This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Mary Ellen Christopherson, petitioner,



Darcy Leon Christopherson,



In Re the Matter of the Petition of:

Darcy Leon Christopherson and

Mary Ellen Christopherson to adopt

N.C. and K.J.C.

Filed July 8, 1997


Klaphake, Judge

Dissenting, Lansing, Judge

Washington County District Court

File Nos. F8-90-4990, F9-90-50-103, C9-90-50-102

David R. Newcomb, Jr., 2330 American Bank Building, 101 East Fifth Street, St. Paul, MN 55101 (for Appellant)

Wright S. Walling, 701 Fourth Avenue South, Suite 650, Minneapolis, MN 55415 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.



Previously, this case was remanded because the trial court applied the wrong standard of proof in denying respondent Darcy Leon Christopherson's motions to vacate his adoptions of appellant Mary Ellen Christopherson's children. See Christopherson v. Christopherson, No. C9-95-2284 (Minn. App. June 25, 1996) (Christopherson I). On remand, the trial court concluded that respondent was fraudulently induced into adopting the children and vacated the adoptions. Because appellant waived the right to raise her timeliness and res judicata issues and because the trial court made findings and conclusions reasonably supported by the record, we affirm.


1. Appellant argues that respondent's challenge to his parental status is untimely and precluded by res judicata. See Minn. R. Civ. P. 60.02(c); Minn. Stat. § 518.145, subd. 2(3) (1996). Appellant orally raised these same issues while opposing respondent's motions in the first hearing before the trial court, and was given an opportunity to submit additional memorandum in support of her position. In the May and September 1995 orders denying respondent's motions to vacate the adoptions, the trial court ordered "all other motions not specifically addressed herein are denied." On appeal of these orders, appellant (respondent at that time) did not raise the issues of timeliness or res judicata as alternative bases for affirmance either through a notice of review or in her brief on appeal. See Arndt v. American Family Ins. Co., 394 N.W.2d 791, 793-94 (Minn. 1986) (even though judgment entirely in respondent's favor, when trial court decided preliminary issue adversely to respondent, respondent required to file notice of review on that issue). And even on remand after this court issued Christopherson I, appellant did not attempt to resurrect her arguments that respondent's motions were untimely or precluded by res judicata.

This appeal is from the trial court's November 7, 1996 order, which did not address or decide the timeliness or res judicata issues. Nothing in appellant's notice of appeal or statement of the case references those issues. Rather, appellant raises the issues for the first time in her appellate brief and at oral argument. Under these circumstances, appellant's timeliness and res judicata claims are waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts address only issues presented to and decided by trial court); Wilcox v. Hedwall, 186 Minn. 500, 501, 243 N.W. 711, 712 (1932) ("all questions involved and which might have been raised on a former appeal are concluded by the decision on such appeal").

2. In Christopherson I, this court held that the trial court erred in applying a clear and convincing standard, instead of preponderance of evidence standard of proof. Declining to address the merits of the trial court's denial of the motions to vacate the adoptions, we reversed and remanded for further proceedings consistent with the opinion. On remand, the trial court reviewed the parties' arguments and the entire record, including the evidence and testimony presented at the first hearing. The court found that appellant "set out to defraud respondent" and intended "to trick respondent into going through with the adoption."

Further findings of the trial court and the record reflect the following: (1) prior to the adoption, appellant told respondent everything was fine in the marriage relationship between the two of them; (2) appellant acknowledged that during the pendency of the adoption "we had normal marital spats, normal things that everybody goes through, but otherwise everything was fine"; (3) appellant informed the social worker completing the adoption study that life was good and her husband was making a huge commitment to her and her children; (4) the adoption was finalized on Monday, August 13, 1990; (5) on Friday, August 17, 1990, appellant informed respondent she wanted a divorce and asked him to leave the home; (6) within a week of the adoption, appellant filed for dissolution of marriage; (7) respondent testified that had he known of appellant's intention to file for marital dissolution within one week of the adoption, he would not have gone through with the adoption; (8) respondent had no knowledge of any serious problems with the marriage before the adoption was completed; (9) appellant's car was at the home of her present husband and she was seen with him two and one-half to three weeks before the adoption was finalized; and (10) within days of the separation, appellant was babysitting her present husband's children. These facts and the reasonable inferences that can be drawn from them adequately support the trial court's findings that appellant defrauded respondent into procuring the adoption. See In re Welfare of Alle, 304 Minn. 254, 256-58, 230 N.W.2d 574, 576-77 (1975) (although supreme court concluded that Minn. Stat. § 260.221(a) not available to terminate adoptive father's parental relationship with his adoptive sons, court remanded matter to give father opportunity to directly attack adoption proceeding as fraudulently obtained when trial court's findings indicated: adoption had not been intended by natural mother to solidify family, but was based upon financial expediency; while adoption proceeding pending, mother had been simultaneously preparing to separate from father; adoption proceeding had not been entered in good faith; and adoption was void of necessary bilateral parental commitment to provide stable family unit of mutual parental love).

Citing In re C.H., 554 N.W.2d 737, 740-41 (Minn. 1996), the dissent suggests that the validity of an adoption should not be conditioned on the continuity of a marriage. While we agree, C.H. involved an open adoption and was not a fraud case. The supreme court has established that an adoption can be vacated if fraudulently obtained. In re Alle, 304 Minn. 254, 258-59, 230 N.W.2d 574, 577 (1975) ("if [the adoptive father] is able to sufficiently demonstrate that the original adoption decree was obtained fraudulently, then he should be entitled to relief"). After a careful review of the record, we conclude the trial court's findings and the record in this case present the proper circumstances for vacation.

3. Appellant asserts that, in vacating the adoptions, the trial court failed to address the importance of the parent-child relationship. See In re Paternity of J.A.V. 547 N.W.2d 374, 376 (Minn. 1996). The sole issue in J.A.V. was whether under Minn. Stat. § 259.51, subd. 1, the respondent automatically lost his right to establish paternity of J.A.V. when he failed to timely file an affidavit acknowledging his paternity. By contrast, the question here is whether the parent-child relationship should have come into existence. Under these circumstances, the holding of J.A.V. has no application.


LANSING, Judge (dissenting).

I respectfully dissent from the majority's holding. In proper circumstances a court may vacate an adoption order that was obtained by fraud. In re Alle, 304 Minn. 254, 258, 230 N.W.2d 574, 577 (1975). But the fraud alleged in this case is essentially Mary Ellen Christopherson filing a dissolution action shortly after the conclusion of the adoption proceedings. The validity of the adoption should not be conditioned on continuity of the marriage between the biological mother and the adoptive father. See In re C.H., 554 N.W.2d 737, 740-41 (Minn. 1996) (after the adoption petition is granted the children are the children of the adoptive parents, without conditions or qualifications).

The adoptive father, Darcy Christopherson, lived with the children from 1985 until 1990. During that time he and the children formed a parent-child relationship, which he formalized by adopting them in 1990. One child, now thirteen, was only one year old when Darcy Christopherson began living with the family. The proper focus is on the relationship between the adoptive parent and the child, not the marital discord between the biological mother and the adoptive father. See, e.g., In re C.L.R., 352 N.W.2d 916, 919 (Neb. 1984) (rejecting adoptive father's attempt to void adoption because wife filed for divorce eight months after petition became final, noting that adoptive parent had "no more right to deny the obligations of parenthood * * * than would a natural father who claimed to have been defrauded into fathering a child."); Stanford v. Stanford, 201 S.W.2d 63, 65 (Tex. Civ. App.-Austin 1947, writ ref'd n.r.e.) (rejecting adoptive father's attempt to vacate adoption for fraud because wife filed for divorce two weeks after adoption became final).