Clemons v. Clemons
| Decision Date | 12 October 1943 |
| Docket Number | 31024. |
| Citation | 145 P.2d 928,193 Okla. 412,1943 OK 318 |
| Parties | CLEMONS v. CLEMONS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 18, 1944.
Syllabus by the Court.
1. Where a contract to adopt a child has been made, the child for whose benefit such a contract was made may maintain an action to enforce it.
2. The evidence required to establish a contract of adoption must be clear, definite, and conclusive. Eggstaff Adm'x v Phelps, 99 Okl. 54, 226 P. 82.
3. A person who seeks to recover on a contract for adoption has the burden of establishing the existence of the contract by the character and quantum of proof required in that type of case.
4. Evidence which is as consistent with the non-existence as it is with the existence of an alleged contract for adoption is insufficient to sustain the burden of proof which rests upon the party who alleges the existence of the contract.
5. In an action of equitable cognizance this court will examine the record and weigh the evidence, but it will not disturb the judgment of the trial court unless it be found to be clearly contrary to the weight of the evidence.
Appeal from District Court, Washington County; James T. Shipman Judge.
Suit by Betty Sue Clemons against Wheeler W. Clemons, as administrator of the estate of Leon Clemons, deceased, and others, for specific performance of an alleged oral contract for adoption. From a judgment for defendants, plaintiff appeals.
Affirmed.
Chas W. Pennel and A. O. Harrison, both of Bartlesville, for plaintiff in error.
Frank Hickman, of Tulsa, for defendants in error.
This action, one to establish and enforce an alleged oral contract to adopt plaintiff as a child of Leon Clemons, deceased, and his then wife, and to recover a half interest in the estate of Leon H. Clemons, deceased, to which plaintiff would have succeeded had she been adopted as his child, was instituted by plaintiff in error, hereinafter referred to as plaintiff against the defendants in error, hereinafter referred to as defendants.
Plaintiff in her petition, in addition to the conventional averments therein, as the basis of her claim to a contract for her adoption, made the following allegation: "Plaintiff further alleges that her mother, Joyce Sutton, died February 19, 1922, leaving this plaintiff and three other minor children; that just prior to the birth of this plaintiff, Leon Clemons and his wife, Eva Clemons, lost a child and were at the time of the birth of this plaintiff childless; that when they learned of the death of the mother of this plaintiff they solicited the father of this plaintiff, Bert Sutton, to give over the care, custody, and control of this plaintiff to the said Leon Clemons, and that immediately this plaintiff was taken into the home of the said Leon Clemons and reared and treated as his own child; that about October 1, 1922, the said Leon Clemons approached Bert Sutton, the father of this plaintiff, and asked permission to adopt this plaintiff, stating that he and his wife had become very much attached to and had great affection for this plaintiff, and that they desired to rear her as their own child and have her to inherit as their own child, and to change her name; that the father of this plaintiff, Bert Sutton, thereupon consented to said adoption and Leon Clemons agreed to go to the Court House in Bartlesville and have the necessary adoption papers prepared and sign them and bring them to the said Bert Sutton for his signature, and that the said Bert Sutton thereupon agreed to relinquish and surrender all parental care, affection, control, education, and the society and comfort of said plaintiff to the said Leon Clemons, which agreement the said Bert Sutton has always kept and performed." Prayer of the plaintiff was for specific performance of the alleged contract and other equitable relief.
The defendant denied that their decedent had contracted as alleged and prayed the plaintiff take nothing by her petition. The sole issue made by the pleadings was one of contract vel non. The parties treated the action as one of purely equitable cognizance and tried the cause to the court. The court found that the evidence relative to the existence of the alleged contract was insufficient to establish the contract for the adoption of plaintiff and rendered judgment for the defendants.
The plaintiff appeals and as grounds for reversal urges five propositions which are as follows:
Argument of plaintiff under the propositions above quoted proceeds upon the theory that the issue for determination is one of law. In support of said propositions plaintiff cites Eggstaff v. Phelps, 99 Okl. 54, 226 P. 82; Gravelin v. Porier, 77 Mont. 260, 250 P. 823; In re Clark's Estate, 105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496; In re Garcia's Estate, 45 N.M. 8 107 P.2d 866; 2 C.J.S., Adoption of Children, § 27, p. 399; Harlow Pub. Co. v. Patrick, 181 Okl. 83, 72 P.2d 511; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Kay v. Neihaus, 298 Mo. 201, 249 S.W. 625; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Eldred v. Glenn, Mo.App., 52 S.W.2d 35; 1 Am.Jur. 634; 2 C.J.S., Adoption of Children, § 26, p. 396; In re Martin's Estate, 169 Okl. 55, 35 P.2d 968; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885, 85 Am.St.Rep. 480; Naedelen v. Wagner, 160 Okl. 66, 15 P.2d 567; Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 92 A.L.R. 343, 351; 1 Am.Jur. 625; 2 C.J.S., Adoption of Children, § 6, p. 375-377. The authorities cited support the general propositions advanced by the plaintiff, but they have only a limited application to the issue which this appeal presents for determination, that is, whether the judgment of the trial court is clearly contrary to the weight of the evidence. As pointed out above the issue involved in the trial court was whether Leon H. Clemons had ever contracted to adopt plaintiff as his child. This was an issue of fact rather than an issue of law and the trial court found against the plaintiff thereon. If a contract for the adoption of the plaintiff had been made by Leon H. Clemons in his lifetime, then undoubtedly the plaintiff would have been entitled to maintain an action to enforce it. Eggstaff v. Phelps, supra. The existence of the contract for adoption, however, was the sine qua non without which plaintiff could not prevail and with respect to which she was required to produce clear, cogent and convincing evidence. 2 C.J.S., Adoption of Children, § 26, p. 396; Eggstaff v. Phelps, supra; Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Kay v. Neihaus, supra; ...
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