Wunderlich v. Alexander, CA 02-250.

• Decision Date: 18 December 2002
• Docket Number: No. CA 02-250.,CA 02-250.
• Citation: 80 Ark. App. 167,92 S.W.3d 715
• Parties: Gerhard WUNDERLICH and Nanett Wunderlich v. Rebecca Sue ALEXANDER.
• Court: Arkansas Court of Appeals

92 S.W.3d 715

80 Ark. App. 167

Gerhard WUNDERLICH and Nanett Wunderlich v. Rebecca Sue ALEXANDER.

No. CA 02-250.

Court of Appeals of Arkansas, Divisions I, II and III.

December 18, 2002.

Bart Ziegenhorn, West Memphis, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

Ralph C. Goza, Camden, for appellant.

Eugene D. Bramblett, Camden, for appellee.

JOHN E. JENNINGS, Judge.

Appellants, Gerhard and Nanett Wunderlich, appeal from an order setting aside the decree in which they adopted their granddaughter. For reversal, appellants contend that the trial court erred in setting aside the decree past the one-year period set out in Ark.Code Ann. § 9-9-216(b) (Repl.2002); that the trial court's finding of fraud is clearly erroneous; and that the trial court erred in proceeding without the child's natural father because he was a necessary and indispensable party. We find no reversible error and affirm.

Appellee, Becky Alexander, gave birth to the child, W.W., on September 26, 1993, during her twenty-month marriage to William Roy Duncan. Becky and Mr. Duncan separated when W.W. was six weeks old, and Becky and the child moved into the home of Becky's mother and stepfather, the appellants Nan and Jerry Wunderlich. When Becky and Duncan divorced in July 1994, Becky was awarded custody of W.W., and Duncan was ordered to pay $200 a month in child support.

In April 1996, the Office of Child Support Enforcement filed a claim against Duncan for unpaid child support. In that action, Duncan filed a counterclaim seeking visitation with the child. Becky and Ms. Wunderlich visited with an attorney, and it was decided that appellants would adopt the child. It is undisputed that the sole reason this avenue was chosen was to extinguish Mr. Duncan's parental rights and thereby prevent him from having any contact with the child. To that end, Becky signed a release in favor of Duncan in which she agreed to forgo collecting future child support in exchange for Duncan's consent to the adoption. With Becky and Duncan's consent, appellants adopted W.W. by decree dated July 30, 1996.

As before the adoption, Becky and W.W. continued to reside with appellants until June 1999 when Becky married Joe Alexander, at which time Becky and the child went to live with Mr. Alexander. Although the child lived with Becky and her husband, the child stayed with appellants most weekends. Becky and Mr. Alexander had a daughter of their own in the spring of 2000.

On April 27, 2001, the parties fell into disagreement over the payment of debts Becky had incurred for the purchase of property retained by appellants, and appellants thereafter refused to allow Becky to see the child. On June 8, 2001, Becky filed this petition to set aside the adoption decree on grounds of fraud. Appellants moved to dismiss the petition because it was filed outside the one-year limitations period for challenging adoptions, and they also moved to join Mr. Duncan as a necessary and indispensable party. After hearing testimony, the trial court denied appellants' motion to dismiss and granted Becky's petition to set aside the adoption.

Appellants' first argument is that the trial court erred in setting aside the adoption after one year. Arkansas Code Annotated section 9-9-216(b) (Repl.2002) sets out the limitations period for contesting adoptions and provides as follows:

(b) Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. [Emphasis added.]

At issue in this case is whether appellants had "taken custody" of the child so as to permit the adoption decree to be set aside beyond the one-year period. The question of whether adoptive parents have "taken custody" is one of fact. See Coker v. Child Support Enforcement Unit, 69 Ark.App. 293, 12 S.W.3d 669 (2000). The decision of a probate judge will not be disturbed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Cassat v. Hennis, 74 Ark.App. 226, 45 S.W.3d 866 (2001).

At the hearing, Becky testified that she and Duncan had divorced because he had a drinking problem and was abusive. She said that W.W. was two-and-a-half years old when Duncan filed the counterclaim requesting visitation and that the child had never seen him. She testified that they were all alarmed at the prospect of Duncan obtaining visitation with the child. Becky said that her first idea was to ask the child-support enforcement unit to drop its case against Duncan, but she said that appellants told her that the enforcement unit would not do that. She said that appellants brought up the idea of an adoption before she and Ms. Wunderlich consulted with the attorney. Becky testified that she had not wanted an adoption and that she had expressed this to Ms. Wunderlich at the attorney's office. Becky testified that Ms. Wunderlich told her that, "I promise, I will never take your daughter away from you. You will always be her mother. If you remarry, your husband can adopt her." Becky said she agreed to the adoption based on her mother's assurances. She described it as a "pretend adoption" and said that the adoption was not to change anything in terms of her being W.W.'s mother. She testified that, in fact, nothing did change. The child referred to Becky as "mommy," and called appellants "papa" and "grandma." She said that she and W.W. continued to share a bedroom in appellants' home and that she attended to the child's day-to-day needs and was her primary caretaker as she had been before the adoption. Becky testified that Ms. Wunderlich never told her what she could or could not do with the child and that she was in control of her daughter. She said that Ms. Wunderlich had advised the principal and teacher when they enrolled W.W. in kindergarten that Becky was the child's mother and was responsible for her. Becky was listed as the child's primary emergency contact at the school, and the child's report cards were directed to and signed by Becky. Becky testified that she worked and contributed to the household expenses. She said that she paid for W.W.'s medical care except for the child's tonsillectomy, which was covered by appellants' insurance. Becky testified that it was not an issue for her to have taken W.W. with her when she remarried and that it was not even a topic of discussion.

Robin Gramly, Becky's sister and Ms. Wunderlich's daughter, testified that she had spoken with her mother about the adoption and that her mother told her that the adoption was "on paper only" and that it was strictly a way to keep Mr. Duncan from seeing W.W. Ms. Gramly also said that her mother assured her that the adoption would not change the relationship between Becky and the child and that the adoption would be reversed when Becky remarried or became financially stable. Gramly said that Becky was primarily responsible for the child both before and after the adoption and that there was never any question about whom W.W. would live with when Becky remarried.

Brenda Lee Stegeman, who was once married to Becky's brother and Ms. Wunderlich's son, testified that Ms. Wunderlich told her in reference to the adoption that "I'm the grandmother. Becky is the mother." Ms. Wunderlich also told her that the adoption would be undone if Becky remarried or got on her feet financially. Ms. Stegeman said that Becky was always the child's mother and that the adoption did not change the way the child was cared for.

Ms. Wunderlich testified that Becky was upset and asked for advice when Duncan filed the counterclaim for visitation. She accompanied Becky to a lawyer's office, and she said that the lawyer told them that the adoption would be the best thing to do since Becky and the child already lived with them. She testified that the purpose of the adoption was to get Duncan out of the child's life and that there was never an intent to take the child away from Becky. Ms. Wunderlich testified that she considered W.W. to be her grandchild after the adoption and that the adoption changed nothing in terms of how the child was cared for. She said that everyone in the community knew that W.W. was Becky's child. Ms. Wunderlich agreed that she had explained to the school principal and teacher that Becky was W.W.'s mother, and she said that Becky was responsible for the child at school. She also testified that it was understood that W.W. would live with Becky when she remarried. She said that, after Becky's marriage, the child stayed with them most weekends when Becky had no other plans for her, and she agreed that Becky had control and that it was up to Becky whether they kept the child on weekends.

Based on these peculiar facts and circumstances, we believe the trial court could find that appellants had never taken custody of the child. Becky and W.W. had lived with appellants since the child was six weeks old, and they continued to live with appellants after the decree just as they had before the adoption. The testimony was clear that the parties' respective relationships with the child did not change with the adoption and that appellants did not consider W.W. to be their child or hold the child out to be their own in the community. It is equally clear that Becky and the child lived with appellants as a matter of convenience and familial affection and that they remained in appellants' home after the adoption for those same reasons and not because ap...