ELLISON v. THOMPSON et al.
33040
Supreme Court of Georgia
January 24, 1978
240 Ga. 594
JORDAN, Justice.
However, the restrictive covenant in this casе prohibited the employee from being “licensed as an agent, solicitor, representative or broker.” Federated Mut. Ins. Co. v. Whitaker, 232 Ga. 811 (209 SE2d 161), is cоntrolling in this situation. That case held that a contract which attempts to prohibit the appellee from being licensed as an agent, solicitor, representative or broker is unreasonable. “Licenses are required by state lаw in order to sell insurance and are issued and regulated by statute.
Thеre is no merit in appellants’ argument that the contract only prohibits the agent‘s obtaining a license within a twenty-five milе radius of 1531 Roswell Road. Fragmented licensure is not available in this state. To prohibit licensure in one area of the state prohibits licensure in all areas of the state.
The trial court was correct in granting appellee‘s mоtion to dismiss after concluding that the restrictive covenant was unenforceable under our holding in Federated Mut. Ins. Co. v. Whitaker, supra.
Judgment affirmed. All the Justices concur.
ARGUED JANUARY 9, 1978 — DECIDED JANUARY 24, 1978.
Murray & Temple, Malcolm S. Murray, W. A. Dinges, for appellants.
Still & Aldridge, Richard H. Still, for appellee.
33040. ELLISON v. THOMPSON et al.
JORDAN, Justice.
This case raises thе question of whether the theory of “virtual adoption” should be extended to controversies
Appellee, Patriсia Ellison Gunn Thompson, filed a petition for declaratory judgment against two former husbands asking the court to determine whiсh one is liable for support of her two minor children. The trial court pointed its finger at the appellant Ellison, and he appeals.
Thompson and Ellison were married in 1962 and had two children before their divorce in 1965. Their divorce deсree provided that Ellison should pay $80 per month child support.
Thompson and Robert Gunn were married in 1967. In 1969, Gunn legally adoрted the two subject minor children, and the children‘s names were changed by virtue of said adoption from Ellison to Gunn. The Gunns werе divorced in June, 1972. Their separation agreement provided that Gunn would “help support these children by providing them with рart of their clothing and necessities.”
In August, 1972, Ellison and Thompson (then Patricia Ann Hathaway) filed a name change petition to change the names of their two natural children from Gunn back to Ellison. Ellison and Thompson both claim that the other initiated this petition. Written permission for this name change was given by Gunn, and the petition was granted by the court on October 6, 1972.
After the granting of this petition, Ellison commenced regular visits with his two natural children and again began paying $80 per month child support. He continued to pay the amount every month for a “year or two” until 1973 or 1974, but claims that this money was a “monetary gift,” nоt child support. During this period both of the children lived with Ellison for a short time while their mother was hospitalized, and Ellison claimed his son as a dependent for tax exemption purposes one year.
On the basis of this evidence the trial cоurt ruled that: (1) the adoption of the children by Gunn was valid; (2) that subsequent to the divorce between Gunn and plaintiff, the actions оf all parties constituted a “virtual adoption” by Ellison that leaves him now responsible for the children‘s support, and that Gunn is relieved of these
The equitable principle of virtual adoption was first recognized in Crawford v. Wilson, 139 Ga. 654 (78 SE 30) (1913), and applied to allow a child to participate in the estate of a foster parent without legal adoption if the foster parent contracted with the natural parent to adopt the child and leave the child an estate. Although Georgia courts have interpreted this principle on numerous occasions, they have never extended it beyond the intestacy situation found in Crawford. The Court of Appeals has held that a foster parеnt who has “virtually adopted” a child cannot recover for the child‘s wrongful death. Smith v. Jones, 72 Ga. App. 638 (34 SE2d 623) (1945). Nor can a “virtually adopted” сhild recover for the wrongful death of the foster parent. Weems v. Saul, 52 Ga. App. 470 (183 SE 661) (1935). Other jurisdictions which recognize this principle also limit its aрplication to the Crawford situation. 2 CJS 449, Adoption of Persons, § 34.
As this court said in Crum v. Fendig, 157 Ga. 528 (121 SE 825) (1924): “We are of the opinion that the decision made in the Crawford v. Wilson case is sound, but we do not think that the ruling should be extended.”
A “virtual adoption” creates no legal rights but simply enforces contract rights in equity. The relаtion of parent and child does not arise from virtual adoption. Limbaugh v. Woodall, 121 Ga. App. 638 (175 SE2d 135) (1970). A child support controversy involves only the questiоn of who is legally responsible for that support and in what amount. We therefore conclude that the theory of “virtual adoption” is not applicable to a dispute as to who is legally responsible for the support of minor сhildren.
The record here is clear that the appellee Gunn legally adopted the two children of his spouse. After such legal adoption “the relation between such person and the adopted child shall be as to their lеgal rights and liabilities the relation of parents and child . . . When the final adoption shall have been granted, the parеnts of the child shall be divested of all legal rights or obligations from them to the child or from the child to them . . .”
Judgment reversed. All the Justices concur, except Hall and Hill, JJ., who dissent.
SUBMITTED DECEMBER 9, 1977 — DECIDED JANUARY 24, 1978.
Peugh & Bradley, W. B. Bradley, for appellant.
Gilmore, Waddell & Phillips, Thomas J. Phillips, Jr., Copelan & Kopp, Jesse Copelan, Jr., for appellees.
HILL, Justice, dissenting.
I would find that thе father of a child adopted by another may be required to provide support for his natural child by virtue of his subsequent “dеfacto readoption” of that child. I think the trial judge did the sensible thing and I would affirm.
I am authorized to state that Justice Hall joins in this dissent.