Beatty v. Brooking

157 N.W.2d 793, 9 Mich. App. 579, 1968 Mich. App. LEXIS 1507

• Court: Michigan Court of Appeals
• Decided: March 20, 1968
• Docket: Docket 2,777
• Status: Published

Opinions

Lesinski, C. J.

The defendant herein appeals from a judgment of the circuit court for Oakland county determining an adoption proceeding to have been fraudulently obtained and hence void.

The record reveals that on September 26, 1908, Patrick McCan and Alice Delong were married in Howell, Michigan. Alice Delong and defendant Alice Brooking are one and the same.

The defendant contended that in October of 1910 she married Clifford Brooking in Milwaukee, Wisconsin. The Milwaukee health department and the director of vital statistics of the Wisconsin board of health, however, report no record of such marriage.

The plaintiff herein was born Frances Jane Higley in 1910, the daughter of John and Rosetta Higley. On February 21, 1919, John Higley, as the only living parent of Frances, signed a declaration of adoption in the probate court of Wayne county. On February 26, 1919, the court entered an order declaring the child to be the adoptive daughter of the defendant and Clifford Brooking, changing her name to Frances Jane Brooking. The plaintiff lived with her adoptive parents until she was married in 1929, her married name being Frances Jane Beatty.

On May 10, 1930, Alice McCan, being the same Alice Brooking, procured a decree of divorce from Patrick McCan in the circuit court of Kent county in Grand Rapids, Michigan.

In 1964, some 45 years after the adoption proceedings, the plaintiff brought an action in the circuit court for Oakland county to set aside the 1919 adoption order adjudging the defendant and Clifford Brooking her adoptive parents. The plaintiff alleged that the adoption order was void in that at the time of those proceedings, the defendant was still legally married to Patrick McCan,that the defendant wilfully and knowingly represented at the time of the adoption that she was the wife of Clifford Brooking; and that the defendant remained married to Patrick McCan until her divorce from him in 1930. Further, the plaintiff alleged that the defendant, because of the aforementioned allegations, was living either a bigamous or adulterous life at the time of the marriage and hence misled the court as to her worthiness to be an adoptive parent. The plaintiff contended that she first learned of the irregularities she herein alleges in February of 1964.

The trial court determined that the adoption of the plaintiff was fraudulently obtained and declared it void. It is from this decision that the defendant brings the present appeal, relying on CL 1948, § 701.23 (Stat Ann 1962 Rev § 27.3178-[23]) ,¹ in assignment of error in the determination made by the trial court.

The right to appeal from probate orders is presently limited by statute.² At the time of the adoption proceedings in the instant case, appeals were limited by PA 1915, No 314, which was essentially the same as the present. The order of adoption in the instant case was not appealed. Probate orders, properly entered and not appealed, pursuant to the applicable statutes, are generally not subject to collateral attack. See Voigt v. Detroit Bank & Trust Company (1960), 360 Mich 442.

There are, however, cases that stand for the proposition that where the time for appeal has passed, equitable relief may be granted to set aside proceedings as fraudulent. Ewing v. Lamphere (1907), 147 Mich 659; Babcock v. Babcock (1907), 150 Mich 558; Grigg v. Hanna (1938), 283 Mich 443. In the aforementioned cases, attack upon the proceedings is not considered collateral but direct. The fraud which justifies equitable interference with a probate order must be fraud in obtaining the order and not merely constructive, but positive, fraud. Ombrello v. Duluth, S. S. & A. R. Co. (1930), 252 Mich 396.

In the instant case the plaintiff alleged that the defendant, by stating in the declaration of adoption that she was married to Clifford Brooking where no official record disclosed such marriage, perpetrated a fraud upon the probate court. Further, the plaintiff alleged the defendant “wilfully and knowingly” committed the alleged fraud. There is no evidence upon which the defendant’s action could so be characterized. At most, the defendant’s conduct could be labeled constructive fraud and that alone would not be sufficient to set aside the adoption proceedings. Ombrello v. Duluth, S.S. & A. R. Co., supra.

The falsification of statements in probate proceedings can be likened to perjury or false testimony. In both cases, if proved, a wrong has been committed. However, it has been stated that neither perjury nor forgery is sufficient ground for equitable relief in that the mischief that this approach would lead to would be far greater than the evil that is sought to be remedied. See Columbia Casualty Co. v. Klettke (1932), 259 Mich 564; Voigt v. Detroit Bank & Trust Company, supra. In adoption cases such as the present, the mischief becomes even greater in that the stability of the parent-child relationship would continually be under a threatening cloud. The door wonld be opened to fictitious claims made by natural children challenging the adoption proceeding involving their adoptive brothers and sisters. As with all court proceedings, there must be a stage of finality that can be relied on by the parties involved, otherwise there would be no end to litigation, and attacks on such proceeding could be made ad infinitum.

We find, based upon the record, that equitable interference was not warranted. We are compelled to follow the dictates of CL 1948, § 701.23, supra, giving validity to probate orders after 20 years and uphold the validity of the 1919 adoptive proceedings. Further, the relationship between the plaintiff and defendant has existed for some 45 years, the plaintiff enjoying the benefits of a home that it appears she wonld otherwise not have enjoyed. Any other holding by this Court would evade the clear policy of the statute and the hoped for permanence of probate orders.

Reversed. Costs awarded to the appellant.

Quinn, J., concurred with Lesinski, C. J.

1 “When the validity of any order or decree of a probate eourt shall be drawn in question in any other suit or proceeding, everything necessary to have been done or proved to render the order or decree valid, and which might have been proved by parol at the time of making the order or deeree, and was not required to be recorded, shall, after 20 years from such time, be presumed to have been done or proved, unless the contrary appears on the same record.”

2 CL 1948, § 701.36 (Stat Ann 1962 Rev § 27.3178[36]) ; CL 1948, § 701.43 (Stat Ann 1962 Rev § 27.3178 [43]); CL 1948, § 701.44, as amended by PA 1966, No 181 (Stat Ann 1968 Cum Supp § 27.3178 [44]).