# Wunderlich v. Alexander > Court of Appeals of Arkansas · December 18, 2002 · 80 Ark. App. 167 URL: https://www.frixlaw.com/law-library/cases/9677594 ## Case - **Full name:** Gerhard WUNDERLICH and Nanett Wunderlich v. Rebecca Sue ALEXANDER - **Court:** Court of Appeals of Arkansas - **Decided:** December 18, 2002 - **Citations:** 80 Ark. App. 167; 92 S.W.3d 715; 2002 Ark. App. LEXIS 719 - **Precedential status:** Published - **Opinion:** Dissent by Hart - **Judges:** John E. Jennings - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677594 ## Opinion text Josephine Linker Hart, Judge, dissenting. The relevant statute as follows: Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. Ark. Code Ann § 9-9-216(b) (Repl. 2002). The adoption decree was issued more than one year before the motion to set aside was filed; therefore, the setting aside of the decree would require (1) a finding that appellants had not “taken custody of the minor”; and (2) that the adoption was improperly obtained by the parties’ failure to fulfill the requirements of the law. I conclude that neither condition was met, and I respectfully dissent. First, the majority concludes that “[b]ased on these peculiar facts and circumstances, we believe that the trial court could find that the appellants had never taken custody of the child.” I note, however, that the trial court did not make this finding. Rather, the judge found that “the adoption was done . . . not for the purpose of transferring custody to the adoptive parents.” Thus, the majority assumes that the court found that the appellants never took custody. However, even making this assumption, I cannot agree that appellants failed to take custody. “Custody” is weE defined in the law. Even Black’s Law Dictionary has laid out useful definitions for custody in various contexts. According to the dictionary, there is “legal custody,” which is “[t]he care, control, and maintenance of a chEd awarded by a court to a relative. ...” Further, there is “physical custody, which is “[t]he right to have the chEd live with the person awarded custody by the court.” Also, there is “joint custody,” where responsibility for and authority over the child is shared at aE times. There is “divided custody,” where custody and fuE control of and responsibility for the chEd is part-time. And there is “sole custody,” where the party has fuE control of and responsibEity for the chEd. Black’s Law Dictionary 390 (7th ed. 1999). After the adoption decree was entered, the chEd resided in the same household as appeEee and appeEants. After appeEee’s remarriage, she moved out of appeEants’ residence. During that time, the chEd resided with appeEee during the week and with appeEants on the weekends, when they asked. AppeEee and appeEants had a faEing out over money, and foEowing the weekend of AprE 27, 2001, appeEants prevented appeEee from seeing the chEd. The majority fails to recognize that there was a change of legal status that occurred by operation of law when the adoption was granted. Legal custody, by operation of law, was placed in appeEants, and the taking of the child into the home was physical custody. At that point in time, the chEd for aE purposes became the chEd of appeEants, and appeEee became the older sister of the chEd. The majority does not explain why appeEants did not have some form of “custody,” other than to suggest that appeEee had some form of custody. Since physical custody is the majority’s polestar, it is readEy apparent that to reach its conclusion, the majority must, at a minimum, ignore the salient fact that even appeEee testified that she was ultimately precluded from seeing the chEd. The majority does not, and cannot, explain why, after appeEants prevented appeEee from seeing the chEd on AprE 27, 2001, as they were legaEy permitted to do by the adoption decree, appellants did not have sole custody. Even appellee concedes in her brief that custody was taken by appellants on that day. The majority appears to suggest that only exclusive physical custody is sufficient to meet the statutory requirement that prohibits the court from setting aside the adoption decree. I see nothing in the statute that mandates or even suggests that the adoptive parent must have exclusive custody in order to validate the adoption. The presence of the child in appellants’ home suggests, at a minimum, joint custody, and such custody is sufficient, in my opinion, to cause the statutory one-year time limitation to commence running. Further, even if the majority were correct, appellants had sole custody when they refused to return the child to appellee. While the majority nobly strains to limit this case to “these peculiar facts and circumstances,” by refusing to recognize that exclusive care, control, and authority over a minor does not constitute “custody,” the majority has opened a Pandora’s Box. For example, this case can serve as a basis for all adoptive parents to seek relief from support obligations when, after the adoption, the relationship between the biological parent and the adoptive parent ends in divorce. Despite the child’s presence in the home, the adoptive parent may argue that the child was never his responsibility, only the biological parent had responsibility for the child. This possibility is untenable. Second, I also disagree with the majority on the second issue in this case, which is whether appellee established that fraud was committed. I agree with the majority insofar as they conclude that even if custody was not taken, appellee is required to establish fraud or some other ground on which to void the adoption. Failing to take custody does not itself constitute a challenge to the adoption. Rather, failing to take custody serves as an exception to the one-year statute of limitations for challenges to the adoption based on such grounds as fraud. However, the majority errs in concluding that fraud was established. The trial court held that “[i]t appears the adoption was done to defraud the Court and the natural father. ...” I would hold that fraud was not established by appellee because of a failure of proof. Appellee failed to present any evidence that the court issuing the adoption decree was unaware that the adoption’s sole purpose was “not intended by the parties to sever the relationship ... or establish a parental relationship. ...” In fact, the record does not contain a transcript of the adoption proceedings. Further, no witness testified as to the evidence presented to the court at the adoption proceedings. Thus, the majority’s conclusion that fraud was practiced upon the court in procuring the adoption decree is based on pure speculation, not, as the majority claims, “clear, strong, and satisfactory proof.” There is no evidence before the court that the probate court was deceived into believing that the adopted child’s biological father, the appellee, and the appellants wanted the legal relationship of parent and child created between the appellants and their grandchild when in fact these parties did not want that legal relationship to be created. There is no evidence in the record before us that the probate court did anything more or less than what all the parties before it were asking it to do, i.e., alter the legal relationships between them and the child. As to the trial court’s finding that the adoption proceeding was done to defraud the biological father, with all due respect, the biological father does not contend such. In fact, he was not even made a party to the present proceeding. As a matter of law, by setting aside the adoption decree, the trial court has effectively reinstated his parental obligations without hearing from him at all on the matter. As Justice Oliver Wendell Holmes, Jr., observed, “[H]ard cases make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904)(Holmes, J., dissenting) I respectfully dissent. Robbins, Neal, and Vaught JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677594. Public record. Not legal advice.