Watson v. Newman

KNIGHT, J.

On March 24, 1925, Lila Watson adopted the infant child of Ralph and Mary Newman without obtaining the consent of its father, and on May 15, 1925, at the instance of the father, the order of adoption was set aside. This appeal has been taken from the order vacating, and the question presented for determination is whether under the circumstances hereinafter set forth the consent of the father was essential to the adoption.

[188]

The parents of the child wei'e married in March, 1921, and lived together as husband and wife until February, 1924, at which time they separated. Margaret Newman, the child here involved, was the issue of the marriage, having been born about seven months prior to the separation of her parents. In March, 1924, Mrs. Newman, who was then residing in San Jose with her sister, Lila Watson, filed a complaint for divorce, alleging extreme cruelty. Her husband filed a cross-complaint for divorce upon similar grounds. The record before us does not show that findings in the divorce action were ever made or waived; however, on September 4, 1924, an interlocutory judgment of divorce was granted and entered in favor of Mrs. Newman, and she was awarded the custody of the child, Newman being directed to pay thirty-five dollars a month for its maintenance and being granted the right to visit the child at reasonable times. It appears that following the granting of the interlocutory decree Mrs. Newman continued to make her home with her sister, the child living with them, and on March 25, 1925, Mrs. Newman died.

A few days preceding her death Newman visited her, and, according to his affidavit, Lila Watson at that time requested him “to leave” the child in her custody, which he refused to do. The next day, March 21st, Mrs. Newman executed a written consent to the adoption, and on March 24th the order of adoption was obtained, it being alleged in the petition that “the father of said minor child, said Ealph Newman, Avas adjudged guilty of cruelty and for said cause was divorced from said Mary Newman -. . . by the interlocutory judgment of said court. ...” It was on the day following the adoption proceeding that Mrs. Nbavman died. Newman at this time was residing in Oakland, and within a month thereafter learned of the adoption proceeding through friends and immediately filed a motion, supported by affidavit, to set aside the order of adoption. In his affidavit he stated, among other things, that his place of residence in Oakland, where he had lived for some time, was well known to Lila Watson, but that she had giA'en him no notice whatever of the intended adoption proceeding. On May 15, 1925, his motion Avas granted.