{ "id": 1906112, "name": "Eddie Linn SWAFFAR, Jr., and Billy Gracen Swaffar v. W.C. SWAFFAR, et al.", "name_abbreviation": "Swaffar v. Swaffar", "decision_date": "1992-03-30", "docket_number": "91-208", "first_page": "73", "last_page": "80", "citations": [ { "type": "official", "cite": "309 Ark. 73" }, { "type": "parallel", "cite": "827 S.W.2d 140" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 9-9-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "210 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721622 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/ark/210/0476-01" ] }, { "cite": "28 S.W. 30", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1894, "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "59 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327685 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ark/59/0483-01" ] }, { "cite": "26 S.W.2d 101", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "181 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718859 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ark/181/0111-01" ] }, { "cite": "268 Ark. 917", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715520 ], "weight": 4, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0917-01" ] }, { "cite": "43 S.W.2d 77", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 0 }, { "cite": "184 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438581 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/ark/184/0511-01" ] }, { "cite": "263 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672707 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ark/263/0488-01" ] }, { "cite": "259 Ark. 569", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619171 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/259/0569-01" ] }, { "cite": "216 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614139 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/216/0352-01" ] } ], "analysis": { "cardinality": 636, "char_count": 12383, "ocr_confidence": 0.908, "pagerank": { "raw": 5.280160626326442e-07, "percentile": 0.9419535656325909 }, "sha256": "8c2b6a0fbb0c6185482c7d62077e67e2ac99eecbcceeaf4f19a0934addd30b3d", "simhash": "1:bb7d82de33ac4b9b", "word_count": 2130 }, "last_updated": "2023-07-14T19:13:54.665869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Eddie Linn SWAFFAR, Jr., and Billy Gracen Swaffar v. W.C. SWAFFAR, et al." ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellants, Eddie Linn Swaffar, Jr., and Billy Gracen Swaffar, appeal from an order of the probate court finding that Billy Swaffar, who was also known as Billy McKim, was not a legally adopted son of the decedent, Eddie Linn Swaffar, Sr., and, therefore, not a pretermitted heir under the decedent\u2019s will. The issue on appeal is whether Billy Swaffar was legally adopted in 1977 under Act 369 of 1947, which was codified at that time as Ark. Stat. Ann. \u00a7 56-101, et seq. (Repl. 1971). We agree with the probate court that he was not legally adopted, and we affirm.\nThe appellant was born on October 1,1961, and named Billy Gracen McKim. His mother, Peggy McKim, married the decedent, Eddie Linn Swaffar, Sr., on March 23,1964, and they lived in Faulkner County. Later, appellant Eddie Linn Swaffar, Jr., was born of this union. The marriage lasted fourteen years and was punctuated by many separations.\nOn March 1,1977, the decedent and his wife, Peggy, filed a petition in Faulkner County Probate Court for the adoption of \u201cBilly Gracen McKim, Jr.,\u201d by the decedent. On the same date, a hearing was held at which time the decedent expressed his desire to adopt \u201cBilly McKim.\u201d the appellant was not present. The court inquired, \u201cDo you have the consent of this young man? He\u2019s sixteen.\u201d The decedent\u2019s attorney replied, \u201cEddie is the only father he\u2019s ever known. He\u2019s agreeable.\u201d The judge then requested an order, which the decedent\u2019s attorney prepared. The interlocutory order of adoption was entered on March 8, 1977.\nBefore the six-month period expired, Eddie Linn Swaffar, Sr., and his wife separated, and she moved to Saline County with Billy Swaffar. On August 1, 1977, Peggy Swaffar filed a complaint for divorce in Saline County Chancery Court in which she alleged that only one minor child, Eddie Linn Swaffar, Jr., had been born of the marriage. No mention was made of Billy Swaffar in the complaint. The divorce suit culminated, after a three-year separation, in a divorce decree that awarded Peggy Swaffar forty dollars a week for the support of the minor child, Eddie Linn Swaffar, Jr. Again, no mention was made of Billy Swaffar.\nOn February 17,1989, the decedent executed his will, which placed all assets of his estate in a trust for the benefit of Eddie Linn Swaffar, Jr. and Brandon Heath Swaffar, who had been fathered by the decedent and born out of wedlock. No provision was made for Billy Swaffar, who was not named in the will. W.C. Swaffar was named the executor.\nEddie Linn Swaffar, Sr., died on April 8,1989. On April 12, 1989, appellee W.C. Swaffar, the named executor, filed a petition for probate and appointment of personal representative in the Faulkner County Probate Court. When he learned that he was not mentioned in the will, appellant Billy Swaffar filed petitions to take against the will on grounds that he was pretermitted and, in addition, to contest the will due to undue influence practiced against the decedent by his brother, W.C. Swaffar.\nOn November 27, 1990, the probate court began a hearing on the petitions, at which time Billy Swaffar made the following statements:\nNo, there ain\u2019t a handful of people that know me as McKim; just legal documents or, you know, places of employment where I \u2014 you know, I though I was supposed to use McKim. I never knew that I was legally adopted.\n. . .You know, I knew that the process was goin\u2019 through when we left that last time, but, you know, nobody ever told me that it legally went through or, you know, you\u2019re legally a Swaffar or nothin\u2019 like that, or Fd used the name Swaffar, I\u2019d\u2019a never changed it. When I got married, my wife thought that she was marrying Billy Swaffar. . . . Guarantee it.\nWhen asked how he explained to his wife the name \u201cMcKim\u201d on their marriage license, the appellant responded:\nWell, I just, you know, told her \u2014 I said, \u201cYou know, Fve never been legally adopted, that I know of, and to make things legal, I have to change my name back to McKim.\u201d\nThe appellant\u2019s attorney asked him whether he had signed anything at the time of the adoption proceeding, and he replied:\nWell, I don\u2019t really know what I signed. I signed a form, one day, before I went to school, on the kitchen table, and they was talking about, you know, after we get \u2014 after you sign this, then we\u2019ll go in front of the Judge, and then you will be legally Ed\u2019s son.\nAcknowledging that he never questioned anyone any further about the document, the appellant explained: \u201cNo, I didn\u2019t really assume that I was adopted.\u201d Billy Swaffar also confirmed that his mother was under the impression that he had not been legally adopted by the decedent. He then engaged in this colloquy:\nQ. When was the first time you ever thought about the possibility that you were legally adopted?\nA. After I heard the will. I knew something had to be done, so I went to backtracking.\nThe appellant testified that he never had asked an attorney to change his name legally to \u201cSwaffar.\u201d During his school years in the Conway school district before the divorce, he went by Billy Swaffar. He had two Social Security cards issued in the Swaffar name and the McKim name. The record also reveals that he was enrolled for the 1978-79 school year in the Bryant school district under the name of \u201cBilly McKim.\u201d As part of discovery and at trial, it was further revealed that his joint checking account with his wife bears the name McKim. He entered vocational-technical school under \u201cBilly McKim,\u201d and his GED certificate and marriage license show him as \u201cBilly McKim.\u201d He is listed in the telephone directory as \u201cBilly McKim,\u201d and his wife and daughter go by the name McKim.\nThe probate court found in its memorandum opinion dated December 14,1990, that Billy Swaffar \u201cdid not change his birth certificate or use the name of Swaffar until after the decedent\u2019s death and it began to appear that it would be profitable to do so.\u201d The birth certificate is dated September 26, 1989. The court further found standing on the executor\u2019s part to defend against Billy Swaffar\u2019s petitions on grounds that he was not the lawfully adopted child of the decedent.\nThe appellants first argue on appeal that the appellee, as executor, had not standing to challenge Billy Swaffar\u2019s adoption. The appellants, however, are misguided on this issue. The appellee objected to Swaffar\u2019s status as a pretermitted heir on grounds that he was not legally adopted. In doing so, the executor was operating well within his authority to contest the pretermitted status of a petitioner who did not qualify. Indeed, he was obligated to do so as the representative of those provided for in the will. See Clifton v. Guest, 216 Ark. 352, 226 S.W.2d 61 (1950). In short, the appellee had standing to challenge Billy Swaffar\u2019s adoptive status in his capacity as executor, which was a challenge he was required to make to protect the decedent\u2019s distributees mentioned in his will.\nThe crux of this case is whether the appellant, Billy Swaffar, was legally adopted in the proceedings that took place in March 1977. This court has previously described the powers and jurisdiction of the probate courts that emanated from statutory law:\nThe probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers (as) are conferred by the constitution or by statute, or necessarily incident to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810. There is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute.\nPoe v. Case, 263 Ark. 488, 565 S.W.2d 612, 613 (1978). Because they are in derogation of common law, adoption statutes are strictly construed and applied. Norris v. Dunn, 184 Ark. 511, 43 S.W.2d 77 (1931); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980).\nThe parties agreed at oral argument that the governing statute in effect when the order for temporary adoption was entered was section 8 of Act 369 of 1947, then codified as Ark. Stat. Ann. \u00a7 56-107 (Repl. 1971). Section 8 read at that time as follows:\nIn no case need a child be named as a defendant, nor a guardian ad litem appointed to defend him; but if such child is fourteen [ 14] years old or more when the petition is filed, the adoption shall not be made without his verified consent in writing. The consent of children less than fourteen [14] years of age shall not be necessary.\nBilly Swaffar was fifteen at the time of the petition and his verified consent in writing was required under Act 369. There is no proof of record that this consent was ever given. Certainly it was not filed with the petition. And no reference was made to a \u201cverified consent\u201d by the fifteen year old to be adopted in the probate court\u2019s interlocutory order. All that suggests even the remote possibility of such a document is the appellant\u2019s testimony that one day he signed some form he could not identify at the kitchen table before he went to school. That hardly qualifies as a verified consent of record.\nThe probate court found in its Memorandum Opinion that the file did not contain a written consent from from the appellant and that the adoption statutes must be strictly construed. Though the appellants urge that section 9 of Act 369 of 1947, then codified as Ark. Stat. Ann. \u00a7 56-108(b) (Repl. 1971), permits the probate court to dispense with consent, that section only specifies that the court may dispense with consent \u201cas provided in sections 8 and 9.\u201d Section 8 authorizes it only when the child is less than age fourteen.\nThe issue then becomes what was the effect of Billy Swaffar\u2019s failure to consent. We have held that the jurisdiction of the probate court to order an adoption depends on strict statutory compliance, including the consent of the person legally authorized to represent the minor. Norris v. Dunn, supra. Failure to comply strictly with the Adoption Code denies the probate court jurisdiction. Id; see also, Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930); Morris v. Dooley, 59 Ark. 483, 28 S.W. 30, 430 (1894); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). We have further held that unless all jurisdictional requirements appear in the record, the resulting decree will be void upon collateral attack. Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946).\nThe absence of Billy Swaffar\u2019s consent is not a mere technicality but rather it goes to the heart of the adoption process in that public policy clearly favors the consent of the person to be adopted. Surely, Billy Swaffar at age fifteen had a legitimate say in whether he wished to be adopted by the decedent. Yet, his consent in writing was not obtained. Nor was he present at the hearing on the adoption petition on March 1, 1977, to voice his opinion. And no mention was made of his consent in the interlocutory order. Can the probate court decide his fate under such circumstances? We do not think so.\nWe are aware of the argument that any decree of a probate court regarding adoptions should be presumed valid and in compliance with all statutory requirements. The most impassioned advocate of this petition was Justice Frank Smith in his dissent in Minetree v. Minetree, supra, But, again, the consent of the one to be adopted, as required, by statute, must not be presumed. There is no reference in the order to Billy Swaffar\u2019s consent, and no written evidence of record that it was obtained. Because of this, jurisdiction in the probate court was lacking, and the adoption order was void.\nAffirmed.\nActually, Billy McKim was fifteen years old at the time.\nThe probate court erroneously found that Act 735 of 1977, now codified as Ark. Code Ann. \u00a7 9-9-206(5) (1987), was controlling. Act 735, however, was not enacted until sixteen days after the order for temporary adoption was entered. The parties agree that Act 369 of 1947 controls the consent question.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "J.R. Nash, for appellant.", "Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellee." ], "corrections": "", "head_matter": "Eddie Linn SWAFFAR, Jr., and Billy Gracen Swaffar v. W.C. SWAFFAR, et al.\n91-208\n827 S.W.2d 140\nSupreme Court of Arkansas\nOpinion delivered March 30, 1992\nJ.R. Nash, for appellant.\nBarber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellee." }, "file_name": "0073-01", "first_page_order": 97, "last_page_order": 104 }