Swaffar v. Swaffar
| Decision Date | 30 March 1992 |
| Docket Number | No. 91-208,91-208 |
| Citation | 827 S.W.2d 140,309 Ark. 73 |
| Parties | Eddie Linn SWAFFAR, Jr. and Billy Gracen Swaffar, Appellants, v. W.C. SWAFFAR, et al., Appellees. |
| Court | Arkansas Supreme Court |
J.R. Nash, Little Rock, for appellants.
M. Stephen Bingham, Little Rock, for appellees.
The appellants, Eddie Linn Swaffar, Jr., and Billy Gracen Swaffar, appeal from an order of the probate court finding that Billy Swaffar, who was also known as Billy McKim, was not a legally adopted son of the decedent, Eddie Linn Swaffar, Sr., and, therefore, not a pretermitted heir under the decedent's will. The issue on appeal is whether Billy Swaffar was legally adopted in 1977 under Act 369 of 1947, which was codified at that time as Ark.Stat.Ann. § 56-101, et seq. (Repl.1971). We agree with the probate court that he was not legally adopted, and we affirm.
The appellant was born on October 1, 1961, and named Billy Gracen McKim. His mother, Peggy McKim, married the decedent, Eddie Linn Swaffar, Sr., on March 23, 1964, and they lived in Faulkner County. Later, appellant Eddie Linn Swaffar, Jr., was born of this union. The marriage lasted fourteen years and was punctuated by many separations.
On March 1, 1977, the decedent and his wife, Peggy, filed a petition in Faulkner County Probate Court for the adoption of "Billy Gracen McKim, Jr.," by the decedent. On the same date, a hearing was held at which time the decedent expressed his desire to adopt "Billy McKim." The appellant was not present. The court inquired, 1 The decedent's attorney replied, The judge then requested an order, which the decedent's attorney prepared. The interlocutory order of adoption was entered on March 8, 1977.
Before the six-month period expired, Eddie Linn Swaffar, Sr., and his wife separated, and she moved to Saline County with Billy Swaffar. On August 1, 1977, Peggy Swaffar filed a complaint for divorce in Saline County Chancery Court in which she alleged that only one minor child, Eddie Linn Swaffar, Jr., had been born of the marriage. No mention was made of Billy Swaffar in the complaint. The divorce suit culminated, after a three-year separation, in a divorce decree that awarded Peggy Swaffar forty dollars a week for the support of the minor child, Eddie Linn Swaffar, Jr. Again, no mention was made of Billy Swaffar.
On February 17, 1989, the decedent executed his will, which placed all assets of his estate in a trust for the benefit of Eddie Linn Swaffar, Jr. and Brandon Heath Swaffar, who had been fathered by the decedent and born out of wedlock. No provision was made for Billy Swaffar, who was not named in the will. W.C. Swaffar was named the executor.
Eddie Linn Swaffar, Sr., died on April 8, 1989. On April 12, 1989, appellee W.C. Swaffar, the named executor, filed a petition for probate and appointment of personal representative in the Faulkner County Probate Court. When he learned that he was not mentioned in the will, appellant Billy Swaffar filed petitions to take against the will on grounds that he was pretermitted and, in addition, to contest the will due to undue influence practiced against the decedent by his brother, W.C. Swaffar.
On November 27, 1990, the probate court began a hearing on the petitions, at which time Billy Swaffar made the following statements:
No, there ain't a handful of people that know me as McKim; just legal documents or, you know, places of employment where I--you know, I thought I was supposed to use McKim. I never knew that I was legally adopted.
....
... You know, I knew that the process was goin' through when we left that last time, but, you know, nobody ever told me that it legally went through or, you know, you're legally a Swaffar or nothin' like that, or I'd used the name Swaffar, I'd'a never changed it. When I got married, my wife thought that she was marrying Billy Swaffar. ... Guarantee it.
When asked how he explained to his wife the name "McKim" on their marriage license, the appellant responded:
Well, I just, you know, told her--I said, "You know, I've never been legally adopted, that I know of, and to make things legal, I have to change my name back to McKim."
The appellant's attorney asked him whether he had signed anything at the time of the adoption proceeding, and he replied:
Well, I don't really know what I signed. I signed a form, one day, before I went to school, on the kitchen table, and they was talking about, you know, after we get--after you sign this, then we'll go in front of the Judge, and then you will be legally Ed's son.
Acknowledging that he never questioned anyone any further about the document, the appellant explained: "No, I didn't really assume that I was adopted." Billy Swaffar also confirmed that his mother was under the impression that he had not been legally adopted by the decedent. He then engaged in this colloquy:
Q. When was the first time you ever thought about the possibility that you were legally adopted?
A. After I heard the will. I knew something had to be done, so I went to backtracking.
The appellant testified that he never had asked an attorney to change his name legally to "Swaffar." During his school years in the Conway school district before the divorce, he went by Billy Swaffar. He had two Social Security cards issued in the Swaffar name and the McKim name. The record also reveals that he was enrolled for the 1978-79 school year in the Bryant school district under the name of "Billy McKim." As part of discovery and at trial, it was further revealed that his joint checking account with his wife bears the name McKim. He entered vocational-technical school under "Billy McKim," and his GED certificate and marriage license show him as "Billy McKim." He is listed in the telephone directory as "Billy McKim," and his wife and daughter go by the name McKim.
The probate court found in its memorandum opinion dated December 14, 1990, that Billy Swaffar "did not change his birth certificate or use the name of Swaffar until after the decedent's death and it began to appear that it would be profitable to do so." The birth certificate is dated September 26, 1989. The court further found standing on the executor's part to defend against Billy Swaffar's petitions on grounds that he was not the lawfully adopted child of the decedent.
The appellants first argue on appeal that the appellee, as executor, had no standing to challenge Billy Swaffar's adoption. The appellants, however, are misguided on this issue. The appellee objected to Swaffar's status as a pretermitted heir on grounds that he was not legally adopted. In doing so, the executor was operating well within his authority to contest the pretermitted status of a petitioner who did not qualify. Indeed, he was obligated to do so as the representative of those provided for in the will. See Clifton v. Guest, 216 Ark. 352, 226 S.W.2d 61 (1950). In short, the appellee had standing to challenge Billy Swaffar's adoptive status in his capacity as executor, which was a challenge he was required to make to protect the decedent's distributees mentioned in his will.
The crux of this case is whether the appellant, Billy Swaffar, was legally adopted in the proceedings that took place in March 1977. This court has previously described the powers and jurisdiction of the probate courts that emanated from statutory law:
The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers [as] are conferred by the constitution or by statute, or necessarily incident to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 [1976]. There is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute.
Poe v. Case, 263 Ark. 488, 490, 565 S.W.2d 612, 613 (1978). Because they are in derogation of common law, adoption statutes are strictly...
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