Venables v. Ayres

• Decision Date: 04 May 1983
• Docket Number: No. 1382,1382
• Parties: Joseph Eugene VENABLES also known as Joseph Venables Ayres v. John J.B. AYRES.
• Court: Court of Special Appeals of Maryland

Page 520

54 Md.App. 520

459 A.2d 601

Joseph Eugene VENABLES also known as Joseph Venables Ayres v. John J.B. AYRES.

No. 1382.

Court of Special Appeals of Maryland.

May 4, 1983.

Walter D. Webster, Salisbury, with whom were Webster, Walsh & Spery, Salisbury, on the brief, for appellant.

Fulton P. Jeffers, Salisbury, with whom were Hearne & Bailey, P.A., Salisbury, on the brief, for appellee.

Argued before LOWE, WILNER and ALPERT, JJ.

WILNER, Judge.

This is an extraordinary case that is complicated by an unusual statute. It presents to us two questions:

(1) Can a dead person become an adoptive parent; i.e., is a decree of adoption valid if entered after the adoptive parent has died; and

(2) If such a decree is invalid, has the Legislature nevertheless insulated it against collateral attack after the expiration of one year?

On October 21, 1975, Denward Collins Ayres, then sixty-one years old, filed a petition in the Circuit Court for Wicomico County in which he sought to adopt appellant, his forty-one year old stepson. The petition was prepared by a Salisbury attorney, Walter D. Webster, who attached to it the written consents of appellant's mother, then the petitioner's wife, and appellant.

The petition alleged that appellant's father had disappeared in 1936 and was presumed to be dead. Nonetheless, in an apparent attempt to avoid any subsequent challenge should the natural father still be alive, the parties decided to give public notice of the proceeding in accordance with Maryland Rule D74. Upon petitioner's motion, however (also prepared by Mr. Webster), the court excused petitioner from giving the notice by publication in the newspaper (Maryland Rule 105 b.1) and instead, on October 22, 1975, issued a show cause order noting the filing of the petition and directing,

"that a copy of this Order be posted by the Sheriff of Wicomico County, Maryland, at the front door of the Court House of Wicomico County, Maryland, for a period of not less than sixty (60) days, giving notice to the public generally of the object and substance of the petition and warning anyone who may have an interest in these proceedings to show cause, if any there may be, on or before the 22nd day of January, 1976, why a Decree should not be passed as prayed."

See Maryland Rule 105 b.2.

A copy of that order was, in fact, posted on the Court House door by the sheriff on October 24, 1975.

On January 23, 1976, the attorney, Mr. Webster, presented to the court a final order of adoption, declaring appellant to be the legally adopted son of Denward Collins Ayres and changing his (appellant's) name to Joseph Venables Ayres. Mr. Webster knew at the time that he presented the order that his client, the petitioner, had died on December 4, 1975--some fifty days earlier, before even the sixty-day posting period expired--but he neglected to inform the court of that fact. ¹ Unaware of the petitioner's death and presuming that all procedural prerequisites had been satisfied, the court signed the order and then, in accordance with Maryland Rule D81, sealed the file.

On April 23, 1982--more than six years after these events occurred--John J.B. Ayres, appellee, alleging himself to be the natural son of Denward Collins Ayres, filed a petition to reopen the adoption proceeding and declare the adoption null and void. He averred that he did not become aware of the adoption until March, 1982, when, as an adopted child, appellant claimed a share in the estate of a collateral relative. ² The petition noted that Denward Ayres had died on December 4, 1975--before the order of adoption was signed, asserted upon information and belief that the court was unaware of that fact when it signed the order, ³ and argued that "the presentation of said Order to the Court after the death of Denward Collins Ayres was improper and violated the rules of procedure and ethical responsibilities applicable thereto."

Appellant, through Mr. Webster, responded to this petition with a demurrer in which he claimed that (1) there was no procedural irregularity in the adoption proceeding, (2) appellee had no standing to reopen the case, (3) Md.Code Ann. art. 16, § 79 prohibits any attempt to invalidate a final decree of adoption after one year, and (4) appellee's petition was barred by laches. The court overruled the demurrer. In an Opinion and Order entered on June 28, 1982, it stated that the court had not been notified of Denward Ayres' death prior to signing the adoption order. It concluded that it was "incumbent upon the parties to bring to the Court's attention the death of one of the primary parties to the adoption," that "[s]uch a failure is unjustified and inexcusable," and that it "suggest[s] a grave irregularity in the adoption process." Acting pursuant to Maryland Rule 625a and upon the authority of Falck v. Chadwick, 190 Md. 461, 59 A.2d 187 (1948) and McClary v. Follett, Jr., 226 Md. 436, 174 A.2d 66 (1961), the court determined that it had the power to reopen the case and vacate the adoption order.

The actual exercise of that authority came on August 31, 1982, in response to appellee's motion for summary judgment. In a further Opinion and Order, the court confirmed its earlier conclusions, declared the adoption order a nullity, and determined that, as a result, "neither [appellee's] standing nor laches are relevant questions." The court, it said, could and should declare the order null and void sua sponte, which it then proceeded to do.

In this appeal, appellant raises essentially the same issues he raised below, which we shall discuss in the context of the questions framed above.

(1) Can A Dead Person Become An Adoptive Parent?

The underlying issue here, of course, is whether the death of the petitioner--the would-be adoptive parent--abated the adoption proceeding so as to nullify, or render ineffective, any decree unwittingly entered thereafter.

The general rule regarding the abatement of equity actions derives from Md.Code Ann. Courts art., § 6-401(b) and Maryland Rule 220 b. The Code provision states that "[a] right of action in equity survives the death of either party if the court can grant effective relief in spite of the death." The Rule provides that "[a]n action in equity shall not abate by the death of a party thereto, where the right involved in the action survives." Read together, what these provisions mean is that the action survives if the right survives and the right survives if the court can continue to grant effective relief. Restated; the conclusion of this categorical syllogism is that an equity action will abate upon the death of a party unless the court can continue to grant effective relief in spite of the death.

It is self-evident that, under this standard, an adoption proceeding must necessarily abate upon the death of the would-be adoptive parent. Whether the purpose of the adoption be the normal one of assuming the deeply personal and continuing role of parent or merely to confer upon a stranger the status of heir ( see Ex Parte Libertini, 244 Md. 542, 224 A.2d 443 (1966)), it becomes incapable of fulfillment once the would-be parent has died. Upon that event, therefore, the court loses its ability "to grant effective relief." See Besche v. Murphy, 190 Md. 539, 552, 59 A.2d 499 (1948), where, in dicta, the Court stated unequivocally that "we cannot declare an adoption after the death of the [would-be adoptive parent]." ⁴ See also McCurley, Ex'r. v. McCurley, 60 Md. 185 (1883) and Corte v. Cucchiara, 257 Md. 14, 261 A.2d 775 (1970), concluding that a divorce action abates upon the death of one of the parties, and In Re Estate of Freud, 69 Misc.2d 906, 331 N.Y.S.2d 224 (1972), where, in a case remarkably similar to the one at bar, the Westchester County Surrogate's Court held, 331 N.Y.S.2d at pp. 225-26:

"The fundamental purpose of an adoption is to establish the relationship of parent and child between living human beings. The proceeding is distinctly personal in nature and, therefore, abates upon the death of either the adoptive parent or the child. The 'adoption does not become final until the order of the court ...' and can never become final if either the adoptor or adoptee dies before the order is signed. Any adoption order made thereafter whether purporting to speak nunc pro tunc or not, is necessarily void."

See also In Re Estate of Conway, 74 Misc.2d 909, 346 N.Y.S.2d 682 (N.Y.Co.Surr.Ct.1973), and cf. In Re Adoption of Bradfield, 97 N.M. 611, 642 P.2d 214 (N.M.App.1982).

The holding in Freud is entirely consistent with the pronouncements in Besche, McCurley, and Corte, and we think it is expressive of the Maryland law. Compare Mass.Gen.Laws Ann., ch. 210, § 6B and 42 U.S.C. § 416(e), as interpreted in Williams v. Richardson, 523 F.2d 999 (2d Cir.1975), in which, under certain circumstances, an adoption is statutorily permitted, or recognized, after the death of the adoptive parent.

(2) Statute of Limitations

Although conceding at oral argument that, had the court known of the death of Denward Collins Ayres, it would not have signed the adoption order, appellant nonetheless defends the attack against it on the basis of Md.Code Ann. art. 16, § 79, which is part of the State adoption law. Section 79 provides: "No attempt to invalidate a final decree of adoption by reason of any jurisdictional or procedural defect shall be received by the court, or by any court of this State, unless regularly filed with such court within one year following the entry of the final decree." (Emphasis supplied.)

Section 79 is not a particularly easy statute to interpret, especially in light of its history.

The preceding adoption law (Md.Code Ann. (1939), art. 16, §§ 78-84) contained no special provisions regarding the reopening of final decrees. By judicial construction, adoption decrees were treated in the same manner as other equity decrees; i.e., "[i]n adoption cases, as in other equity proceedings, a decree will not be revoked...