Casey v. Self

1990 OK 138, 837 P.2d 463, 62 O.B.A.J. 57, 1990 Okla. LEXIS 153

Opinions

HODGES, Justice.

The issues presented are (1) the constitutionality of Okla.Stat. tit. 84, § 215 (1981),¹ which provides for the inheritance of a child born out of wedlock, and (2) the degree of proof required to show paternity of a child born out of wedlock in order to inherit from a father. We find that Okla. Stat. tit. 84, § 215 is constitutional. We also find that a child bom out of wedlock claiming under section 215 must prove paternity by clear and convincing evidence.

On December 10, 1985, Robert D. King (King) executed a will. King bequeathed all his property to Jimmy Ray Self (Self) and Charles Hare (Hare). On February 21, 1986, King died. Five days later, Self filed a petition to probate King’s will and prayed that he be appointed personal representative of the estate.

On March 17,1986, two of King’s sisters, Margaret Tankersley and Vera Dorsey, and King’s niece, Vera Mangum, filed an objection to the will alleging that it was obtained by undue influence and coercion or, in the alternative, that King lacked testamentary capacity. On April 28, 1986, the district court filed an order admitting the will to probate and finding that, at the time of the execution of the will, King was possessed of testamentary capacity and was not acting under duress, fraud, menace or undue influence. On the same day, letters testamentary issued to Self. A motion for a new trial was filed and overruled; no appeal was taken.

On February 6, 1987, J.D. Casey (Casey), the respondent, filed an Application for Determination of Heirship as Unintentional Omitted Child. Casey bases his right to inherit from King on section 215 of title 84. A hearing was held on May 28, 1987, after which the district court denied the application. The district court found that the evidence of Casey’s relationship to King was contradictory, conflicting, and not clear and convincing. The Court of Appeals reversed the trial court and found that section 215 was unconstitutional under the fourteenth amendment to the federal Constitution.

I.

Constitutionality of Okla.Stat. tit. 84, § 215 (1981).

The fourteenth amendment to the federal constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Section 215 places special burdens on children born out of wedlock before they can inherit from their father. Casey argues that section 215 violates the equal protection clause of the fourteenth amendment. The United States Supreme Court has considered “the constitutionality of statutory provisions that impose special burdens on illegitimate children.”²

In Trimble v. Gordon,³ the United States Supreme Court struck down an Illinois statute prohibiting illegitimate children from inheriting by intestate succession from their fathers unless the parents inter-married and the father acknowledged the child.⁴ Under Illinois law, legitimate chil dren could inherit by intestate succession from both parents.⁵ The father and mother had lived together from 1970 until the father’s death in 1974. A paternity order had been entered in 1973 finding that the deceased was the father of the child and ordering him to pay for her support. The Court found that the state had a legitimate interest in “assuring accuracy and efficiency in the disposition of property at death.”⁶ However, the Court found that “[t]he reach of the statute extend[ed] well beyond [its] asserted purposes”⁷ because the statute unnecessarily excluded “some significant categories of illegitimate children [whose] inheritance rights [could] be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.”⁸ Refusing to apply the “strict scrutiny” test,⁹ the Court recognized that “[t]he more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally.”¹⁰

In Lalli v. Lalli,11 the United States Supreme Court was asked to declare unconstitutional a New York statute imposing special burdens on children bom out of wedlock.¹² Inheritance from the father by a child born out of wedlock required a judicial determination of paternity made during the lifetime of the father. The Court held that the state had a substantial interest in providing “for the just and orderly disposition of property at death” ¹³ and the protection of “ ‘innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs.’ ”¹⁴ Recognizing the particular problems of proof when an individual claims to be the illegitimate child of a deceased¹⁵ and the increased accuracy of “placing paternity disputes in a judicial forum during the life time of the father,” ¹⁶ the Court found that the requirement imposed by the statute was substantially related to important state interests and upheld the statute.¹⁷

In Reed v. Campbell,¹⁸ the United States Supreme Court once again addressed the issue of restrictions placed on an illegitimate child’s right to inherit from her father by intestate succession. Under attack was a Texas statute which required that parents of an illegitimate child inter-marry before the child could inherit from the father.¹⁹ After the death of the father, the child notified the administratrix and the Probate Court of her claim to the estate. Subsequently, a jury found that the deceased was the father of the illegitimate child. The United States Supreme Court held that Trimble applied retroactively and struck down the statute because the denial of the child’s right to inherit from her father was not related to the state’s interest.²⁰ However, the Court reaffirmed its position that “statutory provisions that have an evident and substantial relation to the State’s interest in providing for the orderly and just distribution of a decedent’s property at death” would be upheld against fourteenth amendment challenges.²¹ The Court further stated that “[t]he state interest in the orderly disposition of decedents’ estates ... justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted.”²² In Reed, the Court affirmed its position that procedural requirements imposed on illegitimate children as a prerequisite to eligibility to inherit from a father by intestate succession are constitutional if the requirements are substantially related to the orderly disposition of decedent’s estates. But when the statutory requirements effectively prevent illegitimate child from inheriting from the father by intestate succession, the statutory provisions violate the fourteenth amendment.

Section 215 of title 84 does not violate the Equal Protection Clause of the federal Constitution. The statutory provisions in Lalli required a determination of paternity before the father’s death. The United States Supreme Court held that those provisions did not violate the equal protection clause of the fourteenth amendment.²³ Section 215 is less restrictive than the provisions upheld in Lalli. Further, section 215 meets the test articulated in the Trim-ble, Lalli, and Reed: Special burdens placed on children born out of wedlock as a prerequisite to taking from an alleged father’s estate must be substantially related to a legitimate state interest.²⁴ The orderly disposition of estates is a legitimate state interest which justifies “limitations on the time and the manner in which claims may be asserted.”²⁵ In the present case, since the father is dead, the special burdens placed on children for inheritance purposes under section 215 are acceptable for purposes of the fourteenth amendment. Unlike the statutory provisions under attack in Trimble and Reed, section 215 does not unnecessarily exclude “some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.”²⁶ As in Lalli, the statutory provision under attack here is substantially related to a legitimate state interest and does not violate the fourteenth amendment.

II.

Burden of Proof.

We next turn to the burden of proof required for a child born out of wedlock to inherit from his father by intestate succession. The trial court found that “[t]he evidence presented to the Court was not clear and convincing as to the relationship and kinship, if any, between said J.D. Casey and the deceased.” Casey argues that the proper standard of proof is a preponderance of the evidence.

Section 215 provides four methods for a child born out of wedlock to inherit from its father: (1) the father acknowledges the child as his in a witnessed, signed writing, (2) the parents inter-marry and subsequently the father either acknowledges the child as his or adopts the child, (3) the father publicly acknowledges and receives the child as his own with the consent of his wife if he is married and treats the child as if it were bom in wedlock, or (4) there is a judicial determination of paternity before the death of the father.²⁷ Casey does not argue that his father signed a writing acknowledging him, that his parents intermarried, or that there was a judicial determination of paternity. He does argue that King publicly acknowledged and received Casey as his own with the consent of his wife, or that such consent is not necessary, and treated Casey as if he were born in wedlock. The parties agree that the following five elements are necessary to prove the right to inherit under this provision: (1) out of wedlock birth, (2) paternity, (3) public acknowledgment of the child, (4) reception of the child as his own, with his wife’s consent, if married, and (5) treatment of the child as if it were a child born in wedlock. The trial court found that Casey had not proved paternity by clear and convincing evidence. Having found that the burden of proof was not met as to paternity, it was not necessary to address the other elements.

The elements required to inherit pursuant to section 215(c) are the same elements required for “adoption” under title 10, section 55.²⁸ Therefore, cases construing section 55 are analogous to the present facts. And those cases stand for the proposition that paternity must be proven by clear and convincing evidence, but the remaining elements²⁹ must be proven by a preponderance of the evidence.³⁰ Applying those cases to the present facts, we hold that, under section 215(c), paternity must be proven by clear and convincing evidence.

This burden of proof is unchanged by title 10, section 76.1³¹ of the Oklahoma Statutes enacted in 1989. Sections 70 thru 90.4 provide a statutory scheme for paternity suits. If paternity is proven, the father then must support and educate the child. Section 76.1 requires that the burden of proof for paternity be the same as the burden of proof for paternity in an action for divorce.³² The scheme requires that the alleged father “appear and show cause why the court should not determine him to be the father.”³³ Failure to appear may result in a finding of paternity. After an appearance and denial of paternity, the court must order blood tests to determine paternity.³⁴ All of these provisions clearly contemplate that the alleged father is living. Section 215(c) would only be applicable if the alleged father is deceased. Thus, section 76.1 does not affect the burden of proof imposed on children born out of wedlock to prove paternity for inheritance purposes under section 215.

Title 84, section 215 does not violate the equal protection clause of the fourteenth amendment. Further, a claimant under section 215 must prove paternity by clear and convincing evidence. And we agree with the trial court that Casey did not prove paternity by clear and convincing evidence and that the evidence was conflicting and contradictive in nature. Therefore, we affirm the trial court.

CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS’ OPINION WITHDRAWN AND VACATED. TRIAL COURT AFFIRMED.

HARGRAVE, C.J., OPALA, V.C.J., and LAVENDER and SIMMS, JJ., concur. DOOLIN, ALMA WILSON, KAUGER and SUMMERS, JJ., dissent.

Footnotes

1

. Okla.Stat. tit. 84, § 215 (1981) provides:

For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child’s birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.

2

. Reed v. Campbell, 476 U.S. 852, 854, 106 S.Ct. 2234, 2236, 90 L.Ed.2d 858 (1986); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

3

. 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

4

. The statute being challenged in Trimble provided:

An illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. A child who is illegitimate whose parents inter-marry and who is acknowledged by the father as the father’s child is legitimate.

Ill.Rev.Stat. ch. 3, para. 12 (1973).

5

. Trimble, 430 U.S. at 763, 97 S.Ct. at 1461 (citing Ill.Rev.Stat. ch. 3, para. 2-1(b) (1976)).

6

. Id. at 770, 97 S.Ct. at 1465.

7

. Id. at 772-73, 97 S.Ct. at 1466.

8

. Id. at 771, 97 S.Ct. at 1465.

9

. Id. at 767, 97 S.Ct. at 1463.

10

. Id. at 770, 97 S.Ct. at 1465.

11

. 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

12

. The New York statute under attack in Lalli provides:

(a) For purposes of this article:

(1) An illegitimate child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.

■ (2) An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years of the birth of the child.

(3) The existence of an agreement obligating the father to support the illegitimate child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made as prescribed by sub-paragraph (2).

(4) A motion for relief from an order of filiation may be made only by the father, and such motion must be made within one year from the entry of such order.

(b) If an illegitimate child dies, his surviving spouse, issue, mother, maternal kindred and father inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father may inherit or obtain such letters only if an order of filiation has been made in accordance with the provisions of subparagraph (2).

N.Y. Est. Powers & Trusts § 4-1.2 (McKinney 1967).

13

. Lalli, 439 U.S. at 268, 99 S.Ct. at 525.

14

. Id. at 271, 99 S.Ct. at 526 (citing Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis. Doc. No. 19 at 265 (1965)).

15

. Id. at 268-69, 99 S.Ct. at 525.

16

. Id. at 271, 99 S.Ct. at 526.

17

. Id. at 275-76, 99 S.Ct. at 528.

18

. 476 U.S. 852, 106 S.Ct. 2234, 90 L.Ed.2d 858 (1986).

19

. Id. at 852-53, 106 S.Ct. at 2235-36 (citing Tex.Prob.Code Ann. § 42 (Vernon 1956)).

20

. Id. at 856, 106 S.Ct. at 2237.

21

. Id. at 855, 106 S.Ct. at 2237.

22

. Id.

23

. Lalli, 439 U.S. at 276, 99 S.Ct. at 528.

24

. See, Trimble, 430 U.S. at 773-74, 97 S.Ct. at 1466-67; Lalli, 439 U.S. at 268, 273, 99 S.Ct. at 525, 527; Reed, 476 U.S. at 855, 106 S.Ct. at 2237.

25

. Reed, 476 U.S. at 855, 106 S.Ct. at 2237.

26

. Trimble, 430 U.S. at 771, 97 S.Ct. at 1465.

27

. Okla.Stat. tit. 84, § 215 (1981).

28

. Okla.Stat. tit. 10, § 55 (1981) provides:

The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court.

29

. The remaining elements are: (1) out of wedlock birth, (2) public acknowledgement of the child, (3) reception of the child as his own, with his wife’s consent, if married, and (4) treatment of the child as if it were a child born in wedlock. Id.

30

. In re Cravens’ Estate, 268 P.2d 236, 240 (1954) (Paternity requires strict proof.); In re Gathings’ Estate, 199 Okla. 460, 187 P.2d 981, 984 (1947) (Paternity requires strict proof. Thereafter, “the statute should be liberally construed.”); Thompson v. Thompson, 177 Okla. 437, 60 P.2d 615, 616 (1936) (Consent of the wife must be shown by a preponderance of the evidence.).

31

. Okla.Stat. tit. 10, § 76.1 (Supp.1989) provides:

The issues of paternity, support, custody and visitation shall be tried before a judge of the district court and the burden of proof and procedure shall be the same as in am action for divorce.

32

. Grounds for divorce must be proven by a preponderance of the evidence. See Chamberlain v. Chamberlain, 121 Okla. 145, 247 P. 684 (1926); Hartshorn v. Hartshorn, 67 Okla, 45, 168 P. 822 (1917). Neither Chamberlain nor Harts-horn involved paternity.

33

. Id. at § 77.1.

34

. Id.