Davis v. Turner

• Decision Date: 30 June 1976
• Parties: Brenda Turner DAVIS v. Tom W. TURNER and Hattie P. Turner. Civ. 755.
• Court: Alabama Court of Civil Appeals

Page 355

337 So.2d 355

Brenda Turner DAVIS v. Tom W. TURNER and Hattie P. Turner.

Civ. 755.

Court of Civil Appeals of Alabama.

June 30, 1976.

Rehearing Denied Aug. 18, 1976.

Ronnie E. Keahey, Grove Hill, for appellant.

A. Michael Onderdonk, Chatom, for appellees.

BRADLEY, Judge.

This is an adoption case. The divorced natural mother, Brenda Turner Davis, a minor, appeals from a final decree of adoption entered by the Probate Court of Washington County on December 4, 1975. The decree established the divorced father's parents, appellees here, as the child's adoptive parents.

This case has previously been before the Court of Civil Appeals Sub nom. Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602. At that time we dismissed the natural mother's appeal from an earlier order of the same probate court decreeing adoption by the same adoptive parents. Our ground for dismissal was that the earlier order was interlocutory and would therefore not support appeal. Since that dismissal, the probate court conducted a further hearing on December 4, 1975. At that hearing the special probate judge heard testimony ore tenus. The decree issued after the hearing is final under Title 27, Code of Alabama 1940, as Recompiled 1958, and will support the present appeal.

There are three separate proceedings which will be referred to in this opinion. The first, not currently on appeal but of factual significance, was the divorce proceeding before the circuit court. The second, held in probate court, was the original hearing on the adoption which led to the interlocutory decree of December 11, 1974. This second hearing elicited most of the evidence relevant to the findings now on appeal. The third hearing, also conducted by the probate court, was the hearing of December 4, 1975 held after our dismissal of the earlier appeal. The third hearing produced little evidence of concern to us at this time. A special probate judge was required to conduct the second and third hearings because the regular probate judge, Tom W. Turner, is a party in this case. Judge Turner is the child's paternal grandfather, one of the appellees here.

The basic facts of the case are these:

Brenda married David Turner, the child's natural father, when she was fifteen and he seventeen years of age. Brenda was pregnant with the child in question at that time. The husband filed his complaint for divorce in the circuit court on July 16, 1974. Hearing was set for July 24, 1974, on the complainant's prayer for temporary award of custody of the child.

On July 23, 1974 Brenda filed her answer and waiver. That same day, she executed an instrument nominating her attorney, Gaines McCorquodale, to be her guardian ad litem and in connection with the divorce.

The parties stipulated in open court that Brenda would consent to the adoption of her child by the paternal grandparents, Tom W. Turner and Hattie P. Turner.

On August 3, 1974 Brenda's husband appeared before the clerk and gave a deposition stating facts in support of the divorce and child custody awards.

The divorce decree, issuing September 3, 1974, awarded custody of the child to appellees; no visitation privileges were reserved to Brenda.

On October 18, 1974 appellees filed a petition to adopt the child, attaching to the petition a written instrument dated July 25, 1974, signed by Brenda consenting to the child's adoption.

On October 31, 1974 Brenda, through her next friend, filed an answer to the petition. The answer denied that she had given her consent; stated that the consent was obtained through fraud, coercion and misrepresentation, and that at the time of signing she did not know what she was signing or the consequences of the same; and further that she is a minor and revokes and rescinds any consent allegedly given.

On November 16, 1974 Brenda amended her answer, adding counts alleging that Brenda was advised that the consent form pertained only to custody and not to adoption, that if she signed she would be granted extensive visitation rights, and that Brenda relied on this advice in signing the form; that no guardian-ad-litem was appointed by the court to represent her at the signing, and it was not signed under supervision of the court; and that appellee Tom W. Turner exercised undue influence as probate judge.

November 18, 1974: Brenda filed a motion to set aside the judgment of divorce and child custody. The grounds for the motion were that Brenda did not learn of the divorce decree until October 28, no copy having been served on her; that prior to learning of the decree she had informed her attorney that she did not consent for appellees to have custody of the child, and was advised that no judgment would issue and the cause would be set for trial; that the decree of September 3 was obtained through mistake, inadvertence, and surprise on Brenda's part, and was due to her tender years and Judge Turner's influence; and, in addition, the motion went on to reiterate grounds already set forth above.

The hearing on the interlocutory decree was held November 26, 1974. At that hearing the following pertinent testimony was elicited:

Gaines McCorquodale testified that prior to the custody hearing he had negotiated with the Turners' lawyer about the divorce and custody of the child. The question of adoption was discussed between the lawyers. The Turners did not discuss directly with Brenda or her father the question of adoption. McCorquodale said he had authority from Brenda and her father to negotiate a settlement that day. A settlement was in fact reached, and a discussion was had with Brenda and her father prior to executing it. After orally agreeing, the parties appeared in open court and stipulated the agreement into the record. Judge Lindsey was on the bench.

McCorquodale further testified that he and Brenda and her father discussed the adoption of the child several times during the negotiations prior to the making of the written stipulation. They agreed that the formal consent would be handled later in his office. According to McCorquodale, Brenda's father was present when she signed the consent for adoption, and the consequences of the consent were fully explained to her at that time. Prior to reaching the agreement, the lawyer advised Brenda that she had no chance to receive custody of the child due to damaging facts in the case. Four thousand dollars was to be paid by the Turners in consideration of the consent to adoption and the waiver and answer filed in the divorce action. McCorquodale said he held the waiver and answer and the consent form in his office until the $4,000 check was delivered to him, pursuant to an agreement with his client. Several weeks after receiving the check, Brenda went back to her lawyer's office and said she wanted to stop the adoption and divorce, because she had changed her mind. McCorquodale said he had not received a divorce decree at this time.

Brenda's father testified that McCorquodale told them that the Turners had offered to settle. Under the terms of the agreement, the Turners would have permanent custody, and would be allowed to adopt the child. Brenda would be given reasonable visitation rights and would be paid a sum of money. Brenda's father said he and Brenda agreed to the settlement because they did not think they had any other alternative. He also testified that McCorquodale did not explain anything about the consent when she signed it, but just told her to sign it and he would hold it until he received the money. Brenda's father further testified that he thought that his daughter was consenting to custody of the child and was to have visitation. He said they did not discuss adoption. He said he heard the stipulation read in open court but that he did not understand what it meant.

Brenda testified the agreement was intended to provide only for custody of the child, and there was no discussion of adoption prior to her giving written consent. She testified that she did not know, when she signed the consent form, that she was consenting to the adoption of her child, but she thought she was consenting to custody only. She stated that the petition for adoption was first served on her after she told Gaines McCorquodale to stop all proceedings including adoption; that she just learned of the decree granting custody to the Turners and denying her visitation rights on the day the petition for adoption was set for hearing. She further testified that she wished to withdraw her consent to the adoption, if it was found that she had in fact given her consent, and that the $4,000 was paid for custody of the child plus her education and bills. She spent all of the money in two months.

Subsequent to this hearing the special probate judge found the issues in favor of appellees and decreed adoption of the child in favor of the Turners. The previous appeal to this court followed, after which the third hearing in this case was conducted. Evidence at that hearing reestablished the above facts, and added additional testimony tending to show both Brenda's and appellees' fitness for custody of the child, and that...