Adoption of Jayson R.
| Decision Date | 04 January 1979 |
| Citation | 151 Cal.Rptr. 501,88 Cal.App.3d 11 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ADOPTION OF JASON CHRISTOPHER M. R., a minor. ROBERT LEWIS R., Plaintiff and Appellant, v. GLORIA JEAN R. et al., Defendants and Respondents. Civ. 52782. |
Bockian & Hanifin and Joanne Bockian, Arcadia, for plaintiff and appellant.
Charles W. Gabler, Van Nuys, for defendant and respondent Dennis M.
No appearance for defendants and respondents Gloria Jean R. and Jason Christopher M. R.
Robert Lewis R. appeals an order of the trial court denying his motion to set aside his stepparent adoption of Jason Christopher M. R., age 5.
Gloria Jean and Dennis M. were married on August 5, 1967, and the minor child Jason was born to them on September 19, 1971. Their marriage was dissolved on October 31, 1972, and custody of their minor child, Jason, was granted to Gloria subject to the right of reasonable visitation by Dennis.
On November 23, 1972, Gloria M. married Robert Lewis R. in Las Vegas, Nevada. The couple resumed residence in California and Jason resided with them at all times during the course of their marriage. On April 9, 1974, Robert R. filed a petition for a stepparent adoption of Jason and this petition was granted on October 18, 1974.
A few months later, in February 1975, Gloria separated from Robert R. and filed a petition for dissolution of their marriage. In his response to the petition Robert R. prayed for an annulment on the basis of fraud in the inducement of the marriage (Civ.Code, § 4425, subd. d). The final judgment of nullity of the marriage was entered on March 24, 1975, and pursuant to a stipulation made in open court exclusive custody of the minor child Jason was awarded to Gloria and Robert R. was restrained from contacting the minor child "for any reason whatsoever."
A month or two later Gloria agreed to petition to set aside the stepparent adoption and to undertake sole custody of the minor child. On October 22, 1975, Gloria filed a motion to vacate, set aside and nullify that adoption decree and hearing was set for November 5, 1975. However, since Gloria did not pursue this remedy, the motion hearing was taken off calendar and no adjudication thereon was ever made.
On April 12, 1976, Robert R. filed a motion to vacate, set aside and nullify the decree of adoption of Jason on grounds that "the Decree of Adoption was granted to ROBERT LEWIS (R.), then married to the natural mother of the minor child, under circumstances of duress, coercion, mistake, and fraud perpetrated upon him by the natural mother, GLORIA JEAN (R.). . . . " A guardian was appointed for Jason (Civ.Code, § 7008), who was made a party to the action. The court after hearing denied the motion to nullify the adoption decree on grounds that Robert R. failed to sustain his burden of proof on the issue of fraud.
Robert R. contends that: (1) The trial court erred in finding that there was no extrinsic fraud to set aside the stepparent adoption and that the appellate court is empowered to reweigh the evidence; (2) the prior determination of fraud in the proceedings to annul the marriage of Gloria and Robert R. controls by collateral estoppel the issue of fraud in the proceedings to annul the adoption; (3) since annulment rendered the marriage void ab initio, there was no marriage to support the stepparent adoption which was invalid; and (4) the court failed to take into consideration the paramount issue of the welfare of the child whose best interests require that the adoption be set aside.
Robert R., having failed in his effort to have his stepparent adoption set aside, attempts by appeal to make a collateral attack on the order of the court which originally granted the stepparent adoption. He claims on this appeal, as he did on the motion to annul, that he was prevented by the extrinsic fraud of Gloria from fully presenting his case to the court at the stepparent adoption proceeding and that as a result a decree of adoption, which he now perceives as adverse to his interests, was entered. He contends that the appellate court is empowered to correct a judgment to conform it to findings of fact (Code Civ. Proc., § 909) and that he is entitled to have this court review the entire record of this matter, solicit any new evidence it may deem necessary or proper, and make new or additional findings of fact, together with appropriate conclusions of law based thereon, relying on Brooms v. Brooms (1957) 151 Cal.App.2d 343, 350, 311 P.2d 562.
Robert R.'s reliance on Brooms is misplaced. The court in Brooms acted pursuant to its authority under Code of Civil Procedure section 956A 1 to amend the trial court's order as a result of an inadvertent omission on the part of the trial court.
However, that statute does not empower an appellate court to weigh conflicting evidence or pass on the credibility of witnesses. (Burton v. Los Angeles Ry. Corp. (1947) 79 Cal.App.2d 605, 611, 180 P.2d 367; Helmer v. Helmer (1948) 87 Cal.App.2d 682, 688, 197 P.2d 558.)
Robert R. argues that Gloria, by secretly harboring the intention not to conceive and bear his child and failing to communicate her decision to him prior to the hearing on the stepparent adoption, perpetrated a fraud on him which constitutes grounds for setting aside the stepparent adoption. He testified at the proceedings to set aside the adoption that only two months after the adoption was finalized Gloria told him, among other things, " "
The testimony of Gloria at the proceedings to annul the stepparent adoption was that she initially intended to have a child by Robert R. but changed her mind some time following the stepparent adoption when she "saw that the marriage was not working out." Robert R. argues that it may reasonably be inferred that Gloria believed the marriage was not working out prior to the time of the entry of the stepparent adoption decree and that her withholding of this information constitutes extrinsic fraud perpetrated on him to get him to agree to and follow through with the adoption. His claim is that he would not otherwise have adopted her child and that his responses in that proceeding were induced by the extrinsic fraud of his former wife.
The trial court's determination on the evidence is, however, binding on the appellate court where as in the present case there is sufficient evidence to sustain its judgment. (Overton v. Vita-Foods (1949) 94 Cal.App.2d 367, 370, 210 P.2d 757.)
Robert R. next contends that even if the existence of fraud was not established in the proceeding to set aside the adoption, he was entitled to rely on the fact that it was earlier established in the annulment proceedings and that this finding was controlling under the doctrine of collateral estoppel.
The applicability of the doctrine of collateral estoppel in the instant proceeding depends on whether the issue decided in the earlier proceeding to nullify Robert and Gloria's marriage was identical with the issue presented in this action to set aside the stepparent adoption. (Hone v. Climatrol Industries, Inc. (1976) 59 Cal.App.3d 513, 529, 130 Cal.Rptr. 770.) The annulment of Robert R.'s and Gloria's marriage was granted on the basis of a finding of fraud in the inducement of the marriage as a result of Gloria's misrepresentation that she would bear Robert R. children. By contrast, the issue in the present case is whether Robert R. was induced to consent to the adoption of Jason as a result of Gloria's promise to bear his children. Since the issues in the two proceedings are not identical, the doctrine of collateral estoppel is not applicable.
Robert R. contends further that since the annulment decree had the effect of rendering the marriage void ab initio, the...
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