Presley v. Presley

Court of Appeals of Georgia

Presley v. Presley

47 S.E.2d 647, 77 Ga. App. 99, 1948 Ga. App. LEXIS 501

CourtCourt of Appeals of Georgia

DecidedApril 17, 1948

Docket31862.

StatusPublished

Cited by5 cases

This text of 47 S.E.2d 647 (Presley v. Presley) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Presley v. Presley, 47 S.E.2d 647, 77 Ga. App. 99, 1948 Ga. App. LEXIS 501 (Ga. Ct. App. 1948).

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Opinions

*101 Parker, J.

The plaintiff is seeking to have the decree of adoption annulled and set aside on three grounds: 1. For alleged irregularities in the proceedings leading up to the adoption decree. 2. For fraud allegedly practiced by Mrs. Presley on the court. 3. For the alleged best interest of the children. These three contentions will be considered in the order stated.

The plaintiff can not have the adoption decree procured by him set aside and annulled by reason of defects in the adoption proceedings instituted by him and on which the decree was obtained. “Where adoptive parents seek and obtain the decree they ask for in a court of their selection, and take the child or children so adopted into the family and treat them as their own, they and their heirs and personal representatives are estopped from asserting that the child is not legally adopted.” Harper v. Lindsey, 162 Ga. 44 (2) (132 S. E. 639), Poss v. Norris, 197 Ga. 513, 517 (29 S. E. 2d, 705), and Mulligan v. Mulligan, 201 Ga. 444 (39 S. E. 2d, 699).

The allegations made by the plaintiff to show that Mrs. Presley perpetrated a fraud upon the court in procuring the adoption decree are set out above. They charge merely that she intended to sue for divorce as soon as the adoption decree was made final, and that she did sue shortly after the decree was obtained. It is not alleged that the intention to sue for divorce was secret, or that it was withheld from the court, or was misrepresented to the court, or that it was undisclosed to the plaintiff or unknown to him. Nor is it alleged that the adoption was procured by reason of the alleged intention in the mind of Mrs. Presley. We do not think these essential allegations can be inferred from the petition which must be construed most strongly against the plaintiff in passing upon the general demurrer. “Every presumption is to be indulged to sustain a proceeding of adoption by a court of competent jurisdiction.” Harper v. Lindsey, supra. It seems to us that the allegations failed to show fraud or acts or conduct' by Mrs. Presley that would invalidate the decree, and that at most they amounted to mere conclusions of the pleader.

The final contention of the plaintiff is that the adoption decree should be set aside because “it is to the best interest of, and to the welfare of, said minor children.” Without stating any *102 facts on which to base this allegation, except that Mrs. Presley-had sued the plaintiff for divorce, and that no reconciliation was possible, we think that the allegation is clearly- a conclusion and was not good against the general demurrer. It was not alleged that Mrs. Presley was unfit, morally or otherwise, to have the care of said children, or that she was unable financially, with or without the help of the plaintiff, to properly support and educate said children. The grounds on which the divorce action is based are habitual intoxication and cruel treatment. The oldest child had resided with the plaintiff and the defendant for more than a yeai*, and the youngest child since birth, when the proceedings for their adoption were begun in June, 1946. It thus appears that the oldest child had been with Mrs. Presley for about two- and-one-half years, and the youngest child all of its life, when this case was brought. The plaintiff’s contention that it would now be best to take these children from Mrs. Presley, just because she has sued him for divorce, under the facts appearing, is not sustained. Many of the best men and women in the land were reared by widowed mothers. A demurrer admits only such facts as are well pleaded, and not mere conclusions. Graham v. Marks, 98 Ga. 67, 73 (25 S. E. 931). “It is an established rule of construction that conclusions based on specific allegations are to be disregarded where the particular facts alleged either contradict them or fail to support them.” Green v. Spears, 181 Ga. 486, 490 (182 S. E. 913). Applying these rules to this case, the judge did not erf in sustaining the general demurrer and in dismissing the action.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Sutton, C. J., MacIntyre, P. J., and Gardner, J., concur. Townsend, J., concurs specially. Felton, J., dissents.

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*101 Parker, J.

The plaintiff is seeking to have the decree of adoption annulled and set aside on three grounds: 1. For alleged irregularities in the proceedings leading up to the adoption decree. 2. For fraud allegedly practiced by Mrs. Presley on the court. 3. For the alleged best interest of the children. These three contentions will be considered in the order stated.

The plaintiff can not have the adoption decree procured by him set aside and annulled by reason of defects in the adoption proceedings instituted by him and on which the decree was obtained. “Where adoptive parents seek and obtain the decree they ask for in a court of their selection, and take the child or children so adopted into the family and treat them as their own, they and their heirs and personal representatives are estopped from asserting that the child is not legally adopted.” Harper v. Lindsey, 162 Ga. 44 (2) (132 S. E. 639), Poss v. Norris, 197 Ga. 513, 517 (29 S. E. 2d, 705), and Mulligan v. Mulligan, 201 Ga. 444 (39 S. E. 2d, 699).

The allegations made by the plaintiff to show that Mrs. Presley perpetrated a fraud upon the court in procuring the adoption decree are set out above. They charge merely that she intended to sue for divorce as soon as the adoption decree was made final, and that she did sue shortly after the decree was obtained. It is not alleged that the intention to sue for divorce was secret, or that it was withheld from the court, or was misrepresented to the court, or that it was undisclosed to the plaintiff or unknown to him. Nor is it alleged that the adoption was procured by reason of the alleged intention in the mind of Mrs. Presley. We do not think these essential allegations can be inferred from the petition which must be construed most strongly against the plaintiff in passing upon the general demurrer. “Every presumption is to be indulged to sustain a proceeding of adoption by a court of competent jurisdiction.” Harper v. Lindsey, supra. It seems to us that the allegations failed to show fraud or acts or conduct' by Mrs. Presley that would invalidate the decree, and that at most they amounted to mere conclusions of the pleader.

The final contention of the plaintiff is that the adoption decree should be set aside because “it is to the best interest of, and to the welfare of, said minor children.” Without stating any *102 facts on which to base this allegation, except that Mrs. Presley-had sued the plaintiff for divorce, and that no reconciliation was possible, we think that the allegation is clearly- a conclusion and was not good against the general demurrer. It was not alleged that Mrs. Presley was unfit, morally or otherwise, to have the care of said children, or that she was unable financially, with or without the help of the plaintiff, to properly support and educate said children. The grounds on which the divorce action is based are habitual intoxication and cruel treatment. The oldest child had resided with the plaintiff and the defendant for more than a yeai*, and the youngest child since birth, when the proceedings for their adoption were begun in June, 1946. It thus appears that the oldest child had been with Mrs. Presley for about two- and-one-half years, and the youngest child all of its life, when this case was brought. The plaintiff’s contention that it would now be best to take these children from Mrs. Presley, just because she has sued him for divorce, under the facts appearing, is not sustained. Many of the best men and women in the land were reared by widowed mothers. A demurrer admits only such facts as are well pleaded, and not mere conclusions. Graham v. Marks, 98 Ga. 67, 73 (25 S. E. 931). “It is an established rule of construction that conclusions based on specific allegations are to be disregarded where the particular facts alleged either contradict them or fail to support them.” Green v. Spears, 181 Ga. 486, 490 (182 S. E. 913). Applying these rules to this case, the judge did not erf in sustaining the general demurrer and in dismissing the action.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed.

Sutton, C. J., MacIntyre, P. J., and Gardner, J., concur. Townsend, J., concurs specially. Felton, J., dissents.

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47 S.E.2d 647, 77 Ga. App. 99, 1948 Ga. App. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/presley-v-presley-gactapp-1948.

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