Habecker v. Young, 72-2241.

• Decision Date: 27 March 1973
• Docket Number: No. 72-2241.,72-2241.
• Citation: 474 F.2d 1229
• Parties: Annie Jean HABECKER, Plaintiff-Appellant, v. Earl W. YOUNG, as Administrator of the Estate of Elizabeth T. Poppell, Deceased, Defendant-Appellee, Herman Tedder and Bartow Tedder, Intervenors.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 1229 (1973)

Annie Jean HABECKER, Plaintiff-Appellant, v. Earl W. YOUNG, as Administrator of the Estate of Elizabeth T. Poppell, Deceased, Defendant-Appellee Herman Tedder and Bartow Tedder, Intervenors.

No. 72-2241.

United States Court of Appeals, Fifth Circuit.

March 27, 1973.

Marion R. Shephard, Jacksonville, Fla., for plaintiff-appellant.

W. Dexter Douglass, Tallahassee, Fla., Byron Butler, Perry, Fla., for Young.

John H. Cotten, Tallahassee, Fla., John Weed, Perry, Fla., for Tedders.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant Annie Jean Habecker, plaintiff below, brought suit in the District Court for the Northern District of Florida seeking specific performance of a contract to adopt. The defendant is the administrator of the alleged foster mother's estate. The intervenors are brothers of the alleged foster mother and are her heirs at law. The district court entered summary judgment for the defendant. We reverse and remand for a trial on the merits.

I

We have determined that summary judgment in this case came too quickly and that more evidence is necessary to avoid possible injustice to any concerned party. The justification for this action is an equitable one, grounded on the theory that what should have been done will be done.

The basic facts are set forth by the pleadings and affidavits in the record. Appellant Habecker alleges that she was the beneficiary of a contract to adopt entered between her natural father, James Freeman, and Andrew and Elizabeth Poppell. Elizabeth Poppell died intestate in 1970. This action is basically a contest over the property of the deceased Elizabeth Poppell pitting the alleged "adopted" daughter against the brothers of the deceased who would take under the Florida intestacy statute. The cause of action is often referred to as "virtual adoption" or "equitable adoption" and has been recognized in Florida for several years. Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417 (1943) and Roberts v. Caughell, 65 So.2d 547 (1953). The facts in the record tend to show that the appellant was raised as a daughter by Andrew and Elizabeth and was recognized as such in the community. Virtually all of her youth was spent in the care of Andrew and Elizabeth until she married and left their home. James Freeman, natural father of appellant, is alive and allegedly was to testify as to the events surrounding the transfer of custody of the child in the mid 1930s. In the record before this court it is not clear exactly what this testimony would have precisely been. The opinion of the district court speaks of the representation of counsel that Freeman would testify to an arrangement concerning the child but that the word "adopt" was never used between the parties. This was apparently a significant point to the district judge in granting summary judgment.

We are of the opinion that the full testimony of Freeman is desirable and that it is extremely important to view the entire transaction or understanding between the parties in order to ascertain what the true arrangement was. We are not convinced that a sufficient agreement could not be shown even though the word "adopt" was never used.

We find no Florida case where the state court has passed on the necessity for the word "adoption" to be used by the parties in forming the "contract" later enforced by a court of equity. Other states have held that the failure to use the term "adopt" when assuming responsibility over the child is not fatal to imposition of the equitable doctrine. See Holloway v. Jones, 246 S.W. 587 (Mo.1922); Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055 (1931); Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946). In light of Forida's acceptance of the broad equitable notion of virtual adoption, we do not feel that the state courts would decide the issue solely on the technical ground that the word "adopt" was not used by the parties. Other language, evaluated with due regard for the parties involved and surrounding circumstances, could be sufficient to establish the necessary contract. Furthermore, in our consideration of the case it has appeared that there is some conflict as to exactly what the representations of counsel which the district court took note of were. They are not in the record and the parties seem to dispute the exact content of any such statements. To avoid injustice and to allow for adequate review, we feel that a full and complete record of all relevant testimony is desirable.

There are other reasons why we think that summary judgment was improper in this case. Virtual adoption is an established doctrine usually invoked to avoid an unfair result from the application of intestacy statutes. Its underlying theories are drawn from the realm of contract law and the relevant elements include some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating her as their child, and, finally, the intestacy of the foster parent. Sheffield v. Barry, supra. Much of each of these elements may have to be established by circumstantial evidence for often all parties but the child are deceased. For that reason, in virtual adoption cases it is essential to have as full a record as possible containing as much relevant evidence...