Hooper v. Clinkingbeard

OPALA, Justice,

dissenting.

The court pronounces that the testatrix’s adopted daughter qualifies as a pretermit-ted heir and concludes that her pretermit-ted-heir status would not be affected even if it were shown that her filial bond was terminated by a 1943 county court order. The court’s decision rests on three grounds: (1) the right of an adopted child to inherit is measured by the law in force at the decedent’s death and not on the date of adoption, and that law, the Uniform Adoption Act,1 in force at the time of Flowers’ death, abolishes all differences between the rights of adopted and natural children; (2) under the provisions of 10 O.S.1991 § 1132,2 an adopted child’s right to inherit from its adoptive parent survives the judicial termination of a parental bond; and (3) because the court views the 1943 county court order terminating the testatrix’s parental bond as an extraneous fact that renders the will ambiguous, it remands the cause for further proceedings in the district court to establish the testatrix’s intent by parol evidence.

I must recede from today’s pronouncement. I would hold that (a) the 1943 order’s severance of the parental tie is facially void and that (b) neither the facial invalidity of the filial bond’s extinguishment nor the testatrix’s erroneous belief that her parental bond to the adopted daughter had been terminated serves as an extraneous fact that injects ambiguity into the testamentary exclusion of the adopted daughter.

I

THE ANATOMY OF LITIGATION

Appellee Lois Hooper [Hooper] and her brother were adopted in 1939 by Edna Flowers [Flowers] and her husband.3 Hoo*1154per’s adoptive father later brought a proceeding in the juvenile division of the county court to adjudicate her delinquency status.4 A 1943 order issued in that proceeding not only determines Hooper to be a delinquent child but also severs her filial bond to the adopted parents. Hooper’s adoptive mother died in 1990. Her will recites that she has no natural heirs, but one adopted child, a son (who is Hooper’s brother).5 After Flowers’ will was admitted to probate, Hooper moved for adjudication of her status as pretermitted heir. The trial court held that she was the decedent's adopted child and entitled to take as a pretermitted heir. The Court of Appeals affirmed.

II

THE 1943 ORDER OF THE COUNTY COURT SITTING AS A JUVENILE COURT IS FACIALLY VOID PRO TANTO — TO THE EXTENT THAT IT SEVERS HOOPER’S FILIAL BOND WITH FLOWERS

The now-defunct county courts were courts of limited jurisdiction and could only exercise the power specifically conferred by the then-effective Judicial Article6 and *1155by those express statutory provisions which were not inconsistent with our fundamental law.7 Not until 1965 did our lawmaking body vest in the county court the power to sever parental rights in the context of a juvenile case.8 The power to terminate by judicial decree the natural bond between parent and child was unknown to the common law. One’s status as a parent was regarded by the unwritten law of England as indestructible.9

Because in 1943 the county court lacked power to terminate parental rights, it was utterly without cognizance to sever a child’s bond in a delinquency proceeding. The 1943 order was hence coram non judi-ce 10 to the extent that it extinguishes Flowers’ parental status vis-a-vis Hooper.

When a complete absence of jurisdiction appears on the face of the judgment roll,11 the court’s decision is void and subject to vacation on direct or collateral attack.12 A decision is deemed void only when the face of the record reveals that at least one of the three critical elements of jurisdiction was absent, i.e., (1) jurisdiction over the parties, (2) jurisdiction over the subject matter or (3) jurisdictional power to pronounce the particular decision that was rendered.13

Although in 1943 a county court lacked cognizance to terminate a parental bond, it had the power to set aside its adoption orders or decrees under the terms of 12 O.S.1941 §§ 1031 et seq.14 The 1943 order, entered in a juvenile delinquency case, cannot qualify as an effective vacation of the adoption decree.15

*1156I would hence hold that, insofar as the 1943 juvenile proceeding order severs Flowers’ parental status vis-a-vis her adopted daughter, it is facially dehors the county court’s cognizance and hence void on the face of the judgment roll for want of subject-matter jurisdiction16 as well as of the power to render that decision.17

Ill

THE FACIAL INVALIDITY OF THE PARENTAL BOND’S SEVERANCE BY THE 1943 ORDER IS NOT AN EXTRANEOUS FACT THAT MAY INJECT AMBIGUITY INTO FLOWERS’ TESTAMENTARY INTENT TO EXCLUDE HOOPER, NOR DOES IT RENDER THAT EXCLUSION INEF-FICACIOUS

Because Hooper’s filial bond remained intact, the critical question to be answered is whether Flowers’ will sufficiently demonstrates her intent to exclude Hooper from any bounty.

From the four corners of the will it is obvious that Flowers did not recognize Hooper as her adopted daughter and had no intention of favoring her with a testamentary gift. An ambiguity may arise from a fact or circumstance — extraneous to the will — which injects uncertainty as to the testatrix’s intent to disinherit one’s child or issue.18 The existence of the 1943 order is not an extraneous fact that brings into question or casts a cloud upon Flowers’ intent to disinherit Hooper. Neither is that intent clouded by the absence of a valid parental bond’s sever-anee. The statement in Flowers’ will — that she has but one adopted child — while a legal inaccuracy, creates no ambiguity. This recitation — though contrary to legal reality —does not draw into question testatrix’s shown intent to exclude Hooper.

In short, the four corners of the will unequivocally show that Flowers rejected Hooper as an adopted daughter. I would hence hold that the 1943 termination order’s invalidity is not an extraneous fact that injects ambiguity as to the testatrix’s intended exclusion of Hooper.

IV

AFTER-ENACTED LEGISLATION

The parental bond of Flowers to Hooper remained unextinguished by the facially void 1943 order. Even if that order had been efficacious, the subsequent enactment of 10 O.S.1991 § 1132 in 1968 could not be applied retroactively to preserve Hooper’s inheritance rights from Flowers’ estate. Absent a plain legislative intent to the contrary, statutes are generally presumed to operate prospectively only,19 There is no indication in the text or title of § 1132 that it was ever intended to resurrect a severed filial bond that stood validly extinguished long before the statute’s enactment.20

SUMMARY

The 1943 order’s severance of the filial bond is void on the face of the county court’s judgment roll in the juvenile delinquency case where it was entered. Neither *1157the facial invalidity of the bond’s severance nor the testatrix’s erroneous belief that her parental ties to Hooper had been legally terminated serves as an extraneous fact that injects ambiguity into the testatrix’s intent to exclude Hooper from any bounty.

I would hence hold that Hooper is not a pretermitted heir.

. 10 O.S.1991 §§ 60.1 et seq.

. The pertinent terms of 10 O.S.1991 § 1132 are:

"The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and his right to visit the child, his right to control the child’s training and education, the necessity for the parent to consent to the adoption of the child and the parent’s right to the earnings of the child, and the parent’s right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent.”

.The petition for adoption (with consent) and decree of adoption, dated December 2, 1939, are *1154of record in the County Court of Okfuskee County. Transcript of August 21, 1990 [Tr.], petitioner's exhibits 1 and 2.

Adoption was viewed in 1939 as a private contract that required approval by the state. Jones v. Loving, Okl., 363 P.2d 512, 513-514 (1961); Ex parte Helscel, Okl., 268 P.2d 287, 289 (1954); In re Hughes, 88 Okl. 257, 213 P. 79, 82 (1923).

. The petition and order, dated June 30, 1943, are of record in the County Court of Okfuskee County, sitting as a Juvenile Court. Tr., defendants’ exhibits 1 and 2.

. The critical provision of Flowers' will states:

"I am a widow, unmarried, and have no heirs of my body but do have an adopted son, Don L. Flowers. I have grandchildren, children of Don L. Flowers. Because of a terrible injustice done to me by my son, Don L. Flowers, I leave him nothing in this my will and do hereby disinherit him and all of his kin and wife and all of my Grandchildren, namely,_’’ (Emphasis supplied.)

. Art. 7, §§ 12-17, Okl. Const, (repealed in 1967, eff. Jan. 13, 1969).

The pertinent terms of Art. 7, § 12, Okl. Const, (repealed in 1967), were:
"The County Court, co-extensive with the county, shall have original jurisdiction in all probate matters, and until otherwise provided by law, shall have concurrent jurisdiction with the District Court in civil cases in any amount not exceeding one thousand dollars, exclusive of interest: Provided, That the County Court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony, or in any action against officers for misconduct in office, or in actions for slander or libel, or in actions for the specific performance of contracts for the sale of real estate, or in any matter wherein the title or boundaries of land may be in dispute or called in question; nor to order or decree the partition or sale of real estate, not arising under its probate jurisdiction. * * * ”
It shall have such appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution. The County Court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction. In the absence of the Judge of the District Court from the county, or in case of his disqualification for any reason, the County Court, or Judge thereof, shall have power to issue writs of injunction in matters about to be brought or pending in the District Court; and to issue writs of injunction, mandamus, and all writs necessary to enforce the jurisdiction of the County Courts; and issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the County Court or any other court or tribunal inferior to said court. ...”

The pertinent terms of Art. 7, § 13, Okl. Const, (repealed in 1967) were:

"The County Court shall have the general jurisdiction of a Probate Court. It shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards; grant letters testamentary and of administration, settle accounts of executors, administrators, and guardians; transact all business appertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the sale, settlement, partition, and distribution of the estates thereof.

The quoted provisions of the Judicial Article were repealed in 1967; the enactment of what is now Article 7 was proposed by Laws 1967, p. 698, H.J.R. No. 508, and adopted at an election on July 11, 1967. For county court jurisdiction see Cassina v. Jones, Okl., 340 P.2d 482, 484 (1959); In re Johnson, 72 Okl. 174, 179 P. 605, 607 (1919).

. Pre-1969 district courts, on the other hand, were courts of general jurisdiction. Art. 7, § 7, Okl. Const, (repealed in 1967, eff. Jan. 13, 1969); Flick v. Crouch, Okl., 434 P.2d 256, 261 (1967). Since 1969 district courts exercise unlimited original jurisdiction of all justiciable matters, except as otherwise provided by the Constitution. Art. 7, § 7, Okl. Const, (eff. Jan. 13, 1969); State ex rel. Southwestern Bell Tel. Co. v. Brown, Okl., 519 P.2d 491, 495 (1974).

. See 10 O.S.Supp.1965 §§ 471-475, which were repealed upon the enactment of 10 O.S.Supp. 1968 § 1130-1132. The terms of 10 O.S.1941 §§ 101 et seq., pertaining to dependent and delinquent children, which provide, inter alia, that an association or individual who has guardianship of a child pursuant to these statutes may be made a party to an adoption proceeding and may assent to the child’s adoption, did not empower the county court to terminate anyone’s parental bond within the framework of a juvenile proceeding.

. Davis v. Davis, Okl., 708 P.2d 1102, 1111 (1985).

. The Latin phrase "coram non judice ” means ”[i]n the presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void." BLACK’S LAW DICTIONARY, p. 337 (6th Ed. 1990).

. The legal effect and validity of a finally adjudicated case are measured by the four corners of its judgment roll. Mayhue v. Mayhue, Okl., 706 P.2d 890, 895 (1985); Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 591-592 (1986); Reeves v. Agee, Okl., 769 P.2d 745, 752 n. 16 (1989); Willard v. Kelley, Okl., 803 P.2d 1124, 1134 n. 32 (1990).

. 12 O.S.1991 § 1038; Hough v. Hough, Okl., 772 P.2d 920, 921 (1989); Mayhue, supra note 11 at 895; Scoufos v. Fuller, Okl., 280 P.2d 720, 723 (1955).

. Reeves, supra note 11 at 752, Mayhue, supra note 11 at 893 n. 8; Scoufos, supra note 12 at 723; State ex rel. Commissioners of Land Office v. Keller, Okl, 264 P.2d 742, 747-748 (1953).

. The vacation-of-judgments provisions in 12 O.S.1941 §§ 1031 et seq. were invocable in county courts, which could set aside their orders and judgments. See in this connection Ozark v. Berryhill, 43 Okl. 523, 143 P. 173, 174 (1914); Co-Wok-Ochee v. Chapman, 76 Okl. 1, 183 P. 610, 612 (1919); W.T. Rawleigh Medical Co. v. Eggers, 74 Okl. 190, 178 P. 108, 109 (1919); Blancett v. Eslinger, Okl., 324 P.2d 273, 275-276 (1958); Tucker v. Leonard, 76 Okl. 16, 183 P. 907, 912 (1919); Cooper v. Newcomb, 73 Okl. 53, 174 P. 1029, 1031 (1918); Holmes v. Holmes, 27 Okl. 140, 111 P. 220, 221 (1910); Davis v. Sandlin, Okl., 392 P.2d 722, 724-725 (1964); see also In re Adoption of Davis, 206 Okl. 403, 244 P.2d 554, 555 (1952); In re Hughes, 88 Okl. 257, 213 P. 79, 80 (1923).

. The law observes the distinction between excess and absence of jurisdiction over a given subject matter. When the authority to deal with a subject does exist, the manner and extent of the power’s exercise, even if patently excessive, will stand, absent a direct attack. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L.Ed. 646, 651 (1872); Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). In Stump, the judge ordered a juvenile girl to undergo sterilization. The question before the Court was whether the sterilization order was void because of absence of jurisdiction or merely voidable as one made in excess *1156of its jurisdiction. The distinction between excess and absence of jurisdiction over a given subject matter is not significant in this case. While the county court doubtless had the authority to vacate its prior orders, its limited statutory cognizance did not then include the power to terminate parental rights in the framework of a juvenile delinquency case.

. The county court, a tribunal of limited jurisdiction, was without power to entertain parental termination proceedings of any kind.

. The county court was powerless to terminate parental rights when sitting as a juvenile court.

. Crump’s Estate v. Freeman, Okl., 614 P.2d 1096, 1098 (1980).

. In re Bomgardner, OkL, 711 P.2d 92, 95-96 (1986); Seal v. Corporation Com’n, Okl., 725 P.2d 278, 294 (1986); Trinity Broadcasting Corp. v. Leeco Oil Co., Okl., 692 P.2d 1364, 1366 (1985); Wickham v. Gulf Oil Corporation, Okl., 623 P.2d 613, 615-616 (1981); Wilson v. State, ex rel. Oklahoma Tax Commission, Okl., 594 P.2d 1210, 1212 (1979); Mid-Continent Casualty Company v. P. & H. Supply, Inc., Okl., 490 P.2d 1358, 1361 (1971).

. Adoptions could be validly vacated in 1943. The then-effective vacation process availed in county courts. See supra note 14; In re Adoption of Davis, supra note 14; In re Hughes, supra note 14.