O.S. v. E.S., 2110621

CourtAlabama Court of Civil Appeals
Writing for the CourtPITTMAN
PartiesO.S. and J.A.S. v. E.S. E.S. v. O.S. and J.A.S.
Docket Number2110621
Decision Date19 April 2013

O.S. and J.A.S.
O.S. and J.A.S.



OCTOBER TERM, 2012-2013
Dated: April 19, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeals from Walker Circuit Court


This case requires us to determine whether a circuit court presiding over a 2010 divorce action between parties whose biological child was adopted by the child's paternal

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grandfather and his wife in 2008 had subject-matter jurisdiction to set aside the probate court's adoption judgment on account of fraud on the court and, if so, whether the circuit court was presented with evidence from which it could have found the existence of such fraud.

Factual and Procedural History

B.O.S. ("the husband") and E.S. ("the wife") began living together in 2005. Their union produced a daughter, B.T.S. ("the child"), in August 2006; the couple married in March 2007. The husband, the wife, and the child lived in a mobile home next door to O.S., the child's paternal grandfather ("the grandfather"), and his wife, J.A.S. ("the stepgrandmother") (hereinafter sometimes referred to collectively as "the grandparents"). The evidence was undisputed that the grandparents had given the husband and the wife financial assistance and that the child had spent substantial time with the grandparents.

In January 2010, the husband and wife separated. The wife took the child and went to stay with her parents. On February 3, 2010, the husband filed a complaint seeking a divorce. The complaint alleged, among other things, that one

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child had been born to the couple but that the child had been adopted by the grandparents in 2008 after the husband and the wife had "signed over all parental rights" to the grandparents. The complaint requested that the child be removed from the physical custody of the wife and returned to the adoptive parents -- i.e., the grandparents -- immediately.

The grandparents moved to intervene in the divorce action, asserting that they were the child's adoptive parents and seeking immediate pendente lite physical custody of the child. On February 4, 2010, the circuit court issued an order allowing the grandparents to intervene in the action, granting their request for pendente lite custody of the child, and directing the wife to return the child to them immediately.

The wife answered the husband's complaint and filed a "counterclaim and independent action" against the grandparents, seeking to set aside a final judgment of adoption rendered on March 11, 2008, by the Probate Court of Walker County. The wife alleged that the grandfather had fraudulently induced her to consent to "something that was similar to an adoption but was not an adoption, so that the child might receive college assistance in the future." The

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wife further alleged that the grandfather had assured her that, if she consented to his proposal, "nothing would change" and she would always be the child's mother. The wife acknowledged that she had signed a document labeled "consent for adoption" in the office of an attorney for the grandfather, but, she alleged, nothing had been explained to her, she had not been assisted by her own attorney, and she had not been given copies of the documents she had signed. Further, the wife alleged that the grandparents had falsely asserted in their adoption petition that the child had "resided in the [grandparents'] home since [the child's birth on] August 31, 2006," thereby perpetrating, the wife claimed, a fraud on the probate court.

The grandparents answered the wife's claim, asserting that an independent action seeking to set aside a probate court's adoption judgment could properly be filed only in the probate court and that the circuit court had no subject-matter jurisdiction to consider the matter. The grandparents also asserted that the wife's claim was barred by the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975,

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specifically, § 26-10A-14(a), Ala. Code 1975, which provides, in pertinent part:

"(a) The consent [to an adoption]..., once signed or confirmed, may not be withdrawn except:
"(2) .... After one year from the date a final decree of adoption is entered, a consent ... may not be challenged on any ground, except in cases where the adoptee has been kidnapped."

(Emphasis added.)

The wife and the grandparents filed cross-motions for a partial summary judgment on the issue of the circuit court's jurisdiction to set aside the judgment of adoption. Citing Ala. Code 1975, § 26-10A-16(a) (requiring that an adoption petition be "signed, and verified by each petitioner"), the wife argued that, in addition to the ground of fraud on the court, the circuit court could set aside the adoption judgment on the ground that the judgment was "void on its face" because the grandparents' adoption petition was unverified. The circuit court entered a partial summary judgment in favor of the wife on the jurisdictional issue and then conducted an evidentiary hearing on the merits of the wife's claim.

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At the hearing, the wife testified that in November 2005, soon after she had learned that she was pregnant with the child, the grandfather had informed her that if she signed certain papers, her child would be able to "go to college for free," using his veteran's benefits. According to the wife, the grandfather stated that he was proposing something "like an adoption," but, he said, "nothing would ever change, that [the wife] would always be [the child's] mother, and [the child] would always stay with [the husband and the wife]." The wife stated that the grandfather had asked her not to tell anyone about his proposal to adopt the child.

The wife testified that, after having considered the grandfather's proposal, she had agreed to the proposal because she had thought it would give the child a better life. She acknowledged that she had gone to a lawyer's office and had signed papers shown to her by a woman in the lawyer's office, but, she said, she had not read the documents or been given a copy of them. The wife testified that, after she had signed the papers, the grandfather's statement that "nothing would ... change" proved to be true in fact. Nothing did change, she said -- the child still resided with the husband and her

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and regularly visited with the grandparents -- until she and the husband separated.

The husband testified that the grandfather had first proposed adoption when the child was about a year old. At that time, the husband said, the grandfather had not referred to the proposal as "something like an adoption," and the husband had understood that an adoption meant giving up rights to a child. On cross-examination, however, the husband acknowledged that the grandfather had told him that the adoption would be, in effect, "a paper adoption only" and that the husband and the wife would continue to be the child's parents. The husband stated that he and the wife had discussed the grandfather's proposal and that they had eventually decided that adoption would be in the child's best interest because, they thought, the child would have the advantage of the grandfather's veteran's benefits. The husband said that, on August 13, 2007, he and the wife had gone to a lawyer's office where a woman had presented each of them with two documents -- a "consent for adoption" and an "affidavit of natural parent" -- that they had read and signed The husband said that he and the wife had been shown

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no other documents, including the grandparents' petition for adoption, nor had he and the wife spoken with the lawyer who drafted the documents or had their own lawyers.

The stepgrandmother testified that, during a week when she and the grandfather had been separated, she had written a letter to her attorney, requesting that she be removed as a party from the instant litigation. She acknowledged that she had arranged for the wife to read the letter and that she had told the wife that "it was wrong" for the grandfather to take the child from the husband and the wife. The stepgrandmother stated that she had also told the wife that she had already raised one child and that she was too old to raise another child.

The grandfather denied that he had proposed "something like an adoption" to the wife, but he admitted that he had told the wife that, after the adoption, she would continue to be the child's mother and that "things would go on just as usual." The grandfather explained that it was usual for the child to "reside" in both his home and in the home of the husband and the wife, and, he insisted, the child was with him more than half the time. He admitted, however, that he had

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not informed the probate court in his petition for adoption that the child had resided anywhere other than with the grandparents since her birth.

On cross-examination, the grandfather acknowledged that his brother had adopted that brother's...

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