Mize v. Sims

• Court: Missouri Court of Appeals
• Writing for the Court: BILLINGS; HOGAN; STONE
• Citation: Mize v. Sims, 516 S.W.2d 561 (Mo. App. 1974)
• Decision Date: 02 November 1974
• Docket Number: No. 9615,9615
• Parties: Robert Lee MIZE, Plaintiff-Respondent, v. Mildred SIMS, Administratrix of the Estate of Charles Otis Petty, Deceased, and Mildred Sims, Individually, Defendants-Appellants.

Page 561

516 S.W.2d 561

Robert Lee MIZE, Plaintiff-Respondent, v. Mildred SIMS, Administratrix of the Estate of Charles Otis Petty, Deceased, and Mildred Sims, Individually Defendants-Appellants.

No. 9615.

Missouri Court of Appeals, Springfield District.

Nov. 2, 1974.

William O. Welman, Welman & Associates, Kennett, for plaintiff-respondent.

William Howard Bloodworth, Bloodworth & Bloodworth, Poplar Bluff, for defendants-appellants.

BILLINGS, Judge.

Equitable adoption proceeding wherein plaintiff Robert Lee Mize was decreed to be the adopted child and lawful heir of Charles Otis Petty, deceased. Mildred Sims, decedent's daughter, individually and as administratrix of her father's estate, has lodged this appeal challenging the sufficiency of the evidence to support the decree. We affirm.

Plaintiff was born the son of Orbert Mize during her marriage to Fred Mize and as near as we can determine was born in 1950 or 1951. Charles O. Petty died in May of 1970 and plaintiff's mother died a few days thereafter. Trial was held in 1973.

Prior to plaintiff's birth Mrs. Mize and her three children lived near the Charles O. Petty farm in the Qulin community of Butler County while her husband was in service. At some undesignated time Mrs. Mize and the three children joined her husband in Texas for an undetermined period of time. Later, Mrs. Mize and the three children returned to Butler County where plaintiff was born approximately two months later. Mrs. Mize thereafter worked as a waitress in the Poplar Bluff area. The record remains silent as to the whereabouts of Fred Mize.

The wife of Charles O. Petty died in 1931. Before her death she was in ill health and Chlola Lilly moved into the Petty home to care for Mrs. Petty and do the housework. Chlola Lilly and her husband had previously lived on the Petty farm but had been separated about a year before she moved into the Petty household. She was living at the Petty home when defendant Mildred Sims was born. Following Mrs. Petty's death Chlola Lilly continued to live with Charles O. Petty until his death and helped rear the defendant, and in due time, the plaintiff.

When the plaintiff was at an age variously described as 'four to five months old,' 'fourteen or fifteen months old,' 'less than two years old,' 'four or five years old,' his mother delivered him to Charles O. Petty. Plaintiff lived with Charles O. Petty until he reached the age of 17 or 18, 'about draft age,' at which time he went to the St. Louis area to seek employment. After an undetermined period working in St. Louis the plaintiff returned to the Charles O. Petty household and did farm work in the Qulin area.

Four witnesses testified on behalf of the plaintiff as to the conduct, acts and admissions on the part of Charles O. Petty concerning an agreement and intent on his part to adopt the plaintiff. Chester Petty, age 60 years, was a nephew and business associate of Charles O. Petty. Aaron Gibbs, 72 years old, and Dudley Hancock, 49 years old, were longtime friends and neighbors of Mr. Petty. Chlola Lilly, age 81 years, was the remaining witness.

The testimony of Chester Petty, Aaron Gibbs and Chlola Lilly clearly indicates that Mrs. Mize literally thrust plaintiff into Charles Petty's custody with this curt explanation: 'There he is. He is yours. I can't make a living for him.' That Charles O. Petty assumed without objection the responsibilities associated with the rearing of plaintiff may be explained by the fact that Charles O. Petty believed himself to be plaintiff's natural father. He told Chlola Lilly 'he surely was his father, he knowed he was.' To Chester Petty he said of plaintiff that he 'should adopt him,' since 'he just the same as told me (plaintiff) was his son.' In conversations with Aaron Gibbs the decedent said: 'Of course, everybody knows that is my boy.' And, when plaintiff was about six years of age and neighbor Dudley Hancock inquired of Mr. Petty if he was not too old to be raising a family, Mr. Petty replied that 'he was having to raise (plaintiff), he was his own blood.'

All of plaintiff's witnesses testified that a father and son relationship existed between Charles O. Petty and the plaintiff. Mr. Petty referred to plaintiff as 'Bobby' or 'my son,' and, was called 'daddy' by the plaintiff. Mr. Petty fulfilled the role of a father to plaintiff in all respects, providing training, food, clothing, lodging and education. He took plaintiff to Petty family reunions and other places 'to see that Bobby had a good time.' Chlola Lilly summarized Mr. Petty's treatment of plaintiff as 'just like his own son.'

Chlola Lilly also testified that on one occasion Mr. Petty told her 'Let's go to Poplar Bluff today and adopt Bobby' but that attempt failed when they arrived at Poplar Bluff and could not locate plaintiff's mother. She said that Mr. Petty told her the reason why he wanted to adopt plaintiff was because '(plaintiff) was his kid.' Chester Petty related that he accompanied Mr. Petty to a Poplar Bluff attorney's office 'about adoption of Bobby Mize.' Mr. Petty told Aaron Gibbs that it was his intention 'all along the years' to legally adopt plaintiff but kept putting it off from one time to another and 'never did get around to getting papers.' Additionally, to Chester Petty, Aaron Gibbs, and Chlola Lilly, Mr. Petty stated he wanted plaintiff to have portions of his property at his death.

With the exception of Mr. Petty's barber, whose testimony added nothing, all of the defendant's witnesses were related by blood or marriage to her. Through these witnesses the defendant sought to show that plaintiff entered the Charles O. Petty household as a part of a babysitting arrangement between plaintiff's mother and Chlola Lilly; that plaintiff was treated no differently than other children who spent some time living in the household; that the relationship between plaintiff and Mr. Petty, as well as that between plaintiff and Chlola Lilly, was marred by fights and bickering and that plaintiff refused to do any work on the farm. Much of the defendant's evidence was directed to the relationship between Mr. Petty and Chlola Lilly and fails to shed any light on the issue of equitable adoption.

As we have indicated the trial testimony of the witnesses appearing for the parties presented conflicting and wholly inconsistent versions of the circumstances surrounding plaintiff's arrival and stay with Charles Petty. Specific findings of fact were not requested, therefore all fact issues are deemed to have been found in accordance with the court's decree. Rule 73.01(b), V.A.M.R. Nevertheless, since this is an equity case in our review we consider the evidence de novo upon the record properly before us (Long v. Willey, 391 S.W.2d 301 (Mo.1965); Lukas v. Hays, 283 S.W.2d 561 (Mo.1955)) and '(W)hen an issue of fact has been decided by the chancellor upon conflicting evidence, and such finding turns upon the testimony of witnesses who have appeared before him, such finding will be sustained unless clearly erroneous.' Long v. Willey, supra, 391 S.W.2d at 305; Rule 73.01(d), V.A.M.R.; McCormick v. Johnson, 441 S.W.2d 724 (Mo.App.1969). And, deference is to be accorded to the superior opportunity of the trial judge to determine the credibility of the witnesses who appeared before him. Long v. Willey, supra; Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973).

Equitable adoption in this state is founded upon well established equitable principles by which equity may grant specific enforcement of a contract to adopt, or declare, in a proper case, that a defendant is estopped to deny the adoption agreed to be made.' Menees v. Cowgill, 359 Mo. 697, 706, 223 S.W.2d 412, 416 (1949), cert. den. 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585 (1950). To warrant a decree of equitable adoption, it is not indispensable that a contract to adopt be shown by direct evidence, rather such an agreement may be inferred from the acts, conduct, and admissions of the adopting parent. Lukas v. Hays, supra, 283 S.W.2d at 566; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556 (banc 1931); Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055 (1931); Johnson v. Antry, 5 S.W.2d 405 (Mo.1928); Kay v. Niehaus, 298 Mo. 201, 249 S.W. 625 (1923). 'If, therefore, the statements, admissions, and conduct of the adopting parent 'are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from that evidence. " Bland v. Buoy, 335 Mo. 967, 983, 74 S.W.2d 612, 620 (1934).

Furthermore, 'Where one takes a child into his home as his own, thereby voluntarily assuming the status of parent, and by reason thereof obtains from the child the love, affection, companionship, and services which ordinarily accrue to a parent, he is thereafter estopped to assert that he did not adopt the child in the manner provided by law' (Shelp v. Mercantile Trust Co., 322 Mo. 682, 694--695, 15 S.W.2d 818, 824 (1929); Weber v. Griffiths, 349 Mo. 145, 159 S.W.2d 670 (1941); Taylor v. Coberly, supra, 38 S.W.2d at 1062; Holloway v. Jones, 246 S.W. 587 (Mo.1922)), provided that 'justice, equity and good faith' compel a decree of equitable adoption. Rich v. Baer, 361 Mo. 1048, 1056, 238 S.W.2d 408, 413 (1951); Hegger v. Kausler, 303 S.W.2d 81 (Mo.1957); Hogane v. Ottersbach, 269 S.W.2d 9 (Mo.1954); see also Menees v. Cowgill, supra, 223 S.W.2d at 417. One who seeks a decree of equitable adoption has the onerous task of producing evidence so clear, cogent, and convincing as to leave no reasonable doubt in the chancellor's mind. Lukas v. Hays, supra, 283 S.W.2d at 566; Hogane v. Ottersbach, supra, 269 S.W.2d at 11; Capps v. Adamson, 362 Mo. 539, 544, 242 S.W.2d 556, 559 (1951); Rich v. Baer, supra, 238 S.W.2d at 411; Benjamin v. Cronan, 338 Mo. 1177, 1185, 93 S.W.2d 975, 979 (1936).

The issue before us is whether the acts, conduct and admissions of Charles O. Petty are such as to compel the conclusion...