Aramovich v. Doles, 30356

• Decision Date: 22 January 1964
• Docket Number: No. 30356,30356
• Citation: 244 Ind. 658,195 N.E.2d 481
• Parties: Mary Ellen ARAMOVICH, Appellant, v. Paul Edwin DOLES, Appellee.
• Court: Indiana Supreme Court

Page 481

195 N.E.2d 481

244 Ind. 658

Mary Ellen ARAMOVICH, Appellant, v. Paul Edwin DOLES, Appellee.

No. 30356.

Supreme Court of Indiana.

Jan. 22, 1964.

Paul V. Wycoff, William M. Greeman, Batesville, for appellant.

Frank I. Hamilton, Greensburg, for appellee.

ARTERBURN, Judge.

This is an action brought by the appellant to adjudge void a judgment of the Decatur Circuit Court entered on January 10, 1929, providing for the adoption of the appellant, Mary Ellen Aramovich (then bearing the name of Mary Ellen McCoy, age five) by Paul Edwin Doles, appellee herein, then the second husband of appellant's natural mother, Helen Newhouse Doles, formerly Helen Newhouse McCoy. The appellant, now age forty, seeks to have her adoption by her stepfather declared void in order to bring proceedings to share in the estate of her natural father, Eugene McCoy, deceased, who was the first husband of appellant's mother.

Appellant relies upon the contention that no consent under the statute at the time (1929) was obtained from the natural father for the adoption.

The statute at the time of the adotpion provided that the consent of the father in this case was necessary (with certain exceptions) and reads as follows:

'Consent of parents--Proceedings as to inmates of house of refuge, or Indiana Reformatory. If the child is under twenty-one years of age, such court shall not adopt such child, if it have a father or mother living, unless such father or mother appears in open court and gives consent thereto, or unless such father or mother shall file with the clerk of the court his or her verified consent to such adoption: Provided, That if such petitioner show, by two competent witnesses, that the residence of such father and mother be unknown, then such court may adopt such child: and Provided, further, That if such child be, at the time of filing and hearing such petition, an inmate of the house of refuge for juvenile offenders, or of the Indiana reformatory institution for women and girls, committed thereto by law, for other, reason than the conviction of crime or incorrigibility, such petition may be filed in any circuit court or superior court of this state, and upon the filing of the written consent of the board of control or board of managers of such institution, to such adoption, then such court may adopt such child.' [Acts 1855, ch. 56, at p. 122, as amended, ch. 53, § 1, at p. 81, (1875) and ch. 150, § 1, at p. 408 (1913) being Burns' § 917, (1926 Revision).]

Appellant grounds her case solely on the theory that there being no consent of the father, the judgment of adoption entered was void (as distinguished from voidable) and thus may be collaterally attacked.

On the other hand, the appellee contends that the judgment of adoption is not void or a nullity but is valid on its face and must be recognized at its face value in any collateral proceeding, or other case; that the law does not permit going behind the record of the judgment, and that it bears a presumption of validity.

There is a confusion among authorities as to what constitutes a collateral attack as distinguished from a direct attack. 30A Am.Jur., Judgments, §§ 844, 854; 17 I.L.E., Judgment, § 273.

In this case, however, it is conceded that we are concerned only with a collateral al attack on the judgment of adoption, since no judgment may be directly attacked without making all parties thereto, or their successors in interest, parties to the direct attack. 30A Am.Jur., Judgments, § 714.

If the natural father in this case were alive, he should have been made a party in a direct attack on the judgment; if not, his estate, as a successor in interest, should have been a party. 17 I.L.E., Judgment, §§ 273, 276; 1 Am.Jur.2d, Adoption, § 72.

The record shows that representatives of the estate attempted to intervene herein, but were denied such privilege. Appellant, recognizing the law to be as stated, admits that to prevail in this action, which is a collateral attack upon the judgment in the adoption proceedings, the judgment must be shown to be void and a nullity, as distinguished from a judgment which is merely defective or voidable. If the judgment is void or a nullity it need not be recognized by any one and, of course, may be collaterally attacked in another action. 17 I.L.E., Judgment, § 271.

We proceed then to a consideration of whether or not the adoption judgment in question is void and as a result entitled to no respect or validity whatever.

The judgment of adoption in this case reads as follows:

'Civil Order Book-64

'Nov. term 1928

'In re: Adoption of Mary Ellen McCoy No. 11675

'Paul Edwin Doles, having heretofore filed in this court his petition for adoption of Mary Ellen McCoy as his child and heir at law as follows: (H.I.)

'And Helen Newhouse Doles, mother of Mary Ellen McCoy, having come into court and in open court consented in writing to said adoption, which consent is as follows: (H.I.)

'Said petition is now submitted to the court for finding and judgment, and the court having heard the evidence and being duly advised in the premises, finds that the allegations of said petition are true and that it is for the best interests of said Mary Ellen McCoy that she be adopted by the petitioner.

'It is therefore ordered and decreed by the court that said Mary Ellen McCoy be, and she is, hereby adopted as the child and heir at law of said Paul Edwin Doles and that her name be changed to that of Mary Ellen Doles, and it is further ordered that the petitioner pay the cost of this proceeding.'

It does not appear in the judgment whether or not, in accordance with the statute, the natural father appeared in 'open court' and gave his consent, nor does it appear that other conditions existed with reference to the statute of the child which, under the statute, made the father's consent unnecessary. The question then arises: May we, in this collateral proceeding, go behind that judgment and determine whether or not all the facts existed with reference to the consent or non-consent of the father, upon which that court at the time could have entered the judgment of adoption?

There was evidence introduced in the trial court from which some inferences might be drawn that no written consent of the father was filed, since none was found with the court's papers or in the clerk's office in the adoption case. There was also some evidence that the father had said the would never consent to the adoption.

Putting aside, at this time, the question of whether such conversations may be hearsay or would be admissible against his estate, if the estate were party to this action, we return to the original problem of what is the face value of this judgment of adoption in a collateral proceeding.

If the record of the judgment in this case had stated positively that the consent of the father had been obtained or that it had not been obtained (and facts coming within the exceptions excusing such consent) we would have no question here.

The question is then resolved into whether or not all jurisdictional facts must be recited in a judgment of a court of general jurisdiction in order to make it impervious to collateral attack. In other words, is there a conclusive presumption of jurisdiction of the person in cases of collateral attack, even though the judgment record fails to show such jurisdiction?

Our investigation of the authorities convinces us of the view that a judgment of a court of general jurisdiction may not be impeached by evidence dehors the record in a collateral attack thereon. There is in such case a conclusive presumption of jurisdiction, although the record fails to recite facts showing jurisdiction.

It is said:

' § 28. Presumption in Favor of Proper Service.--It is a broad fundamental principle that a presumption will be indulged in favor of the legality and regularity of the proceedings of the trial court when this may be done consistently with the record; it will be presumed, if the court is a court of general jurisdiction, that it regularly acquired and lawfully exercised its jurisdiction over the party or the res, as the case may be. This is true not only in the reviewing court on appeal or error proceeding, but whenever a judicial proceeding or a judgment or decree rendered therein becomes a factor in the trial of another case.' 42 Am.Jur., Process, § 28.

Although a review of the autorities in Indiana may seem to be somewhat confused upon this point, we think they may be harmonized upon close analysis with what appears to be the great weight of authority. For the purpose of consideration here, we may assume that the consent of the parent, as provided in the statute, is somewhat analogous to service of summons on a party by which jurisdiction is obtained over the person in a law suit. We point out, nevertheless, that this analogy is not strictly correct, since in all cases of jurisdiction over the person a service of process must be made. However, in the instant case a written consent of a parent for adoption is not in all cases necessary for the court to acquire jurisdiction to render a judgment of adoption. The statute provides for certain exceptions in which the consent of a parent is unnecessary.

Adoption proceedings, as stated in Emmons v. Dinelli et al. (1956), 235 Ind. 249, 133 N.E.2d 56, have their origin in the Roman Law and are the concern of the State in the proper care and protection of infants who have been abandoned, neglected, or mistreated. It is stated there that the parents' right is not an absolute right of property, but is in the nature of a trust. In Glansman v. Ledbetter (1921), 190 Ind. 505, 517, 130 N.E. 230, 234, it is stated:

'* * * A judgment of adoption is the conclusion of a special statutory proceeding, frequently referred to in the books as being in the nature of a proceeding in rem. * * *'

The primary object of adoption proceedings is the protection and interest of the child. However, reasoning by...