323 Mass. 501 | Mass. | 1948
This is a petition dated August 21, 1947, and filed in the Probate Court for Middlesex County on September 23, 1947, by Donald D. Hathaway and Ruth V.
The petition alleges that the respondent has failed to contribute to the support of the minor. By G. L. (Ter. Ed.) c. 210, § 2, “A decree for such adoption shall not be made, except as hereinafter provided, without the written consent .... of the lawful parents . . .,” and by § 3, as appearing in St. 1945, c. 300, “The consent of the persons named in section two . . . shall not be required if . . . [they have] wilfully deserted or neglected to provide proper care and maintenance for such child for one year last preceding the date of the petition.” These exceptions to the requirement of the written consent of a parent have been strictly construed. Beloin v. Bullett, 310 Mass. 206. Zalis v. Ksypka,
The petitioners are not seeking to enforce the agreement made by the respondent relative to furnishing support for the minor. They state in their brief that the validity of this .agreement is immaterial. See Oakes v. Oakes, 266 Mass. 150, 152; Fla. Sts. (1943) c. 21932; Fritz v. Fernandez, 45 Fla. 318, 332. Their sole contention is that, as the agreement was made because of the divorce proceedings and was filed in court as an integral part of these proceedings and was intended by the parties, their attorneys and the court to constitute a part of the record of the divorce case, the judge may be said to have approved the agreement and to have embodied it in the divorce decree. We confine our discussion to this contention. The decree, as the parties contemplated, was silent in reference to the support of the minor. The agreement did not expire upon the entry of the decree, and the parties could not have accepted the decree as a substitute for whatever obligation, if any, the respondent assumed under the agreement. Bailey v. Dillon, 186 Mass. 244. Welch v. Chapman, 296 Mass. 487. It was not to be incorporated in any decree and the provision relative to support was unaffected by the decree. There is nothing in the record to show that the agreement had been approved by the judge and, even if it had and such approval was mentioned in the decree, the agreement would not thereby become a part of the decree. Schillander v. Schillander, 307 Mass. 96. Whitney v. Whitney, 316 Mass. 367. Compare Emrich v. McNeil, 126 Fed. (2d) 841.
The decree of divorce, so far as appears, did not command
As the petitioners rest their case upon a decree which did not order the respondent to contribute toward the support of the child, he could not have been found to have ' ‘ neglected to provide proper care and maintenance for such child” and, he having refused to give his written consent to the adoption, the decree dismissing the petition is affirmed. Broman v. Byrne, 322 Mass. 578, and cases cited.
So ordered.