Adoption of Hiatt, In re

• Decision Date: 25 March 1952
• Docket Number: No. 2505,2505
• Citation: Adoption of Hiatt, In re, 242 P.2d 214, 69 Wyo. 373 (Wyo. 1952)
• Parties: In re Adoption of HIATT. HIATT et ux. v. LA FEVER et ux.
• Court: Wyoming Supreme Court

Page 214

242 P.2d 214

69 Wyo. 373

In re Adoption of HIATT HIATT et ux. v. LA FEVER et ux.

No. 2505.

Supreme Court of Wyoming.

March 25, 1952.

Raper & Raper, Sheridan, for appellants.

R. G. Diefenderfer, E. E. Birchby, Sheridan, for respondents.

ILSLEY, Justice.

This is an appeal from a judgment and decree denying a petition to vacate and set aside an order of adoption.

Ronald Eugene Hiatt is the adopted child. The plaintiffs and appellants are Clyde Raymond Hiatt, Jr., and Dorothy Eleanor Hiatt, who are also the adopted child's natural parents. The defendants and respondents are Charley La Fever and Anna La Fever, who are also the uncle by marriage and the natural aunt of Clyde Raymond Hiatt, Jr.

Ronald was born September 16, 1944 and the La Fevers helped raise him since he was sixteen months old. Clyde and Dorothy Hiatt had marital difficulties and during May, 1949 they were divorced. On the 29th of August, 1949, La Fevers, the defendants and respondents, petitioned the District Court of Sheridan County, Wyoming, for the adoption of Ronald Eugene Hiatt who was then about five (5) years of age. An order of adoption was made and entered decreeing that Ronald be adopted by the La Fevers and that his name be changed to Ronald Eugene Hiatt La Fever. Thereafter in November, 1949 the Hiatts remarried.

It is stated in the petition to vacate and set aside the order of adoption: 'That in the adoption proceedings it was alleged in the petition for adoption and recited in the Consents signed by the natural father and mother of Ronald, the Hiatts, that Ronald, had lived and resided with the defendants for a period of six months prior to the filing of the said petition of adoption.' This was admitted by the Answer of the La Fevers. The petition of plaintiffs then alleges that the child lived and resided with the defendants for a period of only three months and that because of the lack of six (6) months' residence as provided in § 58-209, W.C.S.1945, the order of adoption was unlawful and the adoption proceedings were erroneous.

Paragraph four (4) of the petition was stricken by the trial court upon motion of the defendants, which paragraph reads as follows: 'That at the time the said adoption proceedings were had, the Defendants herein promised to these Plaintiffs that if they ever wanted the custody of their said youngster returned that they, the Defendants, would restore the said Ronald Eugene Hiatt to his natural parents, the Plaintiffs herein, and that they, the said Defendants, would release any and all claim that they might have by reason of such adoption proceedings; that relying upon said representations of the Defendants, the Plaintiffs signed the said 'Consents'; that the Plaintiffs herein were young, inexperienced and did not realize or understand the extent and nature of their acts of signing said 'Consents'.'

Counsel for appellants contend, 'This in effect constitutes a fraudulent gaining of the consent of the natural parents and is a fraud upon the court and is ground for annulling the order of adoption.'

The petition then recites that plaintiffs are in a position to provide a home for Ronald; that it would be for the best interests and welfare for the child to be returned to plaintiffs and that they are entitled to the sole and exclusive custody of the child.

The Answer, after making the admissions referred to above, stated that it was alleged: 'In the petition for adoption of said child, in the Consents of the plaintiffs herein and in the order of adoption that said child had lived and resided with these defendants for a period of six (6) months prior to the filings of the petition of adoption.' Defendants denied all other allegations in the petition of plaintiffs.

Counsel for appellants earnestly urge that the striking of nearly all of paragraph four (4) of their petition is clearly error as set forth in the first specification of error; and that it was error for the trial court to refuse to permit the introduction of evidence in that regard although an offer to do so on behalf of appellants was timely made.

Counsel seem to be under a misapprehension as to what constitutes fraud; what is necessary to allege in a petition charging fraud; and what proof is necessary to show fraud. First of all the fraud must relate to a past or existing fact. In other words, the representation to constitute fraud must not ordinarily relate to the future. The rule is stated in 23 Am.Jur. 794, § 35, thus: 'The general rule, which is supported by numerous decisions in almost all American and British jurisdictions, is that fraud must relate to a present or preexisting fact, and cannot ordinarily be predicated on representations or statements which involve mere matters of futurity or things to be done or performed in the future. Hence, statements or representations as to future or contingent events, as to expectations and probabilities or as to what will be or is intended to be done in the future * * * do not constitute fraud * * *.' See also 37 C.J.S., Fraud, § 6, P. 222 et seq.; Bushnell v. Elkins 34 Wyo. 495-506, 245 P. 304, 51 A.L.R. 13; First Nat. Bank of Cheyenne v. Swan, 3 Wyo. 356-373, 23 P. 743, 750--where this court stated: 'A representation which is promissory in its nature, which relates to the future, or which depends upon contingencies which may or may not happen, furnishes no foundation for a claim of fraud or deceit.'

To the same effect is the comment made by this court in Farmers' Lumber Co. v. Luikart, 36 Wyo. 413-420, 256 P. 84. So even though statements were made as set forth in the paragraph stricken, they were promises relating to the future depending upon contingencies which may or may not happen and furnish no foundation for a claim of fraud.

If the petition was to have been founded upon fraud, the appellants should allege with certainty and definiteness, tangible facts to sustain the general averments of fraud, as fraud must be alleged with particularity. Smith v. Stone, 21 Wyo. 62, 128 P. 612. Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947, 96 P.2d 570; 37 C.J.S., Fraud, § 78, p. 370; 24 Am.Jur. 72, § 244. This was not done. Because of the insistence by counsel for the appellants that a fraud was perpetrated upon the court by reason of what is alleged to be a lack of six months' residence by Ronald in the home of the respondents at the time of the signing of the order of adoption, we will here briefly relate that which we consider necessary to prove fraud. The books say: Fraud should be proved by evidence that is clear and convincing so as not to prejudice the usual presumption in favor of honesty, good intention and a person's good character. Courts have expressed the principle in various ways such as: clear and positive; clear and satisfactory; clear, cogent and convincing; to a reasonable certainty; and so on. 37 C.J.S., Fraud, § 114, P. 426 et seq.

This court has taken the occasion to say: 'A man who alleges fraud must clearly and distinctly prove the fraud he alleges, and proof must be clear and sufficient to satisfy the mind and conscience of the existence of the fraud.' Kahn v. Traders Ins. Co., 4 Wyo. 419, 34 P. 1059, 1077. Again in First Nat. Bank of Green River v. Barrett, 54 Wyo. 394-402, 93 P.2d 510, 511: 'Fraud must be established by clear and convincing evidence.' Another way of stating the principle is set forth in Patterson v. Lee-Clarke-Andreesen Co., 7 Wyo. 401-415, 52 P. 1085, 1090, where it is said: 'The law does not allow us to impute fraud to any party when the facts and circumstances out of which it is supposed to arise may well consist with honesty and purity of intention.' See also Williams v. Yocum, 37 Wyo. 432-443, 263 P. 607; Carlson v. MacCormick, 178 Wis. 408, 190 N.W. 108; Parsons v. Parsons, 101 Wis. 76, 77 N.W. 147; Gale v. Lee, 219 Minn. 414, 18 N.W.2d 147; Wells v. Stanger, 123 Mont. 26, 207 P.2d 549.

We find no error in striking Paragraph four (4) of the petition.

In the second specification of error it is asserted that the order denying the petition to vacate the order of adoption is contrary to law. Let us look at the record with respect to the original proceedings for the adoption of Ronald Eugene Hiatt. These proceedings were before the Honorable James H. Burgess, an able, distinguished and experienced District Judge of many years' standing. He had before him the petition for adoption and the written consents, all of which recited that the child had lived and resided at the home of the La Fevers for more than six months before the order of adoption. More than that, the child Ronald, his natural parents who had been divorced, Clyde and Dorothy Hiatt, as well as the prospective parents, Charley and Anna La Fever, were all present in court. The order of adoption recites, among other things: 'The court having heard the evidence herein and being fully advised in the premises, states that Ronald Eugene Hiatt, now Five (5) years of age this coming September 15th, 1949, is the minor son of Clyde Raymond Hiatt, Jr. and Dorothy Eleanor Hiatt; that during May, 1949, the said mentioned father and mother of this said minor boy were divorced and the absolute care, custody and control of said Ronald Eugene Hiatt was given to his father, Clyde Raymond Hiatt, Jr.; that both the father and mother of said minor child have duly filed their consent to these Petitioners herein adopting said minor child....