Stacks v. Smith, 2018-CA-01065-COA

• Court: Court of Appeals of Mississippi
• Writing for the Court: J. WILSON, P.J., FOR THE COURT
• Citation: 291 So.3d 809
• Parties: Gary Wayne STACKS, Appellant v. Daniel SMITH, Nicole Kinard Smith, and Ricky Raab, Appellees
• Docket Number: NO. 2018-CA-01065-COA,2018-CA-01065-COA
• Decision Date: 20 February 2020

291 So.3d 809

Gary Wayne STACKS, Appellant
v.
Daniel SMITH, Nicole Kinard Smith, and Ricky Raab, Appellees

NO. 2018-CA-01065-COA

Court of Appeals of Mississippi.

February 20, 2020

ATTORNEY FOR APPELLANT: TIMOTHY C. HUDSON, Columbus

ATTORNEY FOR APPELLEES: MARK G. WILLIAMSON, Starkville

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. Gary Wayne Stacks's biological daughter, B.R., was adopted without notice to Stacks while he was incarcerated. After Stacks was released and learned of the adoption, he filed a petition to set aside the adoption and for other relief. Stacks alleged that the adoption decree should be set aside because it was obtained through a fraud on the court and because he was not given notice of the proceeding or made a party. The chancery court dismissed Stacks's petition, holding that it was barred by the six-month statute of limitations for actions to set aside a final decree of adoption. Miss. Code Ann. § 93-17-15 (Rev. 2018). (Stacks filed his petition six months and seven days after the adoption decree was entered.) Stacks appeals from the dismissal of his petition.

¶2. We hold that the chancery court erred by dismissing Stacks's petition. Stacks's claim of fraud on the court would, if proven, establish a basis for setting aside the adoption notwithstanding the statute of limitations. In addition, Stacks's allegations that prior to the adoption, he had a substantial relationship with B.R. and was known to be her father would also, if proven, justify setting aside the adoption despite the statute of limitations. If Stacks had a substantial relationship with B.R. prior to the adoption, then he had a right to notice of the adoption and was a necessary party to the adoption proceeding, and the failure to notify him and join him as a party would render the adoption decree void. Because Stacks's petition alleged viable grounds for setting aside the adoption despite the expiration of the limitations period, it should not have been dismissed as a matter of law or without a hearing. Therefore, we reverse and remand for further proceedings consistent with this opinion.

FACTS¹ AND PROCEDURAL HISTORY

¶3. In 2012, Rhonda Raab gave birth to a daughter, B.R. Rhonda's then-husband, Ricky Raab, was listed as the father on B.R.'s birth certificate. Rhonda and Ricky separated at some point. The record is unclear as to when they separated or whether they ever divorced. In April 2017, Rhonda passed away. In May 2017, Daniel and Nicole Smith filed a petition to adopt B.R. in the Choctaw County Chancery Court. Apparently, the Smiths are related to Rhonda, though the record does not explain how they are related. In support of the Smiths' petition, Ricky signed under oath a "Voluntary Release of All Parental Rights and Consent to Adoption" in which he claimed to be B.R.'s "legal and biological father." The chancery court granted the petition and entered a decree of adoption on June 13, 2017.²

291 So.3d 812

¶4. On December 20, 2017, Stacks filed a "Petition to Disestablish Paternity, to Establish Paternity, for Determination of Custody, to Set Aside Adoption, and for Other Relief," naming the Smiths and Ricky as defendants. Stacks alleged that in 2011 he had a romantic relationship with Rhonda and that he was B.R.'s biological father. Stacks further alleged that "all parties ha[d] acknowledged him as [B.R.'s] natural father." Stacks alleged that Ricky had "never had any interaction with [B.R.] and ha[d] always vehemently denied his paternity to [B.R.]." Stacks alleged that he (Stacks) had "raised" B.R., that he had a "good and loving relationship" with her, and that she lived with him until she was four years old. However, in 2016, Stacks had been incarcerated for violations of the terms of his supervised release. Stacks had "reason to believe" that the Smiths had adopted B.R. after Rhonda's death while he was still in prison.³ Stacks believed that the Smiths had obtained the adoption by "defraud[ing] the [c]ourt." Stacks alleged that he was not notified of the adoption proceeding and that the Smiths "deliberately failed to name [him] as a party to the [proceeding]." Stacks "assumed" that the Smiths "purposefully misrepresented to the [c]ourt that [Ricky] was [B.R.'s] father ... or that the natural father was unknown." Stacks alleged that Ricky may have "colluded with the Smiths in representing himself to be [B.R.'s] natural father." Stacks asked the court to set aside any adoption because he "was not made a party to the [adoption] suit" and because the adoption was obtained by "an intentional misrepresentation to defraud the [c]ourt." Stacks alleged that he was "a fit and suitable person" to have custody of B.R. and that it was in her best interest for him to have custody.

¶5. The Smiths and Ricky eventually filed two different joint motions to dismiss Stacks's petition. In their first motion, they argued that Stacks's petition was barred by the statute of limitations because the petition was filed six months and seven days after a final decree of adoption was entered.⁴ In their second motion, they argued that Stacks lacked standing to contest the adoption because he had "no legal documents" or "DNA results" to show that he was B.R.'s biological father.

¶6. Stacks responded to the defendants' motions the next day. In his response, he alleged that he was present at the hospital when B.R. was born and that he and Rhonda lived together with B.R. from B.R.'s birth until April 2012. He also alleged that he and Rhonda "lived together on and off for the next four ... years, and several times when [Rhonda] moved out, the child was left in [his] care." Stacks further alleged that Rhonda told B.R. that he was her father and that he "acted as [B.R.'s] father." Stacks stated that he had been incarcerated from August 2016 to October 2017, that the Smiths adopted B.R. while he was incarcerated without notice to him, and that the defendants knew or should have known that Ricky was not B.R.'s father. Along with his response

291 So.3d 813

to the motions to dismiss, Stacks also filed a motion for DNA testing to establish paternity and a motion for an expedited hearing.

¶7. The Smiths and Ricky subsequently filed a joint answer to Stacks's petition together with a "Counter-Petition for Determination of Rights," a "Counter-Petition to Terminate Parental Rights," and a "Counter-Petition to Determine Custody." In their answer, the Smiths and Ricky denied Stacks's allegations that he was B.R.'s father and that his paternity was known to them prior to B.R.'s adoption. They stated that they denied those allegations because they had "no personal/direct knowledge to either admit or deny" them. In their counter-petitions, the Smiths and Ricky did not specifically claim that Ricky was B.R.'s biological father. In addition, they admitted that "around the date of conception," Rhonda was "rumored" to have had "an extramarital affair with a man in Ohio," was "seeing a man in Oxford," and "would also take off for days at a time, telling nobody of her whereabouts." The Smiths and Ricky alleged that the "first time any of [them] saw or heard anything about [Stacks] was after Rhonda was four of five months pregnant." They did not state what they "heard about" Stacks at that time. They argued that Stacks's petition should be dismissed. In addition, they argued that if Stacks's paternity was established, his parental rights should be terminated because, inter alia, he had deserted, abandoned, or neglected B.R.

¶8. The parties subsequently agreed to DNA testing. The test results showed a 99.99% probability that Stacks is B.R.'s father.

¶9. At a hearing on May 8, 2018, the chancellor heard arguments on the defendants' motions to dismiss; however, the chancellor refused Stacks's request to put on testimony because he concluded that the motions raised pure questions of law. On June 27, 2018, the court entered an opinion and final judgment dismissing Stacks's petition. The court ruled that the petition was barred by the statute of limitations. The court also ruled that Stacks was not entitled to notice of the adoption because Ricky had consented to the adoption and had claimed, under oath, that he was B.R.'s "legal and biological father." The court reasoned "that only the legal and presumptive father, Ricky Raab, was entitled to notice of [B.R.'s] adoption." For essentially the same reason, the court also held that Stacks lacked "standing" to object to the adoption. Stacks appealed.

ANALYSIS

¶10. A dismissal based on the statute of limitations presents a question of law that this Court reviews de novo. Anderson v. R & D Foods Inc. , 913 So. 2d 394, 397 (¶7) (Miss. Ct. App. 2005). We accept the well-pled factual allegations of the petition as true. Lagniappe Logistics Inc. , 199 So. 3d at 677 (¶5).

I. Fraud on the Court

¶11. In his petition to set aside the adoption, Stacks specifically alleged that the adoption was obtained through a fraud on the court. Moreover, Stacks's allegations that the Smiths and Ricky knowingly misrepresented to the court that Ricky was B.R.'s biological father certainly support such a claim. Nonetheless, the chancery court dismissed the petition without addressing the alleged fraud because the court concluded that the petition was barred by the statute of...