Conflict of Laws Final Examination

Professor Martha Dragich

Fall Semester 2007



This is a four-hour, closed book examination. This packet consists of 12 pages. You are required to turn in the exam packet along with your answer at the end of the exam. You may take this examination on computer to the extent and under the conditions permitted by the School of Law. If not taking the exam on computer, any material you do not wish me to read should be crossed through with an "X" and marked in the margin "omit." I will neither read nor consider material so marked.


The materials provided include a statement of facts, information about the relevant substantive law and choice of law approaches of the various jurisdictions, and potentially relevant sections of the Restatement (Second) of Conflict of Laws. You are asked to answer several specific questions. Other questions that may arise from the same fact pattern should not be addressed in your answer.


Your answer for each question should state your conclusion (i.e., jurisdiction exists, the law of state X should apply, etc.) along with the analysis supporting your conclusion. The analysis is more important than the conclusion itself. Length of answers will vary somewhat among the questions, but in general can be rather brief. I believe that most can be answered in no more than a few paragraphs.


You may answer the questions in any order, but please label them clearly so I know which question you are answering. You should answer each question separately, but you may refer in one answer back to your answer for a separate question if your analysis overlaps. Please be sure any such cross-reference is very clear.


You may use any abbreviations you like as long as you clearly indicate what each abbreviation means. You may refer to any of the materials provided in this packet by citing the page on which they appear. You may cite any case read or discussed in this class. You may cite by name or any other identifiable information. Proper citation form is not required. You may treat all cases read or discussed this semester as relevant, regardless of the jurisdiction, unless the approach a decision takes is not compatible with that specified for the jurisdiction(s) involved in this examination question.


Your grade will be based on the quality of your analysis (95%, distributed according to the points allocated to each question) and the clarity and succinctness of expression (5%). Your grade depends on your knowledge of the material covered in this course and not on knowledge of the substantive law of fields such as wills or domestic relations. Your answer need not follow any particular format.



You should assume that the facts stated are true. You may assume additional facts, so long as they are not contradicted by the information contained in the examination materials, and provided that you state such assumptions clearly in your answer.


Greg and Ed are a gay couple. They have lived together in a loving, committed, monogamous relationship for ten years. During this entire time, Greg and Ed have lived in Missouri.


Five years ago, the couple traveled to Massachusetts and were married in a civil ceremony, shortly after the Massachusetts courts interpreted Massachusetts law to prohibit discrimination on the basis of sexual orientation with respect to the right to marry. At no time did Ed and Greg plan to reside in Massachusetts. They returned immediately to Missouri.


Soon after they returned to Missouri, the couple proceeded with plans to adopt a child. After a period of searching for an expectant mother who wished to give up her child, Greg and Ed located Heather, a competent, adult woman then domiciled in California. Greg, Ed, and Heather entered into an agreement in California for an open adoption of the child, Frank. Under the agreement, Greg and Ed agreed to visit California, or any state where Heather might subsequently establish residence, from time to time so that Heather could see the child. The agreement between Heather, Greg, and Ed, and Heather's consent to the placement of Frank with Greg and Ed, complied with all requirements of California law.


Two days after Frank was born, Heather released him to Ed and Greg. Ed and Greg then petitioned the California courts for joint adoption of Frank. California law allows such a petition by same-sex adoptive parents, neither of whom is a biological parent of the child. The petition in this case was finalized nearly three years ago (after the required period of in-home supervision). The California court order lists both Greg and Ed as Frank's parents; it terminated Heather's parental rights over Frank. Frank's biological father is unknown; his rights and responsibilities should be ignored for purposes of this exam. Frank is now three and a half years old; he is thriving under Greg and Ed's care.


When the couple returned to Missouri, they petitioned the Missouri Department of Family Services for issuance of an original Missouri birth certificate, a routine procedure in Missouri following out-of-state adoptions of children by either heterosexual couples or single persons. DFS issued a new birth certificate but refused to enter the names of both men as the child's fathers. The Missouri birth certificate names only Ed as father. Heather is not listed as Frank's mother. On both the California order of adoption and the Missouri birth certificate, Frank's last name is a hyphenated version of Greg's and Ed's last names. Both men use this hyphenated name as well.


Heather has since moved to western Oklahoma, ostensibly so that it would be easier for Ed and Greg to arrange for visits between Heather and Frank. Unbeknownst to Ed and Greg, Heather was actually having second thoughts about the adoption of her child by a gay couple. Ed, Greg, and Frank traveled to southeastern Oklahoma recently to attend Ed's 20th high school reunion. They had no plans to see Heather on this trip. Heather learned of the trip, however. While they were in Oklahoma, Heather had both men served in person with a petition to set aside the adoption. This service of process complied with Oklahoma law and procedural rules. The petition, filed in Oklahoma state court, alleges that placement with Ed and Greg is not in the child's best interest.


Needless to say, Ed and Greg were devastated by this turn of events. They left Oklahoma immediately. While driving in Kansas en route back to Missouri, they were involved in a serious automobile accident. Greg and Frank were both injured seriously and taken to a nearby Kansas hospital. Ed was injured only slightly and did not require hospitalization.


Meanwhile, Greg has died. Frank remains hospitalized but is recovering. Ed wants to file a wrongful death suit against the hospital and treating physicians, alleging negligence in Greg's treatment. Assume that negligence could be proved under the law of any relevant state. Ignore the possibility of a personal injury suit for Frank's injuries.


Ed also expects a fight over the distribution of Greg's sizeable estate. Greg had made a will devising his entire estate to Ed, half to be held in trust for Frank until Frank reached the age of 21. The will names Ed as executor of Greg's estate. Greg's estate consists of extensive real estate holdings in Missouri and Kansas, as well as significant investments held by various brokerage firms. Assume that Greg's will complied with all formal requirements for proper execution under the laws of Missouri but would be held to be invalid under the laws of Kansas because the number of attesting witnesses was insufficient.


If Greg's will is held invalid, his estate would pass under the intestate succession laws. In every relevant state, these laws provide that property will pass to the decedent's surviving spouse and/or children, if any; if none then to other surviving family members. If no relevant state would recognize either the marriage or the adoption as valid, Ed anticipates that Greg's sister, Phyllis, of Illinois, will claim the estate as Greg's sole surviving family member. Phyllis and Greg had been estranged ever since Greg and Ed established their relationship.




Answer the following questions as if Ed had retained you to provide legal advice. Not all of these questions would arise in a single action, and your answers need not be consistent. Although many other questions might arise, your answer should be limited to the questions posed.


1.                  Was Missouri required to recognize the California adoption by issuing a new birth certificate naming both men as fathers? (15 points)


2.                  Would Oklahoma have had personal jurisdiction over Greg and Ed with respect to Heather's petition to set aside the adoption? For purposes of this question, assume both men are alive at the relevant time; do not consider the question of survival of the cause of action after Greg's death. (10 points)


3.                  Assuming for purposes of this question that Oklahoma has personal jurisdiction over Greg and Ed with respect to the petition to set aside the adoption, which state's limitation period governs this action? (15 points)


4.                  (a) Is Ed eligible (i.e., a proper party) to sue for Greg's death in a wrongful death suit to be filed in federal court in Kansas on grounds of diversity of citizenship? (10 points)


(b) Is Ed eligible (i.e., a proper party) to recover damages for Greg's wrongful death? Assume that this suit would seek damages for medical expenses, funeral expenses, Greg's pain and suffering prior to death, lost wages over Greg's life expectancy, loss of companionship, etc. For purposes of this question, ignore any separate right Frank may have to recover for wrongful death. Also assume for purposes of this question that Ed would share (under the terms of Greg's will) in any recovery that went to Greg's estate. (10 points)


5.                  Assuming for purposes of this question that a wrongful death action proceeds in federal court in Kansas and that Ed may recover, whose law should decide a) the allowable amount of non-economic compensatory damages, and b) whether or not the jury is to be instructed on any statutory limitation on non-economic damages? (20 points)


6.                  Whose law should decide distribution of Greg's estate? Assume for purposes of this question that the will would be probated in Missouri. (15 points)




You should assume that these materials correctly and completely state the current, relevant law of the various jurisdictions relating to the issues presented. I may have modified jurisdictional provisions, choice of law approaches, case law, or other materials for purposes of this examination; any knowledge you may have of the true state of the law in a particular jurisdiction is irrelevant for purposes of this examination.


Oklahoma long-arm statute

12 Okl.St.Ann. § 2004. Process


F. ASSERTION OF JURISDICTION. A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.



Law regarding same-sex adoption


10 Okl.St.Ann. § 7501-1.2 Purpose of Code

A. The Legislature of this state believes that every child should be raised in a secure, loving home and finds that adoption is the best way to provide a permanent family for a child whose biological parents are not able or willing to provide for the child's care or whose parents believe the child's best interest will be best served through adoption. The purpose of the Oklahoma Adoption Code is to:

1. Ensure and promote the best interests of the child in adoptions and to establish an orderly and expeditious process for movement of adoption matters through the courts;

2. Affirm that the parent-child relationship is fundamental and that all adoption laws should be fair to the child and to each parent of the child;
8. Ensure that children placed for adoption will be raised in stable, permanent loving families whose qualifications for adoption have been properly evaluated in light of the child's needs; ...


10 Okl.St.Ann. § 7503-1.1 Eligibility to adopt

The following persons are eligible to adopt a child:

1. A husband and wife jointly if both spouses are at least twenty-one (21) years of age;

2. Either the husband or wife if the other spouse is a parent or a relative of the child;

3. An unmarried person who is at least twenty-one (21) years of age; or

4. A married person at least twenty-one (21) years of age who is legally separated from the other spouse.



10 Okl.St.Ann.§ 7502-1.3 Law governing


C. The laws of this state shall govern when and under which circumstances a permanent relinquishment of a child for adoption or a consent to adoption may be revoked or set aside, if:

1. The permanent relinquishment or consent was executed in this state; or

2. The permanent relinquishment or consent was executed outside of this state before an appropriate official and in a manner in compliance with all of the requirements of the Oklahoma Adoption Code.


Note: Assume that the consent and other procedures in California complied with all requirements of Oklahoma law.


10 Okl.St.Ann. §7505-7.2 Limitations on challenge to adoption or termination of parental rights--Effect of appeal--Best interests of child

1. No adoption may be challenged on any ground either by a direct or collateral attack more than three (3) months after the entry of the final adoption decree regardless of whether the decree is void or voidable.

2. In any challenge on any ground either by a direct or collateral attack, the court shall not enter a decision which is contrary to the best interests of the adopted minor.




V.A.M.S. 453.010 Petition for adoption, where filed, effect of juvenile court jurisdiction--motion for transfer of juvenile court jurisdiction--joint petition--hearings--petition by child placing agency for transfer of custody, consent of birth parent

1. Any person desiring to adopt another person as his or her child shall petition the juvenile division of the circuit court ...

4. If the petitioner has a spouse living and competent to join in the petition, such spouse may join therein, and in such case the adoption shall be by them jointly.


V.A.M.S. 453.030 Approval of court, required for adoption...

1. In all cases the approval of the court of the adoption shall be required and such approval shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand. ...



West's Ann.Cal.Fam.Code § 8612 Examination by court; agreement; execution; order of adoption

(a) The court shall examine all persons appearing before it pursuant to this part.

(b) The prospective adoptive parent or parents shall execute and acknowledge an agreement in writing that the child will be treated in all respects as their lawful child.

(c) If satisfied that the interest of the child will be promoted by the adoption, the court may make and enter an order of adoption of the child by the prospective adoptive parent or parents.


West's Ann.Cal.Fam.Code § 9102 Limitation of actions
(a) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground shall be commenced within three years after entry of the order.



Law regarding validity of same-sex marriage



Massachusetts had a statute defining marriage as a relationship between a man and a woman. Before the date of Ed and Greg's marriage in Massachusetts, the Supreme Judicial Court of Massachusetts held that statute unconstitutional:


Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.




V.A.M.S. Const. Art. 1, § 33 Only marriage between a man and a woman recognized as valid

That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.


Oklahoma and Kansas

Both Oklahoma and Kansas have statutory provisions defining marriage as a relationship "between persons of the opposite sex."



Defense of Marriage Act


For purposes of this exam, ignore the existence and any possible impact of the federal Defense of Marriage Act.



Law regarding wrongful death suits



K.S.A. § 60-1902 Plaintiff.

The action may be commenced by any one of the heirs at law of the deceased. The action shall be for the exclusive benefit of all of the heirs who have sustained a loss.



Note: Kansas courts have interpreted the phrase "heirs at law" in this provision so as to exclude Ed as a "spouse" and Frank as an "adopted child" of Greg. Thus, only Greg's sister would qualify under this statute as an "heir at law."



K.S.A. § 60-1903 Amount of damages; jury instructions.

(a) In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss, cannot exceed in the aggregate the sum of $250,000 and costs.

(b) If a wrongful death action is to a jury, the court shall not instruct the jury on the monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss. If the jury verdict results in an award of damages for nonpecuniary loss which exceeds the limitation of subsection (a), the court shall enter judgment for damages of $250,000 for nonpecuniary loss.




V.A.M.S. 537.080 Action for wrongful death--who may sue--limitation

1. The person or party who, or the corporation which, would have been liable for personal injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the executor of the decedent's estate...


Note: by permitting suit by the executor of the decedent's estate, Missouri law allows the estate to recover for wrongful death. The amount recovered would then pass with the rest of the estate.



V.A.M.S. 538.210 Limitation on noneconomic damages--jury not to be informed of limit

1. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars for noneconomic damages irrespective of the number of defendants.

3. In any such action, where the trier of fact is a jury, such jury shall not be instructed by the court with respect to the limitation on an award of noneconomic damages.




Federal Rule of Civil Procedure 17 provides that

Rule 17. Parties Plaintiff and Defendant; Capacity

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor may sue in his own name. ...

Federal law has no limitation on non-economic damages.


Federal law permits the trial judge to instruct the jury regarding any state's cap on non-economic damages. The 7th Amendment to the United States Constitution provides:

Amendment VII. Civil Trials

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Law regarding succession of property upon death

As noted above under "Facts," Greg's will complied with all formal requirements for proper execution under the laws of Missouri but would be held to be invalid under the laws of Kansas because the number of attesting witnesses was insufficient.


Also as noted above, if Greg's will is held invalid, his estate would pass under the intestate succession laws of the relevant state. In every relevant state, the statutes governing intestate succession provide that property will pass to the decedent's surviving spouse and/or children, if any; if none then to other surviving family members.


Kansas courts have interpreted the phrase "heirs at law" so as to exclude Ed as a "spouse" and Frank as an "adopted child" of Greg. Kansas has a strong policy that the entire estate should pass under the law of one state.


Missouri has allowed children not formally adopted to inherit from their purported adoptive parents under narrow circumstances, usually arising when the adoption was still pending at the time of the would-be parent's death. Missouri courts have required that the child have established strong ties with the decedent, be living in the decedent's home, and have taken the decedent's last name. Missouri courts have not had occasion to consider whether inheritance would be permitted in the context of a same-sex adoption from the partner not named as parent.



Choice of law approach


Kansas follows the vested rights approach for all choice of law questions.

Missouri and Oklahoma follow the Restatement 2d approach.

California follows the comparative impairment variation of interest analysis.




Restatement (Second) Provisions:

The following sections of the Restatement 2d of Conflict of Laws are potentially relevant. Your answer need not necessarily use all of them.


§ 6. Choice-Of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.





§ 93. Recognition Of Sister State Judgment

A valid judgment rendered in one State of the United States must be recognized in a sister State, except as stated in § 103.


§ 103. Limitations On Full Faith And Credit

A judgment rendered in one State of the United States need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State.


§ 142. Statute Of Limitations


Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable:

(1) The forum will apply its own statute of limitations barring the claim.

(2) The forum will apply its own statute of limitations permitting the claim unless:

(a) maintenance of the claim would serve no substantial interest of the forum; and

(b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.



§ 145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 175. Right Of Action For Death

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.


§ 177. Beneficiaries: How Damages Distributed

The law selected by application of the rule of § 175 determines how the recovery in an action for wrongful death shall be distributed.



§ 179. Person To Bring Suit

A person designated in the wrongful death statute of the state selected by application of the rule of § 175 as the one to sue upon the claim, may sue thereon in any state.



§ 239. Validity And Effect Of Will Of Land

(1) Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.

(2) These courts would usually apply their own local law in determining such questions.



§ 263. Validity And Effect Of Will Of Movables

(1) Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death.

(2) These courts would usually apply their own local law in determining such questions.



§ 283. Validity Of Marriage

(1) The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in § 6.

(2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.



§ 284. Incidents Of Foreign Marriage

A state usually gives the same incidents to a foreign marriage, which is valid under the principles stated in § 283, that it gives to a marriage contracted within its territory.





§ 289. Law Governing Adoption

A court applies its own local law in determining whether to grant an adoption.



§ 290. Incidents of Foreign Adoption

An adoption rendered in a state having judicial jurisdiction under the rule of § 78 will usually be given the same effect in another state as is given by the other state to a decree of adoption rendered by its own courts.


a. Scope of section. The status of adoption is important primarily on account of the incidents which arise therefrom. Among the incidents that may depend upon an adoption are the child's right to an intestate share in the parent's estate, and his right to recover damages for the parent's wrongful death. To the extent that an adopted child is permitted to share in an estate or to take under a will, the shares of the other beneficiaries will be correspondingly reduced.


c. When giving of incident would be contrary to strong policy of state. A state will not give a particular incident to a foreign adoption when to do so would be contrary to its strong public policy. So a state might not permit a child adopted in a foreign nation to inherit from his adoptive parent if it found that the only purpose of the parties in arranging for the adoption was to permit the child to emigrate to that state, or to permit inheritance by an adult adopted in a foreign proceeding from his one and only adoptive parent.


d. Inheritance by child who has not been adopted. The state whose local law governs succession may provide for inheritance by a child who has not been formally adopted but who has certain ties to the decedent, such as that he was taken into the home of the decedent and given the latter's name.