Karenina by Vronsky v. Presley, 58386
| Decision Date | 06 April 1988 |
| Docket Number | No. 58386,58386 |
| Citation | 526 So.2d 518 |
| Parties | In the Matter of the Adoption of Natasha KARENINA, 1 a Minor, By Kiril VRONSKY v. Lynn PRESLEY, Chancery Clerk, et al. |
| Court | Mississippi Supreme Court |
Robert W. Smith, Biloxi, for appellant.
Dempsey M. Levi, Levi & Denham, Ocean Springs, for appellees.
Before ROY NOBLE LEE, C.J., and ROBERTSON and ZUCCARO, JJ.
I.
Today's appeal asks this Court to decide who in fact and in law is the father of a now eleven year old young girl. The question arises in the context of a paternity action and an adoption petition which were consolidated for trial. In the end, we recognize the father in law to be he who it has been shown beyond a reasonable doubt is the father in fact, and in this we affirm the decision of the Chancery Court.
We reverse in part and remand for further consideration certain matters regarding assessment of fees and costs.
II.
Konstantin Levin is an attorney having his office on the Mississippi Gulf Coast. In the fall of 1975, Konstantin 2 met, and later hired as his secretary, Anna Karenina. At the time each was married to another person. Konstantin and Anna fell in love and began having what is euphemistically referred to as an affair. During this time Anna's husband, Alexander Karenin, was out of the country and in the Netherlands.
As fate would have it, Anna became pregnant. She and Konstantin discussed abortion but decided against that alternative. During this time Konstantin and Anna were virtually living together. They contemplated marriage ultimately and in the interim began making plans for the birth of the child, including purchases of baby furniture. Konstantin paid a part of the medical expenses incident to Anna's pregnancy.
About a month or two before the child was born, the relationship between Konstantin and Anna began to deteriorate. They abandoned the idea that a marriage between them, after each obtained a divorce, would be workable or desirable.
On September 13, 1976, in Jackson, Mississippi, Anna Karenina gave birth by caesarian section to a female child. Birth certificate no. 123-76-28544 was issued, bearing the name of the child as Natasha Karenina and reflecting Natasha's mother as Anna Karenina and her father as Alexander Karenin.
Though their marriage plans had been abandoned, Anna and Konstantin nevertheless were divorced from their respective spouses. On November 9, 1976, a final decree of divorce terminated the marriage of Anna Karenina and Alexander Karenin. That decree found as a fact that the Karenins had only one child, Alexander Karenin, II, born October 10, 1970, and that "Anna Karenin is not pregnant by Alexander Karenin at this time." Significantly, the petition making this representation was filed on August 31, 1976, which was prior to Natasha's birth. The petition and decree are otherwise silent as to Natasha. Konstantin's marriage ended by divorce after he told his wife of his relationship with Anna and her pregnancy.
After those first tumultuous days when he and Anna contemplated abortion and generally what to do about her pregnancy, Konstantin Levin has made no attempt to conceal his identity as father of the child. He paid the hospitalization and medical bills incident to the child's birth and thereafter paid to Anna approximately $30.00 per week as child support. Konstantin visited Natasha every other weekend, at Christmas and during the summer, all pursuant to an informal and originally rather workable custody, visitation and support arrangement. Konstantin acknowledged the child to be his to friends and family. Natasha even visited his mother from time to time. There was evidence of a bonding relationship between Natasha and Konstantin, whom she referred to as "daddy". And so matters stood until approximately December of 1979 or January of 1980.
In the meanwhile, Konstantin and Anna had developed new romantic interests. In December of 1977, Konstantin married his second wife, Kitty, and they had one child, Mitya. Anna began seeing Kiril Vronsky, a Biloxi attorney, and, on February 28, 1981, married him.
At some point Konstantin asked Anna for her agreement that he be allowed to adopt Natasha but she refused. Konstantin sought advice of counsel and, in consequence, stopped child support payments for a period of some ten months. Anna retaliated by denying Konstantin visitation privileges. After a time, and on advice of new counsel, Konstantin resumed weekly child support payments, which this time Anna refused to accept. By this point, the likelihood of litigation loomed large.
On February 4, 1981, Konstantin Levin, in his capacity as father and her friend, filed in the Chancery Court of Jackson County his complaint for adjudication of paternity and other relief. It is important to recognize that the suit is filed in the name of Natasha Karenina through Konstantin as her father and next friend. Named as defendants are Anna Karenina Vronsky and Konstantin, individually. The complaint asked that Konstantin be adjudged Natasha's father, that he be ordered to pay reasonable support for her education and maintenance, and that Konstantin be granted "reasonable and liberal visitation privileges." Subsequently, Konstantin withdrew as next friend and Boris Badanov, Jr., an attorney, was appointed as guardian ad litem to represent and protect the interests of the minor child. See Baker By Williams v. Williams, 503 So.2d 249, 252-53 (Miss.1987).
On June 17, 1981, Anna and her new husband, Kiril Vronsky, filed in the same court a petition for adoption. In this petition Kiril sought to adopt the child and to have her name changed to Natasha Vronsky. Konstantin, of course, opposed the adoption. The Chancery Court subsequently, by order, directed consolidation of the paternity and adoption proceedings for all purposes.
After considerable and rancorous pre-trial wranglings, the matters came on for trial. On July 8, 1982, the Chancery Court released its "Opinion" finding as a fact that Konstantin Levin was the father of Natasha. In the context of the fact that Anna was at the time married to Alexander Karenin, whose name is shown as father on Natasha's birth certificate, the Chancery Court expressly held that the evidence of Konstantin's paternity was "overwhelmingly clear and convincing" so that any presumption that Alexander was the father had been overcome. The Opinion granted Natasha inheritance rights from Konstantin.
The Chancery Court awarded custody of Natasha to Anna, her mother. Konstantin was allowed visitation privileges on alternate weekends and was ordered to pay child support at the rate of $30.00 per week. The opinion provided for a one month summer custody period wherein the child would be with Konstantin, made provisions for holiday visitations, and finally granted "visitation of the child with her father at other reasonable times in addition to the above specified times."
Consistent with the foregoing, the Chancery Court denied Kiril Vronsky's petition for adoption. The Chancery Court specifically rejected Kiril's assertions of failure of support, of abandonment and desertion, and of Konstantin's alleged unfitness.
In the end, the Court ordered that the birth certificate of Natasha Karenina, No. 123-76-28544, be changed to reflect that she was born September 13, 1976, of Anna Karenina, mother, and Konstantin Levin, as father, and that her name is Natasha Levin.
Finally, there were before the Court numerous motions for impositions of sanctions and costs. In this connection the Court provided:
That Anna Karenina Vronsky and Kiril Vronsky be assessed with costs of depositions wherein they failed to appear or wherein a request for admission was denied, as follows:
Court Reporters:
Vronsky deposition 10/30/81 $77.00
Vronsky deposition 3/11/82 64.50
Dr. Nataly Rostova
Bryant Deposition 87.85
Witness fee of Dr. Nataly Rostova 112.50
Blood test costs per
statement
Attorneys fees--88.5 hours for attorney for 4,425.00
Konstantin Levin at $50.00 per hour
The above are charged as court costs herein.
That Boris Badanov, Jr., Guardian ad litem of the minor child, has rendered valuable services to the Court and is entitled to be paid a fee of $3,000.00, plus the sum of $137.59 as out-of-pocket expenses, to be assessed against Anna Karenina, and Kiril Vronsky and charged as court costs herein. All other costs of court are assessed against Anna K. Vronsky and Kiril Vronsky.
Post-trial proceedings were somewhat unusual. The matter had been heard in the Chancery Court of Jackson County, Mississippi. Because two Gulf Coast attorneys were involved, the Chancery Judges of that district all recused themselves and then Chancery Judge Lenore L. Prather was appointed Special Chancery Judge to hear the case. Judge Prather conducted all trial proceedings through and including her final opinion of July 8, 1982. On July 12, 1982, Judge Prather resigned her office, incident to her appointment to and assumption of the position of Justice of the Supreme Court of Mississippi. In this sense, these consolidated cases were without a judge after July 12, 1982.
On July 26, 1982, Anna and Kiril filed a motion for a new trial. The matter lay dormant for a substantial period of time following which there were several insignificant proceedings.
Two years and several months passed and the motion for a new trial had not been ruled on. On October 4, 1984, Lynn Presley, Chancery Clerk, moved for a depositional examination of Kiril as a judgment debtor. Kiril objected. On May 23, 1985, Chancery Judge Kenneth B. Robertson disposed of all pending...
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