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Kisamore v. Coakley
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1993 Term
No. 21548
MABEL KISAMORE, LOIS CARR AND ROY CARR,
ELVIN KISAMORE AND JOANNE KISAMORE,
CHRISTINA HUNT AND BOBBY HUNT, AND
VIOLET LONG AND GUY LONG,
Plaintiffs Below, Appellees

v.
VIVA JEAN COAKLEY AND JOE COAKLEY,
VADA LAWRENCE AND ALGIE LAWRENCE,
JUDY NELSON, JUANITA HEDRICK, GUY KISAMORE
AND HELEN KISAMORE, AND VIRGINIA GRACE MITCHELL,
Defendants Below, Appellees

v.
BRAGUNIER FARMS, INC., A MARYLAND CORPORATION,
Third-Party Defendant Below, Appellee
SUSAN KISAMORE,
Appellant

Appeal from the Circuit Court of Pendleton County Honorable John M. Hamilton, Judge Civil Action No. 92-C-35
AFFIRMED ___________________________________________________ Submitted: May 11, 1993 Filed: July 19, 1993
Lary D. Garrett Garrett & Garrett Moorefield, West Virginia Attorney for the Appellant, Susan Kisamore
Jeffrey R. Bowers Franklin, West Virginia Attorney for Appellee, Virginia Grace Mitchell
James Paul Geary Parkersburg, West Virginia Attorney for Defendants Below, Appellees
John G. Ours
Petersburg, West Virginia
Attorney for Plaintiffs Below, Appellees

This Opinion was delivered PER CURIAM.
Justice Miller concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

        "The doctrine of equitable adoption is hereby incorporated into the law of West Virginia, but a litigant seeking to avail himself of the doctrine in a dispute among private parties concerning trusts or the descent of property at death must prove by clear, cogent, and convincing evidence that he has stood from an age of tender years in a position exactly equivalent to that of a formally adopted or natural child; provided, however, that the same strict standard of proof does not apply to the determination of dependency under any State remedial statute conferring State government benefits which must be liberally construed to effect its purpose." Syl. pt. 2, Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W. Va. 502, 250 S.E.2d 369 (1978).
Per Curiam:
        This case is before this Court upon an appeal from the August 4, 1992, order of the Circuit Court of Pendleton County, West Virginia. The circuit court held that the appellant, Susan Kisamore, failed to meet the criteria of being equitably adopted, and thus, the executor of the estate of Elmer Kisamore was correct in excluding the appellant as an heir to the estate. On appeal, the appellant asks that this Court reverse the ruling of the circuit court and find that Vivan Kisamore equitably adopted Susan Kisamore. This Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is affirmed.
        On December 15, 1971, Vivan Kisamore and his wife, Joy Kisamore, were given physical custody of the appellant, then two years old, by the West Virginia Department of Welfare (now known as the West Virginia Department of Health and Human Resources) pursuant to an Adoptive Parents Agreement. This agreement indicated that the Kisamores intended to adopt the appellant. This agreement provided that the appellant would have to live in the Kisamore's home for a minimum period of six months before the Kisamores could petition the court to confirm the adoption. Furthermore, the agreement gave the Kisamores the right to have the West Virginia Department of Welfare remove the appellant from their home any time prior to the completion of the adoption.
        While at the Kisamore's home, the appellant celebrated her third birthday on January 19, 1972. The appellant also presented evidence before the trial court suggesting that Vivan and Joy Kisamore and the appellant were developing strong family ties. For example, the appellant referred to Vivan Kisamore as "Daddy."
        Unfortunately, on February 11, 1972, Vivan Kisamore, who was a truck driver, was killed in a trucking accident. As a result, Joy Kisamore received Social Security benefits on behalf of the appellant as a dependent of Vivan Kisamore.
However, the appellant was not an heir to Vivan Kisamore's estate, as Joy Kisamore was listed as the only heir to his estate.
        On October 16, 1972, Joy Kisamore adopted the appellant. Subsequently, Joy Kisamore remarried. The appellant then resided with her adoptive mother and her husband.
        Vivan Kisamore was the son of Elmer and Mabel Kisamore. On August 13, 1991, Elmer Kisamore died intestate. Elmer Kisamore was survived by his wife, Mabel Kisamore, nine living children and one biological grandchild whose parents predeceased her. Elmer Kisamore's estate was appraised at $95,700 for personal property and $693,616 for real estate, for a total of $789,316. Part of the real estate was sold by the widow and children to Bragunier Farms, Inc., one of the appellees. After her husband's death, Mabel Kisamore gave the appellant $5,000.00, because, according to the appellant, she thought it was unfair that the appellant was excluded as an heir to Elmer Kisamore's estate.
        On April 27, 1992, Mabel Kisamore and some of the heirs of Elmer Kisamore's estate filed a complaint requesting the trial court to partition by sale certain tracts of real estate owned by Elmer Kisamore at his death. The remaining heirs, and also appellees herein, filed answers agreeing that the real estate was not susceptible to division and requested that the land be sold.
        On June 11, 1992, the appellant filed a motion to intervene claiming she was an heir to Elmer Kisamore's estate because she had been equitably adopted by Vivan Kisamore. A hearing was held and on August 4, 1992, the trial court denied the appellant's motion to intervene. The trial court found that the appellant did not meet the standard necessary for an equitable adoption. Because the relationship between Vivan Kisamore and the appellant only existed for fifty

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