Richard L. Pearse, Jr. of Pearse & Stinson, P.A. in Clearwater, Florida, was on the winning side of Kemp & Associates, Inc. v. Chisholm, an interesting 5th DCA opinion I wrote about here involving a woman’s failed attempt to invalidate her own Texas adoption in order to win a Florida estate case.
I invited Richard to share some of the insights he drew from this case with the rest of us and he graciously accepted.
1. What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?
The appellee in this case argued that she was the decedent’s sole heir because she was his biological daughter. She sought to avoid the effect of her 1961 Texas adoption on the basis that the decedent had no notice of the adoption proceedings, successfully arguing to the trial court that the resulting adoption decree was not issued pursuant to due process and thus not entitled to recognition in the Florida probate administration. Initially, we argued that the appellee had no standing to raise these issues because the right to assert the due process violations belonged to the decedent and could only have been asserted by him. We also argued that she had presented no objective proof, such as DNA, that the decedent was her biological father and that, under Texas law, notice to the decedent was not required. These arguments did not persuade the trial court, who ruled that the appellee had sufficient standing, had been acknowledged by the decedent as his daughter, and was therefore entitled to inherit the decedent’s estate.
On appeal, I decided to take a fresh look at the myriad of legal issues presented in this case. In light of the trial court’s judgment, I came to the conclusion that our standing arguments were weak, and that we had to focus squarely on the due process arguments which persuaded the trial court to refuse recognition of the 1961 Texas adoption decree. I also wanted to address the important policy issues concerning the finality of adoption judgments. In presenting the appeal, I placed much more emphasis on the constitutional distinctions between legal fathers and unwed biological fathers. I argued that the decedent had no right to notice based on biological status alone. I pointed out that, under the particular circumstances of this case, the decedent was not entitled to notice either in 1961 or currently. In response, the appellee argued that those U.S. Supreme Court cases beginning with Stanley v. Illinois which establish the right of unwed fathers to notice should be retroactively applied to her closed adoption case. The Fifth District rejected the retroactivity argument and reversed, holding that the trial court should have given full faith and credit to the 1961 Texas adoption decree based on constitutional doctrine and sound public policy.
2. If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge? On appeal?
At the trial court level, I would have placed a much heavier emphasis on the due process and public policy issues which ultimately prevailed on appeal.
Briefing the appeal was a very interesting process. Because the appeal was from a summary judgment, I knew our arguments would be reviewed de novo. In my initial brief, I felt I had to deal with every significant issue, which did not lend itself to the kind of focus and precision I would normally try to accomplish. When, in her answer brief, the appellee argued that current due process principles should be retroactively applied to her closed adoption, the case distilled down to the essential issue: may a Florida judge refuse to recognize a fifty year old Texas adoption decree by applying due process principles which were not in existence until more than a decade after the Texas adoption proceeding was closed? The Fifth District answered the question: no.
3. There was an all-or-nothing quality to this case. The biological daughter won at the trial court level, entitling her to 100% of the estate and 0% for the decedent’s cousins. On appeal, the decedent’s cousins won, entitling them to 100% of the estate and 0% for the biological daughter. Did this fact inform how you managed the case in terms of the litigation or settlement negotiations? Is so, how?
Probate litigation often involves all or nothing outcomes. Intestate succession is not determined by merit but by status. The existence of an heir of closer relationship may exclude all potential heirs of more remote relationship. A judge simply has no power to equitably divide an estate. In some cases, an intestate decedent’s estate may wind up in the hands of distant cousins with whom the decedent had no particular relationship. In this case, the cousins whose interests I represented were referred to by my opponents, pejoratively, as “laughing heirs.”
This is a case that might (and probably should) have settled at the trial court level. It was mediated, unsuccessfully, as part of the appeal. Unfortunately, by the time we got to mediation there was already a judgment in place. I believe that the judgment gave the appellee a sense of invulnerability which resulted in inflexibility and, ultimately, an impasse.
4. The 5th DCA quotes the following lines from a dissenting opinion authored by Justice Stevens: “The adoption decrees that have been entered without the consent of the natural father must number in the millions. An untold number of family and financial decisions have been made in reliance on the validity of those decrees…. [T]hose reliance interests unquestionably foreclose retroactive application of this ruling.” Did this practical implication of retroactivity play a significant role in your case at the trial-court level? On appeal?
I was particularly happy to have found that Justice Stevens’ opinion because it describes exactly the mischief which would be created by the retroactive application of later-developed due process principles to reopen closed adoption cases. This argument was made to the trial court, although probably not with the emphasis it should have been. On appeal, the practical implication of retroactivity was the essential issue. Both sides agreed that Texas law in 1961 did not require notice of adoption proceedings to putative fathers. To win, the appellee had to establish that later-developed constitutional principles could be applied retroactively to collaterally attack her 1961 Texas adoption judgment. But, as the Fifth District explained, the implication of that would be to significantly damage or destroy the finality and permanence of adoptions, an intolerable outcome.
5. Any final words of wisdom for estate planners and probate lawyers of the world based on what you learned in this case?
I never met the decedent in this case. The evidence suggests that once the appellee found the decedent, he acknowledged her as his biological daughter. They apparently had a cordial relationship while he was alive. Whether the decedent intended his daughter to receive his estate cannot now be known because he died without a valid will. So the first lesson from this case is: make a will.
Once in litigation, this case presented many layers of issues. In that situation, focus is essential although it can sometimes be difficult. In this case, we gained focus at each stage of the litigation and finally arrived at the essential issues during the appeal. The earlier you can determine the essential issues in your case, the more likely you are ultimately to prevail.