McAdams v. McAdams

109 S.W.3d 649, 353 Ark. 494, 2003 Ark. LEXIS 321
CourtSupreme Court of Arkansas
DecidedJune 5, 2003
Docket02-666
StatusPublished
Cited by25 cases

This text of 109 S.W.3d 649 (McAdams v. McAdams) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McAdams v. McAdams, 109 S.W.3d 649, 353 Ark. 494, 2003 Ark. LEXIS 321 (Ark. 2003).

Opinion

Ray Thornton, Justice.

On April 12, 1966, appellant, Bobby McAdams, and his wife, Wanda McAdams, filed a petition to adopt appellee, Robert Shepard [McAdams]. 1 In their petition, Bobby and Wanda alleged that they were the “natural parents” of Robert, who was born out of wedlock. They further alleged that Robert had lived with Wanda since his birth on July 12, 1956, and that he had lived with Bobby since he married Wanda on January 11, 1957. Bobby and Wanda requested that they be permitted to adopt Robert and that his name be changed to Robert McAdams.

Attached to their petition for adoption was a notarized verification. In this verification, Bobby and Wanda acknowledged that they had read the petition, and that the facts stated in the petition were “true and correct.”

On April 14, 1966, a waiver, entry of appearance, and consent to adoption was entered by Herman Lee Shepard. In this pleading, Mr. Shepard stated that he was married to Wanda McAdams until 1956. He further stated that he was not the father of Robert Shepard, but that he believed that he was legally Robert’s father because the child was conceived and born while he and Wanda were husband and wife. Mr. Shepard consented to the adoption.

On July 21, 1966, an interlocutory decree granting the petition for adoption was entered. In this decree, the probate court found: “that the petitioners [Bobby and Wanda McAdams] are the natural parents of the said minor child [Robert Shepard]” and that “it would therefore be in the best interests of said minor child that he be adopted by the petitioners.” On January 26, 1967, a final decree granting the couples’ petition for adoption was entered.

On November 13, 2001, Bobby McAdams, appellant, filed a motion to annul the adoption of Robert McAdams. In his motion, appellant alleged that Herman Shepard and Wanda McAdams were the natural parents of Robert. He further alleged that Wanda McAdams and Herman Shepard had fraudulendy convinced him that he was Robert’s natural father. In a brief in support of his motion to annul the adoption, appellant alleged that if he had known that he was not P-^obert’s natural father, he would not have agreed to the adoption.

On January 4, 2002, a hearing was held on appellant’s motion. After considering appellant’s arguments, and reviewing the exhibits introduced at the hearing, the trial court denied appellant’s motion to annul the adoption. The trial court also denied appellant’s request for paternity testing.

On January 25, 2002, appellant filed a motion requesting that the trial court reconsider its earlier order denying his motion to annul the adoption. Appellant also requested a paternity test and that the trial court hold an evidentiary hearing. On February 26, 2002, the trial court denied appellant’s motion for reconsideration.

On appeal, appellant raises three issues for our consideration, and we affirm the trial court.

In his first point on appeal, appellant argues that the trial court erred when it denied his motion to annul the adoption of Robert McAdams. We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.

Mindful of our standard of review, we turn to the merits of appellant’s appeal and consider whether the adoption decree should have been annulled based on appellant’s allegation that it was procured by fraud. We begin our analysis by looking to the statutes that were in effect at the time the adoption petition was filed. See Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997) (holding that we look to the law in effect at the time of the adoption when we are testing the validity of an adoption decree); see also In the Matter of the Adoption of f.L.T. and M.M.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). 2

At the time the petition for adoption was filed in 1966, the subject matter was governed by Ark. Stat. Ann. § § 56-101 et. seq. (1947). Arkansas Statutes Annotated § 56-110 (1947) addresses annulment of an adoption decree. The statute provides:

A petition to annul a final adoption decree may be filed in the court which entered the decree on any on the following grounds:
(a) The adopting parents have failed to perform their obligations to the adopted person.
(b) In case of minor children the adopting parents have become separated or divorced within two years after the rendition of the final adoption decree.
(c) That the adopted person, within five years after his final adoption has developed feeble-mindedness, insanity, epilepsy, any psychosomatic or mental disturbance, venereal disease, or any incurable disease as a result of a condition existing prior to adoption unknown to the adopting parents. Upon proof of one of these grounds, the court may set aside the adoption decree and may make whatever disposition that appears to be proper.

Id. Arkansas Statutes Annotated § 56-112 (1947) provides a statute of limitations for parties seeking to challenge an adoption order. The statute provides:

No action shall be brought to set aside an adoption decree for any procedural or jurisdictional defect except within two years after its rendition, if the adopted person has in fact lived with the adopting parents that length of time except on one of the grounds specified in section 11 [56-110],

Ark. Stat. Ann. § § 56-112.

Based on the statutory language, appellant’s motion to annul the adoption decree, which was filed approximately thirty-four years after the decree was entered, is barred by the statute of limitations. However, our precedents reflect that if appellant can establish that the adoption decree was procured by extrinsic fraud practiced upon the court the statute of limitations barring his action will be tolled. See Sumter v. Allton, 278 Ark. 621, 648 S.W.2d 55 (1983) (holding that fraud on the part of a biological mother and her new husband in falsely alleging that the biological father had abandoned his child when he had not, constituted an extrinsic fraud which tolled the applicable statute of limitation on the biological father’s subsequent suit to set aside the final order of adoption). See also Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966).

When we consider whether an order may be collaterally attacked based upon allegations of extrinsic fraud, we have explained that:

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Bluebook (online)
109 S.W.3d 649, 353 Ark. 494, 2003 Ark. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcadams-v-mcadams-ark-2003.