Naveda v. Ahumada, 51642

• Decision Date: 20 February 1980
• Docket Number: No. 51642,51642
• Citation: 381 So.2d 147
• Parties: Dianna Angelic NAVEDA, by Next Friend, Annie Mae Lane et al. v. Barbara Jean Naveda AHUMADA.
• Court: Mississippi Supreme Court

Page 147

381 So.2d 147

Dianna Angelic NAVEDA, by Next Friend, Annie Mae Lane et al. v. Barbara Jean Naveda AHUMADA.

No. 51642.

Supreme Court of Mississippi.

Feb. 20, 1980.

As Corrected On Denial of Rehearing April 2, 1980.

Laurel G. Weir, Terry L. Jordan, Philadelphia, for appellants.

Robert L. McHaney, Jr., Starkville, for appellee.

Before ROBERTSON, WALKER and LEE, JJ.

LEE, Justice, for the Court:

Petition for adoption was filed in the Chancery Court of Neshoba County by Annie Mae Lane, Next Friend of Dianna Angelic Naveda, Annie Mae Lane, Individually, and John Bryant Lane, Jr., seeking to adopt Dianna Angelic Naveda, eight-year-old child, to Annie Mae Lane and John Lane, Jr., maternal grandparents of said child. Decree was entered ordering the adoption on December 19, 1975. Barbara Jane Naveda Ahumada, mother of the child, subsequently filed a petition to set aside the adoption decree and, after a full hearing, the chancellor granted the prayer of said petition and vacated the decree. Thereafter, a hearing was held in the cause to determine custody of the child and same was granted to the mother with visitation rights to the Lanes. They appealed the order setting aside the adoption decree and Mrs. Ahumada cross-appeals from that part of the decree granting the Lanes two (2) months visitation rights (custody) in the summer time. Appellee has filed a motion to dismiss the direct appeal for the reason that Mrs. Lane spirited away the child and concealed her since rendition of the decree in the lower court. We overrule that motion since the interest and welfare of the minor child, who is a party to this proceeding, is involved.

The sole question on direct appeal is whether or not the lower court erred in setting aside the adoption decree and in granting custody of the child to her mother.

In order to resolve the question presented, it is necessary for this Court to determine whether or not the Chancery Court of Neshoba County acquired jurisdiction of the person of appellee in the adoption proceeding. The sworn petition for adoption averred that

"Petitioner, DIANNA ANGELIC NAVEDA, is a minor without legal guardian, who files this Petition by her adult grandmother and next friend, ANNIE MAE LANE, and is joined in said Petition by ANNIE MAE LANE, individually, and by her adult grandfather, JOHN BRYANT LANE, JR. individually, and shows the Court that the adult Defendants are BARBARA JEAN NAVEDA and LUIS MIGUEL NAVEDA, the adult mother and father of said minor, and shows the Court that Petitioners are all resident citizens of Neshoba County, Mississippi, and have made diligent search and inquiry for the place of residence, post office address, and street address of said Defendants, and after having made said diligent search and inquiry aforesaid, that they do not know and cannot ascertain the place of residence, post office address and street address of said Defendants, and they so abscond and conceal themselves that they cannot be served with legal process in the State of Mississippi."

Upon the foregoing averment that the petitioners did not know the place of residence, post office address and street address of appellee and the father of the child, publication was made for them. (Appellee and Luis Naveda were divorced and appellee was granted custody of the child).

The petition for adoption was filed November 24, 1975. On, and prior to, that date, appellee had been, and was, a student at the University of Southern Mississippi. For some period of time, Dianna lived there with her mother and, during other times, when she was residing with her grandparents (appellants), appellee visited her and communicated with her. Appellee testified that, while a student at the University of Southern Mississippi, she left Hattiesburg on the 14th of November, 1975, for the purpose of going to Mexico to act as godmother to a friend's child. She returned to Hattiesburg on November 29, 1975 and immediately communicated with the Lanes, inquiring as to the welfare of the child. She also testified that while in Mexico, she telephoned the Lanes to inform them that she had arrived there safely, but the Lanes declined to talk with her. She stated that she wanted to see the child, that Mrs. Lane told her not to come to Neshoba County, since the Lanes were leaving town, and Mrs. Lane suggested that they and Dianna meet her in Jackson at another daughter's home on December 6, 1975. That meeting occurred, appellee spent the day with the child, and Mrs. Lane never told her that an adoption petition had been filed by them, that publication had been made in the paper for her to answer the petition, and that the trial date on the petition had been set for December 19, 1975. Appellee did not learn of the adoption until some time after December 19, 1975, and she began taking steps to obtain legal representation for the purpose of setting aside the adoption decree and to obtain custody of Dianna.

Appellants argue that the lower court erred in setting aside the adoption decree in that Mississippi Code Annotated Section 93-17-15 (1972) bars the action after the elapse of a six-month period. The section states:

"No action shall be brought to set aside any final decree of adoption, whether granted upon consent or personal process or on process by publication, except within six (6) months of the entry thereof."

Mississippi Code Annotated Section 93-17-17 (1972) provides:

"For all purposes of this chapter, the chancery court shall be a court of general jurisdiction and it is declared to be the public policy of the state that no adoption proceedings shall be permitted to be set aside except for jurisdictional defects and for failure to file and prosecute the same under the provisions of this chapter."

Appellants cite Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778, 83 A.L.R.2d 941 (1960), which was decided on a five-year statute of limitations under California law. That case is not authority here, particularly since there is no provision in the California statutes that an adoption may be set aside because of jurisdictional defects.

The opinion of the lower court in the present case stated:

"I think you can look at this case in either of two aspects: Whether or not this jurisdiction was obtained fraudulently or whether the jurisdiction was obtained without proper understanding of what is required. In either event, this Court is of the opinion that the Court did not have jurisdiction of this party to begin with. There is much testimony, much documentary evidence, that the mother of this child was temporarily out of this country for a week or two, that the Petitioners could have determined a post office and street address very easily out of the country or could have located her. There is just too much communication back and forth between these parties...