In re Adoption of Trystyn D., A-98-1177.
| Decision Date | 28 September 1999 |
| Docket Number | No. A-98-1177.,A-98-1177. |
| Citation | 8 Neb. App. 704,600 N.W.2d 508 |
| Parties | In re ADOPTION OF TRYSTYN D. Vicki C., appellant, v. David Prestidge and Ronda Prestidge, appellees. |
| Court | Nebraska Court of Appeals |
Stacy C. Nossaman-Petitt, of Nossaman Petitt Law Firm, Gering, for appellant.
Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellees.
This case presents the issue of whether the doctrine of equitable estoppel is available to estop a party from asserting the 2-year limitation period in Neb.Rev.Stat. § 43-116 (Reissue 1993) as a defense to an action attacking the validity of an adoption decree entered in this state. We conclude it is.
On May 7, 1992, David Prestidge and Ronda Prestidge filed a petition in the county court for Scotts Bluff County to adopt Trystyn D. In the Prestidges' petition, they alleged, inter alia, that Trystyn was born on October 27, 1991, and had been in their care and custody since October 29, 1991, and that the natural parents of Trystyn had each signed a relinquishment and consent to the adoption. Said relinquishments and consents were attached to the petition. The Prestidges subsequently moved the court for an order authorizing notice by publication and informed the court that they were unaware of the whereabouts of Trystyn's parents, Vicki C. and Robert D. The motion was granted. After the requisite notice was given, the court entered a decree of adoption on June 18, 1992.
On April 13, 1998, Vicki filed a motion in the county court for Scotts Bluff County to set aside the adoption of Trystyn. In Vicki's motion, she alleged the following:
On April 19, 1991, Vicki was married to Robert. At that time, Vicki was 16 years of age. Trystyn was born on October 27, 1991. Vicki signed over guardianship of Trystyn to the Prestidges, cousins of Robert. A motion for appointment of guardian was filed on October 31. On November 19, a revocation to consent was signed by Vicki. On December 12, Vicki's attorney filed a motion to withdraw and informed the court that "`[h]e h[ad] been advised that [Vicki] left [the State of Nebraska] with Robert ... and returned to the State of Florida ... and [she] has not advised us of her whereabouts or her wishes with respect to this matter.'" The court permitted Vicki's counsel to withdraw and appointed the Prestidges as Trystyn's guardians.
Vicki further alleged that she had been "fraudulently coerced" into signing the guardianship and adoption papers bearing her signature; that Robert vacationed with her in Florida and then subsequently moved her to Utah, thereby keeping her uninformed as to the proceedings surrounding her minor child; that she was never informed of the adoption proceedings; that at all relevant times, the Prestidges were aware of her physical address and failed to properly notify her; and that due to the "fraud and coercion" of Robert and the Prestidges, Vicki did not become aware of the adoption until June 5, 1997.
On May 19, 1998, the Prestidges demurred to the petition, alleging, inter alia, that the court had no jurisdiction over the Prestidges or Trystyn and that the motion did not state facts sufficient to constitute a cause of action. A hearing was held on September 15. On October 8, the court granted the demurrer and dismissed the action.
In granting the demurrer, the trial court determined that pursuant to the Nebraska Child Custody Jurisdiction Act (NCCJA), it did not have jurisdiction over the matter. The court further found that The court accordingly sustained the demurrer and dismissed Vicki's petition. Vicki timely appeals.
Vicki alleges the trial court erred in determining that it did not have jurisdiction of the matter and in finding that her cause of action was statutorily barred.
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. Professional Bus. Servs. v. Rosno, 256 Neb. 217, 589 N.W.2d 826 (1999); Cotton v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999).
On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999); Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998).
Jurisdiction.
The trial court found:
[T]he adoptive parents and the child have been non-residents of the State of Nebraska for many years. The present state of residence has acquired a substantial interest in determining the outcome of this dispute. It would clearly be error for this Court to reach a conclusion and have no practical way to enforce that judgment. None of the provisions of Neb.Rev.Stat. § 43-1203 (Reissue 1993) would justify this Court to hear this Motion under the circumstances in which the principle [sic] parties, the adoptive parents and the child, have long ago established residence in another state.
The court concluded that "it lack[ed] jurisdiction to consider the Motion to Set Aside Decree of Adoption according to Neb.Rev.Stat. § 43-1203 [NCCJA]." See Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1998). Section 43-1203, the general jurisdictional section of the NCCJA, grants courts of this state that are competent to decide child custody matters the jurisdiction to make child custody determinations by initial or modification decree if certain facts exist.
An initial issue is whether the NCCJA has any applicability to the county court's exercise of jurisdiction over Vicki's motion to set aside the adoption decree. As a general rule, the county court has exclusive original jurisdiction in matters of adoption. See Neb.Rev.Stat. § 24-517 (Reissue 1995 & Cum.Supp.1998). See, also, Neb.Rev.Stat. § 43-102 (Reissue 1998); In re Adoption of C.L.R. and J.M.R., 218 Neb. 319, 352 N.W.2d 916 (1984) (). The Prestidges cite no authority which supports the application of the NCCJA to this proceeding. Given our resolution, we need not decide that issue. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).
Vicki's motion, which we view as the operative pleading for purposes of the demurrer, made no allegation with regard to the residency of the child or the adoptive parents, the home state of the child, the child's or the parties' connections with Nebraska, the availability in this state of evidence concerning the child's present or future care, et cetera. These are all relevant considerations under § 43-1203. It is obvious from the trial court's finding that in sustaining the demurrer on jurisdictional grounds, it considered evidence outside of the motion. The source of that evidence is unclear because, as one would assume, no evidence was offered at the hearing on the demurrer. In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Gordon v. Community First State Bank, 255 Neb. 637, 587 N.W.2d 343 (1998). A demurrer resolves only defects which appear on the face of a petition. Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 (1997).
Even assuming, without deciding, that a proceeding seeking to vacate an adoption decree triggers the provisions of the NCCJA, the determination of whether such jurisdiction exists depends on the evidence and on factual determinations. See, e.g., In re Interest of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999). A demurrer is not the appropriate procedural method for such factual determinations.
The trial court's sustaining of the demurrer and dismissal on jurisdictional grounds was based upon matters extrinsic to Vicki's motion. This was erroneous. The Prestidges do not assert that there are any allegations in the motion itself which mandate a finding of lack of jurisdiction and none are apparent to us. We make no determination as to whether the NCCJA has any application to Vicki's motion to set aside. See Kelly v. Kelly, supra (). The county court erroneously dismissed the proceeding for lack of jurisdiction on the Prestidges' demurrer.
Time Limits to Attack Validity.
The trial court also determined that Vicki's claim was barred by § 43-116, which provides, inter alia:
When any county court in the State of Nebraska shall ... hereafter enter of record such a decree of adoption, it shall in like manner be conclusively presumed that said adoption and all instruments and proceedings in connection therewith are valid in all respects notwithstanding some defect or defects may appear on the face of the record, or the absence of any record of such court, unless an action is brought within two years from the entry of such decree of adoption attacking its validity.
(Emphasis supplied.)
The trial court concluded that § 43-116 statutorily bars reopening and setting aside the adoption decree absent "clearly proven fraud." It observed that Vicki had not alleged or proved any fraud and thus the 2-year bar applied. Vicki contends that the court correctly concluded that actions based upon fraud are not...
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In re Adoption of Trystyn D.
...action but that the county court erred in dismissing the matter rather than granting Vicki leave to amend. See In re Adoption of Trystyn D., 8 Neb.App. 704, 600 N.W.2d 508 (1999). The Prestidges petitioned this court for further SCOPE OF REVIEW When an appeal calls for statutory interpretat......