Presley v. Presley

1. Adoptive parents are estopped from asserting that a child is not legally adopted where they obtain the decree of adoption and take the child into the family and treat him as their own.

2, 3. The allegations charging that fraud was practiced upon the court, and that the setting aside of the decree would be for the best interest of the children, were conclusions of the pleader, were not supported by the facts appearing, and were not good against the general demurrer.

DECIDED APRIL 17, 1948. REHEARING DENIED MAY 13, 1948. Emory L. Presley filed a petition in the Superior Court of Muscogee County to have a final decree of adoption annulled and declared void. He alleged substantially: The petitioner and his wife, Mrs. Mary Moore Presley, are the foster parents of Richard Wayne Presley, age 6 years, and Lacey Obe Presley, age 1 1/2 years, by virtue of a final decree of adoption entered by this court on July 14, 1947. Mrs. Presley separated herself from petitioner on July 30, 1947, and has had custody of the foster children during all of that time. On August 9, 1947, Mrs. Presley filed suit against the petitioner for divorce, custody of the foster children, and alimony for herself and said children; that suit is still pending and no hearing has yet been had on any phase of it. The petitioner had never had any desire to adopt children, but agreed to the adoption of the two children in order to placate and please his wife who was extremely anxious to adopt them. The petitioner agreed to the adoption in the hope that his wife might be satisfied and be able to live in happiness. The petitioner signed the necessary papers and agreements for the adoption, but never attended any adoption hearing, or furnished any testimony relative thereto. Within 16 days after the decree of adoption was entered the petitioner's wife separated herself from the petitioner and took the children with her. Since the separation the petitioner has stopped drinking and has seen his wife on several occasions, and has made repeated efforts to effect a reconciliation with her, all of which have failed, and that a reconciliation is impossible and their home is completely and irrevocably broken. The welfare and interest of said children is and should be the primary consideration in the existing domestic estrangement, and the petitioner shows that it is to the best interests and welfare of the children that the adoptions should be annulled and the children be turned over to the State Department of Welfare, or some other appropriate institution, to be placed in an unbroken home where they can be reared and educated in a normal domestic atmosphere by parents whom, with the passage of time, they may come to look upon as father and mother.

By amendment the petitioner alleged that the adoption proceedings and the decree relating thereto should be annulled and rendered void for the following reasons: "A. It is to the best interest of, and to the welfare of said minor children. B. The said Mrs. Mary Moore Presley intended, had already determined and well knew, at and before the date of said final decree of adoption on July 14, 1947, that, as soon as said final decree of adoption had been entered by this court, she would take said minor children and leave petitioner . . and would promptly sue petitioner for divorce. . . The aforesaid conduct . . in procuring, obtaining and permitting said final decree of adoption to be entered under the aforesaid circumstances was a fraud on this court." The petitioner also alleged that the adoption decree, and the proceedings on which it was based, were totally void and fatally defective because of a number of irregularities in the proceedings. Copies of the proceedings and of the suit for divorce were attached to the petition and made a part thereof.

Mrs. Presley, against whom process was prayed and a rule nisi was issued, filed a general demurrer to the petition which was sustained and the petition dismissed. The plaintiff excepted to this action of the court. The plaintiff is seeking to have the decree of adoption annulled and set aside on three grounds: 1. For alleged irregularities in the proceedings leading up to the adoption decree. 2. For fraud allegedly practiced by Mrs. Presley on the court. 3. For the alleged best interest of the children. These three contentions will be considered in the order stated.

1. The plaintiff can not have the adoption decree procured by him set aside and annulled by reason of defects in the adoption proceedings instituted by him and on which the decree was obtained. "Where adoptive parents seek and obtain the decree they ask for in a court of their selection, and take the child or children so adopted into the family and treat them as their own, they and their heirs and personal representatives are estopped from asserting that the child is not legally adopted." Harper v. Lindsey, 162 Ga. 44 (2) (132 S.E. 639), Poss v.Norris, 197 Ga. 513, 517 (29 S.E.2d 705), and Mulligan v. Mulligan, 201 Ga. 444 (39 S.E.2d 699).

2. The allegations made by the plaintiff to show that Mrs. Presley perpetrated a fraud upon the court in procuring the adoption decree are set out above. They charge merely that she intended to sue for divorce as soon as the adoption decree was made final, and that she did sue shortly after the decree was obtained. It is not alleged that the intention to sue for divorce was secret, or that it was withheld from the court, or was misrepresented to the court, or that it was undisclosed to the plaintiff or unknown to him. Nor is it alleged that the adoption was procured by reason of the alleged intention in the mind of Mrs. Presley. We do not think these essential allegations can be inferred from the petition which must be construed most strongly against the plaintiff in passing upon the general demurrer. "Every presumption is to be indulged to sustain a proceeding of adoption by a court of competent jurisdiction." Harper v.Lindsey, supra. It seems to us that the allegations failed to show fraud or acts or conduct by Mrs. Presley that would invalidate the decree, and that at most they amounted to mere conclusions of the pleader.

3. The final contention of the plaintiff is that the adoption decree should be set aside because "it is to the best interest of, and to the welfare of, said minor children." Without stating any facts on which to base this allegation, except that Mrs. Presley had sued the plaintiff for divorce, and that no reconciliation was possible, we think that the allegation is clearly a conclusion and was not good against the general demurrer. It was not alleged that Mrs. Presley was unfit, morally or otherwise, to have the care of said children, or that she was unable financially, with or without the help of the plaintiff, to properly support and educate said children. The grounds on which the divorce action is based are habitual intoxication and cruel treatment. The oldest child had resided with the plaintiff and the defendant for more than a year, and the youngest child since birth, when the proceedings for their adoption were begun in June, 1946. It thus appears that the oldest child had been with Mrs. Presley for about two-and-one-half years, and the youngest child all of its life, when this case was brought. The plaintiff's contention that it would now be best to take these children from Mrs. Presley, just because she has sued him for divorce, under the facts appearing, is not sustained. Many of the best men and women in the land were reared by widowed mothers. A demurrer admits only such facts as are well pleaded, and not mere conclusions. Graham v. Marks, 98 Ga. 67, 73 (25 S.E. 931). "It is an established rule of construction that conclusions based on specific allegations are to be disregarded where the particular facts alleged either contradict them or fail to support them." Green v. Spears, 181 Ga. 486, 490 (182 S.E. 913). Applying these rules to this case, the judge did not err in sustaining the general demurrer and in dismissing the action.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., andGardner, J., concur. Townsend, J., concurs specially. Felton, J.,dissents.