D.E.M. v. P.A.M.

352 N.W.2d 916, 218 Neb. 319, 1984 Neb. LEXIS 1214
CourtNebraska Supreme Court
DecidedAugust 10, 1984
DocketNos. 83-957, 83-958
StatusPublished
Cited by1 cases

This text of 352 N.W.2d 916 (D.E.M. v. P.A.M.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.E.M. v. P.A.M., 352 N.W.2d 916, 218 Neb. 319, 1984 Neb. LEXIS 1214 (Neb. 1984).

Opinions

Hastings, J.

These two cases were consolidated for trial in the courts below and for briefing and argument here. They involve appeals of proceedings in which it was sought to vacate and set aside decrees of adoption.

The natural mother (mother) and natural father (father) were husband and wife to whom the minor children involved were born in 1975 and 1977. Their marriage was dissolved by decree of the district court for Colfax County on October 7, 1977. Custody of the children was given to the mother, and the father was ordered to pay support.

The mother and adoptive father were married on July 12, 1980. On January 20, 1981, petitions were filed in the county court for Platte County, seeking the adoption of the children by the adoptive father. Decrees granting such request were entered on February 18, 1981.

A petition seeking dissolution of the marriage between the mother and adoptive father was filed by the mother in the district court for Platte County on October 5, 1981. The adoptive father was ordered to pay temporary child support. The record does not disclose any final decree.

On January 26, 1982, petitions were filed by the adoptive father in the county court for Platte County, seeking to vacate and set aside the adoptions. The petitions and amended petitions alleged fraud on the part of the mother in that she procured the adoptive father’s consent to adoption for the sole purpose of obtaining a father who would support the children, inasmuch as the natural father refused to do so; the absence of a proper order from the district court for Colfax County consenting to such adoptions; and that consent to adoption was obtained from the natural father through fraud, duress, and the payment of an improper consideration.

The father voluntarily became a party to these proceedings. He joined in the request for relief advanced by the adoptive father, alleging that his consent to adoption was obtained by granting him improper consideration, to wit, the release of past [321]*321and future obligation to pay child support and the promise of the release of a bench warrant outstanding for his arrest for nonpayment of child support.

The county court denied the prayer of relief of the adoptive father. However, it did find that the father’s consent to adoption was obtained by fraud and duress in that the mother and adoptive father represented to him at the time he signed the consent that they were married and that the outstanding bench warrant placed his employment in jeopardy and threatened his freedom. Accordingly, the court vacated the decrees of adoption and restored the rights and obligations of the father as a parent.

On appeal the district court affirmed the action in denying the adoptive father relief, but reversed the action of the county court in granting relief to the father and vacating the adoptions. The adoptive father appeals to this court. The father, although not having filed a notice of appeal, has filed a brief in these proceedings supporting the position of the appellant. The guardian ad litem has also filed a brief urging affirmance of the judgment of the district court.

Appeals in adoption proceedings are reviewed by the district court and this court for error appearing in the record. Neb. Rev. Stat. §§ 43-112 (Reissue 1978) and 30-1601 and 24-541.06 (Cum. Supp. 1982). Accordingly, we may dispose of the adoptive father’s claim, that he was induced by fraud to enter into these adoptions, with a minimum of comment.

There is an abundance of evidence in the record to support the findings of both lower courts that the adoptive father entered into these adoptions freely and voluntarily, that he understood the nature of the relationship to be created, that he loved the children and wanted to be their parent, and that adoption was his idea more than it was that of the mother. He had no more right to deny the obligations of parenthood under these circumstances than would a natural father who claimed to have been defrauded into fathering a child by a wife who was more interested in becoming a mother than continuing as a wife.

The county court’s finding of misrepresentation as to the marital status of the mother and adoptive father at the time the [322]*322father executed the consent and relinquishment was totally without substance. Although we are not prepared to say that we would condone adoptions by unmarried couples, we are not cited to any law prohibiting the same. More importantly, however, the relinquishment did not become effective until the adoption proceedings were commenced, which was some 7 months after the marriage of the parties.

Three assignments of error remain to be discussed: payment of improper consideration, coercion in the form of the bench warrant, and the absence of consent by the district court.

At the time the father signed the relinquishment and consent to adoption he was nearly $3,000 in arrears on the payment of child support. There is no question but that the mother and adoptive father executed a release of all child support obligations on the father’s part, accrued or to accrue in the future, conditioned on the father’s execution of the relinquishment. This document was filed in the dissolution proceedings in the district court for Colfax County. It is insisted that this is an impermissible payment of consideration sufficient to void the consent, as determined in Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980).

We would be blind to reality if we did not acknowledge that in most adoptions of this nature the relinquishing father is “paid a consideration” in that he will, at the very least, be relieved of the obligation of future support. This is the very nature of adoption proceedings. “[AJfter a decree of adoption has been entered, the natural parents ... shall be relieved of all parental duties toward and all responsibilities for such child ...” Neb. Rev. Stat. § 43-111 (Reissue 1978). Furthermore, it is a rare case indeed where a mother will attempt to obtain, or, more especially, that a father will willingly give, a relinquishment for adoption when he has faithfully and continually met his regular support obligations. We therefore hold that the satisfactions and discharges of accrued child support obligations, or the termination of future responsibility for the same, do not constitute an unwarranted payment of consideration which will vitiate a child relinquishment.

Similar reasoning obviates the father’s claim of coercion. In support of his contention the father testified that at one time he [323]*323was nearly $3,000 in arrears on his child support payments; a deputy sheriff came to his place of employment and served some papers on him; he called Larry Karel, the attorney representing his former wife in the adoption proceedings, and expressed his concern that he might lose his job if he were arrested; Karel repeated what he had written the father, that he would be released from child support if he consented to the adoption; and the father told Karel that he knew the adoptive father, that he believed he would be a good father for his children, that he had no real objection to his adopting the children, and that he would sign the relinquishment if the bench warrant was recalled.

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Related

In Re Adoption of CLR
352 N.W.2d 916 (Nebraska Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
352 N.W.2d 916, 218 Neb. 319, 1984 Neb. LEXIS 1214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dem-v-pam-neb-1984.