Record No. 1203-94-1Court of Appeals of Virginia. Argued at Norfolk, Virginia.
Decided: April 4, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Glen A. Tyler, Judge
Carl W. Isbrandtsen (Isbrandtsen, Fancher Jeffords, P.C., on brief), for appellant.
Stephen P. Givando for appellee.
Present: Judges Baker, Benton and Senior Judge Hodges
MEMORANDUM OPINION[*]
JUDGE JOSEPH E. BAKER.
In this appeal from a judgment of the Circuit Court of the City of Virginia Beach (trial court), Lewis M. Armistead (guardian), legally appointed guardian of H. Kirn Armistead, Jr. (Armistead), contends that the trial court erred when it refused to set aside an order of adoption entered by that court on August 5, 1991. As the parties are familiar with the facts leading to appellant’s institution of an action praying that the adoption decree be set aside, we reference only those facts necessary to an understanding of this decision.
In late 1990, Armistead and Ronnie Lynn Hamilton (Hamilton) employed an attorney (Burnside) to effect Armistead’s adoption of Hamilton. By May 13, 1991, the petition and all necessary reports were filed with the trial court. Armistead had indicated to an investigator that he was anxious to have the matter completed and the investigator’s report recommended that an interlocutory order be waived pursuant to Code Sec. 63.1-226.
By the summer of 1991, Armistead had indicated that Hamilton was not living up to his expectations and that Armistead wanted to make a new will and procure a new attorney. On July 19, 1991, Armistead employed a second attorney (Cave) who procured a letter from Armistead’s physician who opined that Armistead was mentally competent. Burnside was notified by Cave, by telephone message and subsequent letter dated July 19, 1991, that Armistead did not want to complete the adoption and that Burnside was to take no further action in that regard. The letter further informed Burnside that Armistead had revoked Armistead’s power of attorney held by Hamilton, and a copy of the revocation document was enclosed. It is not disputed that Burnside received the July 19, 1991 letter.
After receiving that letter, Burnside mailed a draft of a final adoption order to Hamilton who procured Armistead’s signature thereto, signed it himself, and returned it to Burnside. The order signed by both Armistead and Hamilton affirmed that neither was acting pursuant to undue influence or duress. Burnside, thereafter, forwarded the order to the trial court where it was entered as a final order of adoption on August 5, 1991.
Within two days after August 5, 1991, estimated by Cave to be on or about August 7, 1991, Burnside orally advised Cave that the final order of adoption had been entered. Within two more days, Cave received a letter dated August 7, 1991 from Burnside that contained a copy of the final order. That letter provided, in part, that Burnside had been advised that Armistead wanted the adoption order entered but further advised Cave that “if there is any problem in this regard, please advise me immediately so that I may have the decree modified or set aside if [Armistead] has any problem in this regard. Your attention to this matter is greatly appreciated.” On August 8, 1991, Cave wrote Armistead and informed him of the contents of Burnside’s letter.
Cave testified that he knew that to set aside the adoption order he had to have the order vacated within twenty-one days from August 5, 1991. In his August 8, 1991 letter to Armistead, Cave requested that if Armistead wanted Cave to take any further action he should contact Cave. Cave’s letter to Armistead enclosed a copy of the final order and Burnside’s August 7, 1991 letter to Cave. Cave’s letter advised Armistead that if he had signed the adoption order no further action was required, but Cave invited Armistead to contact him immediately if Armistead had not signed the order. Cave testified that he did not receive a response to his August 8, 1991 letter to Armistead and that he took no further action with regard to the adoption.
In January 1992, Armistead suffered a major stroke. On May 15, 1992, he was declared incompetent and his brother, Lewis M. Armistead, was appointed his guardian.
No further action was taken until August 24, 1992 when guardian filed a bill of complaint charging that the final order of adoption had been procured by the fraudulent act and undue influence of Hamilton. The complaint prayed that the trial court enter an order setting aside the August 5, 1991 adoption order. The suit was filed more than one year after the order of adoption had become final.
Based upon the following Code section, Hamilton filed a motion to dismiss the bill of complaint:
Sec. 63.1-237. Final order not subject to attack after six months. — After the expiration of six months from the date of entry of any final order of adoption from which no appeal has been taken to the Court of Appeals, the validity thereof shall not be subject to attack in any proceedings, collateral or direct, and such order shall be final for all purposes.
Pursuant to its opinion stated at the conclusion of the trial, that Code Sec. 63.1-237 prevented it from granting the relief sought, the trial court entered an order on April 18, 1994 dismissing the bill of complaint.
Guardian argues that Code Sec. 8.01-428 permits the attack made here. We disagree. Nothing in that Code section alters Code Sec. 63.1-237 which controls adoption matters. Moreover, even if we assume that Code Sec. 8.01-428 would permit this action, the evidence supports the trial judge’s finding that Armistead failed to prove fraud.
Accordingly, for the reasons stated, the judgment of the trial court is affirmed.
Affirmed.