Estate of Wagner, In re, 18983-2-I

• Decision Date: 28 December 1987
• Docket Number: No. 18983-2-I,18983-2-I
• Citation: 748 P.2d 639,50 Wn.App. 162
• Parties: In re ESTATE OF Paul L. WAGNER, Deceased. Nancy Moulton GUTIERREZ, Appellant, v. ESTATE OF Paul L. WAGNER, Respondent.
• Court: Washington Court of Appeals

Page 162

50 Wn.App. 162

748 P.2d 639

In re ESTATE OF Paul L. WAGNER, Deceased.

Nancy Moulton GUTIERREZ, Appellant, v. ESTATE OF Paul L. WAGNER, Respondent.

No. 18983-2-I.

Court of Appeals of Washington,

Division 1.

Dec. 28, 1987.

Dennis Jordan, Everett, for Nancy Mae Gutierrez.

Lee B. Tinney, H. Scott Holte, Anderson, Hunter, Dewell, Baker & Collins, P.S., Quinton D. Christensen, Everett, for Estate of Paul L. Wagner.

SWANSON, Judge.

Nancy Moulton Gutierrez appeals the superior court summary judgment order which dismissed her petition as a pretermitted child seeking her intestacy share of the estate of Paul L. Wagner, her natural father. She claims that the trial court erred in giving full faith and credit to the Oregon Court of Appeals decision which reinstated and validated the decree of Gutierrez's adoption and to the Oregon Supreme Court order which denied review of the Oregon Court of Appeals decision.

Wagner, a Snohomish County, Washington, resident, died on July 26, 1983, and his last will and testament was admitted to probate on August 9, 1983. Wagner is the natural father of Gutierrez, who was born on March 6, 1935, in Portland, Oregon, to Lois Moulton Lee. Gutierrez's natural parents were not married at the time of her birth. To conceal Lee's identity, Gutierrez's birth record falsely states that she was born to Mr. and Mrs. R.S. Wilson, Jr.

Since Wagner's will did not name or provide for Gutierrez, on April 17, 1984, she filed a petition as a pretermitted heir seeking her intestacy share of his estate under RCW 11.12.090. However, since pursuant to a 1939 Oregon decree Gutierrez was adopted by her natural maternal grandfather and his wife, Arthur and Helen Moulton, Gutierrez's adoption was raised as an affirmative defense under RCW 11.04.085 by the personal representative of Wagner's estate.

Lois Lee, Gutierrez's natural mother, filed in an Oregon court a petition to vacate the adoption decree based upon a lack of consent to the adoption and of notice of the adoption proceeding. The facts of Gutierrez's adoption are set forth as follows in the Oregon Court of Appeals unpublished opinion issued upon an appeal of the Oregon trial court's decision vacating the adoption decree:

In 1939, Arthur and Helen Moulton adopted Nancy. Their petition for adoption alleged generally that Nancy was the daughter of Mr. and Mrs. Robert S. Wilson, Jr., that the father had abandoned her, that his whereabouts were unknown and that it was in the best interests of Nancy that she be adopted by the Moultons. Arthur's accompanying affidavit supported the allegations in the petition. The petition was also accompanied by a written consent to the adoption signed "Mrs. Robert S. Wilson, Jr." The state Public Welfare Commission filed a report with the adoption court which stated that, in an interview, Arthur had said that Nancy had in fact been born to his daughter Lois, that the father of the child was unknown and that the birth records indicating otherwise were incorrect. It also stated that Arthur reported that he had received the mother's written consent to the adoption. The court nevertheless entered the decree of adoption on December 22, 1939.

Lois in fact had never consented to the adoption, nor did she receive notice of the adoption proceedings. The signature on the purported consent was not hers. When Arthur died in 1947, Helen Moulton told Lois about the adoption. Lois asked the judge who signed the decree about the adoption, and he told her that she could have it set aside but that it probably would be pointless, because Nancy hated her. Lois did not challenge the adoption until she filed this action in 1984.

In re Adoption of Wilson, 76 Or.App. 17, 708 P.2d 605, 606 (1985).

The Oregon trial court vacated the adoption decree on grounds that it was void due to a lack of consent from and notice to the biological parent. The Oregon Court of Appeals reversed the trial court and ordered the adoption decree's reinstatement based upon its determination that under ORS 109.381, the adoption decree, in spite of any jurisdictional defects, was conclusively presumed to be valid and binding on all persons after August 5, 1960, and that the statute, which set a reasonable limitation period for challenging an adoption decree, was constitutional. The Oregon Supreme Court denied a petition for review of the Court of Appeals decision.

The Washington proceeding had been stayed pending the Oregon appeal, and the Washington trial court granted the summary judgment motion of the personal representative of Wagner's estate following the Oregon Supreme Court's denial of review of the Court of Appeals decision.

The sole issue presented by Gutierrez's appeal is whether the 1939 Oregon adoption decree is binding upon a Washington probate court such that the appellant is a "lawfully adopted child" who is precluded from asserting a claim as a pretermitted heir of a natural parent under RCW 11.04.085.

In Washington

while the laws of the place of adoption determine the legality of the status, the rights of an adopted child to inherit property are determined by the law of the situs of decedent's real property, and by the law of decedent's domicile with respect to personal property.

In re Estate of Sendonas, 62 Wash.2d 129, 132, 381 P.2d 752 (1963). Wagner, Gutierrez's natural father, was a Washington resident when he died, and it is undisputed that Gutierrez's inheritance rights, if any, as to Wagner's estate are governed by Washington law.

Gutierrez seeks a pretermitted heir's share of Wagner's estate pursuant to RCW 11.12.090, which provides:

If any person make his last will and die leaving a child ... not named or provided for in such will, ... every such testator, as to such child ... not named or provided for, shall be deemed to die intestate, and such child ... shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate ...

In re Estate of Couch, 45 Wash.App. 631, 633, 726 P.2d 1007 (1986).

The respondent asserts a defense of Gutierrez's adoption under RCW 11.04.085, which states: "A lawfully adopted child shall not be considered an 'heir' of his natural parents for purposes of this title." See In re Estate of Couch, supra. Since a decree of Gutierrez's adoption was entered in Oregon, the question is whether the decree is valid and binding as determined by Oregon law such that it should be given full faith and credit ¹ by the Washington courts and consequently bars Gutierrez's pretermitted heir's claim.

If the foreign court had jurisdiction of the parties and of the subject matter, and the foreign judgment is therefore valid where it was rendered, a court of this state must give full faith and credit to the foreign judgment and regard the issues thereby adjudged to be precluded in a Washington proceeding. U.S. Const. art. 4, § 1; In re Rankin, 76 Wn.2d 533, 535, 458 P.2d 176 (1969); Williams v. Steamship Mut. Underwriting Ass'n, 45 Wn.2d 209, 213, 273 P.2d 803 (1954).

However, whenever a court is called upon to grant full faith and credit to the judgment of a foreign court, the opposing party must have the opportunity to show that the foreign judgment would not be entitled to recognition in the foreign state itself.

State ex rel. Eaglin v. Vestal, 43 Wash.App. 663, 667, 719 P.2d 163, review denied, 106 Wash.2d 1007 (1986).

Here Gutierrez claims that the Oregon adoption decree is not entitled to full faith and credit by the Washington courts since in the proceeding to vacate the adoption decree brought by her natural mother, the Oregon Court of Appeals recognized that the decree was void when it was entered absent consent from or notice to the natural mother. However, after the Oregon trial court vacated the adoption decree on grounds that the decree was void due to a lack of proper consent or notice, the Oregon Court of Appeals reversed the trial court and reinstated the adoption decree, holding that under ORS 109.381 ² the adoption decree, despite its jurisdictional defect, was conclusively presumed to be valid and immune from attack after August 5, 1960. In re Adoption of Wilson, 708 P.2d at 607.

Under ORS 109.381, jurisdiction over the persons and the cause is presumed in an adoption proceeding, and regardless of jurisdictional or other defects in the proceeding, an adoption decree is conclusively presumed to be valid and binding on all persons and is immune to a...