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Markham v. Markham

OPINION FILED JULY 11, 1977.

VIRGIL D. MARKHAM, PLAINTIFF-APPELLANT,

v.

DAN MARKHAM ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. JOHN D. SULLIVAN, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Peoria County, which denied the prayer of a complaint filed by Virgil D. Markham (the plaintiff) and which prayed that a decree of adoption entered on November 24, 1971, be vacated and set aside and that Dan Markham and Nettie Markham (defendants) be ordered to surrender the custody of the minor children Tammy Ann Markham, Ted Allen Markham and Terry Ray Markham to the plaintiff.

In this appeal brief and oral arguments were presented by and on behalf of the plaintiff, Virgil D. Markham, the defendants Don Markham and Nettie Markham, and also by attorney Kerry R. Cordis as guardian-ad-litem for the minor children.

During oral argument of this cause it was called to this court's attention that the minor child and defendant Tammy Ann Markham is now deceased, having departed this life approximately two months ago, and hence is not and cannot in any way be a party to this appeal.

The factual background which ultimately resulted in litigation and from which this appeal stems commenced on March 5, 1965, when the plaintiff married Betty J. Markham. From this marriage three children were born, namely Tammy Ann Markham in 1966 (now deceased), Ted Allen Markham in 1967, and Terry Ray Markham in 1969. The plaintiff and his wife Betty were divorced on June 27, 1970, and the mother, Betty, was granted custody of the minor children. Betty, the mother, died on August 4, 1971.

Less than two months after the mother's death the defendants Dan Markham and Nettie Markham filed a petition to adopt the minor children. While we fail to deem it to be of any significance to the issue in this appeal we will nevertheless note that the plaintiff is a nephew of the defendant Dan Markham and the plaintiff's deceased wife was also related by blood to the defendant Nettie Markham. The defendants Dan Markham and Nettie Markham are husband and wife. The petition for adoption filed by the defendants Dan and Nettie Markham was approved and a decree of adoption making them the adoptive parents of the minor children was entered by the Circuit Court of Peoria County on November 24, 1971.

The petition for adoption filed by the defendants Dan and Nettie Markham alleged that the plaintiff had abandoned and deserted the children and that the petitioners did not know the plaintiff's whereabouts. No allegation was made that the plaintiff was an unfit father, no affidavit for publication was filed, no personal service was had on the plaintiff, however, notice was published in the Peoria Daily Record listing the plaintiff's address as unknown. No notice was mailed to the plaintiff (respondent in the adoption proceedings) at his address or last known address by the clerk of the circuit court. The plaintiff as father of the minor children did not consent to the adoption.

The record discloses that when the decree of adoption was entered the plaintiff was employed at Shakey's Pizza Parlor on North University Street in Peoria, Illinois, and that he resided at 730 North Maxwell Road in Peoria, which was located within 1 1/2 miles from where the minor children were living with the defendants Dan and Nettie Markham.

The record discloses that the plaintiff remarried on October 31, 1972, to one Barbara Markham, that he is well employed and is purchasing a home.

A further recital of facts will be set forth as we deem them pertinent to the determination of this appeal.

• 1 The broad issue presented for determination in this appeal is whether the trial court erred when it denied the plaintiff's prayer to vacate and set aside the adoption. It is the opinion of this court that the trial court did err, because the decree of adoption was void for failure of the trial court to have jurisdiction of the person of Virgil Markham, the father of the minor children.

• 2 It is unquestioned that the plaintiff, Virgil Markham, as father of the children did not consent to the adoption. We harbor serious doubts as to the validity of the petition for adoption. A mere allegation of unfitness of a parent is insufficient; in addition, the grounds for unfitness should be alleged. (See In re Petition of Smith (1972), 4 Ill. App.3d 261, 280 N.E.2d 770.) There was also a failure by the trial court to find the natural father an unfit person which is a mandatory requisite of our adoption act. See Ill. Rev. Stat. 1971, ch. 4, par. 9.1-8.

Assuming, however, for purposes of arguendo that the above defects did not vitiate the decree of adoption, it was most certainly rendered void because of lack of jurisdiction. When the father failed to consent it was then necessary to obtain jurisdiction of his person by following the provisions of the Civil Practice Act. Such Act sets forth the requirements to be followed to obtain service by publication which are as follows:

"§ 14. Service by publication — Affidavit — Mailing — Certificate. Whenever, in any action affecting property or status within the jurisdiction of the court, * * * plaintiff or his attorney shall file, at the office of the clerk of the court in which his action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made * * *. The clerk shall also, within 10 days of the first ...


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