ALDRIDGE V. MIMS, 1994-NMCA-114, 118
N.M. 661, 884 P.2d 817 (Ct. App. 1994)
STEVEN RAY ALDRIDGE, a minor, by and
through his guardian
ad litem, DORIS ALDRIDGE, Plaintiff-Appellant,
vs.
MARJORIE MIMS, Personal Representative of the Estate of
Chad Mims, deceased, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1994-NMCA-114, 118 N.M. 661, 884 P.2d 817
APPEAL FROM THE DISTRICT COURT OF
SIERRA COUNTY. Edmund H. Kase, III, District Judge
Petition for Writ of Certiorari Filed
September 12, 1994, Denied September 30, 1994
Patsy D. Reinard, Socorro, New Mexico,
Attorney for Plaintiff-Appellant.
John C. Wheeler, Truth or Consequences,
New Mexico, Attorney for Defendant-Appellee.
{1} Born out of wedlock,
Steven Aldridge (Child) was adopted in 1978 by his maternal grandparents, but
consent to the adoption was not obtained from his natural father. The maternal
grandmother attested that the adoption petition did not contain any reference
to the alleged natural father because he was very violent, and consequently the
family was afraid to approach him either for consent to adopt or to ask him to
provide support for his child. When Child's alleged natural father died
intestate in 1992, Child filed a claim of heirship and a separate suit to
establish paternity. The Estate moved to dismiss Child's claim of heirship and
paternity suit, and the district court granted the motions to dismiss in both
actions. Child appeals both dismissals, and we consolidated the cases on
appeal. We affirm.
{2} In dismissing the claim
of heirship, the district court held, inter alia:
1. STEVEN RAY ALDRIDGE is precluded from making this
claim by reason of his adoption by RAY D. ALDRIDGE and DORIS MARIE ALDRIDGE
under the final decree of adoption entered in cause number SA-77-00007 of the
Seventh Judicial District of New Mexico on March 3, 1978, said adoption having
been sufficient and complete in all respects under the law of New Mexico at
such time; and
2. An adoptive child in New Mexico is precluded from
inheriting from the estate of a natural father even if paternity of the father
is established after the adoption[.]
We conclude that both of these district court holdings
correctly state the law.
{3} Child's argument is that
he should be able to prove Decedent's paternity so that he can inherit from
both his natural parents as well as his adoptive parents. Child argues that
when the New Mexico Legislature adopted
{*663}
the Uniform Probate Code (UPC) in 1975 it was "presumed to be aware of
all existing caselaw interpreting [NMSA 1978, Section
45-2-109 (Repl. Pamp.
1989)] and have intended the same result." Citing
Stark v. Watson,
359 P.2d 191 (Okla. 1961), Child concludes, "all cases at that time held
that Section 2-109 of the 'UPC did not reveal a legislative intent to destroy
the rights of an adopted child to inherit from its natural parents.'"
{4} The flaw in this argument
is that under the UPC it is the law at the date of parent's death, not that in
effect at the time of adoption, which controls.
1
See In re Estate of Holt, 95 N.M. 412, 413,
622 P.2d 1032, 1033 (1981);
In
re Estate of Mooney, 395 So. 2d 608, 609 (Fla. Dist. Ct. App. 1981). At the
time of the alleged father's death in 1992, the New Mexico courts had already
established that, under the UPC, an adopted child inherits through the
adoptive, not the natural, parents.
{5} The New Mexico Supreme
Court interpreted Section 45-2-109 in
In re Estate of Holt. In rejecting
the attempt of a child, who had been adopted by her stepfather, to inherit from
her paternal grandmother, who died intestate, our Supreme Court stated:
The clear meaning of Section 45-2-109 is that an
adoption severs the legal rights and privileges between the adopted child and
the natural parents. From the point of adoption on, the adopted child belongs
to the adoptive parents as if he or she had been their natural child, with the
same rights of a natural child, all to the exclusion of the natural parents.
95 N.M. at 414, 622 P.2d at 1034; see also In re Estate of
Shehady, 83 N.M. 311, 491 P.2d 528 (1971); Joan H. Hollinger, et al., 2 Adoption
Law and Practice § 12-A.32 (Joan H. Hollinger ed. 1993) (adoptee does not
inherit from natural relative under Section 45-2-109).
{6} Child next urges us to,
in essence, overrule
Holt. Not only are we not at liberty to overrule
recent Supreme Court precedent,
State v. Wilson, 116 N.M. 793, 795-96,
867 P.2d 1175, 1177-78 (1994), but additionally we believe the
Holt
Court followed the accepted interpretation of UPC Section 2-109,
see, e.g.,
Cathy J. Jones,
Stepparent Adoption and Inheritance: A Suggested Revision of
Uniform Probate Code Section 2-109, 8 W. New Eng. L. Rev. 53, 53-54 (1986);
Jan E. Rein,
Relatives by Blood, Adoption, and Association: Who Should Get
What and Why, 37 Vand. L. Rev. 711, 719-20 (1984) (non-relative adoptions).
{7} Child next argues that if
the intestate succession statute can be read to divest children who are adopted
by their grandparents from the right to inherit from both natural parents, and
not so for children adopted by their stepparents, then the statute is
unconstitutional as applied. However, Child provides only policy reasons and no
legal precedent to support this contention. Issues raised in briefs that are
unsupported by legal authority need not be considered.
In re Adoption of
Doe, 100 N.M. 764, 765,
676 P.2d 1329, 1330 (1984). Moreover, this issue
has also been raised under the UPC and has been resolved adversely to Child's
position. The Florida Court of Appeals rejected a very similar equal protection
challenge to the UPC plan of substituting the adoptive parents for the natural
parents, saying:
Appellant has furnished us with an abundance of
statistical information regarding the increase of illegitimacy and the social
reasons why § 732.108 [Florida's equivalent of § 45-2-109] should be declared
unconstitutional. This argument can best be made before the Legislature which
has the obligation to decide the social consequences of legislation. However,
the statistics do nothing to convince us that there has been a denial of equal
protection. The section simply provides that an adopted person is not a lineal
descendant of his natural parent. Other provisions in the section provide that
he is a lineal descendant of his adopting parents, the consequence of which
afford him full and equal protection to inherit from his adoptive parents.
In re Estate of Donoyan, 393 So. 2d 615, 617 (Fla.
Dist. Ct. App. 1981); cf. In re Adoption of Webber, 116 N.M. 47, 50, 859
P.2d 1074, 1077 {*664} (Ct. App.) (after
expiration of period in which challenge to adoption allowed, adopted child in
same legal position as natural child), cert. denied, 115 N.M. 795, 858
P.2d 1274 (1993). As in the Florida case, Child's arguments may be appropriate
for a debate on public policy in the legislature, but they are an inadequate
foundation for a constitutional challenge to the intestacy provisions of the
UPC.
{8} Child argues that the
district court followed an improper procedure under SCRA 1986, 1-012 (Repl.
1992), for resolving this dispute. Specifically, Child argues he was prejudiced
by the district court considering the adoption petition without carefully
following the procedure for summary judgment outlined in SCRA 1986, 1-056
(Repl. 1992).
{9} On October 9, 1992, the
personal representative filed an objection to Child's claim of heirship in the
estate case and a motion to dismiss the paternity suit. On December 8, 1992,
Child filed a brief arguing "the Motion to Dismiss refers to matters
outside the pleadings, to-wit, an adoption case filed in 1977, but does not
attach affidavits with 'sworn or certified copies of all papers' referred to as
required by [SCRA 1-056(E)]." In response to Child's
"challenge," the personal representative filed a brief with an
attached endorsed copy of the 1978 final decree in the adoption case. The
personal representative also filed an affidavit attesting that, upon
information and belief, the final decree was a true copy of that "on file
with the District Court of Sierra County, New Mexico IN THE MATTER OF THE
ADOPTION OF STEVEN RAY ALDRIDGE, a minor, No. SA-77-00007."
{10} On December 24, 1992,
Child responded with an affidavit from his maternal grandmother and adoptive
mother admitting that the maternal grandparents had filed a petition to adopt
Child when he was six months old. On January 26, 1993, Child filed a
supplementary response. Rather than attacking the legality of the adoption,
however, Child argued that while he "should not be required to set aside
his adoption and thus the protection and medical benefits it is affording him,
he is willing to do so unless the court accepts his first argument, that the
adoption has no effect [sic] upon his right to inherit from his natural
father."
{11} The district court did
not enter judgment until February 23, 1993, more than two months after the
personal representative had filed the certified adoption decree and almost one
month after Child had responded with his grandmother and adoptive mother's
affidavit. Nonetheless, Child argues, "it was unfair surprise for the
court to go beyond the estate's brief and decide an issue upon law not argued
by the parties, with no right to respond once the court made its
decision." We disagree.
{12} SCRA 1-056(D)(2) allows
a party opposing a motion for summary judgment fifteen days to file a response.
Since the personal representative filed copies of the adoption petition and
decree on December 18, and Child responded with both a brief and an affidavit
on December 24, we do not understand how Child was surprised or prejudiced. The
requirement of notice and the opportunity to respond under SCRA 1-056 are
designed to protect the rights of the party opposing the motion. When the
opposing party has reasonable notice of the issues underlying a summary
judgment, together with the opportunity to be heard, and makes no specific
allegation of prejudice at that time, summary judgment is an appropriate
procedure.
See Santistevan v. Centinel Bank, 96 N.M. 730, 732,
634 P.2d
1282, 1284 (1981);
see also Electric Supply Co. v. United States Fidelity
& Guar. Co., 79 N.M. 722, 725,
449 P.2d 324, 327 (1969). The fact the
personal representative initially moved to dismiss under SCRA 1-012 does not
limit the trial court's authority to grant summary judgment.
Cf. Martinez v.
Logsdon, 104 N.M. 479, 482-83,
723 P.2d 248, 251-52 (1986) (court not
barred from granting summary judgment by absence of motion).
{13} Child argues that the
1978 adoption is void because the 1979 United States Supreme Court decision in
Caban
v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979),
"declared all state statutes which required an illegitimate child's
mother, but not his father, to consent to his adoption, to be unconstitutional
as violative of the equal protection clause." This is a
{*665}
misreading of
Caban. Caban recognized a natural father's interest in
the adoption of his children only where he has acknowledged his paternity and
developed a relationship with the child. 441 U.S. at 392-93; Martha W. Atwater,
Comment,
A Modern-Day Solomon's Dilemma: What of the Unwed Father's Rights?,
66 U. Det. L. Rev. 267, 275 (1989);
see also In re Adoption of Doe, 89
N.M. 606, 620,
555 P.2d 906, 920 (Ct. App.) (father's consent to the adoption
of illegitimate child not required where father abandoned child),
cert.
denied, 90 N.M. 7, 558 P.2d 619 (1976). Moreover, Child's adoption decree
was entered in March 1978;
Caban was not filed until more than a year
later in April 1979. Even if Child's alleged father had acknowledged and
established a relationship with Child,
Caban has not been applied
retroactively.
See In re Adoption of Jessica XX, 54 N.Y.2d 417, 430
N.E.2d 896, 898-99, 446 N.Y.S.2d 20 (N.Y. 1981).
{14} The New Mexico adoption
statutes in effect at the time of Child's 1978 adoption may be found at NMSA
1953, Sections 22-2-20 to -46 (Supp. 1975). Section 22-2-33(C) read:
Subject to the disposition of an appeal, after one [1]
year from the date of entry of a judgment of adoption, the judgment of adoption
cannot be questioned by any person, including the petitioner, in any
manner, upon any ground, including fraud, misrepresentation or failure to
give any required notice.
(Emphasis added.) The statute was emphatic and inclusive in
limiting both the persons and grounds on which an adoption could be set aside.
Thus, it may be reasonably assumed that the legislature chose a policy that
would impose permanence on the adoptive relationship. We conclude that Child's
adoption was final and its validity cannot now be attacked.
{15} Finally, Child argues
that even as a lawfully adopted child he may proceed with a paternity suit
against his natural father's estate. Paternity suits are not recognized as a
common-law cause of action in New Mexico.
See State ex rel. Human Servs. v.
Aguirre, 110 N.M. 528, 530,
797 P.2d 317, 319 (Ct. App. 1990). Moreover,
the primary purpose of paternity suits is to insure the putative father meets
his obligation to help support the child.
Id. As previously noted, the
legal effect of an order of adoption is to cause the adopted child to be treated
as if it were the natural child of the adoptive parents and thus terminate the
natural parent's duty to support such child.
See In re Estate of Holt,
95 N.M. at 414, 622 P.2d at 1034. It therefore follows that if the adoption of
a child is approved prior to the commencement of a paternity suit, the
paternity suit will not lie.
Cf. Charles v. James, 56 Misc. 2d 1056, 290
N.Y.S.2d 993, 995-96 (Fam. Ct. 1968) (paternity suit by mother does not lie
where adoption of child was approved prior to the commencement of such action).
We also affirm the dismissal of the Child's paternity suit.
{16} The district court
properly considered the adoption decree and correctly concluded Child is
legally precluded from challenging his adoption at this late date. Since a
lawfully adopted child does not inherit from its natural parents, the district
court's order dismissing the claim of heirship is affirmed, and since a
lawfully adopted child does not have a right to support from his natural
parents, the district court's order dismissing the paternity suit is affirmed.
PAMELA B. MINZNER, Chief Judge
1
Although it would not affect the outcome here, we note that, effective July 1,
1993, Section 45-2-109 was amended and became NMSA 1978, Section 45-2-114
(Repl. Pamp. 1993).