Carlson v. MacCormick (In re MacCormick)

• Decision Date: 10 October 1922
• Citation: 190 N.W. 108,178 Wis. 408
• Parties: IN RE MACCORMICK. CARLSON ET UX. v. MACCORMICK ET UX.
• Court: Wisconsin Supreme Court

178 Wis. 408

190 N.W. 108

IN RE MACCORMICK.CARLSON ET UX.

v.MACCORMICK ET UX.

Supreme Court of Wisconsin.

Oct. 10, 1922.

Appeal from Marathon County Court; F. E. Bump, Judge.

In the matter of the adoption of Mary Althea MacCormick. On petition of Carl Carlson and wife for revocation. From an order setting aside the order or judgment of adoption, Malcolm MacCormick and wife appeal. Reversed, with directions to dismiss petition.

In the year 1917, Carl Carlson and Augusta MacCormick, now the wife of Carl Carlson, were engaged to be married. The parents of Augusta, Malcolm MacCormick and Clara MacCormick, objected to the marriage on religious grounds; the MacCormicks being members of the Roman Catholic Church, while Carlson belonged to a Protestant church. The engagement was broken. Carl went to Tomahawk, and on December 17, 1917, Augusta MacCormick gave birth to the child, Mary Althea. She was at the time 20 years of age. Thereafter she instituted proceedings in the circuit court of Marathon county, which resulted in Carl Carlson being adjudged the father of the child, and in satisfaction of the judgment he paid a lump sum in lieu of providing support for the child. On February 21, 1918, Malcolm MacCormick and Clara MacCormick, his wife, filed a petition in the county court of Marathon county, praying for an order of adoption for Mary Althea. Annexed to the petition was the written consent of the mother, Augusta MacCormick. A hearing was had in open court, and the parties were represented by attorneys. Augusta was sworn, and testified that she had signed the consent to the adoption of her child by her father and mother; that she was willing they should adopt her, and was satisfied they could give her a better home than she could. Mr. and Mrs. MacCormick were sworn as witnesses, and testified in the presence of Augusta that they understood, if an order of adoption was made, the child would become the same as if born of them and that they would have all the rights of the parent over the child. At the conclusion of the hearing the order of adoption was made, and the name of the child was changed to Mary Althea MacCormick, that of its parents by adoption. From the time of her birth the child had resided with her mother in the home of Malcolm and Clara MacCormick; was taught to call her natural mother “Gussie” and her parents by adoption “Father” and “Mother.”

It appears that Carl Carlson entered the service of the United States during the war, and upon his discharge returned to the city of Wausau, where the MacCormicks lived. On February 5, 1920, Carl Carlson and Augusta MacCormick were married, and since their marriage they have resided in the city of Wausau, Carlson being employed as a janitor, with a salary of $110 per month. Shortly after their marriage, Augusta asked her parents to surrender the child, Mary Althea, to her. The request was refused, and a petition was filed, praying that the court revoke the order of adoption made February 21, 1918. The petition for revocation was filed in July, 1921, in the circuit court of Marathon county. There was a demurrer to the petition, and by order of the circuit court all the files and records were transmitted to the county court of Marathon county, pursuant to section 2836b, Wis. Stats. Issue was joined. A trial was had on November 28, 1921, and from the order entered, revoking the order or judgment of adoption, this appeal was taken by Malcolm MacCormick and Clara MacCormick.

Regner & Ringle, of Wausau, for appellants.

Brown, Pradt & Genrich, of Wausau, for respondents.

ROSENBERRY, J. (after stating the facts as above).

It is claimed by the petitioners in this proceeding that Augusta Carlson's consent to the adoption of her child was obtained under circumstances amounting to duress, and that at the time of the adoption a constructive fraud was practiced upon the court, in that the court was not informed of conversation had between Augusta Carlson and her mother, to the effect that, if Augusta should subsequently marry and have a good home, she might have the child if she desired her.

No claim is made that the order of adoption was in any respect irregular, or that either the petitioners here or the respondents were not suitable persons to have the care and custody of the child. The sole question presented is whether or not the failure of the parties to inform the court at the time the order of adoption was made of the conversation between the petitioner Augusta Carlson, and her mother, Clara MacCormick, amounted to a fraud upon the court which vitiated the order. It is not claimed that if a fraud was practiced upon the court that the court did not have power, in the furtherance of justice, to revoke the order of adoption, provided that such revocation did not disturb rights that had been confirmed by the statute of limitations. The law upon this proposition seems to be clear and well settled. In re Fisher, 15 Wis. 511;Betts v. Shotton, 27 Wis. 667;Archer v. Meadows, 33 Wis. 166;Brook v. Chappell, 34 Wis. 405;Baker v. Baker, 51 Wis. 538, 8 N. W. 289;Estate of Leavens, 65 Wis. 440, 446, 27 N. W. 324;Thomas v. Thomas, 88 Wis. 88, 93, 59 N. W. 504;Estate of O'Neill, 90 Wis. 480, 63 N. W. 1042;Hall v. Hall, 98 Wis. 193, 73 N. W. 1000;Weadock v. Ray, 111 Wis. 489, 493, 87 N. W. 477.

[1] If the failure of the parties to inform the court of the conversation between Augusta and her mother did not constitute a fraud upon the court, which would authorize it to vacate the order of adoption, the question of whether or not the interests of the child required that the order be revoked does not arise. If the order entered in the adoption proceedings is valid and not vitiated by fraud, the question as to where the real interests of the child lie was finally and conclusively determined by that order. The order of adoption is to all intents and purposes the solemn judgment of the court upon the issues presented by the petition and the answer thereto, if there be one. In a very carefully...