Hicks v. Russell

Annotate this Case

123 S.E.2d 214 (1961)

256 N.C. 34

Carl T. HICKS and Emily M. Hicks, Petitioners, v. Edward L. RUSSELL, Respondent.

No. 308.

Supreme Court of North Carolina.

December 13, 1961.

*217 Joyner, Howison & Mitchell, Raleigh, George W. Edwards, Snow Hill, John Hill Paylor, Farmville, for petitioner-appellees.

Jones, Reed & Griffin, Kinston, W. Eugene Hansen, Salt Lake City, Utah, for respondent-appellant.

DENNY, Justice.

The appellant purports to present twelve assignments of error, each based on a single exception set out in his notice of appeal as follows: "To the foregoing judgment and each finding of fact incorporated therein; each conclusion of law incorporated therein, and each order, adjudication and decree incorporated therein, the respondent Edward L. Russell objects and excepts (EXCEPTION # 1) * * *."

*218 No exception appears in the record to any finding of fact or conclusion of law except as noted in the notice of appeal and under the assignments of error. Each of the twelve assignments of error purports to be supported by Exception No. 1.

Under our Rules of Practice and our decisions, this is a broadside exception and presents nothing for our consideration but the question whether the facts found support the judgment. Logan v. Sprinkle, N.C., 123 S.E.2d 209; Putnam v. Triangle Publications, 245 N.C. 432, 96 S.E.2d 445; Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96; Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242.

A single exception to "the findings of fact and conclusions of law based thereon" has been consistently held by this Court to be "a broadside exception and ineffectual." Strong, North Carolina Index, Vol. I, Appeal and Error, section 22, and cited cases. See also Jamison v. City of Charlotte, 239 N.C. 682, 80 S.E.2d 904

Moreover, a broadside exception may not be aided by the assignment of error. Suits v. Old Equity Life Ins. Co., 241 N.C. 483, 85 S.E.2d 602; Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467. Assignments of error unsupported by an exception duly taken and preserved will not be considered on appeal. Logan v. Sprinkle, supra; Holden v. Holden, 245 N. C. 1, 95 S.E.2d 118; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223.

The General Assembly of North Carolina, in Chapter 300 of the 1949 Session Laws of North Carolina, declared its legislative policy with respect to the adoption of children. This policy is codified as G.S. § 48-1. Subsection (3) thereof reads as follows: "When the interests of a child and those of an adult are in conflict, such conflict should be resolved in favor of the child; and to that end this chapter should be liberally construed."

G.S. § 48-2, subsection (3) provides: "For the purpose of this chapter, an abandoned child shall be any child under the age of eighteen years who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child."

G.S. § 48-5 in pertinent part reads: "(a) In all cases where a court of competent jurisdiction has declared a child to be an abandoned child, the parent, parents, or guardian of the person, declared guilty of such abandonment shall not be necessary parties to any proceeding under this chapter nor shall their consent be required. (b) In the event that a court of competent jurisdiction has not heretofore declared the child to be an abandoned child, then on written notice of not less than ten days to the parent, parents, or guardian of the person, the court in the adoption proceeding is hereby authorized to determine whether an abandonment has taken place. (Emphasis added.) (c) If the parent, parents, or guardian of the person deny that an abandonment has taken place, this issue of fact shall be determined as provided in G.S. § 1-273, and if abandonment is determined, then the consent of the parent, parents, or guardian of the person shall not be required. * * *"

Likewise, in pertinent part, G.S. § 48-9, subsection (a) (2), reads as follows: "If the court finds as a fact that there is no person qualified to give consent, or that the child has been abandoned by one or both parents or by the guardian of the person of the child, the court shall appoint some suitable person or the county superintendent of public welfare of the county in which the child resides to act in the proceeding as next friend of the child to give or withhold such consent. The court may make the appointment immediately upon such determination and forthwith may make such further orders as to the court may seem proper. * * *"

Under our adoption law, if it is found that a child has been abandoned for at least six months immediately preceding the institution of an action or proceeding to declare the child an abandoned child, then such *219 parents, surviving parent, or guardian of the person, declared guilty of the abandonment, shall not be necessary parties to any proceeding brought under General Statutes, Chapter 48, Adoption of Minors.

Furthermore, where a court of competent jurisdiction has declared a child to be an abandoned child, the court is not ousted of its jurisdiction although it may be found that the abandonment occurred less than six months prior to the institution of the proceeding to determine whether the child had been abandoned. The time of the abandonment is not determinative of jurisdiction, but is determinative of the question whether or not the parents, surviving parent, or guardian of the person, must be a party to the adoption proceeding.

Moreover if it is determined that a child or children have been abandoned, the consent of the parent, or guardian guilty of the abandonment of such child or children need not be obtained.

The facts in this case tend to show that insofar as this respondent is concerned, these children would have become a public charge or gone wholly neglected and unprovided for had it not been for the petitioners herein. The respondent provided nothing for their support and maintenance for more than eight months from and after 4 September 1959. Neither is there any evidence tending to show that the respondent ever attempted to see or that he ever made any inquiry as to the health or welfare of these children from 1 September 1958 until 17 March 1961 when he took them from the home of the petitioners in defiance of the final orders of adoption entered 6 February 1961 and carried them out of this jurisdiction to the State of Utah.

It is provided in G.S. § 48-28 as follows: "(a) After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by anyone not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a natural parent or guardian of the person of the child. * * * (b) The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction."

The respondent having been a party to this proceeding and having failed to file an answer and deny that an abandonment had taken place as alleged in the petition, it became the duty of the Clerk of the Superior Court of Greene County to determine whether or not an abandonment had taken place. G.S. § 48-5(b). The aforesaid Clerk having found that the respondent had abandoned his children, and the respondent not having appealed therefrom or from the final orders of adoption entered on 6 February 1961, we hold that he is irrevocably bound by the orders and judgments entered in the adoption proceeding and is estopped by law from challenging the validity thereof. G.S. § 48-28.

We further hold that the provision in G.S. § 48-28, which permits a direct or collateral attack on an adoption proceeding by a natural parent or guardian of the person of the child, is limited to such natural parent or guardian of the person of the child who was not a party to the adoption proceeding.

The findings of fact by the court below were sufficient to support the judgment entered, and the judgment is

Affirmed.