Kummer v. Donak

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.

RICHARD KUMMER, ET AL.
                                              OPINION BY
 v.   Record No. 101232                JUSTICE WILLIAM C. MIMS
                                          September 16, 2011
NANCY A. DONAK, ADMINISTRATRIX


              FROM THE CIRCUIT COURT OF WARREN COUNTY
                       Dennis L. Hupp, Judge

      In this appeal, we consider whether the adoption of an

adult has the same effect as the adoption of a minor, and

particularly for purposes of intestate succession.

             I.   FACTS AND MATERIAL PROCEEDINGS BELOW

      Justine Critzer (“Critzer”), a Virginia resident, died

intestate on March 31, 2006.    No spouse, siblings, children, or

parents survived her.     Nancy Donak (“Donak”) was appointed

administratrix of her estate.    Donak could not locate a will.

Initially she believed Critzer’s only heirs were distant

cousins.   Donak petitioned the Circuit Court of Warren County to

serve notice on fifty-three individuals with possible claims,

including Richard Kummer, Charles Kummer III, and Jane Kummer

Stolte (“Kummer children”), the appellants.    Donak subsequently

discovered that the Kummer children’s deceased mother, Mary

Frances Kummer (“Mrs. Kummer”), was the biological sister of

Critzer.   Consequently, they were the niece and nephews of

Critzer and apparently were her closest surviving heirs.
     Donak then moved the circuit court in November 2007 for

leave to file an amended list of heirs that named the Kummer

children as “the only necessary parties to these probate

proceedings, the only beneficiaries of the estate and the only

persons to whom distribution should be made.”    The court granted

the motion in December 2007 and ordered Donak to distribute

Critzer’s estate accordingly.

     Shortly thereafter, Donak and the Kummer children began to

administer the estate.    They sold, with approval by court order,

two properties:   a seventeen-acre property worth $272,000 in

March 2008 and a thirty-three acre property worth $405,000 in

June 2008.

     In October 2009, Donak filed a petition for aid and

direction and motion for rule to show cause against distribution

in the circuit court, based upon the fact that Mrs. Kummer had

been adopted in 1981, at the age of 53, by her aunt by marriage,

Arietta Henry Kaleta.    The court scheduled a hearing for

February 2010 to determine the effect of Mrs. Kummer’s adoption

and appointed a guardian ad litem for the unknown heirs.     At the

hearing, the court interpreted Virginia’s intestacy statutes to

hold that the Kummer children were not Critzer’s heirs at law

because Mrs. Kummer’s adoption severed their legal ties to

Critzer and her estate.    It further held that Virginia’s

statutory scheme does not distinguish between the adoption of an


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adult and the adoption of a minor.     The Kummer children

appealed.

                             II. ANALYSIS

     This case presents issues of statutory construction, which

we review de novo.    Jones v. Williams, 280 Va. 635, 638, 701

S.E.2d 405, 406 (2010).    The legislature’s intention is

determined by the words used in the statute.     Id.   When a

statute is clear and unambiguous, the Court will apply its plain

meaning.    Id.   This Court assumes the legislature chose such

words with care and is bound by those words in construing the

statute.    Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d

402, 404 (2011).

       A.     EFFECT OF THE ADOPTION ON INTESTATE SUCCESSION

     On appeal, the Kummer children argue that the circuit court

erred in its judgment that they are not heirs at law of

Critzer’s estate and, therefore, their mother’s adoption did not

sever their ability to inherit from their biological aunt.      We

disagree.

     Code § 64.1-1 delineates the course of descent for

intestate succession in cascading categories of priority,

depending on the existence of a surviving spouse, children of

the intestate or their descendants, any surviving parents, and –

at the fourth level – the decedent’s siblings and their




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descendants.   Code § 64.1-5.1 defines a child for purposes of

Code § 64.1-1:

          If, for purposes of this title or for
     determining rights in and to property pursuant to
     any deed, will, trust or other instrument, a
     relationship of parent and child must be
     established to determine a succession or taking
     by, through or from a person:

     1. An adopted person is the child of the
     adopting parent and not of the biological parents
     . . . .

     The Kummer children urge us to read these statutes to allow

a person who has been adopted, and her descendants, to inherit

from her biological sister.    They assert that Code § 64.1-5.1

does not apply in this case because no parent-child relationship

need be established, but rather it only requires proof of the

relationship of two sisters.   They also contend that the public

policy behind intestate succession supports allowing property to

descend to the closest blood relative and disfavors allowing the

adoption of a person to sever the inheritance rights of her

descendants.

     Contrary to the Kummer children’s assertion, this case

unquestionably requires the establishment of a parent-child

relationship to determine whether they can inherit through their

mother.   The Kummer children seek to inherit from Critzer’s

estate based upon the course of descent under Code § 64.1-1.      To

inherit as descendants of Critzer’s sister, they must first



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establish that Mrs. Kummer was Critzer’s sister for purposes of

the statutory scheme.   That cannot be done unless a relationship

of parent and child is established to show a common parent of

Mrs. Kummer and Critzer.   Applying the unambiguous language of

Code § 64.1-5.1, Mrs. Kummer became the child of her adopting

parent and no longer was the child of her biological parents. 1

Consequently, Critzer and Mrs. Kummer, while biologically

sisters, were not legally sisters for purposes of intestate

succession under Code § 64.1-1.

     The Kummer children contend that the legislature never

intended to divest an adopted child of inheritance rights from

her biological family, because Code § 63.2-1215, which

delineates the legal effects of adoption, does not specifically

address intestate succession. 2   Code § 63.2-1215 states:

          The birth parents . . . shall . . . be divested of all
     legal rights and obligations in respect to the child
     including the right to petition any court for visitation
     with the child. . . . Except [in cases of stepparent
     adoption], any person whose interest in the child derives
     from or through the birth parent . . . including but not

     1
       No contention is made in this case that the exception for
adoption of a child by the spouse of a biological parent is
applicable to the present facts. See Code § 64.1-5.1(1).
     2
       The Kummer children assert that, in removing former Code
§ 63.1-234 (1973 & Supp. 1978), a descent and distribution
provision in the adoption statute that barred inheritance from
the biological family, the General Assembly intended to allow
such inheritance because the provision was not replaced.
Because Code § 64.1-5.1 is unambiguous, this Court will not
consider the Kummer children’s argument regarding legislative
history. See Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d
441, 446 (1997) (citing cases).

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     limited to grandparents, stepparents, former stepparents,
     blood relatives and family members shall . . . be divested
     of all legal rights and obligations in respect to the child
     including the right to petition any court for visitation
     with the child. In all cases the child shall be free from
     all legal obligations of obedience and maintenance in
     respect to such persons divested of legal rights. Any
     child adopted under the provisions of this chapter shall
     . . . be, to all intents and purposes, the child of the
     person or persons so adopting him, and . . . shall be
     entitled to all the rights and privileges, and subject to
     all the obligations, of a child of such person or persons
     born in lawful wedlock.

This provision is consistent with Code § 64.1-5.1, as it

declares that the adopted child becomes for “all intents and

purposes” the child of the adopting parent.   The child is then

placed on equal footing in her adopting family as a child “born

in lawful wedlock” to the adopting parents.   McFadden v.

McNorton, 193 Va. 455, 462, 69 S.E.2d 445, 449 (1952).     This

provision divested Mrs. Kummer’s biological parents of their

legal rights with respect to Mrs. Kummer.   Such divestiture

extends to collateral relatives whose interest derives through

the parents, which includes Critzer.

     The Kummer children ask us to find that the policy behind

intestate succession is for property to pass to the decedent’s

closest blood relatives.   However, consanguinity ceases to be

paramount where the legislature expresses an intention to the

contrary.   Id. at 460, 69 S.E.2d at 448 (“[t]he inherita[nce]

status of an adopted person is to be determined by the law-

making body”); see also Uniwest Constr., Inc. v. Amtech Elevator


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Servs., Inc., 280 Va. 428, 440, 669 S.E.2d 223, 229 (2010)

(“[t]he public policy of the Commonwealth is determined by the

General Assembly, for ‘it is the responsibility of the

legislature, not the judiciary, . . . to strike the appropriate

balance between competing interests . . . .   Once the

legislature has acted, the role of the judiciary is the narrow

one of determining what [the legislature] meant by the words it

used in the statute”).   Because there is no ambiguity in the

applicable statutes, the Kummer children’s public policy

argument must fail.

             B.   LEGAL EFFECT OF AN ADULT ADOPTION

     The Kummer children assert that the adoption of an adult is

not the same as the adoption of a minor, because it is motivated

primarily by financial considerations.   Therefore, Mrs. Kummer’s

adoption should not be treated as having the same legal effect

as a child adoption.   We disagree.

     Code § 63.2-1243, the adult adoption statute, provides that

adoption of an adult shall have the same effect as adoption of a

child:

     Any interlocutory or final order issued in any
     case under this section shall have the same
     effect as other orders issued under this chapter;
     and in any such case, the word “child” in any
     other section of this chapter shall be construed
     to refer to the person whose adoption is
     petitioned for under this section.




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Code § 64.1-5.1 has the same effect, as it refers to any

“adopted person” rather than distinguishing between minor and

adult.   The plain language of these statutes evinces the

intention of the legislature to treat minor and adult adoptees

the same.

     Thus, the Kummer children’s inheritance rights do not

change based on Mrs. Kummer’s adoption as an adult rather than

as a child.   The effect of Mrs. Kummer’s adoption as an adult

divested her and her descendants of inheritance rights running

from her biological family.     The Kummer children are not

Critzer’s heirs-at-law and cannot inherit from her estate.

                         III.    CONCLUSION

     For the reasons stated, we hold that the circuit court did

not err in finding that the Kummer children are not heirs-at-law

of the Critzer estate, because their mother’s adult adoption

severed their inheritance rights.      Accordingly, we will affirm

the judgment of the circuit court.

                                                              Affirmed.




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