Pierce v. Pierce

522 S.W.2d 435, 1975 Ky. LEXIS 130

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: April 25, 1975
• Status: Published

Opinions

JONES, Justice.

David Lee Pierce married Dana Blake Redmon on September 20, 1972. Dana was the mother of Michael, who was born out of wedlock. On September 29, 1972, David signed a petition to adopt Michael. The adoption petition was subsequently filed, and thereafter on November 3, 1972, a judgment of adoption was entered.

David returned from naval service on February 26, 1973. David and Dana separated shortly thereafter. Dana instituted proceedings to dissolve the marriage. She sought custody and support of Michael. In an answer and counterclaim, David asserted that the judgment of adoption was void. Dana moved to strike the answer because the counterclaim constituted a collateral attack upon the judgment. Before the trial court ruled on the motion, David filed an independent action attacking the judgment of adoption.

The trial court consolidated the actions. In a clear and concise opinion, he regrant-ed the adoption, effective retrospectively as of November 3, 1972. The marriage was dissolved. Dana was awarded custody of Michael. David was directed to pay Dana the sum of $30.00 per week for the support of Michael until he reached 18 years of age.

In this appeal, David contends that the trial court erred in regranting the adoption. The real issue presented is whether an adopting parent may have a judgment of adoption vacated by the court which entered the decree, and if so, under what circumstances.

This court will not be part or parcel of setting aside completed adoption proceedings by dissatisfied adopting parents. To do so would be at variance with the principle almost universally accepted by the great weight of authority.

It is unquestioned that the trial court had subject-matter jurisdiction when the original judgment of adoption was entered. All of David’s outcries concerning defects in the statutory procedure are irrelevant because he was the initiating party in the adoption proceeding and has no legal right or standing to object that some other person, in this instance the child, was deprived of its statutory rights. The guardian ad litem seeks to uphold the judgment of adoption.

An adopting parent may have a judgment of adoption vacated by the court which entered the decree upon the ground of fraud practiced upon him in obtaining the decree, as where the adopting parent was of weak mind and was subjected to undue influence of the child’s parent or other person in bringing about the child’s adoption. See 2 Am Jur 2d, Adoption, Sec. 79, p. 925.

Courts have generally recognized or at least assumed that an adoption decree may be annulled at the instance of the adopting parent but indicate reluctance to disturb the status of an adopted child unless the vacating of the decree would clearly be for its best interest. 2 A.L.R.2d § 8, p. 903. From the cases collected in the annotation just cited, it appears to be generally held that an adoption decree will not be vacated or annulled at the instance of an adoptive parent where his motives are purely selfish, or because of pecuniary interest in changing his position. Courts should not allow abrogation of an adoption if it is premised on the desire of adoptive parents to rid themselves of a bad bargain, or because of a mere change in attitude or regret. 2 Am Jur 2d, Adoption, Sec. 79, p. 925. The Kentucky adoption statutes provide for annulment of a judgment of adoption only in the instance of subsequently discovered ethnic differences in the child that were unknown to the adopting parents.

David claims that he is entitled to an annulment of the judgment of adoption because of duress and undue influence practiced upon him by his wife, the natural mother of the child. The trial judge made no findings concerning this issue.

To warrant a finding of undue influence in inducing the adoption of a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about was not, in reality, that of the person whose act it was in form, but rather, was that of the person exercising the influence. Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, error dismd. 216 U.S. 616, 30 S.Ct. 577, 54 L.Ed. 639.

In our view David had the burden to demonstate by clear and convincing evidence the existence of undue influence. If this can be accomplished, it would clearly demonstrate that the annulment of the adoption judgment would be in the best interest of the infant child. The case is remanded with instructions to the trial court to make findings upon these questions which compose the real issue in the case.

The judgment is reversed for further proceedings consistent with this opinion.

The full court sitting.

REED, C. J., and CLAYTON, JONES, PALMORE and STERNBERG, JJ., concur. LUKOWSKY, J., files a separate dissenting opinion, in which STEPHENSON, J., joins.