Bell v. Krauss

California Supreme Court Feb 17, 1915 No. L. A. 3826; L. A. 3879Published

Before: Melvin

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Holding. The court affirmed the denial of a motion to vacate an adoption order under section 473 of the Code of Civil Procedure as untimely, but reversed the judgment sustaining a demurrer to a separate equitable action brought by the father to set aside the adoption for lack of notice.

Issues

Whether a motion to vacate an adoption order under section 473 of the Code of Civil Procedure was filed within the six-month statutory period.
Whether a complaint alleging that an adoption order was obtained without notice to the father, through fraud or mistake, states a cause of action sufficient to withstand a general demurrer.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The order denying petitioner’s prayer for relief under section 473 of the Code of Civil Procedure is affirmed.”

“Therefore the judgment based upon the court’s ruling sustaining the demurrer is reversed.”

“Where a father is deprived of the custody and control of a minor child without knowledge of any proceeding in that behalf and without a hearing, he is entitled to be relieved from the judgment or order taken against him”

Synopsis

Adoption—Consent of Father—Awarding Child to Custody of Mother by Divorce Decree—Judicial Deprivation of Father of Custody on Account of Neglect.—The placing of a minor child in the charge of the mother, by a provision of a decree of divorce-awarded her on account of the father’s failure to provide, is not such judicial deprivation of the custody of the child on account of the neglect of the father, within the meaning of section 224 of the Civil Code, as to authorize its adoption without his consent.

Id.—Father Entitled to Custody upon Death of Divorced Mother.— Upon the death of a mother to whom a child has been given by a decree of divorce, the father becomes entitled to the custody of the child.

Id.—Parent Presumed Competent and Entitled to Custody.—Prima facie a parent is presumed competent and he is entitled to have the custody of his child unless found by the court to be incompetent.

Id.—Want of Knowledge by Father of Adoption Proceeding—Relief from Order of Adoption.—Where a father is deprived of the custody and control of his minor child without knowledge of any proceeding in that behalf and without a hearing, he is entitled to be relieved from the judgment or order taken against him because of surprise and through his excusable neglect. Where a parent makes a prima facie showing that proceedings were so taken against his will and without the notice to which, under the law, he was entitled, the court should set aside the award of custody and give the parent a hearing and an opportunity to oppose the efforts of other people to deprive him of his child.

Id.—Motion for Relief Under Section 473 of Code of Civil Procedure —Time in Which to Make—Relief by Action.—A father who has been so deprived of the custody of his child by an order in an adoption proceeding may obtain relief from the order either by a timely motion in such proceeding under section 473 of the Code of Civil Procedure, or by an independent action to set aside the order. The six months limitation within which to ask for relief by motion under section 473 of such code commences to run on the date of the filing of the order of adoption.

MELVIN, J.

On September 4, 1913, Hugh I. Krauss and Birdie M. Krauss, his wife, petitioned for permission to adopt Aileen Bell, a minor child then six years of age. On the same day the court made an order of adoption which was signed and filed September 4, 1913, but docketed and entered on the eighth day of September, 1913. On March 2, 1914, Jesse M. Bell, father of the minor child served and filed notice of a motion to be relieved from the consequences of said order, specifying in said notice Monday, the ninth day of March, 1914, as the day upon which he would make the- motion. In his said notice of motion he announced that he would apply for the desired relief on the grounds that he was not a party to the adoption proceeding; that he had no notice thereof and did not consent thereto; that he was able and willing to care for his daughter and to provide her with a suitable

home;

that he was entitled to the custody of the infant; was a proper person to have such custody, and that he had never been judicially deprived of the possession of said minor on account of cruelty or neglect nor by reason of failure to provide. He also averred that he had not been dispossessed of civil rights nor divorced upon the grounds of cruelty or adultery, and that he had not been adjudged habitually intemperate. At the hearing of this motion petitioner introduced in evidence an affidavit setting forth the same matters in more elaborate form.

The motion of Mr. Bell was resisted and Mr. Frank S. Hutton, one of the attorneys for Mr. and Mrs. Krauss, filed an affidavit in which he set forth, among other things, that on October 15, 1913, Jesse M. Bell had commenced an action against Mr. and Mrs. Krauss to set aside and vacate the order of adoption theretofore made. He averred that in the said action Bell had sought to annul the order of adoption on the

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same grounds as those afterwards specified in his notice of motion to vacate said order; that the defendants had demurred to the complaint; that the demurrer had been sustained,' and that judgment had been duly entered, upon default of plaintiff, in January, 1914. The affidavit of Mr. Hutton also contained the statement that in an action for divorce between Leila F. Bell and Jesse M. Bell, the latter, by the judgment of the court, had been judicially deprived of the custody of his daughter by reason of cruelty and neglect.

Bell v. Krauss

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Synopsis

MELVIN, J.

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