Adoption of Sewall, In re
| Decision Date | 12 May 1966 |
| Citation | 51 Cal.Rptr. 367,242 Cal.App.2d 208 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ADOPTION OF Eleanor Putnam SEWALL, an Adult. Ellen Keeler SCHAEFER and Leila Love Keeler, Petitioners and Appellants, v. Eleanor Putnam SEWALL, Respondent. Civ. 8225. |
Jacobs, Jacobs, Nelson & Witmer, Santa Ana, for appellant Ellen Keeler Schaefer.
Michael F. Dillon, Los Angeles, for appellant Leila Love Keeler.
Rutan & Tucker, Santa Ana, John W. Solomon, Laguna Beach, Garvin F. Shallenberger, John B. Hurlbut, Jr. and Leroy M. Gire, Santa Ana, for respondent.
Leila Love Keeler (Leila) and Ellen Keeler Schaefer (Ellen) pursue separate appeals from several judgments denying their respective petitions to set aside a decree of adoption entered by the Superior Court in Orange County.
The adoption decree, entered June 11, 1952, approved an agreement, dated May 13, 1952, by which Charles Butler Keeler (Charles), then 72 years of age, assumed the relationship of parent to Eleanor Putnam Sewall (Eleanor), then 45 years of age, who reciprocally assumed toward Charles the relationship of child. Eleanor was a widow, who was living with her mother, and had two daughters, one married.
Ellen, the only blood relative of Charles surviving, is the child of his deceased brother.
Leila, then aged 39, married Charles on September 19, 1919. They had no children. In 1943 Charles obtained a Nevada divorce from Leila. Neither of them remarried.
Charles died on January 19, 1964, leaving an estate of $94,738.23. His last will, executed on June 5, 1952, was presented for probate by Eleanor, named therein as executrix and sole beneficiary. Probate of the will is being contested by Ellen. Pending trial of the contest, Eleanor was appointed special administratrix on February 14, 1964.
In addition to an estate subject to probate in California, Charles was a life tenant of inter vivos and testamentary trusts created by his mother Ellen C. Keeler who died March 19, 1943. His brother also had been a beneficiary of the trusts, which provided that upon the death of a life tenant one-half of the corpus should go to 'his direct heirs.'
On February 27, 1964, Ellen filed in the adoption proceeding a petition to set aside the decree of adoption, to which a demurrer was sustained with leave to amend. On April 10, 1964, a second amended petition was filed in four counts. The first cause of action alleged fraud and undue influence practiced upon Charles by Eleanor in the procurement and execution of the adoption agreement; that Charles was then in poor health, mentally ill and physically ill and debilitated, and suffered from a variety of progressive mental and physical illnesses, including but not limited to chronic brain syndrome, senile psychosis and gross mental confusion; that these conditions continued until the time of his death; that he was susceptible to undue influence and fraudulent promises because of said physical and mental condition; that Eleanor falsely represented to him that she would care for and look after him as a daughter and give him the necessary care that a loving daughter would give a parent; that she knowingly did not intend to fulfill such duties or to regard him with love and affection; that at no time from June 11, 1952 to the date of his death on January 19, 1964 did Eleanor live with Charles or have him live with her, nor did she care for him, nor did she see that he had proper food and care; that at no time did Eleanor fulfill her obligations as a daughter to Charles; that said representations were knowingly made to induce Charles, in reliance thereon, to enter into the adoption agreement; that Charles was of such a state of mind as easily to be duped by artful and designing persons, including Eleanor, and he therefore justifiably relied upon and believed said representations to be true, and in such reliance agreed to said adoption; that in bringing about the adoption, Eleanor did so not to fulfill a domestic or family gap or to perform her duties and obligations as a daughter whereby she would care for and regard Charles with the love and affection of a daughter for a parent, but solely for financial gain; that because of Charles' mental and physical illness he was unable to and did not during his lifetime discover the falsity of the promises made to him by Eleanor which had induced him to enter into the adoption agreement; and that Eleanor concealed the fact of the adoption from Ellen and from all of the friends of Charles until after his death. The petition alleged also the execution of the will; the fact that Eleanor was seeking to have it admitted to probate; her appointment as special administratrix; the creation of the trusts by the mother of Charles, and Ellen's position with regard to them if she, rather than Eleanor, were the direct heir of Charles.
The second cause of action incorporated all the allegations of the first and alleged that in obtaining the adoption decree there was fraudulent concealment from the court by Eleanor of her fraud practiced upon Charles and of the facts concerning his physical and mental condition.
The third cause of action alleged that Leila was the lawful wife of Charles at all times from their marriage until his death; that they were not legally separated; that Leila was capable of giving consent to the adoption, but that she did not consent and would not have consented had she known of the adoption proceedings; that she did not know of the proposed adoption until after the death of Charles; that the adoption proceedings were surreptitiously entered upon; that Leila did not have any kind of notice thereof, although Charles knew her place of residence at all times.
The fourth cause of action alleged fraud upon the court by both Charles and Eleanor in alleging that Charles was unmarried and in concealing from the court the truth as to his married status.
A demurrer was overruled as to the third and fourth alleged causes of action; sustained without leave to amend as to the first and second alleged causes upon the ground that they failed to state a cause of action.
On April 10, 1964, Leila also filed in the adoption proceedings her petition to set aside the decree. Her grounds were those alleged in the third and fourth causes of action of Ellen's petition. A third cause of action set up by Leila was abandoned.
A demurrer to Leila's petition was overruled.
As a result of the trial the court found in two separate sets of findings that the Nevada divorce decree was valid; that for more than six weeks prior to the commencement on April 20, 1943 of the divorce action, Charles had been a bona fide resident of the State of Nevada; that Leila had appeared in the divorce action by an answer that admitted the allegations of the complaint that Charles was a resident of and had been present in Nevada more than six weeks before the filing of the complaint; that Leila had appeared in the Nevada action after she had consulted an attorney of her own choice; that Charles had not coerced, intimidated, menaced, exerted undue influence upon, or practiced fraud upon Leila in the matter of her appearing in the divorce action; that Leila was given full opportunity to contest the matter of Charles' alleged residence in Nevada; that neither Leila nor Ellen had notice or knowledge of the adoption prior to the death of Charles; that Charles was an unmarried man at the time of the adoption.
In the separate set of findings dealing with Ellen's petition, the court found that Ellen is interested in this case by virtue of her claim to be the sole heir of Charles.
In the separate set of findings dealing with Leila's petition, the court found that she had received $30 or more per month from Charles since the divorce; that she did not prior to the death of Charles actively and legally assert the invalidity of the Nevada decree.
The court concluded that Ellen did not have standing to attack the adoption order or the divorce decree; that neither Ellen nor Leila had been entitled to notice of the adoption proceedings; that any cause of action that either might have had was not barred by the provisions of section 227d of the Civil Code; that the Nevada decree dissolved the marriage of Charles and Leila; that Leila was estopped to attack the validity of the Nevada decree by reason of her acceptance of the $30 per month provided by the decree, and was guilty of laches in not having, during the lifetime of Charles, attacked by legal action the validity of the divorce decree.
The position taken by Leila was that Charles went to Nevada from their home in Glendora, California for the sole purpose of getting a divorce and with the intention of returning to California as soon as he should obtain the decree; that in fact he spent less than six weeks in Nevada, since he went from Nevada to Cedar Rapids, Iowa at the time of his mother's death and before the filing of the divorce action; that in signing the answer with its admissions, she was being threatened by Charles with unpleasant disclosures when she was in poor health, 63 years of age and in need of support.
It will not be necessary to discuss all of Leila's contentions because her rights stand or fall with the legality of the divorce decree.
As a party to the divorce action, she may attack the decree only if she had been denied full opportunity to contest the jurisdictional issues. Since she appeared in the action and admitted the allegations of the complaint, she had, Prima facie at least, the opportunity to contest the question of domicile, and unless the Prima facie showing has been overcome she may not contest the decree. (Heuer v. Heuer, 33 Cal.2d 268, 201 P.2d 385; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451.)
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