(dissenting) — I join in the dissent of Justice Smith (written after the writer’s dissent). However, I desire to go further and point out that any fair review de novo of the evidence (assuming the propriety of such procedure) does not require or warrant the majority’s holding- that the boys’ welfare will best be served by denying' the adoption. Then Division II hereof- discusses more fully than does Division I of Justice Smith’s dissent the question of the claimed necessity for the father’s' consent to th-e adoption.
It may also be pointed out that the method of review here (whether de novo or on errors) depends upon provisions of our constitution and statutes which the majority ignores. Also the question of the necessity for the father’s consent to the adoption is controlled by statute. It is significant that the majority also makes no reference to the statute that governs this question.
I. The majority seems to- feel it more important to protect what it conceives to- be the rights of appellant and to punish the boys’ mother and her present husband (appellee) for their alleged “disdainful attitude” than to further the boys’ welfare.
On the question of the boys’ welfare the majority sees only one consideration in favor of the adoption — their right to inherit from appellee. And this is apparently considered unimportant for it is barely mentioned. It is plainly a valuable right to inherit from the owner of a quarter-section farm encumbered for less than half its value, in one of the best farming areas of the state, together with the livestock and equipment that go with the farm. We may take judicial notice the farm, like others, has substantially increased in value since the trial. However, the majority completely ignores vital considerations which favor this adoption. Under the trial court’s decree these boys are entitled as of right to have appellee furnish them a suitable home, food, clothing, medical care, the advantages of an education and the countless *1389other obligations a parent owes his child. Certainly these are conducive to the boys’ welfare.
Code section 600.6 provides: “Upon the entering of such decree, the rights, duties, and relationships between the child and parent by adoption shall be the same that exist between parents and child by lawful birth and the right of inheritance from each other shall be the same as between parent and children born in lawful wedlock.”
Substantially this same statute has been in effect since the Code of 1860. In the main it accords with the law generally. 1 Am. Jur., Adoption of Children, section 52, page 652, states:
“Conversely, the obligation of the adopting parent is the same as if he were a natural parent, and hence he is bound to give the child the same support and maintenance and the same humane treatment to Avhich it would be entitled if born to him in lawful wedlock, and he is subject to all civil remedies alloAved against a natural parent to enforce proper maintenance of the child.”
See also 2 C. J. S., Adoption of Children, section 56. Chehak v. Battles (Ladd, J.), 133 Iowa 107, 116, 117, 110 N.W. 330, 334, 8 L. R. A., N. S., 1130, 12 Ann. Cas. 140, says: “Moreover, the adoption contemplated by our statute includes far more than the mere right to inherit.”
The majority’s mandate takes from these boys their rights under the decree to have appellee furnish,them a home and other appropriate support and leaves him under no1 duty in these respects. And this is done in order to preserve to appellant his right of visitation and to compel the boys to retain appellant’s name. I think it most important to the boys’ Avelfare that appellee become legally obligated for their care and maintenance. Appellant-father disclaims responsibility for the support of his sons and has contributed nothing thereto since August 3, 1949. It is true the boys’ mother has their care and custody but she is without means.
Appellant is attempting to prevent this adoption for just two reasons. As a witness he says so more than. once. He testifies:
“My object of being here today is because I don’t want the names of the children changed and want the right to see them. *1390* * * I have at no time attempted to gain the custody of these children. I have not made an inquiry as to the type of home they are now in. * * * I just want my kids’ name not changed and I want to- see them, that is all.”
It is not clear how it promotes the best interests of these boys to be compelled to retain appellant’s name, nor does the majority so hold. It would seem the boys would be better off to be known among their associates by the name of the people with whom they make their home. Their enforced use of appellant’s name advertises the fact they have come from a broken home- — • broken because of the finally adjudicated fact that appellant was guilty of such cruel and inhuman treatment as to endanger the life of the boys’ mother.
The majority refers to appellant’s “right” to- have his sons bear his name. I think there is no such right if the boys’ use of appellant’s name does not contribute to their welfare. The boys’ best interests should not be subordinated to any right a divorced father, deprived of custody, may have that the boys bear his name. As stated in an adoption case, In re Jackson (Rosenberry, C. J.), 201 Wis. 642, 645, 231 N.W. 158, 159, “* * * no one has rights in the custody of a child superior to the right of the child to have its best interest and welfare promoted.”
I think the controlling question here is whether under the evidence it promotes the best interests, of these boys to continue appellant’s right to visit them at such “reasonable times as may be convenient” (as the divorce decree states) and to compel them to retain appellant’s name, on the one hand, more than it does on the other hand, to deny such right of visitation, permit the boys to- use appellee’s name and grant them the obvious advantages, some of which are above referred to, which would result from the adoption.
Some of the matters the majority holds outweigh the advantages of the adoption have little if any bearing on the question of the boys’ welfare. None is a valid and controlling argument against the adoption. The majority first refers to “the natural and healthy relationship which they will otherwise have with their father.” To accept this as a certain consequence of denying *1391the adoption seems utterly unwarranted. 'There is no fair prospect a reversal will result in any such relationship as the majority assumes.
The second consideration the majority mentions as detrimental to the boys’ welfare if the adoption were granted is “the disdainful attitude of the mother and her present husband toward the Iowa law which prohibits remarriage after the divorce within one year.” Perhaps the mother and appellee are subject to criticism for marrying in Missouri six days less than six months after the divorce decree. However, that marriage was not, as the majority implies, in violation of our law but was perfectly valid. Dudley v. Dudley, 151 Iowa 142, 130 N.W. 785, 32 L. R. A., N. S., 1170; Farrell v. Farrell, 190 Iowa 919, 925-927, 181 N.W. 12; Webster v. Modern Woodmen, 192 Iowa 1376, 1380, 186 N.W. 659; Swift v. Swift, 239 Iowa 62, 73, 29 N.W.2d 535, 541; annotation 32 A. L. R. 1116, 1118.
Referring to an out-of-state marriage four months and seventeen days after a divorce, Dudley v. Dudley, supra, states (page 146 of 151 Iowa) it “does not constitute such a breach of good morals or of public policy as to brand her with unfitness for the custody of her child.” (The majority’s claim that no question of the custody of the children is here involved will be .later considered.)
In Farrell v. Farrell, supra, a divorced wife who married again in Missouri within the year was denied relief by the trial court in part because of her “ ‘contemptuous disregard for the laws of this state’” (page 922 of 190 Iowa). (“Contemptuous” is a synonym of “disdainful.”) In reversing, we state (page 927 of 190 Iowa), “It is not to her discredit, however, that she sought a legal marriage # *
This is not a case where another man broke up the home, then married the divorced wife. Appellee did not know his wife-until two months after the divorce.
The claimed attitude of the mother and appellee toward the Iowa law pertaining to remarriage (there is no evidence of their attitude except the fact of marriage) - is not substantial proof the adoption would be against the boys’ welfare. Under the record this marriage actually proved for the best interests of these boys. *1392For one thing it resulted in-a better home for them than they ever had before. The mother testifies, “I know they are happier and have a better home, than they ever had, and father.” This testimony is not disputed. (Although the majority purports to consider the cause de novo and says a review of the evidence is required, it virtually ignores the mother’s testimony.)
The asserted disdainful attitude of the mother and appellee toward appellant’s right to visit his sons is also given as a reason why the adoption would be against the boys’ best interests. It is probably true the mother and perhaps appellee are subject to criticism for their unwillingness to permit appellant to visit the boys. However, there is at least some justification, to which the majority does not refer, for their attitude in this regard.
The mother says: “Mr. Perkins is addicted to liquor. There is very few times he is sober more than two days at a time. After my divorce Mr. Perkins came to the house on different occasions. One time I had to get the police for protection. I had people living with me to help protect myself and the children. The police took him away that time to the police station and held him over night. There was another time he came up there with the police and gained entrance into the house through the policeman to threaten me.”
Appellant testifies of the time he went to the house “and asked for the kids” when his former wife “called the cops”, as he says, “I would say it was nine o’clock.” At best it is doubtful if 9 p.m. was a reasonably convenient time for appellant to visit the boys, then ages seven and eleven. Appellant admits that on another evening after the divorce he started for the home of his former wife and children when he was intoxicated and later pleaded guilty to the crime of driving while intoxicated on that occasion. He says, “I don’t remember if I attempted to see the children that day or not.” Referring to his use of liquor appellant testifies, “I don’t drink a lot, just average. I don’t drink any more than the ordinary guy does.”
Regarding visits of appellant with the older boy before the mother’s marriage to appellee, the mother says: “The older boy would come home after seeing him and cry and say, ‘Mom there is something in my head and I don’t know what it is.’ And he *1393missed school almost.half a day a week while we were in Ames when he was right where he could see him, and since coming to Jewell last year he had a perfect attendance in school and his grades were up to average. And they are very happy and content.”
The mother also testifies: “Since we moved west of Jewell Mr. Perkins called on these children in school. The children came home and told me about it. They were all worked up and said their Dad was going to come and get them in order to make them happy, which they didn’t need because they are happier now than they have ever been. And, they went down in their grades for about a week and were very nervous and upset. And he told them untrue things that he was going to get them and they cried and were very worked up about it.”
Not only does the above uncontradicted testimony furnish reasonable explanation for the unwillingness of the mother and appellee to encourage visits from appellant to the boys but it demonstrates that continuing appellant’s right of visitation will not so promote the boys’ welfare as to warrant denying the adoption. Certainly the “father’s guidance and companionship” of which the majority speaks have not been conducive to the boys’ welfare on several occasions in the past.
The majority assigns as another controlling reason why the adoption would be contrary to the best interests of the boys “the comparatively short time” since appellee’s marriage. Appellant has made no such contention. A year and ten months have elapsed since the marriage, during which the boys have lived with their mother and appellee. The family has an established, desirable farm home. No one says a word against it. The boys have always lived with their mother. They have seen their father twice between the time of appellee’s marriage and the trial. Before the divorce appellant was away in the service, to his credit, for extended periods.
The law requires a child to live in the proposed home twelve months before the adoption unless the court is satisfied the home and the child are suited to each other, but even that residence may be waived where as here petitioner is married to a parent of the child. Code section 600.2. It seems plain the claimed short time since this marriage is not a valid ground for reversal.
*1394“The interest of appellant in his sons” is another reason the majority gives for its conclusion the adoption would be contrary to the boys’ welfare. Appellant professes much interest in his sons. However, his testimony previously quoted indicates this interest is almost wholly in continuing his right pf visitation and in requiring the boys to use his name. In the divorce action or otherwise he has never sought custody of the boys and has contributed nothing to their support since nearly two years ago. Appellant’s profession of interest in the boys is weakened by his failure to contribute more to their welfare.
Is the mother’s interest in her sons to receive no consideration? Apparently the majority gives it none. She has had the burden of the sons’ care and support all their lives and especially since August 3, 1949, when appellant made his last payment of support money. Certainly the mother’s interest in her sons has contributed much more to their welfare in the past than has the interest of the father.
It is true the boys are “of ages at which the need of a father’s guidance and companionship is increasingly important.” It is apparent any guidance and companionship fairly to be expected from appellant will be much limited because of the divorce due to his cruelty, the award of custody to the mother and the events that followed. There is little reason to expect more guidance and companionship from appellant in the future than he has shown in the past. This very need for guidance and companionship is a consideration in favor of, not against, the adoption. Appellee would have much stronger incentive to treat these boys as a father does his sons if the adoption were granted.
The findings of the able trial court, who had the benefit of seeing these parties, state :
“The primary objective in this proceeding is to determine what should be done for the best interest of these children so as to provide for them the greatest opportunity for their future care, guidance and development. The court answers this question without any hesitancy after hearing the evidence. The petitioner and the mother have a home and they possess ample means for the care and education of the children with suitable and satisfactory surroundings for their physical and moral develop*1395ment. The natural father] while he says he has affection for the boys, has neither the surroundings nor the background to give them the adequate supervision, training or home life so necessary to them.”
With reference to the above the majority makes these amazing statements:
“* * * the trial court’s determination is considerably weakened * * * by its apparent thought that in some manner the custody of the children was involved. * * *
“Counsel for the petitioner * * * has followed the court down this misleading road and argues strenuously that the natural father has no adequate home. No such question is involved. * * # we must assume * * * they will have the same care and affection that they would have if the adoption decree were permitted to stand.”
And the majority again criticizes the trial court and the appellee for thinking that a question of custody as between mother and father is involved. The criticism is unwarranted. Appella/nt injected into the hearing below testimony that if he had the custody of the children he knew he could provide, for them. He says he is one of several roomers in a rooming house in Ames and has no relatives in this part of the country. He also testifies: “I would like to have the custody of these children; * * * I think this is a good place to take these two boys.”
One of appellant’s claimed errors relied upon for reversal is: “The court erred in ruling that resistor had neither the surroundings nor background for adequate supervision of the minors.” The argument in support, of this alleged error does not suggest that no such question is involved. The trial court should be permitted to consider evidence offered by appellant and appellee should be allowed to respond to appellant’s argument without being charged by the majority with misconceiving the case.
The trial court would have been derelict in his duty if he had not considered evidence as to the suitability of the home of appellee and the mother and their ability to rear and educate the boys. .Such testimony was relevant and proper. It is the trial court’s duty in adoption cases to order an investigation “to de*1396termine whether the proposed foster home is a suitable one for the child” unless the investigation (in certain instances) is waived by the court. Code section 600.2; In re Adoption of Burkholder, 211 Iowa 1222, 1224, 233 N.W. 702, cited by the majority. No petition for adoption may be granted unless “upon the hearing the court shall be satisfied * * * the petitioners are able to properly rear and educate the child * * Code section 600.5. When a child is adopted he is adopted into the home of the petitioner as well as by him.
While adoption is largely a question of status the right to the child’s custody is an important incident to that status. This case then clearly involves the right to the custody of these boys along with other rights and obligations. Under the trial court’s decree appellee is entitled to custody of the boys. This is the effect of Code section 600.6 previously quoted. See also 1 Am. Jur., Adoption of Children, section 52, page 651; 2 C. J. S., Adoption of Children, section 56b; Chehak v. Battles, supra, 133 Iowa 107, 117, 118, 110 N.W. 330, 8 L. R. A., N. S., 1130, 12 Ann. Cas. 140; Burger v. Frakes, 67 Iowa 460, 470, 23 N.W. 746, 25 N.W. 735; Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 A. L. R. 263, 268, 269 (where the natural mother claimed the right to visit her adopted child. Much in the opinion supports this dissent.); Petition of Shinkonis, 312 Mich. 199, 20 N.W.2d 159, 161.
We have recognized that adoptive and custodial rights of parents are closely related. Of them we say in Rubendall v. Bisterfelt, 227 Iowa 1388, 1391, 291 N.W. 401, 402: “It may be noted that although these rights are regarded as being separate and distinct they are closely interrelated and at times appear to blend into each other.”
A grandmother opposed the adoption in In re Adoption of Burkholder, supra, 211 Iowa 1222, 1225, 1226, 233 N.W. 702, 703, on the ground “that, because of unfriendliness between the petitioners and herself * * * she will be deprived of the privilege of associating with her grandchild.” We held: “Without doubt, petitioners have furnished a good home and proper care for the child, and are proper persons to have such care in the future. The interests of the child are paramount, and it is in her interest that the court decreed her adoption.”
*1397And in In re Adoption of Chinn, 238 Iowa 4, 9, 25 N.W.2d 735, 738, cited by the majority, a divorced father opposed the. adoption in part because it would deprive him of his rights under the divorce decree to “visit said child at all reasonable times” and to take the child to his home in another town for as long as one week every three months. We reversed the trial court’s denial of the adoption, stating:
“It is suggested the granting of the adoption would modify provisions of the divorce decree granting the father the right to visit and be visited by the child * * *. Adoption does change the status of a child and may affect incidents of a divorce decree involving parental duties and privileges. But where the conditions and circumstances prescribed by chapter 600 as warranting adoption are shown to exist, the fact that the adoption may affect certain incidents of a prior divorce decree is not a bar to such adoption. [Citing authorities.]”
(In the Chinn case, supra, the mother remarried just thirty-eight days after her divorce and the petition for adoption was filed nineteen days after the remarriage.)
The majority’s statement “we must 'assume” the boys “will have the same care and affection” as if the adoption were permitted ignores several matters. For example, the greater incentive appellee would have, as well as legal obligation, to care for and love them if he were their father by adoption.
The majority mentions its “particular concern for the preservation of the family relationship” as an added reason for denying the adoption. Just how a reversal will preserve the family relationship is not apparent. The Perkins family relationship was broken by the divorce decree based on such cruelty of appellant as to endanger the life of the boys’ mother. Denying the adoption and continuing appellant’s right of visitation will tend to disrupt the Green family without either preserving the Perkins family relationship or promoting the boys’ welfare.
II. I think .appellant’s consent to the adoption is not required. Adoption is statutory. See authorities cited in Division I hereof, also In re Adoption of Chinn, supra, 238 Iowa 4, 9, 25 N.W.2d 735, 738. Code section 600.3 governs the question of *1398consent. It states: “The consent of both parents shall be given to such adoption unless * * * the parents are not married to each other * * *. If not married to each other, the parent having the care and providing for the wants of the child may give consent.”
It is clear that since the divorce appellant and his former wife have not been married to each -other. In re Adoption of Alley, 234 Iowa 931, 933, 14 N.W.2d 742, 744, and citations; In re Adoption of Karns, 236 Iowa 932, 935, 20 N.W.2d 474, 476. The majority does not hold otherwise. In the Alley case, supra, we found nothing of doubtful me'aning in what is now section 600.3. This portion of the Alley opinion is quoted with approval in Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 241 Iowa 358, 361, 41 N.W.2d 1, 3, in which all justices concurred.
Nor can there be any fair question that appellant’s former wife is the parent having the care of her sons. “The word ‘care’ is used in the statute in the sense of charge or oversight, implying responsibility for safety and prosperity. As used in the statute it generally includes custody as provided for in a divorce decree.
“The mother was awarded the custody of the child.” In re Adoption of Chinn, supra, 238 Iowa 4, 8, 25 N.W.2d 735, 737.
The stipulation in the divorce case, approved and incorporated in the divorce decree, states “plaintiff [mother] shall have the absolute custody of the minor children * * The evidence shows the mother has had the boys’ care constantly since the divorce.
It is equally plain the mother is “the parent * * * providing for the wants of the child (ren).” That appellee has greatly assisted in providing for their wants since the boys and their mother came into his home does not make appellant’s consent to the adoption required. In re Adoption of Karns, supra, 236 Iowa 932, 936, 937, 20 N.W.2d 474, 477.
The majority’s holding that appellant’s consent to the adoption is required because he turned over to his former wife at the time of the divorce his interest in the furniture and homestead first calls for an examination of the record. Both the stipulation and decree in the divorce .suit state the monthly pay*1399ments of $60 are an allowance “for the support, maintenance and education” of these minors “until * * * plaintiff remarries.” Under both the stipulation and decree appellant’s obligation to make these payments ended when his former wife remarried on September 12, 1949. Actually, as stated, appellant made his last payment on August 3.
The majority at least implies that the furniture, and home belonged to appellant. Actually the stipulation states that both the homestead and furniture were owned by'appellant’s-former wife and appellant. It was doubtless the product of their joint efforts. The wife says “It would probably cost $400 or $50.0 for me to buy it [furniture].”
The home was mortgaged for $6300 and the: stipulation requires appellant’s former wife to save him “harmless from .the payment of such mortgage.” Payments on the mortgage were $54 a month — $6 less than appellant’s monthly payments of support money. After putting in a new furnace at - a cost of $485 and painting at a cost of $200, the wife sold the house in September 1949 for $8500 subject to the mortgage. Whether the furniture went to the purchaser with the house does not appear. Thus she received a little over $1500 for the entire equity in -the home, half of which was hers before the divorce. In view of her agreement to save appellant harmless on the mortgage his interest in the home might,have proven a liability to the wife rather than an asset.
There is no evidence appellant’s former wife -is “retaining the furniture and the proceeds of the home.” Referring to the summer of 1949, before her marriage to appellee, she testifies, “I was working during that time; I had to. * * * Other than the $60 he paid there was nothing further coming from Mr. Perkins.” Appellant’s income was $280 a month.
That -the boys’ mother received at the time of the divorce appellant’s share of the furniture and equity in the home .does not, under the circumstances here, indicate in this proceeding she was not the parent providing for the boys’ wants. After more than thirteen years of marriage to appellant she -should be entitled to that much from him for herself upon establishing her right to a divorce.
*1400Under the majority’s reasoning a divorced mother who provides for the wants of children whose absolute custody was awarded her by the decree is powerless to consent to their adoption if she received something from the natural father at the time of the divorce even though there is no evidence that what was received was intended to provide for the children’s wants. Further, the effect of the majority’s Division III is that the consent of a divorced father to the adoption is forever a requisite thereto if at the time of the divorce the mother acquires something from him which might then be used for the children’s benefit even though it has long since been exhausted.
Rubendall v. Bisterfelt, supra, 227 Iowa 1388, 291 N.W. 401, does not in my opinion require a holding that appellant’s consent to the adoption is required. In the cited case the father was obligated to make monthly payments for the child’s support until he became sixteen. The decree specifically recognized the father’s “engagement to assist in providing for the wants of the child in the future.” (Page 1390 of 227 Iowa.) Under the divorce .decree here, as stated, appellant was under no' duty to provide for the children’s wants after the mother’s remarriage and he has made no such provision for nearly two years.
After our decisions in In re Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742, In re Adoption of Karns, 236 Iowa 932, 20 N.W.2d 474, and In re Adoption of Chinn, 238 Iowa 4, 25 N.W.2d 735, all supra, the Fifty-second General Assembly, in 1947, overhauled and made a number of changes in our adoption statutes. The journals of that session show there was introduced an amendment to Code section 600.3 plainly designed to require consent of a divorced father to the adoption. The amendment was defeated. The Fifty-second General Assembly, chapter 281, section 4, amended section 600.4, however, to provide for notice of the adoption proceedings “to a divorced parent not having custody of the child.”
It is therefore plain the legislature did not intend to require consent of a divorced parent not having custody unless he is “providing for the wants of the child” as stated in section 600.3.
A carefully written note entitled “Consent in Adoption in Iowa” in 33 Iowa Law Review 678, 685, states as a conclusion: *1401“The power of an absolute veto of an adoption petition by a parent- should be recognized only under extraordinary circumstances, for to allow such a power in many cases might prevent the court from providing for the best interests of the child. Problems arising from divorce and family settlements cannot be solved by iron-clad rules of law, because one party is often motivated only by the desire to injure the other party. An absoluté veto might be a means by which a vengeful parent could obstruct a normal family readjustment.”
I think the majority opinion demonstrates the wisdom of this quotation.
I would affirm.
Oliver, C. J., joins in this dissent.