Stickler v. Mack

• Decision Date: 23 January 1985
• Docket Number: No. 1-684A150,1-684A150
• Citation: Stickler v. Mack, 473 N.E.2d 621 (Ind. App. 1985)
• Parties: Steven F. STICKLER, Personal Representative of the Estate of Revonda Ann Stickler, Defendant-Appellant, v. Gregory MACK, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 621

473 N.E.2d 621

Steven F. STICKLER, Personal Representative of the Estate of Revonda Ann Stickler, Defendant-Appellant, v. Gregory MACK, Plaintiff-Appellee.

No. 1-684A150.

Court of Appeals of Indiana First District.

Jan. 23, 1985.

Thomas V. Easterday, Randolph A. Leerkamp, Lawrence, Carter, Gresk, Leerkamp & Walsh, Indianapolis, for defendant-appellant.

Frederick N. Kopec, Hostetter & Kopec, Brownsburg, William E. Beck, II, Martin & Beck, Kokomo, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

This action is an interlocutory appeal of the trial court's denial of Steven Stickler's (Steven) motion for summary judgment. The cause originated as a wrongful death action brought by the natural father (Gregory Mack) of a deceased minor child.

We reverse.

STATEMENT OF THE FACTS

On October 13, 1983, Stephanie Caro Ann Stickler, an unemancipated minor, died in an automobile accident near Chattanooga, Tennessee. At the time of the accident, she was a passenger in an automobile driven by her mother, Revonda Ann Stickler. Revonda had legal custody of Stephanie since August 4, 1981. Revonda was divorced from Gregory Mack, the natural father of Stephanie on February 13, 1974. Stephanie was adopted by Steven, Revonda's husband, on December 21, 1981.

This wrongful death action was filed by Mack, who alleges that he was the legal custodian, natural father and surviving parent of Stephanie. He seeks damages for the wrongful death of Stephanie from the estate of Revonda Ann Stickler.

Steven, personal representative of the estate of Revonda Ann Stickler, filed a motion for summary judgment on the ground that Gregory Mack had no standing or capacity to bring this wrongful death action since Mack's parental rights terminated when Stephanie was adopted by Steven. Attached to the motion was a certified copy of the decree of adoption showing that Stephanie was legally adopted by Steven on December 21, 1981, and that custody of Stephanie had been given to Revonda on August 4, 1981; a copy of the original Letters of Administration showing that Steven F. Stickler was duly appointed as administrator of the estate of Stephanie; and a certified copy of the certificate of death for Revonda.

Mack filed a brief in opposition to defendant's motion for summary judgment in which he argued that the adoption decree was void. Filed simultaneously with the brief were three affidavits. The affidavit of Lois Ann Ellis, the mother of Revonda, states, in part, that Gregory was incarcerated in the Indiana Reformatory from April, 1980 through June, 1983, and Revonda knew of this incarceration. Gregory's affidavit states, in part, that he was the natural father of Stephanie, that he was divorced from Revonda and granted custody of Stephanie on February 8, 1974, that he was incarcerated in the Indiana Reformatory from April, 1980 through June, 1983, that Revonda and Steven knew Mack's incarceration, that he had never received notice of the adoption proceedings for Stephanie, and that he had not deserted or abandoned his daughter. The affidavit of Warren Clifford Ellis, Revonda's stepfather, is identical to the affidavit of Lois Ann Ellis.

On January 30, 1984, the trial court denied Steven's motion for summary judgment. Subsequently, the trial court denied Steven's motion to reconsider, but granted his motion to certify standing issue for interlocutory appeal.

ISSUES

Steven raises the following issues:

I. Whether the trial court erred in denying Steven's motion for summary judgment.

A. Whether Mack possesses the requisite standing or capacity to bring this wrongful death action.

B. Whether Mack can collaterally attack the adoption decree in this wrongful death action.

We will discuss the latter sub-issue first.

DISCUSSION AND DECISION

Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, show that there was no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pike County v. State, ex rel. Hardin, (1984) Ind.App., 469 N.E.2d 1188.

I. Collateral Attack.

Steven commences his argument by setting down the time-worn rule concerning void or voidable judgments "The rule is clear and of long standing that a judgment must be absolutely void on its face in order to be subject to a collateral attack."

Brindle v. Anglin, (1973) 156 Ind.App. 219, 232, 295 N.E.2d 860.

A relatively recent decision concerning the issue of whether a collateral attack may be maintained against a decree of adoption is Aramovich v. Doles, (1964) 244 Ind. 658, 195 N.E.2d 481. The facts of Aramovich are quite similar to the instant case.

In Aramovich, the appellant, a 40-year old woman, adopted at age 5, brought an action to adjudge void the adoption decree so as to bring proceedings to share in the estate of her natural father. She relied upon the contention that her natural father did not consent to the adoption and therefore, it was void and could be collaterally attacked. The Indiana Supreme Court stated the issue before it in the following way: "[m]ay we, in this collateral proceeding, go behind that judgment and determine whether or not all the facts existed with reference to the consent or non-consent of the father, upon which that court at the time could have entered the judgment of adoption?" Aramovich, supra, at 663, 195 N.E.2d 481. The court noted that there was evidence which led one to infer that the father's written consent was not filed.

Citing several authorities, the Aramovich court noted that a judgment of a court of general jurisdiction may not be impeached by evidence outside the record in a collateral attack.

"Only in a direct attack to vacate and set aside such judgment...