Opinion
No. DD-306.
March 24, 1977. Rehearing Denied May 11, 1977.
Appeal from the Circuit Court, Duval County, Roger J. Waybright, J.
Clyde N. Wells, Jr., Jacksonville, for appellant.
This is an appeal by a prospective adoptive father from a final order dismissing without prejudice his petition for adoption of an adult for failure to prosecute with diligence. (See Popkin v. Crispen, 213 So.2d 445 (Fla.4th DCA 1968), cert. den. 222 So.2d 748 (Fla. 1969).) Although filed as an appeal from a final order, it is in fact an interlocutory appeal (Fla.App. Rule 4.2a) and we will treat it as such. (Fla.App. Rules 3.2 and 4.2; Crepaldi v. Wagner, 128 So.2d 759 (Fla.1st DCA 1969); Jonton, Inc. v. Fidelity Mortgage Investors, 329 So.2d 45, 46 (Fla.1st DCA 1976).)
The record reveals that the petition was filed in early April 1976, and that two amended petitions were filed prior to the trial court's final order of August 27. In none of those petitions, however, was the mandate of Section 63.062(3)(b), Florida Statutes (1975), complied with. As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed. ( In Re: Adoption of Miller, 227 So.2d 73 (Fla.4th DCA 1969).) The statute clearly provides that the natural parents must either consent to the proposed adoption or that the prospective adopter file proof of service of process upon the natural parent or parents who have not so consented. In the instant case, however, although three petitions have been filed, each reciting the address of the natural father, there is no indication that the natural father consents to the adoption nor that the natural father was served with notice of the proceeding. Having thus failed to comply with the obvious terms of the statute, it cannot be said that the petition was being diligently prosecuted nor that the trial judge abused his discretion in dismissing it. Further, the dismissal being without prejudice, the petitioner is free to refile in compliance with law.
"(3) A petition to adopt an adult may be granted if:
(a) . . .
(b) Written consent to adoption has been executed by the natural parent or parents, if any, or proof of service of process has been filed, showing notice has been served on the parent or parents as provided herein."
A written consent was filed by the adult sought to be adopted, his spouse and his natural mother.
AFFIRMED.
RAWLS and McCORD, JJ., concur.