Corbett v. Stergios

• Decision Date: 21 September 1965
• Docket Number: No. 51095,51095
• Parties: Stanley M. CORBETT, Guardian of the Property of Constantine Neonakis, a Minor, Appellant, v. Viola STERGIOS, also known as Viola Sterylakis, Appellee.
• Court: Iowa Supreme Court

Page 266

137 N.W.2d 266

257 Iowa 1387

Stanley M. CORBETT, Guardian of the Property of Constantine Neonakis, a Minor, Appellant, v. Viola STERGIOS, also known as Viola Sterylakis, Appellee.

No. 51095.

Supreme Court of Iowa.

Sept. 21, 1965.

Gleysteen, Nelson, Harper, Kunze, Eidsmoe & Carew, Sioux City, for appellant.

McQueen & Dandos, Sioux City, for appellee.

GARFIELD, Chief Justice.

This is an action in equity to recover a share of a decedent's estate by the guardian of a minor adopted by the decedent after he made his will. The action is based on section 600.6, Code 1962, which provides rights of inheritance between a child and parent by adoption shall be the same as those between parent and child born in lawful wedlock, and section 633.13 (the 'pretermitted heir statute') which states that when a testator has a child born after his last will is made for whom there is no settlement or provision in the will the child shall inherit the same interest in the estate as if no will had been made.

The adoption was by decree of a Greek court where the child resided.

Following trial the district court denied relief on the ground plaintiff failed to prove Greek law placed no restriction which was not reciprocal on the right of nationals of the United States to inherit property in Greece, as required by our Code section 567.8, subdivision 2. Plaintiff contended such requirement was nullified by provisions of a treaty between the United States and Greece which was the supreme law of the land. Upon plaintiff's appeal to us the trial court's decision was affirmed by a vote of five to four. Corbett, Guardian v. Stergios, 256 Iowa 12, 126 N.W.2d 342.

Upon plaintiff's appeal to the Supreme Court of the United States the cited decision was reversed on May 3, 1965 (381 U.S. 124, 85 S.Ct. 1364, 14 L.Ed.2d 260), and the cause was later remanded to us for further proceedings not inconsistent with the Supreme Court's opinion.

Plaintiff then filed application with us for order or procedendo granting the prayer of his petition and defendant filed resistance thereto. The application and resistance were orally argued and a brief has been filed by each side. In view of the reversal and remand to us by the Supreme Court and the principal controverted question presented by the application and resistance, this supplemental opinion is deemed desirable.

Defendant's brief in support of her resistance to plaintiff's application asks us to affirm the trial court's decree on the ground it would be contrary to the public policy of this state to recognize the decree of adoption by the Greek court.

Defendant's answer, as amended five days after the evidence was taken, did not raise the issue that recognition of the adoption decree would be contrary to the public policy of Iowa. No such issue was presented by the pleadings. Defendant did allege in her amendment to answer she did not consent to the adoption and a fraud was committed upon her by her husband (decedent) to obtain her signature to a paper giving such consent. The trial court considered these pleaded issues and one of its conclusions of law was 'the judgment of the Greek court adopting the child to Nick Stergios is conclusive upon this court, no fraud having been shown in its procurement.'

In a motion 'for directed verdict,' evidently intended as a motion to dismiss, dictated into the record at the close of plaintiff's evidence and renewed at the close of all the evidence, defendant did assert as one of several grounds therefor that Iowa law and its public policy does not recognize this adoption as valid. And defendant's brief upon the original submission to us stated and argued the proposition that the adoption decree conflicts with the public policy and law of Iowa in matters of adoption and should not be given effect here. Plaintiff-appellant's reply brief purported to answer the proposition.

It must be conceded our decision affirming the trial court's dismissal of the case on the only ground on which such dismissal was based was effectively reversed by the Supreme Court. It is doubtful at best that defendant is entitled at this stage of the proceeding to urge that the trial court should be affirmed on a ground not pleaded and not sustained by anything contained in our opinion in 126 N.W.2d 342. Defendant did not ask a rehearing on the ground the point now urged was overlooked and it should be decided. See as bearing on this Claiborne-Reno Co. v. E. I. Dupont de Nemours & Co., 8 Cir., Iowa, 77 F.2d 565, 568.

An adoption decree of a court of another state or nation is entitled to recognition here, if the court had jurisdiction to render it, at least to the extent it does not offend the laws or the public policy of this state. Cook v. Estate of Todd, 249 Iowa 1274, 1277, 90 N.W.2d 23, 25, 66 A.L.R.2d 1257, and citations; In re Estate of Drumheller, 252 Iowa 1378, 1381, 110 N.W.2d 833, 834, 87 A.L.R.2d 1233, and annotation 1240, 1244-1245; annotation 154 A.L.R. 1179.

2 Am.Jur.2d, Adoption, section 114, states the above rule in somewhat more detail and adds: 'Under the rule stated, the status acquired by a valid decree of adoption in one state will be recognized and given the same effect by the courts of another state in determining rights of inheritance as would be given if the status of adoption had been created by a valid decree of a court in the latter state, although the law of the state creating the status of adoption, in respect to form and procedure, is dissimilar to the law of the situs of the property or the domicil of the decedent, and the child would not have been regarded as an adopted child had the formalities for adoption taken place there. The rule applies * * * even to cases where by the law of the situs adoption is permitted on a more restricted scale than by the law of the other state.' See also 2 C.J.S. Adoption of Children, § 66.

The annotation to our Estate of Drumheller, supra, in 87 A.L.R.2d 1240, 1244-1245, cites decisions from about three-fourths of the states, including Iowa, for the statement, '* * * the courts generally take at least the broad position that the status of adoption validly established in the place of its creation will be recognized elsewhere for purposes of the bestowal or retention of inheritance rights associated with the fact of adoption, though the method of acquiring it is different, to the extent that there is provision for such rights under the appropriate law, unless the particular adoption, in its nature, or in its method of acquisition, violates some public policy of the situs.'

If we assume, without deciding, defendant is entitled at this stage to urge that the adoption decree offends the public policy of this state and hence should not be recognized here, we must hold she has not sustained the contention and the trial court's decree may not be affirmed on this ground.

Jurisdiction of the Greek court to render this decree of adoption is not only presumed but was proven by undisputed evidence of a well qualified witness. He was a retired Chicago attorney who graduated from a Greek law school, practiced in Athens, Greece, and later acted as counselor to the consul general of Greece in Chicago about 37 years, handling all legal matters requiring knowledge of American and Greek law. Provisions of applicable Greek law and compliance therewith in effecting this adoption were also so proven.

The annotation in 87 A.L.R.2d, supra, 1240, 1246, after citing the precedents which support the statement before quoted from pages 1244-1245, contains this: 'A fuller statement of several of the cases cited supra illustrates the liberality of the courts in recognizing adoptions obtained in foreign jurisdictions by methods far less stringent than those imposed by the particular situs, or obtained simply by a radically different method.'

Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198, 201-202 (Cardozo, J.), states: 'Similarity of legislation has indeed this importance; its presence shows beyond question that the foreign statute does not offend the local policy. But its absence does not prove the contrary. It is not to be exalted into an indispensable condition. * * *

'* * * The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.' This statement has often been repeated.

Defendant calls attention to several respects in which the Greek law of adoption differs from our own. We find they are not such as to indicate Greek law violates the public policy of this state. The points of difference and our comment thereon follow:

1) Under Greek law the adoptive parent does not inherit from the adopted child as he does in Iowa under section 600.6, Code 1962, referred to at the outset hereof. Under the laws of both jurisdictions, however, the adopted child inherits from the adoptive parent. This is the right involved in the present controversy. The right or nonright of the adoptive parent to inherit from the child is wholly immaterial here. 1 Am.Jur., Adoption of Children, section 67, page 669, says, 'A difference in the laws of the two jurisdictions is not, of course, material, where not touching the point at issue in the particular case.'

2) Under our Code section 600.1 the spouse of the adoptive parent shall join in the petition for adoption unless such spouse is a natural parent of the child. Under Greek law such joinder of the spouse in the petition is not required, but consent of the spouse by a declaration before the court or in writing before a notary public is necessary. Such written consent of defendant spouse was given here.

3) Under Geeek law the child need not reside in the home of the adoptive parent. In Iowa residence of the...