Hogue v. Olympic Bank

• Decision Date: 30 October 1985
• Citation: 708 P.2d 605,76 Or.App. 17
• Parties: In the Matter of the Adoption of Nancy Mae Wilson aka Nancy Mae Moulton nka Nancy Mae Guttierrez. Gerald Wayne HOGUE, Sr., Personal Representative of the Estate of Lois M. Lee, and Nancy Mae Moulton Guttierrez, Respondents, v. OLYMPIC BANK, Personal Representative of the Estate of Paul Wagner, Appellant. A1999; CA A33411.
• Court: Oregon Court of Appeals

Page 605

708 P.2d 605

76 Or.App. 17

In the Matter of the Adoption of Nancy Mae Wilson aka Nancy

Mae Moulton nka Nancy Mae Guttierrez.

Gerald Wayne HOGUE, Sr., Personal Representative of the

Estate of Lois M. Lee, and Nancy Mae Moulton

Guttierrez, Respondents, v. OLYMPIC BANK, Personal Representative of the Estate of Paul

Wagner, Appellant.

A1999; CA A33411.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 3, 1985.

Decided Oct. 30, 1985.

Mildred J. Carmack, Portland, argued the cause for appellant. With her on brief were Kevin F. Kerstiens, and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Dennis Jordan, Everett, Washington, argued the cause for respondents. With him on brief were Jordan, Brinster, Templeton & Ryan, P.S., Everett, Washington, and Emil R. Berg and Hallmark, Griffith & Keating, P.C., Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

This is a proceeding to vacate a 1939 decree of adoption. The lower court vacated the decree. We reverse and remand for reinstatement of the decree.

Nancy Mae Wilson (nka Nancy Mae Guttierrez) was born the illegitimate child of Lois Moulton (later known as Lois Lee) and Paul Wagner in 1935. The record of her birth falsely states that she was born to Mr. and Mrs. R.S. Wilson, Jr. The name Wilson was a pseudonym chosen by Lois's father, Arthur Moulton, and his then mistress, Helen von Cleff, to conceal Lois's identity. Because Lois was financially unable to support her, Nancy was initially placed in a baby home and was later cared for at Arthur Moulton's home. Arthur and his wife were later divorced, and he married von Cleff.

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.

The trial court vacated the adoption decree on the ground that it was void. ¹ Appellant is the personal representative of the estate of Paul Wagner. Respondent is the personal representative of the estate of Lois Moulton who died after filing the action.

The legislature enacted ORS 109.381 in 1959. The statute provides:

"(1) A decree of a court of this state granting an adoption, and the proceedings in such adoption matter, shall in all respects be entitled to the same presumptions and be as conclusive as if rendered by a court of general jurisdiction and not by a court of special or inferior jurisdiction, and jurisdiction over the persons and the cause shall be presumed to exist.

"(2) Except for such right of appeal as may be provided by law, decrees of adoption shall be binding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to an adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a decree of adoption entered by a court of competent jurisdiction of this or any other state.

"(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned him and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.

"(4) The provisions of this section shall apply to all adoption proceedings instituted in this state after August 5, 1959. This section shall also apply, after the expiration of one year from August 5, 1959, to all adoption proceedings instituted in this state before August 5, 1959."

The adoption decree was void when it was entered, because the adoption court had no jurisdiction to enter it without consent from or notice to the natural mother. Hughes v. Aetna Casualty Co., 234 Or. 426, 383 P.2d 55 (1963); Furgeson v. Jones, 17 Or. 204, 20 P. 842 (1888); see also Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); but see Hughes v. Aetna Casualty Co., supra, 234 Or. at 449-50, 383 P.2d 55 (concerning adoption decrees entered after the effective date of ORS 109.381). Under the statute, however, the decree, having been entered before August 5, 1959, became conclusively presumed to be valid and immune from attack after August 5, 1960. Consequently, this action is barred unless there is some reason why we cannot apply the statute. The trial court held that the statute cannot be applied to validate a decree void for lack of consent from or notice to the natural mother. Respondent urges us to affirm that decision, relying mainly on Hughes v. Aetna Casualty Co., supra. Appellant argues that Watkins v. Chirrick, 19 Or.App. 241, 526 P.2d 1399 (1974), controls and that Hughes is distinguishable.

In Watkins, the petitioner appealed from an order dismissing her petition to vacate the adoption of her child on the ground that ORS 109.381 barred her challenge. She alleged that she gave birth to an illegitimate child on July 11, 1971, when she was sixteen. On August 21, 1972, she signed a consent to the adoption, and approximately three months later the trial court entered the decree of adoption. She alleged that, when she signed the consent, she was acting under fraud, duress and undue influence. She filed her petition to vacate the decree on January 28, 1974. We found that she had not alleged any facts that justified tolling the Statute of Limitations. She did not allege that she had no notice of the adoption, that she did not know her child was a member of respondents' family or that her lack of representation by an attorney at the adoption proceeding somehow justified tolling the statute. We held that she had failed to allege facts showing that she did not receive due process in connection with the decree. She asserted, however, as respondent asserts in this case, that the adoption decree was void for lack of valid consent and that ORS 109.381 violated her due process rights. We rejected that argument, finding that petitioner had every opportunity to raise the issue of consent within the one-year limitation period, and affirmed the dismissal of her petition.

In this case, Lois did not receive notice of the adoption proceeding when the decree was entered. However, in 1947 she learned about it from her stepmother and the judge who signed the decree. She did nothing to challenge it. After the enactment of ORS 109.381, by its terms, she had until August 5, 1960 to do so. She asserts no good reason why she could not have challenged the adoption before then. She suggests that she may not have known for certain that Nancy had been adopted until she first saw the adoption decree in 1984. She admits, however, being told about it in 1947, and she could have inquired further into the matter then if she had some doubt. As did the petitioner in Watkins, she had ample opportunity to raise the issue of her lack of notice and consent within the time prescribed by ORS 109.381.

Respondent argues, notwithstanding Watkins v. Chirrick, supra, that under Hughes v. Aetna Casualty Co., supra, we cannot apply ORS 109.381 in this case. In Hughes, the petitioner sought to set aside his own adoption so that he, as the sole intestate heir, would be entitled to his natural mother's estate. He had been placed in a child care home after his birth and was adopted in 1927. The Supreme Court held that his adoption was void, because the adoption file did not contain the statutorily required proof that the child care home, which had consented to his adoption, was authorized to do so. It also held that, even if the adoption had in fact proceeded on the basis of the natural parents' abandonment of the child, the adoption was nevertheless void, because his natural mother had not been provided with notice of the adoption. The court also held that ORS 109.381 did not bar petitioner's suit, which he brought in 1971, 34 years after the decree was entered:

"This statute [ORS 109.381] has two aspects--in one it is a curative act, in the other a statute of limitations. As to the former, the general rule is that it is not competent for the legislature to validate a judgment void...