Jones v. Jones
| Decision Date | 15 June 1974 |
| Docket Number | No. 47328,47328 |
| Citation | 215 Kan. 102,523 P.2d 743 |
| Parties | Kevin D. JONES and Jean L. Jones, Appellants, v. John F. JONES and Virginia N. Jones, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The questioning of the validity of a decree of adoption in any proceeding other than a direct appeal or a petition to set aside the adoption is a collateral attack.
2. Where an adoption decree is given a standing of the judgment of a court of general jurisdiction, the lack of jurisdiction must appear from the record before it is subject to collateral attack.
3. In this state a probate court is a court of general jurisdiction relative to an order of adoption. The failure of the record to show affirmatively the existence of facts essential to jurisdiction is not sufficient to defeat the judgment upon a collateral attack. Where the record is merely silent the presumption is that the necessary jurisdictional facts existed.
4. Collateral attacks upon judicial proceedings are never favored, and where such attacks are made, unless it is clearly and conclusively made to appear that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void but will be held to be valid.
5. Where the adoption of a child is regularly obtained the status of the child is changed and it no longer remains the child of its natural parents, but becomes the child of another, and its relation to its natural parents ceases.
6. Where a court has jurisdiction of the parties to an action and of the subject matter, and renders a judgment within its competency, even if erroneous, the judgment is final and conclusive unless corrected or modified on appeal or by such other method as may be prescribed by statute, and it may not be attacked collaterally otherwise.
7. Under K.S.A.1973 Supp. 59-2102 consent must be given for the adoption of a minor child, and where the mother of an illegitimate child gives consent to the adoption of her child in writing, acknowledged before an officer authorized by law to take acknowledgments, and filed of record in the probate court, such consent is irrevocable unless the consenting party, prior to final decree of adoption, alleges and proves that such consent was not freely and voluntarily given. The burden of proof rests upon the consenting party and minority of the child's natural parent does not invalidate the consent.
8. Under the provision of K.S.A.1973 Supp. 59-2213 a judgment or decree of a probate court may be vacated or modified as provided by K.S.A. 60-260(b) of the code of civil procedure.
9. Under K.S.A. 60-260(b) a party may obtain relief from a judgment or order on the ground of fraud (whether heretofore denominated intrinsic or extrinsic) more than one year after the judgment or order was entered by filing a motion in the court which entered the judgment or order.
10. Parties to a proceeding for the adoption of a child cannot be heard to say a notice expressly waived was not given.
11. Waiver is ordinarily the intentional relinquishment of a known right and is a voluntary act. It is the expression of the intention not to insist upon what the law affords.
12. Consent to the adoption of a child given in writing pursuant to Maryland law, which is similar to Kansas law, is valid in an adoption proceeding conducted in the State of Kansas.
John E. Wilkinson, Topeka, argued the cause and was on the brief for appellants.
Ralph E. Skoog, of Crow & Skoog, Topeka, argued the cause and was on the brief for appellees.
This is a collateral attack upon an adoption decree issued by the Probate Court of Shawnee County, Kansas, on October 28, 1968. The action was brought on June 21, 1972, in the District Court of Osage County, Kansas. The petition demands custody of the child and damages for fraud against the adoptive parents. The plaintiffs (appellants) are the natural birth parents of an illegitimate child who was adopted by the parents (defendant-appellees) of the male plaintiff. The trial court rendered summary judgment for the defendants and appeal has been duly perfected.
The underlying question on appeal is whether the action was filed within the time period of statutory limitations and in the proper court.
All of the information before the trial court was contained in the defendants' request for admissions, defendants' interrogatories, various affidavits and the pleadings. A recitation of the facts disclosed by the record on appeal follows.
During the summer of 1967 Kevin Jones (plaintiff-appellant), 22 years of age, was spending his summer vacation from the University of Maryland (located in Hyattsville, Maryland), where he was a student, in Glenview, Illinois, with his parents John and Virginia Jones. Jean L. Labbe (plaintiff-appellant) seventeen years of age, resided in Wilmette, Illinois, with her parents. She had recently graduated from high school.
That summer Jean became pregnant by Kevin. Apparently, they did not disclose this information to any of their parents that summer. When the fall semester at school began Kevin returned to Hyattsville and Jean followed and moved in with Kevin.
On or about Tranksgiving Day in 1967, Kevin telephoned his father, John Jones (defendant-appellee), and related to him Jean was pregnant; Kevin felt sorry for her and wanted to help her; Jean did not want her parents to know about her condition because they were very religious and straight laced and would disown her if they learned she was pregnant; Jean was going to live in Maryland with Kevin until the baby was born; when the baby was born Kevin and Jean would put it up for adoption. John encouraged Kevin to marry Jean and offered to support them until Kevin was out of school and employed, however, Kevin refused. John further requested that he (John) and Kevin's mother (defendant-appellee) be allowed to adopt the child in the event the young couple did place it for adoption, and Kevin rejected the idea, stating the defendants were too old.
The plaintiffs contacted an adoption agency in Washington, D.C. prior to the child's birth and arranged to have the baby put up for adoption shortly after its birth.
There were other conversations between Kevin and John, similar to the Thanksgiving Day discussion recited above. Kevin adamantly refused to either marry Jean or permit John and Virginia to adopt the anticipated child.
On April 7, 1968, the baby, Jennifer Lisa Jones, was born and on April 11 the adoption agency placed Jennifer in a foster home. During the week of May 5 the agency's pediatrician examined Jennifer, along with various medical transcripts, and concluded she was not a proper subject for placement for adoption due to medical reasons. Thereafter the agency informed the plaintiffs it would not accept Jennifer for placement due to medical reasons and directed the plaintiffs to retake custody of her on May 15 or 16, 1968.
Faced with the necessity of providing for Jennifer, and unwilling to keep her themselves, Kevin and Jean decided the only acceptable alternative would be to seek assistance from the defendants. During the weekend of May 10-12, 1968, Kevin telephoned John, apprised him of the adoption agency's rejection of Jennifer, and stated the defendant (John) could pick up the baby if the defendants would promise not to take her to Illinois where Jean's parents might learn of the birth. The defendant (John) replied he would pick up Jennifer on the following Fridat, May 17; the defendants would not take Jennifer back to Glenview, Illinois, but would relocate to Topeka, Kansas. John telephoned Kevin later in the week, he related his plans to fly into Friendship Airport (located near Baltimore) at 5 p.m. on Friday, and suggested the plaintiffs meet him there with Jennifer so that he could catch a later flight to Kansas City. There was also some discussion that Kevin's brother and sister-in-law, Steven and Kay Jones, might be willing to adopt Jennifer.
The plaintiffs were unable to meet John at the airport on May 17 because of mechanical difficulties with their automobile. Consequently, John obtained a rental car and drove to the plaintiff's apartment.
According to John, the plaintiffs had altered a 'Consent for Temporary Care' form obtained from the adoption agency so that the defendants' names could be inserted, however, John would not take the child under such conditions. The plaintiffs stated in the request for admissions that they did not urge John to sign a form for temporary care of Jennifer.
After just a few minutes at the apartment, the plaintiffs, Jennifer, and John departed for the airport in the rented vehicle. Kevin drove since he was familiar with the road. As they rode, John handed Jean a document entitled 'Consent' and requested them to execute and acknowledge it when they arrived at the airport, where John had arranged for a notary public to meet them. Jean read the 'Consent' out loud. The document reads as follows:
'Come now Kevin D. Jones and Jean L. Labbe and state:
'They are the unmarried natural parents of a baby girl, born at Prince Georges General Hospital, Cheverly, Maryland, on April 8, 1968, and they voluntarily consent to the adoption of said baby by John Franklin Jones and Virginia Jones, husband and wife, and the said natural parents relinquished all their rights in and to said child, subject only to the final order of adoption of said child by a court of competent jurisdiction.
'Said natural parents further waive notice of the time and place of any and all proceedings for adoption, and consent that possession and custody of said child be given to the said John Franklin Jones and Virginia Jones pending hearing and final determination of said adoption proceedings.'
John explained to the plaintiffs that Kevin's brother and sister-in-law were unable to adopt Jennifer at that time, but had recommended that the defendants adopt her and when defendants were no longer able to...
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