Adoption of Hadtrath, Matter of

• Decision Date: 28 March 1979
• Docket Number: No. 13564,13564
• Citation: 121 Ariz. 606,592 P.2d 1262
• Parties: In the Matter of the Adoption of Ronald Keith HADTRATH, Mark Robert Hadtrath and Dawn Lynn Everett, minors. William Lee LONGNECKER, Jr., Appellant, v. Elizabeth Ann LONGNECKER, Appellee.
• Court: Arizona Supreme Court

Page 1262

592 P.2d 1262

121 Ariz. 606

In the Matter of the Adoption of Ronald Keith HADTRATH, Mark Robert Hadtrath and Dawn Lynn Everett, minors.

William Lee LONGNECKER, Jr., Appellant, v. Elizabeth Ann LONGNECKER, Appellee.

No. 13564.

Supreme Court of Arizona, In Banc.

March 28, 1979.

Goldenkoff & Lee by Abbott H. Goldenkoff and Joseph W. Lee, Phoenix, for appellant.

Leibsohn, Eaton, Gooding, Romley & Monbleau by Joe M. Romley, Phoenix, for appellee.

HOLOHAN, Justice.

Appellant filed a petition in the superior court seeking to set aside an order of adoption that allowed him to adopt the natural children of his former wife. Appellee filed a motion to dismiss the petition. The Superior Court of Maricopa County heard arguments on the petition, and thereafter the trial court granted the motion to dismiss the petition. Appellant filed a timely appeal. We assumed jurisdiction pursuant to 17A A.R.S. Sup. Ct. Rules, rule 47(e)(5).

Appellant William Longnecker and appellee Elizabeth Longnecker were married on September 3, 1970. At the time of the marriage Elizabeth was the natural mother of three children, Ronald, Mark and Dawn. Elizabeth was not married when Ronald and Mark were born, and no one has come forth to acknowledge being the father of either of these children. At the time of Dawn's birth, Elizabeth was married to Donald P. Everett, but a question has arisen whether Everett is the natural father of Dawn.

Shortly after William and Elizabeth were married, she began pressuring him to adopt her children. He resisted this idea for a considerable period of time, despite her repeated efforts to convince him to change his mind. Finally in 1973, when she threatened to leave him, he consented to adopt the children.

When the couple filed their petition for adoption, they included, pursuant to A.R.S. § 8-106(A), consent forms from two people alleged by Elizabeth to be the natural fathers of two of her three children. One consent, filed by Mark Wasserman, states that he is Not the natural parent of Elizabeth's son, Mark, but he consents to adoption. The second consent, filed by Donald P. Everett, states that he Is the natural father of Elizabeth's daughter, Dawn.

Everett had been married to Elizabeth for about six months at the time Dawn was born. The couple were subsequently divorced, and in a verified complaint in that action Everett had stated that "no children have been born as issue of this marriage." A property settlement agreement containing the same language was made a part of their divorce decree. Nevertheless, Everett stated in the adoption consent that he was Dawn's natural father.

Immediately after the adoption was final, William's marriage to Elizabeth began to deteriorate. About six weeks after the adoption, Elizabeth left William, saying she was never coming back. The couple were divorced on June 18, 1974. At the time of their divorce, Elizabeth agreed that she wanted no child support from William. About a year later, she sought to modify the decree to include child support for the three children. The court ordered William to pay $50 per month per child. Three months later when appellant had not paid the required child support, Elizabeth sought an order to show cause why William should not be found in contempt for failing to pay the child support. The court found him in contempt and ordered him jailed.

On December 31, 1975, William petitioned the superior court to set aside the adoption order, alleging that he had been induced by fraud to adopt the children, and that the court itself had been defrauded by Everett's perjurious consent. After the dismissal of his petition, the appellant brought this appeal, raising a variety of issues. For purposes of this appeal, the issues can be condensed into four basic questions:

1) Is the order of adoption void for lack of notice to the natural fathers?

2) Is the order void because the statute relied on was unconstitutional?

3) Should the order be set aside on account of appellee's fraudulent representations to appellant?

4) Should the order be set aside because of fraud upon the court?

I.

A judgment may be attacked as void upon its face if any of the following three elements are lacking:

(1) jurisdiction of subject matter;

(2) jurisdiction of the person involved, and

(3) jurisdiction to render the particular judgment or order entered.

Hughes v. Industrial Commission, 69 Ariz. 193, 211 P.2d 463 (1949); Dockery v. Central Arizona Light & Power Co., 45 Ariz. 434, 45 P.2d 656 (1935). Such an attack may be made by motion within a reasonable time after final judgment. 16 A.R.S. Rules of Civil Procedure, rule 60(c)(4).

But appellant, having voluntarily invoked the jurisdiction of the superior court to allow him to adopt appellee's children, should be estopped to assert that the court did not have jurisdiction to render the decree he sought. Blair v. Blair, 48 Ariz. 501, 62 P.2d 1321 (1936).

"The question of whether the court had jurisdiction either of the subject matter of the action, or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated." Bledsoe v. Seaman, 77 Kan. 679, 685, 95 P. 576, 579 (1908).

We need not rely on the doctrine of estoppel in this case however, since there was no jurisdictional defect. It is true that the consent of the natural parents required by A.R.S. § 8-106 is jurisdictional, and that a judgment lacking this prerequisite would be void. Lee v. Superior Court, in and for the County of Pima, 25 Ariz.App. 55, 540 P.2d 1274 (1975). See also Hughes v. Industrial Commission, supra. However, in this case the requirement has been met. At the time of the original adoption, A.R.S. § 8-106(A)(1)(d) had not been repealed. This section eliminated the necessity of consents from the natural fathers of Ronald and Mark, because they had never been married to Elizabeth. As for Dawn, either Everett is the natural father, in which case his consent was valid, or the natural father had not been identified either by prior adjudication or acknowledgment under oath, in which case no consent was required.

II.

Appellant argues that A.R.S. § 8-106(A)(1)(d) violates the constitutional right of a natural father to due process and equal protection, and that the "retroactive" application of the statute infringes upon rights which vest with the natural father at the time of the child's birth. Citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), appellant contends that the notice provision referred to in part I, Supra, denies an unwed father the opportunity to assert his parental rights and have his interests protected in the adoption proceedings.

At the time he sought the adoption order, appellant relied upon A.R.S. § 8-106(A)(1)(d). This was necessary because, at least as to the oldest child Ronald, appellant was unable to obtain consent from anyone either alleged or claiming to be the child's natural father. Having invoked this statute, appellant should not now be allowed to question its constitutionality. Burri v. Campbell, 102 Ariz. 541, 434 P.2d 627 (1967); Anthony A. Bianco, Inc. v Hess, 86 Ariz. 14, 339 P.2d 1038 (1959). While this general rule does not require unconditional adherence, Ruth v. Industrial Commission, 107 Ariz. 572, 490 P.2d 828 (1971), its application is most appropriate in this case.

Appellant does not invoke his own constitutional rights but those of the natural fathers in order to bolster his attack on the statute. Absent some extraordinary need for resolution of a constitutional question, only the person injured has standing to raise constitutional objections. McKinley v. Reilly, 96 Ariz. 176, 393 P.2d 268 (1964), Appeal dismissed, 381 U.S. 276, 85 S.Ct. 1457, 14 L.Ed.2d 431; See also Barlow v. Barlow, 170 Colo. 465, 463 P.2d 305 (1969); In re Smith's Estate, 86 Cal.App.2d 456, 195 P.2d 842 (1948).

Appellant argues that he has been injured by the adoption order, which he claims was fraudulently secured. This misconstrues the doctrine of standing. The injury which gives a party standing to assert a constitutional claim must be a deprivation of the very right upon which the claim is founded. Appellant's "injury" stems not from the adoption order, but from the subsequent child support order. In no way is he being deprived of a parental right. Despite his protestation to the contrary, we consider the adoption order to be a legal benefit to him, one for which he himself petitioned, and one which gave him all the legal rights and benefits of a parent. Because A.R.S. § 8-106 has been amended to exclude the provision he questions, there is no pressing public need for a resolution of its constitutionality. Thus no reason exists for excepting appellant from this general rule of standing.

While we decline to consider appellant's constitutional arguments, we...