Opinion
No. 37434.
March 27, 1950.
1. Adoption — habeas corpus — petitioner's competency to sue — court of the forum.
A decree of adoption was made in a county in this state on petition of the adopting parents, residents of the county, the child being then in their custody, in which petition the natural parents, residents of Tennessee, joined. A year later the natural parents sought by habeas corpus in the same court to regain custody of the child on the ground that the natural mother was non compos mentis at the time she joined in the adoption petition and was therefore incompetent to do so: Held that the court of the forum had full jurisdiction to determine the issue of competency.
2. Insanity — adjudication in foreign state — effect in this state.
The law of the forum generally governs in determining the capacity of a party to sue or be sued and an incapacity to sue imposed by a foreign law usually will not be recognized; so that while an adjudication of insanity in another state will be conclusive on the courts of this state as of the date of the adjudication, it will have no such continuing effect as to bind our courts on the issue of the subsequent restoration of the party to sanity, and that issue may be adjudged here according to the proof of the actual facts.
3. Adoption — habeas corpus — parents or parties fully advised at time of adoption.
The natural parents who were fully advised of all the facts relied on by the adopting parents to obtain the decree of adoption and joined in the petition therefor are in no position to complain in habeas corpus of fraud in the procurement of the decree.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Pontotoc County; W.H. INZER, Chancellor.
Guy Mitchell, Sr. Jr., and R.R. Bond, for appellants.
I. The court failed to give full faith and credit to the decrees of the Probate Court of Shelby County, Tennessee, and failed to apply the laws of the State of Tennessee on question of whether the mother had consented to the adoption. Morris v. Jones, 91 Law Ed. 488; Eddie Jackson, Guardian, v. Fred H. VanDresser, 219 S.W.2d 896 (Tenn.).
II. The adoption decree was secured through fraud and can be collaterally attacked by habeas corpus proceedings. 28 C.J.S. 21; Boyle v. Griffin, 84 Miss. 48; Phillips v. Chase, 30 L.R.A. (N.S.) 165; Roberts v. Cochran, 177 Miss. 546; 171 So. 6; Weems v. Vowell, et al., 122 Miss. 342, 84 So. 240; Plummer v. Plummer, 37 Miss. 165; Christian v. O'Neal, 46 Miss. 669; Richardson v. Brooks, 59 Miss. 118; Vol. 2 C.J.S. 442; Robbins v. Waldrop, Sheriff, 182 Miss. 805, 140 So. 230; Carr v. Miller, 182 Miss. 760, 139 So. 851.
Adams Long, and Kendall Rayburn, for appellees.
The testimony shows that the father was here in Pontotoc County during all the time of the adoption proceedings, so that under the decisions the child was in Mississippi and was domiciled here but if we concede for argument's sake only that the child's domicile was still in Tennessee then the fact that the child stayed here seven days was actually living in Pontotoc County at the time gives the Mississippi Courts full jurisdiction of the child.
We quote from the Florida case of Di Giorgio v. Di Giorgio, 13 So.2d 596, as follows: "The law is and has been from time immemorial that each state is not only empowered, but is charged with the duty to regulate the custody of infants within its borders. This is true even though the parents may be residents of another state. Woodworth v. Spring, 4 Allen, (Mass.) 321, 323; White v. White, 77 N.H. 26, 86 A. 353; Hanrahan v. Sears, 72 N.H. 71, 72, 54 A. 702; Matter of Hubbard, 82 N.Y. 90, 93. For this, the residence of the child suffices, though the domicile be elsewhere. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937. The reason for this law is to protect the incompetent where they are because it is there where the protection is needed and there alone where a judicial order may be extended."
Counsel for appellants cite certain decisions, saying that the decree can be attacked collaterally by habeas corpus proceedings because of fraud, but we wish to call attention to the fact that they have neither pled fraud nor proved fraud. On the contrary, the evidence in this case shows that all the parties joined in the former decree and even went so far as to consult a lawyer and came to Mississippi on his advice so that the decree of adoption would be good under the Mississippi Law, where the fact that the mother was sane would be considered and acted upon. So, there is not the slightest chance in this case for fraud to be adjudicated by the Court. All of the proof shows that the wife was sane and that when she and the husband both entered in the case became a party to it that if any fraud was practiced it was joined in by her at a time when she fully realized what she was doing and at a time when she was actually sane.
Counsel set up three propositions of law in their brief. They discuss and develop the first two propositions and ignore the third in their brief. This is fatal to their case.
They base their appeal on the one proposition that the decree of the probate court of Tennessee under the full faith and credit clause is controlling in Mississippi. They freely admit in their testimony that Mrs. Marjorie Welch was sane at the time of the adoption proceedings, and was for two or three months prior thereto, and has been since. The proof further overwhelmingly shows that she instigated the adoption by writing the letter exhibited to the appellees, and that she conferred with her father-in-law and mother-in-law and her brother before doing so. The proof further overwhelmingly shows that she understood and appreciated what she was doing. They depend for this appeal entirely on the technical proposition that under the Tennessee law that she was conclusively presumed to be insane after a committal decree until another decree was entered emancipating her.
Sec. 1269 Code 1942 puts the jurisdiction and venue in the county in which either the adopting parents reside or in which the parents reside, both or either. In this case the adopting parents, the minor and the minor's father, were living in Pontotoc County, Mississippi, at the time the petition was filed and the decree signed. The father had been here six weeks, the baby had been here about four months, but had been taken back to Memphis and then returned to Mississippi for the adoption. The Court clearly had jurisdiction of the child. By signing the petition and consent affidavit attached thereto and sending it back to Mississippi to file and by sending the baby by its uncle and father back within the jurisdiction of this Court the mother became a party to the proceedings and entered her appearance. Truly she appeared by attorney but she also made her own appearance by signing and sending the adoption petition back for that purpose by her husband and her brother. If there was one scintilla of evidence in the record that she was actually insane at the time or did not fully know what she was doing there might be some merit in counsel's contention, but there is no such evidence. The whole record shows her sane and capable.
The law of the forum controls in adoption proceedings as to proceedings, parties and to the effect of the decree. Vol. 1, Am. Jur., Adoption, p. 627, par. 10. Also see notes 18 and 19 and authorities there cited.
The lex fori or the lex loci solutionis controls as to the capacity of the parties to a suit. See par. 60, p. 468, Vol. 12, C.J., Conflict of Laws; also Par. 14, p. 17, Vol. 47 C.J. Parties and Notes sustaining the text. Also subparagraph d, Par. 22, p. 952, Vol. 15 C.J.S., Conflict of Laws, "The law of the forum generally governs in determining the capacity of a party to sue or be sued, and an incapacity to sue imposed by a foreign law usually will not be recognized."
Next, see notes 41 and 42 and abundant authorities supporting this text. Incapacity under the laws of one state cannot be set up in another state whose laws of capacity differ therefrom, where the parties subject themselves to the jurisdiction of the Courts of the latter state. Monarch Refrigerating Co. v. Farmer's Peanut Co., 74 F.2d 790. Certiorari denied 55 S.Ct. 643, 295 U.S. 732; 79 L.Ed. 1680.
On February 23, 1949, the appellants, J.K. Welch, and his wife, Marjorie Welch, of Memphis, Shelby County, Tennessee, instituted this habeas corpus proceeding to regain the custody and care of their little girl, Christina Lynn Welch, who was then one year of age. The defendants to the proceeding are Clyde Welch, a half-brother of the child's father and a resident citizen of Pontotoc County, Mississippi, and his wife, Mrs. Pauline Welch, who had, on February 20, 1948, obtained an adoption decree in the chancery court of said County, whereby they adopted the said child as their own. The appellants, as the natural parents of the child, had joined in the petition for adoption, along with the adopting parents and the child by its next friend.
This habeas corpus proceeding is a collateral attack upon the validity of the adoption proceedings. The petition for adoption recites that J.K. Welch and Marjorie Welch, the parents of the child, are resident citizens of Shelby County, Tennessee, but it is alleged therein that the child was at that time a resident of Pontotoc County, Mississippi. The adoption decree recites a finding that the child has been in the custody of the adopting parents for about four months of her life, and the proof disclosed on the habeas corpus hearing that the child had been in Pontotoc County, Mississippi, for several weeks in the home of the adopting parents, where its father had come to live and take a job at a filling station belonging to Clyde Welch, in order that he might be with his child; that this was the situation when the petition for adoption was filed, and that the parents of the child were separated at that time as they had been on former occasions.
While the petition for the writ of habeas corpus contains no allegation of actual fraud, as a ground for the collateral attack upon the adoption proceedings, on the part of the adopting parents in procuring the decree of adoption, it is alleged in the petition for habeas corpus that when the mother of the child, the appellant, Mrs. Marjorie Welch, signed the petition for adoption at Memphis, Tennessee, on February 13, 1948, she had theretofore been adjudged a non compos mentis and committed to a state institution at Bolivar, Tennessee, which adjudication and commitment appears from the exhibits to the petition to have been done on May 24, 1947, and it is alleged that no decree of the said probate court was obtained until January 3, 1949, whereby she was adjudicated to have been restored to her sanity, although she was released from said institution one month after her commitment to the same. It is therefore contended that under the construction of the Tennessee statutes by the Supreme Court of that State, the mother of the child was conclusively presumed to be insane at the time she signed the petition for adoption, along with her husband and the adopting parents.
The proof on the habeas corpus hearing showed overwhelmingly, if not conclusively, that the said Mrs. Marjorie Welch, mother of the child, was sane at the time she signed the petition for adoption and consented for the same to be filed in the chancery court of Pontotoc County, Mississippi, for the purpose of obtaining the decree of adoption by the said adopting parents, Clyde Welch and his wife, Mrs. Pauline Welch.
(Hn 1) We are of the opinion that the chancery court of Pontotoc County, Mississippi, had full jurisdiction and authority to determine the competency and capacity of each of the petitioners in the adoption proceeding; that the law of the forum controls in determining the competency of the party to sue in the courts of this state; and that (Hn 2) while it is conclusively presumed in the courts of this state that the mother of this child was a non compos mentis at the time she was so adjudicated by the probate court in Tennessee, this conclusive presumption would not continue as against proof to the contrary in the courts of our state, since it is conceded by the parties that the presumption of the continuance of insanity under such circumstances is a rebuttable one under the law of the forum here.
In 15 C.J.S., Conflict of Laws, Section 22, page 952, it is said "The law of the forum generally governs in determining the capacity of a party to sue or be sued, and an incapacity to sue imposed by a foreign law usually will not be recognized," See also 47 C.J., page 17, Pritchard v. Norton, 106 U.S. 124, 1 S.Ct. 102, 27 L.Ed. 104; New York Evening Post Co. v. Chaloner, 2 Cir., 265 F. 204, certiorari dismissed 252 U.S. 591, 40 S.Ct. 396, 64 L.Ed. 731; Kirkland v. Lowe, 33 Miss. 423, 69 Am. Dec. 355.
The case presents one of those human tragedies where the mother of the child had lost her health and was unable to earn from her employment a sufficient income for the support of herself and the child, after becoming separated from her husband, and in her desperation she found it necessary because of these necessitous circumstances to consent that her child be adopted by someone else, and the same was done at her own instance and request. Except for the adoption proceedings, it would be conclusively presumed that it is to the best interest of this child to be with its parents who had resumed their marital relations at the time of the institution of the habeas corpus proceeding, and who are not shown to be either unfit to have its custody and care or to have abandoned it. Nevertheless, the sole question presented to us is whether or not the adoption proceedings are valid and binding on these natural parents. (Hn 3) The natural parents of this adopted child are not in position to complain of fraud in the procurement of the adoption decree, for the reason that they were parties to the petition and were fully advised of all the facts relied upon by the adopting parents to obtain such decree. They therefore failed to sustain this alleged ground for a collateral attack by habeas corpus as against the adoption proceedings.
It is our conclusion that the evidence amply supports the finding of the chancellor that the mother of the child was legally competent to join in the petition for adoption; that the sufficiency of her capacity to do so was for his determination under the law of the forum; and that he therefore did not err in failing to give full faith and credit to the adjudication of insanity in Tennessee, which may have been conclusive until there was an adjudication that sanity had been restored if the adoption proceedings had been filed in Tennessee instead of Mississippi.
From the foregoing views, it follows that we must affirm the decree of the trial court which dismissed the habeas corpus proceeding.
Affirmed.