*1 prior history between a victim and a difficulties defendant. The relationship many their is whole cloth woven of the threads de pendent, connected actions and incidents that occurred between short, prior them. In concerning exper evidence difficulties have Further, in prior ienced these relevant. difficulties bear no resemblance to the similar transactions that USCR 31.3 was respectfully will, cover.5 I in hope intended to dissent we Carley Barrett, proposed special Justice supra, concurrence overrule Maxwell and concerning prior restore better rule difficul ties a defendant victim between which we had followed in our eаrlier cases. Carley am authorized to state that Justice Hunstein and Justice
join this dissent. February Decided February
Reconsideration denied Murrah, Lane, Gilbert J. Ronnie appellant. Joe J. Moseley, Bowers, Brown Attorney, District Michael J. Attor- General, ney Boleyn, General, Susan V. Senior Attorney Assistant Strausner, Attorney, Rachelle L. appellee. Staff
S93A1621. O’NEAL WILKES. Justice. Fletchеr, adoption action, In jury this virtual appellant found that Hattie O’Neal virtually adopted by decedent, had been Roswell Cook. On post-trial motions, granted judgment court notwithstanding the appellee Wilkes, verdict to estate, Firmón as administrator of Cook’s ground allegedly aunt who entered into the adoption contract with legal authority Cook had no to do so. We have Similarly, similar, occurrences. and a minds 404(b), 608(b) presented we have that are somehow connected to with a intent [i]t victim, See Abraham P. must be should not be USCR 31.3 when the state reader that to commit used completely unconnected, because such it in emphasized 609(a), Ordover, Balanсing dissent, specific attempts prior difficulties are Emory crime now at issue. the crimes in the indictment. interpreted properly applied only but present arguably L.J. not concerned with Presumptions evidence of similar similar, apply completely unconnected, 156-157. occurrence as to difficulties “prior evidencе summarizing Guilt and Innocence: Rules Instead, difficulties,” transactions, probative we are other crimes though a term Ordover dealing defendant problems arguably which, re correctly determined that the court the record and conclude (cid:127)eviewed ;hat adopt. no valid contract there was raised 1949 and out wedlock O’Neal born Broughton, At death nother, until her mother’s Bessie daughter, biological recognize O’Neal as father :ime did O’Neal’s ;ake provide legitimize her, to her or her *2 biological met her father that she first mother. O’Neal testified 1970. years death, O’Neal lived New after her mother’s For four Campbell. City 1961, aunt, In Ms. Ethel York Campbell with her maternal Georgia, brought Savannah, and surrendered O’Neal only custody physical as who to a woman identified Louise of O’Neal Shortly daughter. thereafter, determined Louise was known to want a she could not Estelle her the Savannah home of care for O’Neal and took biological Page, father. After short the sister of O’Neal’s Page, Savannah from Cook wife came to time with their she had heard that Roswell and his Page pick up Riceboro, testified that home to O’Neal.1 telling daughter after the Cooks wanted a they O’Neal, came for her. them about statutorily adopted by
Although
Cook, he
O’Neal was never
provided
him
her
and she resided with
raised her
education
marriage
While
never took the last name
until her
she
daughter and, later,
her chil-
Cook,
dren
her
identified
he referred to
as
grandchildren.
appellee,
1991,
The
Firmón
In
Cook died intestate.
November
appointed
Wilkes,
and refused
of Cook’s estate
was
as administrator
recognize
in the estate.
December
O’Neal’s asserted intеrest
equity
petition
asking
the court to declare a
O’Neal
filed
property
thereby entitling
adoption,
she
her to the estate
virtual
statutorily adopted
if
child.
inherited
she were Cook’s
would have
adoption
it be made
1. The
of a contract for
is that
first essential
disposition
persons competent
to contraсt
(128
(1962);
v.
Winder,
v.
Rucker
Winder
“Some performance by adoptive parents, the natural up custody, performance by giving liv- the child child in adoptive parents, partial ing in the home of taking parents in into the home and the foster the child intеstacy treating [it] . . . the foster as their at trial. Mr. and Mrs. Cook were divorced in the 1970s. The former Mrs. Cook did testify
parent.”
624) (1977),
Murray,
Young,
quoting
Williams
(5th
1973).
only
Habecker v.
474 F2d
Cir.
The
is-
appeal
correctly
sue
is whether the court
determined that
Page
to contract for
without
O’Neal’s
Page, paternal
physical custody
argues
O’Neal
that
to
aunt with
adоption
her,
and,
for her
if
had
contract
even she was
authority, any person
legal right
without such
contract
biological
O’Neal’s
father or maternal aunts or
by failing
object.
uncles, ratified the
contract
preliminary
agree
matter,
As a
with O’Neal that
her
biological
living
father was
at the time the
contract was al-
legedly
necessary
into,
entered
his consent to the contract was not
recognized
legitimized
provided
he never
or
for her
(mother
may
Williams,
manner. See
whom
has been
court order and who has the
right
physical custody
to
of the child and to determine the nature of
duty
provide
the care and
treatment
the child and the
to
for the
protection, training,
physical,
care,
mental,
and education and §
and moral
2901.
adoption
15-11-43,
1933,
welfare of the
OCGA
Code
24A-
legal
right
A
not
custodiаn does
have the
to consent to the
right
by
of a
as this
is
retained
with
one
greater rights
parent
guardian.
over the
a child’s
or
(rights
legal
§ 1933, §
Code
24A-2901
of a
custodian are
subject
guardian);
rights
remaining
to
and duties of the child’s
(238
917)
Skipper
(1977)
Smith,
v.
O’Neal concedes
any
petition
person petitioned
her
Nor is there
evidence that
was filed
relatives.
legal
Accordingly,
appointed as her
custodian.
to be
provide
obligation
O’Neal,
first
to care and
undertaken
legal obligation
Campbell,
Page,
but a familial
and later
relationship properly
resulting
obligation
characterized
a custodial
legal
something
custodian. Such a
as
carried with it no
Skipper,
less than that
authority
adoption.
for O’Neal’s
See
to contract
plight,
sympathize
we
with O’Neal’s
See persons competent to contract for made tion pаren- adoption specifically with child’s enforceable where acquiesced power con- tal over the child and ratified the tract). Judgment except Hunt, J., concur, P. All the Justices affirmed. only; Carley, judgment J., Sears-Collins and who concur in the
Hunstein, JJ., who dissent. dissenting. Justice,
Sears-Collins, eq- majority’s holding disagree that O’Neal’sclaim aunt was is defeated the fact that uitable having designated law one not a to O’Neal’s (1913), Wilson, 1. In Ga. SE Crawford recognized the first
doctrine of virtual equitable principle “equity Georgia. Relying that con- see time on the ought done,” 659; id. at which to have been siders that done we held that adopt agreement child, to the child an an heir to a so as constitute рerson adopting, per- of the law on the death upon part child, the of the is enforceable formed the property person adopting to which death of is the child as by undisposed of will. adopting parents pre- of the
Id. We held that cluded a the death equity contract, literal “enforce enforcement оf would decreeing that the child is entitled to the fruits a the contract adoption.” Crawford, Id. In we noted full that the agreement objection of the the child was sufficient to overcome an agreement that the was unenforceable because it violated the statute Id. that of frauds. at 658. We further held upon promise [w]here one a takes an infant into home to performs child, such as his own and the child all growing parent duties out the substituted rendering years companionship, child, service, and parent, upon to the obedience foster the faith that such fos- parentis, upon ter stands loco and that his death legal relationship the child will sustain the to estate of a equitable may child, is equity natural there reason that child appeal may consummate, to a court of far so possible, parent’s duty be the foster omission of in the mat- adoption. ter of formal
Id. at 660.
Although majority correctly states the current rule adopt may that a contract not enforced unless thе person legal authority was entered expressly to the did not establish Crawford requirement, majority such and think the cases cited requirement have established this error. fully performed Instead, I would hold that where a has alleged sufficiently many years contract over the course or a lifetime can adopt, equity establish the еxistence of the contract to objection adopting par- should enforce the contract over the of person ents’ heirs that the contract is unenforceable because the who legal authority consented to the did have the to do so.3 Several reasons this conclusion. adopting parents probably First, cases, in such their heirs yet objection know of the defect the contract and voice no to the fully performs contract while the child the contract and the parents reap the circumstances, benefits thereof. Under these to hold requirement private adoption I am in favor of the contraсts be entered some legal authority one with proba to consent to the of a as such a bly likely more to look after the child’s best than interests someone who does not have such authority. However, initially the fact that such did Instead, equi should not be an absolute bar an action for focus in adoptions equities agreement table should be on the from arise the time the made equitable adoption brought. the time the action is *5 performed is to after the child has is unenforceable the contract that upon permit not be countenanced the child and should a virtual fraud (1950). Equity p. equity. 469, § Contracts, in See 2 Corbin on initially regard permit that are such with contracts does unenforceable because recognizes unenforceability frauds, of but instead the statute violate negates performance initial the its the full of equity. Corbin, in See it enforceable and renders (1) Harp supra, Bacon, 420, 421, 429, 432; 482-483 Ga. §§ (1966). requiring purpose Moreover, of consent the adoption, authority legal person where with the a such person, protect person exists, is the parents. generally adopting Clark, The Law of Domestic Rela- See (2nd 1987). equitable adop- However, tions, 21.11 ed. Vol. Sec. parents, adopting the arise until the death of the tion cases do not adopt adopting person the consent to and the of the with interests parents jeopardy. hand, in On the interests of the the other are not upon unfairly inequitably insisting the re- and harmed child are quirement party adopt person had been a the to have that a against legal requirement is held to the contract. That this inequitable particularly the course of whose child is because changed contracts, unable to act to insure is forever such life the validity was made. of the contract when the contract legal person Furthermore, where there is present only case, reason consent to the such guardian appointed before to insist the child’s that a protection adopt agreeing would be for the to the contract to par- upon requirement insisting Yet, after the this require- harming very deaths, ents’ ment would this Court is protect. equity ought foregoing reasons, on the
For to intervene all the require types cases, and child’s behalf these sufficiently proven. OCGA 23-1-8. if it is See the contract specific per- against case, not rule O’Neal’s claim for would thus solely ground did not have that her adoption. aunt formance to consent to the basing equitable Moreover, con- the doctrine heavy theory criticism, numerous reasons. come tract has under Adoption, supra Blood, 676-678;Rein, Clark, at Relatives See (The Adop- Why Impact of Should Get What and Association: Who Adoptions, Adoptions Equitable tions, on Intestate Succes- Adult (1984). Gifts), 770-775, L. sion and Class 37 Vand. Rev. supra, acknowledged instance, Wilson, at For as we adopt- being enforced as the the contract to merely placing ing parents dead; we are reasons position in if he or she had been child in a that he or she would have adopted. problematic Moreover, Rein at been these contracts are See it whether capable being respects during enforced all infancy. 773-774; Furthermore, child’s See Rein Clark at 678. part because performance ciary of the consideration for these contraсts is the child’s merely third-party
thereunder, the child is not benefi- party of a contract between the adults involved but is thereto. usually young Yet, a child is to know or too understand con- meeting tract, is thus difficult to find a of the minds between *6 adopting parents acceptance the child and the and the child’s agree 772-773, Rein contract. abаndon the contract basis for 775.1 with these criticisms arid would
equitable adoption in favor of the equitable theory foregoing more flexible and advanced authori- theory ties. That focuses not on the fiction of whether there has been adopting par- but on the between the particular ents and child whether the legally adopted have led the ber believe that he or she is a mem- family. 785-787; Rein at Clark at majority “[ejquity 3. Because the fails to honor the maxim that ought done,” § 23-1-8, considers that done which to be follows protect superior equities, rule that fails to I dissent. I am authorized to state that Justice Hunstein re- concurs sult reáched this dissent. February Decided Fеbruary
Reconsideration denied appellant. Bell, Charles W. for Phillips, appellee.
Richard D. S93A1722, S93X1724. STYERS v. ATLANTA GAS LIGHT
COMPANY; and vice versa. Justice. Benham, Appellant Styers seeking Walter filed an action state court damages alleged trespasses by employees agents committed and/or appellee (“AGL”) Light Company Styers’ Atlanta Gаs on land. seeking damages Styers’ alleged AGL filed a counterclaim interfer- utility company’s Styers’ ence with the easement across land. AGL separate superior seeking injunction also filed a court en- joining Styers interfering from with AGL’s easement. The actions superior Styers appeals were consolidated court. from the trial grant summary judgment utility Styers’ trespass court’s to the injunction Styers forbidding claims and the issuance from in-