Adoption of B.J.H., In re

• Decision Date: 21 May 1997
• Docket Number: No. 96-1497,96-1497
• Parties: In re the ADOPTION OF B.J.H., B.J.G., and B.J.R. B.M.S., Mother, Appellant.
• Court: Iowa Supreme Court

Page 387

564 N.W.2d 387

In re the ADOPTION OF B.J.H., B.J.G., and B.J.R.

B.M.S., Mother, Appellant.

No. 96-1497.

Supreme Court of Iowa.

May 21, 1997.

Douglas H. Napier of Napier, Wright & Wolf, Fort Madison, for appellant.

Thomas J. Skewes of Johnson & Skewes, Fort Madison, for appellee-adoptive father.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

TERNUS, Justice.

The appellant, B.M.S., whom we shall call "Beth," is the biological mother of B.J.H., B.J.G., and B.J.R. The district court found Beth had fraudulently induced her former husband to adopt her children and on that basis, the court vacated the adoption decree. The mother appeals, claiming the district court erred in finding fraud and in failing to consider the best interests of the children. We affirm.

I. Background Facts.

The following facts were found by the trial court. Beth and the adoptive father, whom we shall call "Brent," were married in 1991. At the time of their marriage, Beth had three children, one from each of three prior marriages. She was receiving government benefits for dependent children and food stamps.

The marriage between Beth and Brent was marred by discord, which Beth attributed in part to Brent's failure to adopt her children. As early as December of 1991, they contacted an attorney for purposes of pursuing an adoption but the biological fathers of two of the children would not consent. Another attempt in 1994 also failed to secure the agreement of the two nonconsenting fathers. In 1995, Beth and Brent retained attorney Douglas Napier who was successful in obtaining agreements from all three fathers voluntarily relinquishing their parental rights. Although the necessary consents were obtained in April, Brent did not proceed with the adoption because he had doubts about the stability of his marriage to Beth.

In August 1995, Beth and Brent "had a big fight" during which Beth accused Brent of not caring for her children. Beth told Brent his failure to adopt the children was the biggest problem in their marriage and, if he would go through with the adoption, their marriage would work. This was Brent's first marriage and he wanted to preserve it, so he told Napier to prepare the necessary papers for the adoption. Brent was fully aware of the obligation of support he would assume if he adopted the children.

On September 7, 1995, Beth and Brent signed the adoption papers at Napier's office. The next morning Napier filed a "petition for termination of parental rights and adoption (by stepparent)" and presented the petition to a district court judge. The judge signed a decree terminating the parental rights of the children's biological fathers and approving the adoption that same day. The order was not filed, however, due to the court's belief the oldest child, who was then fifteen, was entitled to a twenty-day notice of the proposed adoption. ¹ Although the order was not filed on September 8, 1995, Beth phoned Brent at work that day and told him the adoption was final.

Within a week, the marriage resumed its deterioration. Brent began to suspect Beth was having an affair because she was "very attentive" to a neighbor, whom we shall call "Gordon." During an argument between the parties on September 23, 1995, Beth informed Brent she wanted a divorce. She also admitted she was having an affair with Gordon and said she and Gordon were meant to be together. Nevertheless, she asked Brent to live in their basement and help out with the bills. Brent moved out.

Brent was unaware when he separated from Beth that the adoption decree had not been filed; he thought the adoption was final. In fact he and Beth discussed the status of the adoption when they separated. Beth asked Brent if he intended to halt the adoption. Brent responded that the adoption was done and there was nothing he could do about it. Although Beth knew the adoption was not done, she said nothing, allowing Brent to believe he could not abandon the adoption. If Brent had known the adoption was not final, he would have stopped the adoption proceedings. Instead, the termination and adoption decree was filed and became final nine days later, on October 2, 1995.

Beth knew Brent would not go through with the adoption if he learned she was having an affair. She told a co-worker she did not think the marriage would work when Brent signed the adoption papers because she was dating Gordon then.

Brent is currently employed, earning approximately $38,000 annually. Beth operates an unprofitable small business. Brent has been ordered to pay temporary child support of almost $900 per month during the pendency of the parties' dissolution proceeding. Brent has had no visitation with the children since the parties separated.

II. Procedural History.

As noted above, the termination and adoption decree was filed on October 2, 1995. Within one year of this date, on April 3, 1996, Brent filed a petition to vacate the decree. ² This petition was filed pursuant to Iowa Rule of Civil Procedure 252(b), which permits the court to vacate a final order upon proof of "fraud practiced in obtaining the [order]." Iowa R. Civ. P. 252(b). Brent's petition was tried to the district court as an ordinary action. See Iowa R. Civ. P. 253(c) (requiring the court to promptly assign the petition for trial in the same form and manner as an ordinary action). The district court subsequently entered an order finding fraud and vacating the earlier termination and adoption decree. ³

Rule 253(c) gives a party "the same right of appeal" of the trial court's ruling on a rule 252 petition as in an ordinary action. Iowa R. Civ. P. 253(c). Beth exercised this right by bringing the present appeal. She argues the court's decision to vacate the adoption decree should be reversed. First, she contends the court's finding of fraud is not supported by substantial evidence. Beth's second argument on appeal is the trial court failed to consider the best interests of the children when vacating the adoption decree.

III. Standard of Review.

The parties disagree on the appropriate standard of review. Beth claims our review is de novo because the case involves an adoption. See Iowa Code § 600.14 (1995) ("The supreme court shall review an adoption appeal de novo."). Brent argues the standard of review is at law because the order appealed is a judgment rendered on a rule 252(b) petition. See Svoboda v. Svoboda, 245 Iowa 111, 122, 60 N.W.2d 859, 865 (1953) (holding ruling on defendant's motion to set aside judgment is reviewable at law).

To resolve this issue, it is important to identify the precise matter before us on appeal. As our recitation of the procedural history of this case shows, the parties did not appeal the original adoption decree; therefore, the merits of the initial decision to allow the adoption is not before us. Consequently, section 600.14, requiring a de novo review in "an adoption appeal," does not apply.

The present appeal is from the court's ruling on Brent's petition to vacate the adoption decree based on fraud. Therefore, our standard of review is that applicable to appeals of orders issued on rule 252 petitions to vacate, even though the judgment vacated was rendered in an equity case. Svoboda, 245 Iowa at 122, 60 N.W.2d at 865 (holding ruling on defendant's motion to set aside default divorce decree is reviewable at law); In re Marriage of Kinnard, 512 N.W.2d 821, 823 (Iowa App.1993) (stating review of proceeding for vacation of judgment in dissolution proceeding is at law); accord Adoption of Jason Christopher M.R., 88 Cal.App.3d 11, 151 Cal.Rptr. 501, 503 (1979) (holding review of proceeding to vacate adoption decree is at law).

The district court enjoys wide discretion in deciding whether to vacate an order under rule 252. Kreft v. Fisher Aviation, Inc., 264 N.W.2d 297, 303 (Iowa 1978); Cook v. Cook, 259 Iowa 825, 829, 146 N.W.2d 273, 275 (1966). We will not reverse the trial court's decision on this question unless an abuse of discretion has been shown. Windus v. Great Plains Gas, 255 Iowa 587, 594, 122 N.W.2d 901, 905 (1963). We are more reluctant to find an abuse of discretion where the judgment has been vacated than when relief has been denied. Kreft, 264 N.W.2d at 303; Windus, 255 Iowa at 594, 122 N.W.2d at 905.

The court's exercise of discretion must have some support in the record. Cook, 259 Iowa at 829, 146 N.W.2d at 275; Windus, 255 Iowa at 594, 122 N.W.2d at 905. In examining the record, we give the trial court's findings the force of a jury verdict. Mishler v. Stouwie, 301 N.W.2d 744, 747 (Iowa 1981); Windus, 255 Iowa at 594, 122 N.W.2d at 905. Consequently, if the trial court's factual findings are supported by substantial evidence, they are binding on appeal. In re Trust of Killian, 494 N.W.2d 672, 675 (Iowa 1993); Mishler, 301 N.W.2d at 747.

IV. Fraud Under Rule 252(b).

A. Applicable law. Courts faced with a request to vacate or annul an adoption have recognized an order of adoption is a judgment and may be set aside using the same procedure available for any other judgment. E.g., In re Adoption of T.B., 622 N.E.2d 921, 924 (Ind.1993) (holding adoption decree may be set aside pursuant to general rule allowing order based on fraud to be set aside); Stewart v. Goeb, 432 So.2d 246, 247 (La.1983) (holding civil procedure rule allowing annulment of judgments obtained by fraud applies to action to annul an adoption decree); In re McDuffee, 352 S.W.2d 23, 26 (Mo.1961) (en banc) (holding decree of adoption may be vacated "upon any of the classical grounds that entitle ... courts to vacate any other decree"). ⁴ Thus, we begin our analysis with rule 252(b) and the cases developed under it regarding vacation of judgments procured through fraud.

Rule 252(b) permits the court to vacate a judgment if "fraud was practiced in obtaining" it. Fraud is of two types: extrinsic and intrinsic. Extrinsic fraud "is some act or conduct of the prevailing party which has...