Diane M. Gartrell v. M. Kay Gartrell ( 2008 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-IA-01410-SCT
DIANE M. GARTRELL, LISA LEANN GARTRELL
AVERSRUSH AND JODEY JON GARTRELL
v.
M. KAY GARTRELL a/k/a KAY GARTRELL
KIRSCHNER, EXECUTRIX OF THE ESTATE OF
DOROTHY BRYAN GARTRELL
DATE OF JUDGMENT: 08/12/2008
TRIAL JUDGE: HON. MITCHELL M. LUNDY, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: DAVID MARK SLOCUM, JR.
JOHN THOMAS LAMAR, JR.
ATTORNEY FOR APPELLEE: RICHARD C. ROBERTS, III
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: REVERSED AND RENDERED - 12/17/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2008-CA-01495-SCT
ESTATE OF DOROTHY BRYAN GARTRELL,
DECEASED, DIANE M. GARTRELL, JODEY JON
GARTRELL AND LISA LEANN GARTRELL
AVERSRUSH
v.
M. KAY GARTRELL a/k/a KAY GARTRELL
KIRSCHNER
DATE OF JUDGMENT: 08/12/2008
TRIAL JUDGE: HON. MITCHELL M. LUNDY, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: DAVID MARK SLOCUM, JR.
JOHN THOMAS LAMAR, JR.
ATTORNEY FOR APPELLEE: RICHARD C. ROBERTS, III
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: REVERSED AND RENDERED - 12/17/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Aggrieved by the chancellor’s determination that a 1984 chancery court adoption
order was void ab initio, and that, therefore, the adopted children of the decedent’s son,
William C. Gartrell, III, were not the decedent’s lawful heirs, Diane M. Gartrell, the natural
mother of the children adopted by her late husband, appeals to us. Finding that the Appellee,
M. Kay Gartrell, the sister of Diane M. Gartrell’s late husband, lacked standing to attack the
1984 adoption order, we reverse the DeSoto County Chancery Court order declaring the 1984
adoption order to be void ab initio, and we likewise reverse the order determining heirs at
law entered on August 12, 2008. Judgment is thus rendered here in favor of Diane M.
Gartrell, Lisa LeAnn Gartrell Aversrush, and Jodey Jon Gartrell.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. For the sake of clarity in today’s discussion, we begin with the identification of
various individuals. From the marriage of George Joseph Weiss (George) and Diane Mae
Weiss (Diane), two children were born, Jodey Jon Weiss (Jodey), and Lisa LeAnn Weiss
Aversrush (Lisa). After George and Diane divorced, Diane married William C. Gartrell, III
(William), who had two natural children, William C. Gartrell, IV (Will), and Cynthia Ann
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Gartrell Finn (Cindy). M. Kay Gartrell (Kay) is William’s sister. Dorothy Bryan Gartrell
(Dorothy) was the mother of Kay and William.
¶3. On November 15, 1984, the Chancery Court of DeSoto County entered a final decree
of adoption wherein Jodey and Lisa were adopted by their stepfather, William. Jodey and
Lisa thus assumed William’s surname of Gartrell. At the time of the adoption, the children
were eighteen and sixteen, respectively. The children’s natural mother, Diane (William’s
wife), joined in the petition for adoption. William died testate on October 10, 2002, survived
by Diane, his two natural children (Will and Cindy), and his adopted children, Jodey and
Lisa.
¶4. Dorothy Gartrell, the mother of William and Kay, died testate on January 12, 2003.
Dorothy’s will appointed Kay executrix of her estate. According to the provisions of
Dorothy’s will, Kay and William were to receive Dorothy’s real and personal property, in
equal shares, per stirpes.1 Kay, the appellee in this case, filed the Petition for Probate of Will
and Letters of Testamentary on January 24, 2003. A subsequent Petition to Determine Heirs
filed by Kay listed Dorothy’s heirs-at-law as Kay, Will, Cindy, Jodey, and Lisa.2 In an
attempt to determine the validity of the adoption, Kay sought and obtained the original
adoption decree, as well as the divorce decree and custody records between Diane and
1
“The term ‘per stirpes’ denotes a method of distribution where a class of distributees
take the share to which their deceased ancestor would have been entitled.” Jeffrey Jackson
& Mary Miller, Encyclopedia of Mississippi Law § 75:83, 61 (2002) (citing Matter of
Griffin’s Will, 411 So. 2d 766 (Miss. 1982)).
2
Pursuant to Mississippi Code Section 93-17-13 (Rev. 2004), the effect of William’s
adoption of Jodey and Lisa was that they would inherit from William “to the same extent and
under the same conditions as provided for the inheritance between brothers and sisters of the
full blood by the laws of descent and distribution of the State of Mississippi.”
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George Weiss. Based on what she considered inconsistencies in these records, Kay sought
to depose George, the natural father of Jodey and Lisa. Since George purportedly lived out-
of-state, Kay, as executrix in the probate proceedings, filed her “Petition for Commission to
Issue Subpoena Outside the State of Mississippi to George Joseph Weiss.” In this petition,
Kay asserted, inter alia, that “[i]n order to make a determination of heirship your Petitioner
needs to take the deposition of George Joseph Weiss, the biological father of Jodie Jon
Gartrell and Lisa LeAnn (Gartrell) Johnsey 3 for the purpose of determining whether he
consented to the adoption of the aforesaid children.” Via this petition, Kay requested the
DeSoto County Chancery Court to grant a commission to take the out-of-state deposition of
George. The petition likewise included George’s last known address, which was in the state
of Arizona. Pursuant to the chancellor’s entry of an order allowing the commission to take
George’s out-of-state deposition, the chancery clerk issued a subpoena pursuant to
Mississippi Rule of Civil Procedure 45.
¶5. Diane, Jodey and Lisa (collectively “the Appellants”) filed a motion to quash the
subpoena issued to George. The motion to quash was accompanied by an affidavit, dated
March 22, 2005, wherein George stated he had been aware of, and consented to, the adoption
of his children, Jodey and Lisa, by William. A subsequent corrected affidavit, however,
stated that Weiss had not been aware of the adoption at the time, but did not desire to contest
the adoption. Kay likewise filed a motion to dismiss the motion to quash. After hearing
arguments on these motions, the chancellor granted Kay’s petition, and a commission was
3
The record reveals that Lisa is sometimes referred to as Lisa LeAnn Gartrell Johnsey,
while at other times, she is referred to as Lisa LeAnn Gartrell Aversrush.
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issued for taking George’s out-of-state deposition. The Appellants petitioned this Court for
interlocutory appeal of the chancery court’s denial of the motion to quash the subpoena. The
interlocutory appeal was granted, but later dismissed as moot when Kay waived the
commission and withdrew the subpoena. Gartrell v. Gartrell, 936 So. 2d 915, 916 (Miss.
2006).
¶6. On November 22, 2005, Kay filed an Amended Petition to Determine Heirs, in which
she sought for the first time to attack the validity of the 1984 adoption and to remove Jodey
and Lisa as heirs of Dorothy. Kay filed her Second Amended Petition for Final
Determination of Heirs at Law on February 5, 2008, which sought to set aside the adoption
based on (1) lack of personal jurisdiction over the natural father (George) by the chancery
court in 1984; (2) lack of subject matter jurisdiction; (3) Weiss’s affidavits; and (4) alleged
fraud on the part of Diane in her assertions to the court in 1984 that George could not be
found or served with process.4 This Second Amended Petition was accompanied by exhibits
in the form of custody orders from a Michigan court. In this amended petition, Kay argued
that the last order in any custody proceeding between Diane and George was entered in a
Michigan court, and that under the Uniform Child Custody Jurisdiction Act (UCCJA),
Michigan retained jurisdiction over the custody of the children. Kay further argued that, since
the Michigan court had never relinquished jurisdiction as to the children’s custody, the
DeSoto County Chancery Court had never had proper subject matter jurisdiction to issue the
1984 adoption decree. Moreover, according to Kay, Diane knowingly had made fraudulent
4
See also Gartrell, 936 So. 2d at 916.
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misrepresentations to the court stating that George could not be located and that, therefore,
the chancery court in 1984 did not have personal jurisdiction as to George.
¶7. The Appellants responded by filing a Motion to Dismiss and Affirmative Defenses
and Answer to the Amended Petition for Determination of Heirs at Law. A hearing on the
petition was scheduled, but later continued. Kay filed a motion for summary judgment, to
which the Appellants filed a response. The chancery court heard oral arguments from counsel
on the motion for summary judgment on June 20, 2008, and summary judgment was granted
in favor of Kay via an order entered July 29, 2008. The chancellor entered his Order
Determining Heirs At Law of Dorothy Bryan Gartrell, Deceased on August 12, 2008. The
order provided, inter alia, that Jodey and Lisa were not heirs of Dorothy, because the 1984
adoption was obtained from a court that lacked jurisdiction.
¶8. In today’s appeal, the Appellants, Lisa, Jodey, and Diane, raise the following
assignments of error: (1) whether the DeSoto County Chancery Court had jurisdiction over
the adoption in 1984; (2) whether the chancellor erred in allowing Kay to attack collaterally
a final decree of adoption entered twenty-five years ago; and (3) whether the principles of
equity and judicial estoppel preclude Kay’s attack on the adoption. As to issue three, the
Appellants argue that Kay is estopped from collaterally attacking the adoption because Kay
obtained a dismissal of the interlocutory appeal on the basis that she was not contesting the
adoption of Jodey and Lisa, and yet later renewed her collateral attack on the adoption in an
amended petition. They argue that, by changing her position, she cannot now attack the
adoption.
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¶9. We agree with the Appellants that Kay did not have standing to attack the 1984
adoption; thus, we find it unnecessary to address the Appellants’ other issues. We turn now
to the dispositive issue in this case.
WHETHER THE CHANCELLOR ERRED IN ALLOWING KAY
GARTRELL TO ATTACK A FINAL DECREE OF ADOPTION
ENTERED TWENTY-FIVE YEARS AGO.
¶10. Summary judgment should be granted only if the pleadings, discovery materials,
depositions, and affidavits show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). This
Court conducts a de novo review of a trial court's decision on a motion for summary
judgment. Mabus v. St. James Episcopal Church, 13 So. 3d 260, 263 (Miss. 2009) (citing
Smith v. Gilmore Mem'l Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007)). The question of
standing is a question to which this Court applies a de novo standard of review. Dep’t of
Human Servs. v. Gaddis, 730 So. 2d 1116, 1117 (Miss. 1998).
¶11. The Appellants argue that Kay lacks standing to have the adoption set aside because
she is not one of the natural parents. Mississippi Code Section 93-17-7 reads, in pertinent
part: “No infant shall be adopted to any person if either parent, after having been summoned,
shall appear and object thereto before the making of a decree for adoption . . . .” Miss. Code
Ann. § 93-17-7 (Rev. 2004). Mississippi Code Section 93-17-5 lists both parents as
necessary parties to adoption proceedings. Miss. Code Ann. § 93-17-5 (Rev. 2004). The
Appellants point out that at no time did George, the children’s natural father, object to, or
attempt to set aside, the adoption.
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¶12. Historically, proceedings for adoption were unknown at common law, and have been
purely statutory in nature. Matter of Adoption of A Minor, 558 So. 2d 854, 856 (Miss. 1990)
(citing Brassiell v. Brassiell, 228 Miss. 243, 250, 87 So. 2d 699, 700 (1956)). “[O]nly a
natural parent has a statutory right to object to the adoption of a child.” In re Estate of Reid,
825 So. 2d 1, 7 (Miss. 2002) (citing In re Adoption of J.J.G., 736 So. 2d 1037, 1040 (Miss.
1999); Miss. Code Ann. § 93-17-7 (Rev. 1994)). This Court has affirmed the chancery
court’s judgment due to lack of standing in cases in which natural grandparents sought either
to object to adoption proceedings or to set aside an adoption. J.J.G., 736 So. 2d at 1040. See
also Matter of Adoption of A Minor, 558 So. 2d at 855.
¶13. Both parties bring to our attention that this Court, in In re Estate of Reid, 825 So. 2d
1 (Miss. 2002), noted one exception to the general rule that only natural parents have
standing to object to adoption proceedings. Kay cites this case for the premise that an heir
of an estate was recognized by this Court as having standing to attack collaterally a fifteen-
year-old adoption decree wherein an adult male was adopted by his elderly benefactor, on
the basis that the adoption was obtained by fraud and overreaching. Id. at 7. On the other
hand, the Appellants distinguish the facts in today’s case from those in Reid on the basis that
this Court allowed the challenge to the adoption in Reid only because the adoptee had
committed fraud on the adoption court based on evidence that the adoptee – an adult male
who stood to inherit all of his adoptive mother’s property – had used undue influence in
securing the adoption and drafting the will of his adoptive mother. Id. at 8.
¶14. In Reid, a twenty-four-year-old law student by the name of Michael Cupit developed
a close relationship with seventy-eight-year-old Reid. Id. at 3. During the course of this
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relationship, Cupit had Reid deed her property to him, helped her draft a will that devised all
of Reid’s property to him, persuaded Reid to transfer a power of attorney to him, and actively
sought out an adoption wherein Reid eventually adopted Cupit. Id. at 3-4. The adoption was
found by the chancellor to be a “long term plan and scheme” obtained by fraud and
overreaching on the part of Cupit. Id. at 7. As a result of the fraud committed upon the
adoption court, the adoption decree was set aside by the chancellor in light of the facts not
made known to the adoption court at the time of the adoption, including the deed, the
circumstances surrounding the drafting of Reid’s will, the previous attempted adoption, and
the fact that Cupit had acted as an attorney on behalf of Reid. Id. at 7-8. Based on these
facts, this Court affirmed the chancery court’s allowing Reid’s potential heir to collaterally
attack and set aside the adoption. Id. at 7. In doing so, this Court reasoned:
We recognize that the adoption of children is sacred, and the finality of
adoptions is of the utmost necessity. However, we are not dealing with the
adoption of a child in this case. We are dealing with an adult man, with a law
degree, who gained the trust and dependence of an elderly lady. Other states
have recognized this problem and found that the heirs of a deceased person
who adopted an adult do have standing to attack the adoption. In re Sewall,
242 Cal. App. 2d 208, 51 Cal. Rptr. 367, 378 (1966); Greene v. Fitzpatrick,
220 Ky. 590, 295 S.W. 896 (1927); Raymond v. Cooke, 226 Mass. 326, 115
N.E. 423 (1917).
Id.
¶15. We agree with the Appellants that the facts of today’s case are easily distinguishable
from those in Reid. The Appellants in today’s case are the stepchildren and wife of William
Gartrell, III. Jodey and Lisa were adopted by their stepfather, William, while still teenagers.
The record shows that George, the children’s natural father, had terminated support of his
natural children five years prior to the 1984 adoption. In Reid, this Court explicitly stated:
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“Let it be clear that our findings concerning the adoption in this case are specific to the facts
of this case.” Id. Therefore, Reid should not be interpreted as giving standing, carte blanche,
to persons other than natural parents in attempting to set aside adoptions.
¶16. Kay has maintained throughout the proceedings in the trial court, and now makes
assertions in her brief, that Diane committed a fraud upon the court when she informed the
chancery court in 1984 that the whereabouts of the children’s natural father were unknown
after diligent search and inquiry, and that he could not be made a party to the adoption
proceedings. The chancery court, however, in its August 12, 2008, Order Determining Heirs
At Law of Dorothy Bryan Gartrell, made no such finding that fraud had been committed
upon the chancery court issuing the 1984 adoption decree.
¶17. For the reasons stated, we hold that Kay Gartrell lacks statutory standing to set aside
the 1984 adoption decree because she is not one of the natural parents of Lisa and Jodey, and
she was not a necessary party to the original proceedings. We thus find this assignment of
error has merit. Since this issue is dispositive, we deem it unnecessary to address the
remaining issues asserted by the Appellants.5
CONCLUSION
¶18. Because Kay Gartrell lacked standing to attack collaterally the 1984 adoption of Jodey
and Lisa by their stepfather, William Gartrell, the chancellor erred in declaring the 1984
5
Twice in their brief, the Appellants assert that they are entitled to an award of
expenses and attorney’s fees from the Appellee; however, this claim is neither assigned as
an issue, nor is there any citation of authority to undergird this claim. Thus this argument
is barred. Grenada Living Ctr., LLC v. Coleman, 961 So. 2d 33, 37 (Miss. 2007) (citing
Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994)).
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adoption decree to be void ab initio, and in determining that the sole heirs-at-law of Dorothy
Bryan Gartrell were M. Kay Gartrell, William C. Gartrell, IV, and Cynthia Ann Gartrell Finn
(Cindy), thus excluding Jodey Jon Gartrell and Lisa LeAnn Gartrell Aversrush as heirs-at-
law of Dorothy Bryan Gartrell. Based on the record before us and the applicable law, we
today make the pronouncement that at the time of the death of Dorothy Bryan Gartrell, her
heirs-at-law were M. Kay Gartrell, William C. Gartrell, IV, Cynthia Ann Gartrell Finn, Jodey
Jon Gartrell, and Lisa LeAnn Gartrell Aversrush.
¶19. In sum, for the reasons stated, the judgment of the Chancery Court of DeSoto County
is reversed, and judgment is entered here in favor of the Appellants, Diane M. Gartrell, Lisa
LeAnn Gartrell Aversrush, and Jodey Jon Gartrell, consistent with this opinion.
¶20. REVERSED AND RENDERED.
WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.
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