Gartrell v. Gartrell
| Docket Number: | 2008-IA-01410-SCT Linked Case(s): 2008-IA-01410-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-17-2009 Opinion Author: Carlson, P.J. Holding: Reversed and rendered |
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| Additional Case Information: |
Topic: Wills & estates - Standing to have adoption set aside - Section 93-17-5 Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Non Participating Judge(s): Lamar, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 08-12-2008 Appealed from: DeSoto County Chancery Court Judge: Mitchell M. Lundy, Jr. Disposition: The chancellor determined 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. Case Number: 03-01-0164 |
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| Consolidated: Consolidated with 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; DeSoto Chancery Court; LC Case #: 03-01-0164(ML); Ruling Date: 08/12/2008; Ruling Judge: Mitchell Lundy, Jr. | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DIANE M. GARTRELL, LISA LEANN GARTRELL
AVERSRUSH AND JODEY JON GARTRELL |
DAVID MARK SLOCUM, JR., JOHN THOMAS LAMAR, JR. |
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| Appellee: | M. KAY GARTRELL a/k/a KAY GARTRELL KIRSCHNER, EXECUTRIX OF THE ESTATE OF DOROTHY BRYAN GARTRELL | RICHARD C. ROBERTS, III | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Standing to have adoption set aside - Section 93-17-5 |
| Summary of the Facts: | From the marriage of George Joseph Weiss and Diane Mae Weiss, two children were born, Jodey Jon Weiss and Lisa LeAnn Weiss Aversrush. After George and Diane divorced, Diane married William C. Gartrell, III, who had two natural children, William C. Gartrell, IV, and Cynthia Ann Gartrell Finn. M. Kay Gartrell is William’s sister. Dorothy Bryan Gartrell was the mother of Kay and William. 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. 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. Kay 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. 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 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.” The petition 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 M.R.C.P. 45. Diane, Jodey and Lisa 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 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 issued for taking George’s out-of-state deposition. The Appellants petitioned the Supreme 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. 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. 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, 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. The Appellants responded by filing a Motion to Dismiss and Affirmative Defenses and Answer to the Amended Petition for Determination of Heirs at Law. Kay filed a motion for summary judgment, to which the Appellants filed a response. Summary judgment was granted in favor of Kay. The chancellor entered an order providing, inter alia, that Jodey and Lisa were not heirs of Dorothy, because the 1984 adoption was obtained from a court that lacked jurisdiction. Lisa, Jodey, and Diane appeal. |
| Summary of Opinion Analysis: | The Appellants argue that Kay lacks standing to have the adoption set aside because she is not one of the natural parents. Section 93-17-5 lists both parents as necessary parties to adoption proceedings. The Appellants point out that at no time did George, the children’s natural father, object to, or attempt to set aside, the adoption. Only a natural parent has a statutory right to object to the adoption of a child. 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. Kay has maintained throughout the proceedings 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, made no such finding that fraud had been committed upon the chancery court issuing the 1984 adoption decree. 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. |
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