Adoption of D.J.M., Matter of, CA
| Decision Date | 21 October 1992 |
| Docket Number | No. CA,CA |
| Citation | 39 Ark.App. 116,839 S.W.2d 535 |
| Parties | In the Matter of the ADOPTION OF D.J.M. 91-396. |
| Court | Arkansas Court of Appeals |
Cheryl K. Maples, No. Little Rock, for appellant.
William H. McKimm, Mount Ida, for appellee.
The appellant in this case, Jett Paul, is the biological father of D.J.M., a minor. On May 22, 1991, the Montgomery County Probate Court granted a petition for adoption of D.J.M. that was filed by Johnny and Murphia Moore, the appellees herein. Appellant was a party to the adoption proceeding below and now seeks to have the decree set aside.
D.J.M. was born on July 10, 1987. Her biological parents were not married. The biological mother consented to the adoption of the child by the Moores, who took D.J.M. home with them the day after she was born. At that time, the identity of the natural father was unknown to the Moores.
A review of the procedural history of the case is necessary given the issues on appeal. The Moores first filed their petition for adoption in Pulaski County Probate, and an interlocutory decree of adoption was entered in October 1987. In January 1988, appellant filed a paternity action in the County Court of Pulaski County, by which he sought to have himself established as the natural father of D.J.M. The interlocutory decree of adoption from Pulaski County Probate became final in April 1988. In May 1988, the final decree was set aside and the interlocutory decree reinstated during pendency of the paternity action. In July 1988, the county court found Jett Paul to be the natural father of D.J.M. While the paternity matter was on appeal, the Moores dismissed their adoption petition in Pulaski County Probate and refiled in Montgomery County Probate in August 1989. The Moores and D.J.M. have lived in Montgomery County at all times pertinent to this appeal.
In March 1990, an order was entered by the Eighth Division Chancery Court of Pulaski County finding Jett Paul to be the natural father of D.J.M. In May 1991, the Montgomery County Probate Court entered the adoption decree that is the subject of this appeal.
Appellant's first argument is that the Montgomery County Probate Court lacked subject matter jurisdiction over the adoption matter and that the order of adoption is therefore void. As support for his argument, appellant cites Ark.Code Ann. § 9-27-306 (Repl.1991), which states in pertinent part:
(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(3) Proceedings for establishment of paternity....
(b) The juvenile court shall have exclusive jurisdiction of the following matters governed by other law which arise during pendency of original proceedings under subsection (a) of this section and involve the same juvenile.
(1) Adoptions under the Revised Uniform Adoption Act, as amended, § 9-9-201 et seq.
Appellant argues that because the paternity proceeding was on appeal to the juvenile court when the adoption petition was filed in Montgomery County Probate, the adoption matter should have been heard in the juvenile court in Pulaski County along with the paternity matter. At the trial below, appellant never sought to have the adoption matter transferred to juvenile court nor did he object to the probate court's jurisdiction over the matter.
Subject matter jurisdiction of adoption proceedings has been vested in the probate court by statute. See Ark.Code Ann. § 28-1-104(a)(5) (1987) and Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978). While we agree that under the provisions of § 9-27-306(b)(1) the adoption matter should have been filed in or transferred to juvenile court, we do not agree that § 9-27-306 operated to oust from the probate court subject matter jurisdiction of the adoption proceeding so that the judgment was void. In Banning v. State, 22 Ark.App. 144, 737 S.W.2d 167 (1987), we stated:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court.... Failure to follow the statutory procedure in the exercise of its power constitutes reversible error but does not oust the jurisdiction of the court.
22 Ark.App. 144 at 149, 737 S.W.2d 167. The supreme court has said that unless the trial court has no tenable nexus whatever to the claim in question, the appellate court will consider the issue of whether the claim should have been heard there to be one of propriety rather than subject matter jurisdiction. Where the issue is one of propriety, the appellate court will not raise the issue sua sponte, and will not permit a party to raise it unless it was raised in the trial court....
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Rogers v. Rogers
...to be one of propriety, which can be waived, rather than subject-matter jurisdiction, which cannot be waived. In re Adoption of D.J.M., 39 Ark.App. 116, 839 S.W.2d 535 (1992). We reversed Rogers v. Rogers on the first appeal because the trial court had no authority to dissolve the parties' ......
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Elliott v. Boone County Independent Living, Inc.
...S.W.2d at 170; see Leinen v. Arkansas Department of Human Services, 47 Ark.App. 156, 886 S.W.2d 895 (1994); In re: Adoption of D.J.M., 39 Ark.App. 116, 839 S.W.2d 535 (1992); see also Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 Clearly, subject-matter jurisdiction of wrongful-death actio......
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Leinen v. Arkansas Dept. of Human Services
...sua sponte in this court unless we determine that the trial court wholly lacked subject matter jurisdiction. See In re Adoption of D.J.M., 39 Ark.App. 116, 839 S.W.2d 535 (1992); cf. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994); Bratcher v. Bratcher, 36 Ark.App. 206, 821 S.......
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Hooks v. Pratte
...to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. In re Adoption of D.J.M., 39 Ark.App. 116, 121, 839 S.W.2d 535, 538 (1992). Appellants, for their final point, contend that the probate court erred in applying Ark.Code Ann. § 9-10-113(b) ......