170 Iowa 561 | Iowa | 1915
It appears to us that the court might well have received the testimony on this subject, if there was any and it had been offered, as to whether Mrs. Seibert left with or without cause; whether she was at fault or whether the husband was to blame; whether she was driven away by him, or whether she left for some improper purpose. These matters would have a bearing on the question of intent of the parties as to whether there was a separation. As stated, there was some evidence by Mrs. Seibert of ill treatment by her husband; but it was agreed, after the court had indicated his opinion on that question, that such evidence should not be considered in the determination of the case. In fairness to appellant, we do not consider her testimony on that point. "We think it is not necessary to consider it in the determination of the case, because there is other evidence which we think may properly be considered, which shows that the separation of the parties was merely temporary. Mrs. Seibert was claiming that her husband had abused her, and this has, a bearing on the question of the so-called separation, whether her claim was or was not well founded. Mrs. Seibert testifies:
“Mr. Seibert and I quit living together the 6th of January, 1914. I did not see the baby before I went to Kansas*565 City, but Mr. Seibert wrote me all the time telling me how he was and saying I could see him any time I came back and that I could take the baby to Kansas City with me. I got homesick for the baby and came back March 21st. I had the baby on Sunday all day and went to work On Tuesday morning. After that I took the baby home twice a week and sometimes three times and kept him over night, returning him to Mr. Seibert’s sister in the morning. I never consented to Mr. Seibert’s sister (defendant) having custody or control over the child superior to my own. Shortly after Easter Mr. Seibert refused to let me take the child. I did not know until the day the petition for writ of habeas corpus was filed that any articles of adoption had been instituted. . . . The reason I did not take him with me was that I had no place to put him. I have a divorce case pending. I went back home the next morning after I had left the night before to get my clothes and Mr. Seibert' asked me to come back and live with him. I stayed in Des Moines about ten days before I went to Kansas City and did not see the child during that time. During those ten days I stayed with different friends. Mr. Seibert and I have been living separate and apart from one another, but it was not definitely settled that we were separated. We were living apart.”
Q. “Now you were also living apart on the 9th day of May, 1914, were you not ? ”
A. “Not in the sense you would have me say, we were not. I made up my mind to get a divorce about two weeks ago.”
In the opinion of the trial court, which appears in the record, he states that the statute means if these people were divorced and the .custody given to one of them, or if they were separated and there was a lawful order giving the custody to one of those parents, that parent could enter into articles of adoption. Under either of these conditions, such parent could permit adoption, but such a construction is too narrow. Under
As stated, we think the testimony in this case shows that
Our conclusion is that the articles of adoption in this case are invalid as to the mother, because the parents were not separated within the meaning of the statute, and the father alone was not authorized to execute articles of adoption