Stauter v. Carithers

LENNON, J.

The plaintiff in this action sought and secured a decree setting aside an order granting the petition of defendant, Della A. Carithers, for the adoption of the minor, Katherine Virginia Stauter. The adoption was consented to by the parents of the child, the plaintiff, Sadie Stauter, and her divorced husband, who is the son of defendant, and the order of adoption was entered entirely without objection. In May, 1918, plaintiff instituted the present proceeding for the cancellation of the said order, relying upon the following undisputed facts: Defendant and one Charles W. Lyke were married in 1913; in 1915 they ceased to live together and ever since that time have continued to live apart; in the same year—1915—defendant instituted divorce proceedings against said Charles Lyke, wherein an interlocutory decree was entered in her favor on September 20, 1916, followed by a final decree of divorce in March, 1918. The order of adoption was granted on August 7, 1917, while the interlocutory decree of divorce was in force and over a month before defendant became entitled to a final judgment in the divorce proceedings. Charles Lyke did not consent to the adoption and it does not appear that he ever had any knowledge thereof.

Plaintiff’s theory is that, by reason of the absence of the consent of defendant’s husband, the court was without jurisdiction to enter the order of adoption. The trial court, apparently accepting this view of the case, set aside and canceled the order of adoption. Upon a new trial of the instant case the same result was reached for a second time, from which defendant appeals.

[162]

Section 223 of the Civil Code reads as follows:

“A

married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife, nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not consenting, is capable of giving such consent.” Eliminating the portions which have no bearing upon the facts of the present case, the section provides, in effect, that a married woman not lawfully separated from her husband cannot adopt a child without her husband’s consent. The only limitations upon adoption in this state are the rules prescribed by the chapter of the Civil Code which deals with adoption (Civ. Code, sec. 221), and section 223 of that chapter, above quoted, covering and controlling adoption by married persons, does not require the consent of a husband from whom a wife is lawfully separated. It follows that, if a married woman who has been granted an interlocutory decree of divorce can be said to be “lawfully separated” from her husband, then she may adopt without her husband’s consent, and the court did not lack jurisdiction to enter the order attacked in the instant case. Our attention is, therefore, concentrated upon a consideration of the legal consequences of an interlocutory decree of divorce.