Scherer v. Scherer (In re Estate Of)

• Decision Date: 14 October 2014
• Docket Number: S-13-0281
• Citation: 2014 WY 129
• Court: Wyoming Supreme Court
• Parties: IN THE MATTER OF THE ESTATE OF: RONALD KEITH SCHERER, Deceased LILYANNA B. KNUDSON, Appellant (Petitioner), v. ROBERT LEE SCHERER II, Appellee (Respondent).

2014 WY 129

IN THE MATTER OF THE ESTATE OF:

RONALD KEITH SCHERER, DeceasedLILYANNA B. KNUDSON, Appellant (Petitioner), v. ROBERT LEE SCHERER II, Appellee (Respondent).

S-13-0281

SUPREME COURT, STATE OF WYOMING

OCTOBER TERM, A.D. 2014

October 14, 2014

Appeal from the District Court of Laramie County

The Honorable Peter G. Arnold, Judge

Representing Appellant:

John Z. Courson and Matthew D. Kaufman, Hathaway & Kunz, P.C., Cheyenne, Wyoming. Argument by Mr. Courson.

Representing Appellee:

Donald P. Prehoda, Jr. and Aaron L. Tomisich, Prehoda, Leonard & Edwards, LLC, Laramie, Wyoming. Argument by Mr. Tomisich.

Before BURKE, C.J., and HILL, KITE^*, DAVIS, and FOX, JJ.

^*Chief Justice at time of oral argument.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

BURKE, Chief Justice.

[¶1] Ronald K. Scherer died intestate in 2009. At that time, Appellant Lilyanna Knudson believed that the decedent was her biological father. She learned after his death that he was not. She filed a petition in district court seeking a determination that she was his heir. She based her claim on the judicially-created doctrine of equitable adoption. Robert L. Scherer, II,¹ brother of the decedent, filed a motion to dismiss Ms. Knudson's petition, claiming that equitable adoption is not recognized in Wyoming law and is contrary to Wyoming's probate statutes. The district court granted Mr. Scherer's motion to dismiss, and Ms. Knudson filed this appeal. We will affirm the district court's ruling.

ISSUES

[¶2] Ms. Knudson presents three issues in this appeal:

1. Does the theory of equitable adoption apply in Wyoming?

2. Do the Determination of Heirship statutes, Wyo. Stat. Ann. § 2-9-201, et seq. (LexisNexis 2009), apply only to real property?

3. If the Determination of Heirship statutes, Wyo. Stat. Ann. § 2-9-201, et seq., applies only to real property, did the district court err by dismissing Appellant's application instead of limiting the proceedings to the real property at issue?

FACTS

[¶3] When we review a district court's grant of a motion to dismiss pursuant to W.R.C.P. 12(b)(6), we accept the facts stated in the complaint or petition as true. Sinclair v. City of Gillette, 2012 WY 19, ¶ 8, 270 P.3d 644, 646 (Wyo. 2012). The facts underlying Ms. Knudson's equitable adoption claim were pleaded clearly and concisely in her petition, and we quote them here:

8. Pursuant to the doctrine of equitable adoption, Petitioner is the daughter and heir of Decedent.

9. Decedent was present at Petitioner's birth.

10. For a period after Petitioner's birth, Decedent cohabitated with Petitioner's mother.

11. Upon information and belief, during that period, Decedent believed and held himself to be Petitioner's biological father.

12. When Petitioner was a child, her mother had a paternity test performed, which showed Decedent was not Petitioner's biological father.

13. Petitioner's mother informed Decedent of the test results.

14. Nevertheless, after learning he was not Petitioner's biological father, Decedent considered Petitioner to be, and treated Petitioner as, his daughter, and held himself out as Petitioner's father.

15. From Petitioner's birth until the Decedent's death, Petitioner believed and considered Decedent to be, and treated Decedent as, her father.

16. Decedent contributed financially and emotionally to Petitioner's upbringing.

17. Among other things, Decedent provided Petitioner with the following items throughout his life:

a. Educational books and magazines;

b. Jewelry;

c. Vitamins;

d. Bicycles;

e. A collection of dolls;

f. Clothing; and

g. A vehicle.

18. Moreover, Decedent signed holiday cards he sent to Petitioner as "Your Dad." Exhibit B.

19. On numerous occasions over several years, Decedent advised Petitioner's mother that he considered Petitioner as his heir who would inherit his estate upon his death.

20. Decedent demonstrated his commitment to provide for Petitioner's welfare by making her the beneficiary of a ["Pay-on-Death"] account he held at Warren Federal Credit Union, in Cheyenne, Wyoming.

21. Upon information and belief, Decedent made no plans for his estate that benefitted anyone other than Petitioner.

[¶4] Mr. Scherer filed a motion to dismiss Ms. Knudson's petition. The district court agreed with Mr. Scherer that Wyoming law does not recognize equitable adoption, and that equitable adoption would be contrary to Wyoming's probate code, which states that "foster children and their descendants do not inherit." Wyo. Stat. Ann. § 2-4-104. The district court also ruled that Wyoming's Determination of Heirship statutes, Wyo. Stat. Ann. § 2-9-201 et seq., apply only to real property, not to personal property. It granted the motion to dismiss, and Ms. Knudson appeals that decision.

STANDARD OF REVIEW

[¶5] We set forth the applicable standard of review in Sinclair, ¶ 8, 270 P.3d at 646:

When reviewing W.R.C.P. 12(b)(6) motions to dismiss, we accept the facts stated in the complaint as true and view them in the light most favorable to the plaintiff. We will sustain such a dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any fact which would entitle him to relief.

Belden v. Lampert, 2011 WY 83, ¶ 6, 251 P.3d 325, 327 (Wyo. 2011), quoting Cramer v. Powder River Coal, LLC, 2009 WY 45, ¶ 35, 204 P.3d 974, 983 (Wyo. 2009). . . . When we interpret statutes, our goal is to give effect to the intent of the legislature, and we "attempt to determine the legislature's intent based primarily on the plain and ordinary meaning of the words used in the statute." Krenning v. Heart Mountain Irrigation Dist., 2009 WY 11, ¶ 9, 200 P.3d 774, 778 (Wyo. 2009). Statutory interpretation presents a question of law, so our review of the district court's conclusions is denovo. Id.; Sinclair Oil Corp. v. Wyo. Dep't of Revenue, 2010 WY 122, ¶ 7, 238 P.3d 568, 570 (Wyo. 2010).

DISCUSSION

[¶6] We discussed equitable adoption in depth in In re Estate of Seader, 2003 WY 119, 76 P.3d 1236 (Wyo. 2003). We explained that the doctrine is based on the theory that "[O]ne who had agreed to adopt a child during his life, but for some reason did not, for inheritance purposes alone, will be considered to have [...] adopted [the child]." Id., ¶ 10, 76 P.3d at 1240 (quoting 2 Am.Jur.2d, Adoption §43 at 918-19 (1994)). We observed the following description of equitable adoption:

While a child to be adopted pursuant to an agreement between his natural parent and the adoptive parent cannot specifically enforce its adoption by the deceased adoptive parent, nevertheless, because of the agreement, he can obtain specific enforcement of the benefits that would accrue from such adoption - this remedy is sometimes referred to as an equitable adoption. . . .

An [equitable adoption] is an equitable remedy to protect the interests of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption; the doctrine is applied in an intestate estate to give effect to the intent of the decedent to adopt and provide for the child.

Seader, ¶ 10, 76 P.3d at 1240 (quoting 2 Am.Jur.2d, Adoption, supra, § 53 at 929-30). We listed the elements of equitable adoption as:

(1) an implied or express agreement to adopt the child; (2) reliance on that agreement; (3) performance by the natural parents in giving up custody; (4) performance by the child in living in the home of, and in acting as the child of, the adoptive parents; (5) partial performance by the foster parents in taking the child into their home and treating the child as their child; and (6) the intestacy of the foster parents.

Seader, ¶ 12, 76 P.3d at 1241 (citing Lankford v. Wright, 489 S.E.2d 604, 606-07 (N.C. 1997)).

[¶7] Ms. Knudson's argument that Wyoming has recognized equitable adoption rests chiefly on an older case, Pangarova v. Nichols, 419 P.2d 688 (Wyo. 1966). In that case, Mr. Nichols' adult niece, Ms. Pangarova, lived in Bulgaria. He offered to adopt her and make her his heir if she came to Casper, Wyoming, to live with him and his wife. Id. at 690. By the time she moved to Casper, Mr. Nichols' first wife had died, and he had remarried. Mr. Nichols made a will naming Ms. Pangarova as the sole beneficiary of his estate. Id. at 693. Although she lived in the Nichols' home for a short time, Ms. Pangarova did not get along with the second wife, and soon moved to a separate apartment. Mr. Nichols later changed his will to name his second wife as his sole beneficiary. Id. at 693-94. After Mr. Nichols died, Ms. Pangarova filed an action to recover damages for breach of the contract to adopt her and make her his heir. Id. at 690-91. The district court directed a verdict against Ms. Pangarova. Id. at 691. We reversed and remanded for a new trial. Id. at 698.

[¶8] Ms. Knudson contends that Pangarova establishes equitable adoption as a viable doctrine in Wyoming. However, as we discussed in Seader, our decision in Pangarova is not quite that simple.

In reversing and remanding for a new trial, this Court emphasized that the alleged contract did not deal solely with adoption, but promised that the uncle would make the niece his heir. We concluded that "[s]uch contracts are not uncommon in the case of minor children and are 'generally construed to impose upon the adoptive parent an obligation to make the child an heir, which equity will specifically enforce.'" [Pangarova, 419 P.2d] at 695 (quoting R.P. Davis, Annotation, Specific Performance of, or Status of Child Under, Contract to Adopt Not Fully Performed, 171 A.L.R. 1315, 1318 (1947)). This quoted language, taken from an annotation concerning enforcement of a contract to adopt, appears to be at least an indirect acceptance

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