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Wright,
Ponsoldt & Lozeau,
Trial Attorneys, L.L.P.
1000 SE Monterey Commons Blvd., Suite 208
Stuart, Florida 34996
772-286-5566
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Last
Updated: Jun 19th, 2002 - 17:37:44
WPL, In the News
Stuart News/Port St. Lucie News (FL)
January 4, 2002
Section: A Section
Edition: Martin County
Page: A1
DEAD PEOPLE CAN'T ADOPT, JUDGE RULES IN LOCAL CASE
Melissa E. Holsman staff writer
STUART - Ruling that dead people can't adopt, a Martin County judge on Thursday overturned the adoption of a Jensen Beach woman by her 89-year-old uncle.
Circuit Judge William Roby ruled that when Joseph DiPace died Nov. 18, 2000, the proceedings he'd started to adopt Shirley DiPace, 58, his niece through marriage, should have ended.
Instead, Circuit Judge Steven Levin granted the adoption three days after DiPace's death, making Shirley DiPace the dead man's daughter.
"The adoption is void; it was void the minute it was signed," Roby said, "because dead people can't adopt."
Roby based his decision on a case from the Fourth District Court of Appeal, which ruled in 1983 that an adoption can't be granted if the adopting parent dies before the decree is issued.
"It is a personal relationship, shared between one capable of adopting and one capable of being adopted and . . . that both the adopting parent and the adopting child be living at the time such relationship came into being," Roby quoted from the appeals court.
The ruling was heartbreaking for Shirley DiPace, who knew Joseph DiPace for more than 33 years and saw him almost daily the last years of his life.
She said her uncle - a chemical engineering executive with Union Carbide who traveled the world, enjoyed a good martini before dinner and spoke Italian, French and Japanese - made it clear before his death that he wanted her to be his daughter.
"Joe paid a lot of money to good attorneys, and we had very good judges, and you would certainly not suspect that something like this would happen," DiPace said. "It meant to him that I was his daughter."
Joseph DiPace attended Bucknell University and received a master's degree from Princeton University before working on the Manhattan Project in New Mexico, which developed the first atomic bomb, Shirley DiPace said.
"He was brilliant; he read three newspapers a day," DiPace recalled. "He was big into politics and very opinionated. He was up on everything."
Stuart attorney William Ponsoldt, hired in February by eight of Joseph DiPace's relatives, filed Thursday's motion to have the adoption set aside.
Ponsoldt said Roby made the correct ruling.
"He did what the law required. . . . They should have never had tried to do the adoption after he died," Ponsoldt said. "Because let's face it, the guy was dead. It wasn't as if he was going to give her any sort of love or affection.
"He wasn't going to be able to take care of her. The only reason that adoption went forward is because she was trying to get money," he added.
During the hearing, Roby indicated that Levin had not been provided with appropriate case law when he approved the post-death adoption last year.
"He relied upon the case law given to him, and it was wrong to go forward with the adoption . . . when the case law is absolutely clear that dead people can't adopt," he said. "I think it would be a fundamental error for me not to void this ruling."
DiPace appeared disappointed with Roby's reasoning.
"The judge signed it (last year) saying, 'absolutely, all done.' And another judge can say 'oh no,'" she said. "That simply isn't fair. I understand that mistakes are made, but this is kind of huge. If you are a judge, you should know the law."
The adoption became an issue after several of Joseph DiPace's out-of-state relatives contested changes he made to his will, leaving Shirley DiPace as the trustee and beneficiary of the bulk of his estate.
Also at issue was the legal question of whether the adoption of Shirley DiPace would have made her not only Joseph DiPace's daughter, but also the legal daughter of his deceased wife, Jeannette, who had made Joseph DiPace trustee of an $800,000 trust after her death in 1996.
After the November adoption, Shirley DiPace became the trustee and main beneficiary of the Joseph DiPace and Jeannette DiPace trusts, which represented approximately $1.3 million, according to court records.
Kenneth Scherer and M. Krista Barth, Shirley DiPace's Palm Beach Gardens attorneys, said it was too soon to tell whether they would appeal Roby's decision.
"What we have to do is just kind of sit back and decide what we will do," Scherer said. "I don't know what we are going to do."
Meanwhile, Ponsoldt said he and his clients will continue with a lawsuit filed in Martin County Circuit Court that claims Shirley DiPace exerted "undue influence" over Joseph DiPace in convincing him to change his will and then improperly converted the funds to her own use.
The suit also argues that changes made to DiPace's trust before his death were invalid because he was "feeble minded" and "was not of sufficient mental capacity to understand the ramifications of his actions."
"We think he was unduly influenced," Ponsoldt said. "We think that his actions were controlled by Shirley."
DiPace countered that the plaintiffs in the case ignored Joseph DiPace for decades and "could not even afford a stamp to send him a birthday card."
"These people didn't even want to be bothered with him, which is the hardest part to swallow, and it hurt him to no end," DiPace said. "He signed that petition for the adoption, and you know what he said to me? 'Today is the happiest day of my life. You can now call me Pop.' And I live with that. . . . It made him happy."
©
Copyright 2002 WPL Trial Attorneys L.L.P.
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