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Missouri Lawyers Weekly - February 9, 2004

‘Equitable Adoption’ Made Boy Plaintiff In Case

By Kenneth C. Jones
Missouri Lawyers Weekly

Defendants Couldn’t Intervene In Family Court

A boy could sue for the wrongful death of his father’s girlfriend upon a family court’s posthumous finding that she had equitably adopted the boy, the Missouri Court of Appeals’ Western District has ruled in a case of first impression.

In addition, the Western District ruled that the wrongful death defendants had no right to intervene in – or to be given notice of – the equitable adoption proceeding.

“Not having been invited in, the wrongful death defendants were not entitled to force their way into this proceeding,” wrote Judge James M. Smart Jr. for the court. “We cannot say, under established principles of law, that the family court judgment has a direct effect on appellants’ potential liability.”

But Smart said the defendants could “address the equitable adoption issues in question in the death case.”

The boy was represented by Anita Porte Robb of Kansas City.

The case is Coon v. American Compressed Steel, et al., MLW No. 39513, issued on Jan. 30.

Auto Accident
Deric Coon was the 6-year-old son of Christopher Coon. Deric’s mother died when Deric was quite young. Christopher Coon subsequently invited Patricia Walker to live with him and Deric.

Testimony was presented in the family court case to the effect that Patricia Walker was like a mother to Deric, and intended eventually to marry Christopher and to adopt Deric. Several years after Patricia moved in with Christopher and Deric, Patricia was killed while driving on an interstate highway when a steel counterweight allegedly fell out of a truck and struck her, causing fatal injuries. Patricia Walker’s father, Stephen Walker, brought a wrongful death action in Jackson County Circuit Court against the owner of the truck, American Compressed Steel, and the truck driver, William Copeland. After Stephen Walker’s wrongful death action was filed, Deric Coon filed a petition for “equitable adoption” in the Family Court Division of the Jackson County Circuit Court. The petition sought to have Deric posthumously “adopted” by the decedent so Deric could prosecute the wrongful death action as a plaintiff. Deric’s paternal grandparents and Stephen Walker were given notice of the proceeding. Following an evidentiary hearing, the family court entered a decree declaring Deric to be, “for all legal intents and purposes” the child of the decedent, Patricia Walker. The decree recited that Deric Coon was found to have been equitably adopted by the deceased “for all purposes, legal and equitable.”

Deric subsequently brought to the circuit court his “Verified Order in Recognition of Legal Adoption,” which recites that he is “lawfully entitled to bring a wrongful death action relating to the death of his mother, Patricia Walker.” The circuit court, in accordance with this verified order, allowed Deric to become the plaintiff in the wrongful death action.

Stephen Walker, who suffers from mental illness, withdrew from active participation and permitted Deric to prosecute the action as the named plaintiff. Deric, in his amended pleadings, alleged that he is the son of Patricia Walker. American Compressed Steel and Copeland, and the trial court in the death case, were unaware of the adoption proceeding until Deric sought to import the decree to the wrongful death action. Defendants contended in the circuit court that they are not bound by the decree to acknowledge a legal parent-child relationship between Patricia and Deric. The defendants also filed a motion in the family court to “intervene out of time” in order to move to set aside the adoption decree. They sought intervention as a matter of right pursuant to Rule 52.12. The family court denied the motion.

American Compressed Steel and Copeland appealed the denial by the family court of their motion to intervene and set aside the adoption decree. They argued that they should have been allowed to intervene because the disposition of the family court proceeding may impair or impede their ability to protect their corresponding financial interest in the wrongful death action.

Judge Smart said, “The question under Rule 52.12(a), which deals with intervention as of right, is whether appellants have such a direct and substantial interest in the result of the family court proceeding that they were entitled to intervene.”

He said that “notwithstanding that an adoption can be achieved only pursuant to statute, Missouri has recognized ‘equitable adoption’ as a judicial remedy in equity. Drake v. Drake, 43 S.W.2d 556, 558 (Mo. banc 1931); Menees, 223 S.W.2d at 415; Goldberg v. Robertson, 615 S.W.2d 59, 62 (Mo. banc 1981).

“A court of equity may, where justice requires, decree a person to have rights of an adopted child for purposes of inheritance.

“Equitable adoption, also called ‘adoption by estoppel,’ is not an adoption. It does not create the legal relationship of parent and child. It arose out of contract enforcement. The purpose of the doctrine of equitable adoption was to avoid unjust results from the application of intestacy statutes where there had been a contract to adopt.”

According to Smart, the “need for the doctrine arises when proposed adoptive parents die intestate without ever having conducted a formal adoption. The doctrine is invoked to allow the ‘supposed-to-have been adopted child’ to take an intestate share.”

He noted that an equitable adoption “is a result of an in personam proceeding binding only on the parties to the action in which it is conducted and those in privity with them.

“An equitable adoption is not pursued as an independent cause of action related to status, but is a proceeding brought in connection with a claim to a particular property right. Thus, when a child seeks to be declared an equitable adoptee of a deceased person for inheritance purposes, the proceeding generally is brought in the court having jurisdiction of the deceased’s estate or of the disputed property, and is an ancillary part of the proceedings to administer the estate or adjudicate property rights.”

Smart said the Western District “broke new ground in applying the concept of equitable adoption in a tort context in Holt v. Burlington Northern, 685 S.W.2d 851 (Mo. App. 1984). In that case, Ann Holt died as a result of the alleged negligence of the railroad. Her nephew, James Holt, a 13-year-old, had resided with her from birth and had been raised by her as his mother. Because of the relationship, the probate court had earlier held that the thirteen-year-old James Holt was entitled to inherit the estate of the deceased Ann Holt.

“James Holt then brought an action under the wrongful death act against the railroad. The trial court awarded summary judgment, holding that the plaintiff was not a person within the class of beneficiaries entitled to bring a wrongful death action for the death of Ann Holt.

“This court in Holt held that the wrongful death statute allowed the prosecution of a wrongful death claim by a child who, though not the natural child of the deceased and not adopted by the deceased, had been declared to be entitled to inherit from the deceased as an equitable adoptee.”

He said that since Holt, “the party claiming equitable adoption for wrongful death purposes has sometimes sought such a determination in the wrongful death proceeding itself without having first obtained a declaration of inheritance rights in the probate court. In other cases, a party claiming equitable adoption has sought such a determination in a declaratory judgment proceeding.”

Smart said, “The case before us is the first case known to us in which a party who has not been declared an equitable adoptee for inheritance purposes has filed a declaratory action to seek a decree of posthumous adoption for wrongful death purposes without joining the wrongful death defendants.

“Respondent Coon argues that his decree is binding on the appellants, and he assumes that an equitable adoption is like an adoption in the sense that the wrongful death defendants are legally bound to acknowledge him as the ‘son’ of the deceased.

“Neither Holt nor any other authority, however, has so declared. James Holt was allowed standing to sue for the loss of his aunt, with whom he had a close bond, because of the probate court declaration of equitable adoption for inheritance purposes. The wrongful death defendant in that case, however, was not required to acknowledge James Holt as the ‘son’ of the deceased.

“This is evident in that the court stated that it would be permitted to show at trial that James Holt’s natural mother was still living, and that James Holt began residing with her after his aunt’s death.

“Here, there is no probate court decree of equitable adoption establishing Deric Coon as entitled to inherit from Patricia Walker. The family court decree in this case, which is a de facto declaratory judgment action, vests Deric, as between Deric and Stephen Walker, with standing to bring the action. Such proceeding is binding on the participants.”

Smart rejected Deric’s argument that “the family court has exclusive jurisdiction of such a declaratory proceeding.”

At the same time, he said, the defendants “fail to persuade us that the family court had no jurisdiction over the proceeding in question and that they accordingly need to intervene to move to set the judgment aside. The statutes do not limit family court jurisdiction to the matters described in 487.080; neither do appellants argue that it is so limited.

“Therefore, we are not persuaded that Stephen Walker and Deric Coon could not, as they did, go to court to obtain a declaration that, as between them, Deric is entitled to be treated as the equitable adoptee of the deceased for purposes of the wrongful death action.

“We agree with Respondent Coon that the death case defendants, the alleged tortfeasors, have only a contingent interest in the identity of the party having presumptive standing to file the death case.

“Not having been invited in, the wrongful death defendants were not entitled to force their way into this proceeding. We cannot say, under established principles of law, that the family court judgment has a direct effect on appellants’ potential liability.

“The appellants, of course, will have their own opportunity to address the equitable adoption issues in question in the death case,” Smart said, affirming the judgment.


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