It was also provided that Mrs. Perkins should be given the ownership of a certain residence property in Ames, Iowa, upon which there was a mortgage. Upon trial of the divorce action a decree was entered in conformity with the stipulation agreed upon by the parties. Subsequent to the signing of the divorce decree on March 18, 1949, the appellant herein, LaMerne B. Perkins, paid into the office of the Clerk of the District Court of Story County, Iowa, $60 for each of the following months: April, May, June, July and August, 1949. Florence Perkins and the petitionerappellee were married in Missouri on September 12, 1949. Since that time they have lived, with the two boys, on a farm west of Jewell. The farm of the appellee, Green, comprises a quarter section of land which, he testified, is mortgaged for less than fifty per cent of its value. He also stated that his stock and farm equipment are not mortgaged. The mother, Florence Perkins Green, filed in this action a consent to- the adoption of her children by her present husband. Notice of the pendency of the petition for adoption was served on LaVerne B. Perkins, the appellant herein, on October 4, 1950, and thereafter lie filed a resistance in this proceeding wherein he alleges that he has not failed to carry out the terms'of the stipulation, the provisions of which were later incorporated in the divorce decree; that he has not abandoned the children nor waived nor relinquished any right for their care or control; that he does not consent to the proposed adoption; that Florence L. Perkins Green has violated said decree by refusing to allow the appellant herein reasonable rights of visitation and has, in fact, secreted the children from him. He asks that the petition for ’adoption be dismissed at the cost of the petitioner. In addition to the facts heretofore set forth, the record shows that the children are attending the Jewell Public Schools. The petitioner testified that he knew that under the terms of the divorce decree Mr. Perkins’ obligation to contribute to the sup — 1377 — port of the children would cease upon his marriage to the former Mrs. Perkins, He also testified that Mr. Perkins “* * * has visited the children once since they have been in my home. * * * He has attempted.to visit them at other times. It is true that at those additional times when he attempted to visit the children that Í would not allow him on the place.” The petitioner-appellee also testified that Mr. Perkins had bought a Palomino pony for one of the boys which was delivered to the Green farm. This pony was later sold by Mr. Green for $85. He stated that this money was invested in a cow and calf. In his testimony, however, he admitted that he bought the cow with a part of the boys’ money and a part of his own money. It is his claim, however, that the children’s money is in the bank, although he stated that he does not have a separate bank account in their name. When asked whether on several occasions he had refused to allow Mr. Perkins to come on the farm, he answered: “No, I never refused to let him come on the farm, and my wife said he wasn’t wanted there and I agreed with her in his presence.” The father was given the right under the decree to visit the children at reasonable times. Relative to this matter the mother testified: “Yes, I said he couldn’t come.” In the adoption hearing the father of the boys testified that he terminated the payments after August 1949 because he was told that his former wife had remarried. He stated that he would have made another payment if he had known that she did not get manned until in September and that he was ready and willing to make the payment due in September and that he wants to comply with the decree. It is also shown by the testimony of the appellant, Perkins, that the equity in the home property at the time of the divorce decree was approximately $1900. He also stated that he did not want the children adopted because under those conditions he would not have the right to see them. In his testimony he stated : “I want the court to understand that I would "like to have those children stay as my children with my name. I would like to have the opportunity of doing for those children whatever I can and whatever Mrs. Green will allow me to do for them. I would like to have the right to visit those children.” — 1378 — It is shown that the appellant is employed as a mail and freight handler by the Chicago and Northwestern Railway Company at Ames and that he has never been discharged or laid off for intoxication or for any other reason. He stated that he feels he has a permanent job. It is also shown by the record that he has several thousand dollars worth "of life insurance and that the children are named as beneficiaries of most of these policies. There was other testimony in the record, much of which pertained to conditions existing at or prior to the time of the divorce and which involved claimed misconduct on the part of both Perkins and his former wife. However, these facts have no bearing on the particular matter before us. I. It is said that adoption proceedings are cognizable neither at law nor in equity. 2 C. J. S., Adoption of Children, section 34, page 415. However, the rule seems to be established in Iowa that the procedure is governed generally by equitable rules. Specifically, and of importance in this ease, upon appeal the cause is triable de novo-. In In re Adoption of Earns, 236 Iowa 932, 939, 20 N.W.2d 474, 478, in discussing the question of what was for the best interest of the children, we said: “Nor are we prepared to interfere with the trial court’s finding-on this issue.” Again on page 940 of 236 Iowa and at page 478 of 20 N.W.2d, we said: “The finding of the trial court is, of course, entitled to weight and it had some discretion in deciding this issue.” These statements are.evidence that this court could and should review the facts as well as the law; in other words, try the case de novo-. A close analogy appears also in the numerous habeas corpus cases we have considered which involve child custody. In these cases we have for many years uniformly held that equitable procedure is to- be followed. Watt v. Dunn, 236 Iowa 67, 73, 17 N.W.2d 811; Wooley v. Schoop, 234 Iowa 657, 658, 12 N.W.2d 597, 598; Barnett v. Blakley, 202 Iowa 1, 5, 209 N.W. 412. The reason for rule, which applies in adoption matters as forcefully as in the class of habeas corpus causes previously referred to, is well stated by Justice Evans in Jensen v. Sorenson, 211 Iowa 354, 367, 233 N.W. 717, 723, where it is stated: — 1379 — “Where the issue turns upon the best welfare of the child, and involves the overturning of presumptive parental rights in the interest of the child, we have found it difficult to separate questions of law from questions of fact * * *. We have necessarily recognized the fact that the determination of such issues carries us into the field of equity, and that it is indispensable that principles of equity be applied.” II. By reason of the statements heretofore made we proceed to consider the instant cause de novo. This requires a review of the evidence and a consideration of the question of the best interest of the children. The parties agree that this is the matter for primary consideration. We have often so held. In re Adoption of Earns, supra; In re Adoption of Burkholder, 211 Iowa 1222, 1226, 233 N.W. 702. Sections 600.1, 600.2 and 600.5, 1950 Code, which are part of our present adoption statutes, all support this view. The record shows that one of the children involved is now thirteen years of age, the other approximately ten. Both are boys. There is some evidence relative to drinking by all three adult parties concerned in this case. The divorce decree gave the custody to the mother with the father having rights of visitation. The question which we must determine at this point is whether it will be for the best interest of these boys if the adoption be permitted, in which case they will certainly be denied all association with their father; or whether the disadvantages of such a course outweighs the advantages and the adoption should be denied. We are not at this juncture concerned with whether the consent of the father is required; nor, as both the trial court and the appellee seem to think, with a question of custody as between the mother and the father. Admitting, for the purpose of argument, that the consent of the father is not essential, yet we are still confronted with the problem of what is for the best interest of the children. We have concluded that the welfare of the boys here involved will be best served if the adoption is denied. In favor of the adoption is the matter of the inheritance from the petitioning adopting father. 2 C. J. S., Adoption of Children, section 39b2, page 425. But against it is the law of — 1380 — the natural and healthy relationship which they will otherwise have with their father; the disdainful attitude of the mother and her present husband toward the Iowa law which prohibits remarriage after the divorce within one year; and toward the court’s decree in the divorce action which granted the appellant the right to visit his sons; the comparatively short time that the proposed adoptive father and mother of the children have been married; and the interest of the appellant in his sons. The fact that the children are boys of ages at which the need of a father’s guidance and companionship is increasingly important must also be taken into consideration. We held in In re Adoption of Chinn, 238 Iowa 4, 9, 25 N.W.2d 735, the right of visitation in itself is not enough to require the refusal of a petition for adoption, yet we think that the fact that such right will be’ eliminated by an adoption decree is a proper consideration when we are approaching the problem from the standpoint of the welfare of the children. We are not unmindful of the finding of the trial court upon this question, nor that we have often said that such finding is entitled to weight. In re Adoption of Karns, supra; Ellison v. Platts, 226 Iowa 1211, 1215, 286 N.W. 413. Many other cases could be cited to the same effect. We still have the duty to weigh the evidence and to determine whether the trial court arrived at the correct conclusion. Here, the trial court’s determination is considerably weakened in its effect by its apparent thought that in some manner the custody of the children was involved. In its findings of fact and conclusions of law, it stated: “* * * The petitioner and the mother have a home and they possess ample means for the care and education of the children with suitable and satisfactory surroundings for their physical and moral development. The natural father, while he says he has affection for the boys, has neither the surroundings nor the background to give them the education, supervision, training or home life so necessary to- them.” Counsel for the petitioner, the appellee herein, has followed the court down this misleading road and argues strenuously that the natural father has no adequate home. No such question is involved. LaVerne Perkins is only attempting to save his right — 1381 — of visitation, of intermittent companionship and to have his sons bear his name. He is not seeking a change in the custodial terms of the divorce decree. A denial of the adoption will still leave the boys with their mother and stepfather; and we must assume, in view of the record, that they will have the same care and affection that they would have if the adoption decree were permitted to stand. III. Another consideration requires a reversal of this case. At the time of the divorce, LaVerne Perkins gave to his wife household furniture of the value of at least $500, perhaps more, if his own valuation is to be taken. He also deeded to her his interest in their homestead. She later sold it, after some repairs, for $8500 subject to a mortgage previously given. This left an equity in the property concerning which we have previously made reference. These benefits were in addition to the liability of the appellant herein under the decree for the payment of $60 per month for the support of the children which terminated upon Mrs. Perkins’ remarriage. The divorce decree is silent on the question whether the equity in the home and the value of the furniture were turned over to Mrs. Perkins aá alimony or to aid in the support of the children. Necessarily, however, she needed a home and she needed furniture to keep together the family which the divorce decree awarded her. These things were of value to her in caring for her sons. Can it now be said that she, while retaining the furniture and the proceeds of the home, had the sole care and is alone providing for the wants of the children? Lump sum payment, either in money or property, is just as much a contribution to the support of minors as are monthly allowances. The situation here is ruled by Rubendall v. Bisterfelt, 227 Iowa 1388, 291 N.W. 401. Although in a preceding division we discussed the question as though the consent of the natural father was not essential, yet we think that the Rubendall case, supra, requires a holding that it was necessary under the facts in the present case and that no adoption could have been had without it. It should be recalled that in the present case the notice was given to LaVerne Perkins of the proposed adoption. IV. The burden of proof is upon a petitioner in an adoption proceeding to establish the facts justifying the adop — 1382 — tion. 2 C. J. S., Adoption of Children, section 39a, page 424; In re Rice, 179 Wis. 531, 534, 192 N.W. 56, 57. In the instant case it is onr conclusion that the petitioning stepfather has not met the burden of proof showing that it was to the children’s best interest to be adopted by him. By reason of the statements heretofore made and our particular concern for the preservation of the family relationship where they appear for the best interest of the children, we have concluded that the cause should be reversed and remanded for the entry of a decree in conformity with this opinion. — Reversed and remanded. Bliss, Mantz, Hays, and Thompson, JJ., concur. Mulroney, J., concurs in result and specially. Smith and Garpield, JJ., and Oliver, C. J., dissent.