FIRST DIVISION BARNES, P. J., LAND and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 3, 2023
In the Court of Appeals of Georgia A23A0827. IN RE ESTATE OF MARVIN MOBLEY, JR., DECEASED.
WATKINS, Judge.
Marvin Mobley, Jr. (“Mobley”) died intestate in December 2020. Alicia
Rhodes and Ryan Rhodes (the “Appellants”) appeal from the probate court’s order
that determined Mobley’s heirs. They contend that the probate court erred in finding
that: (1) the Appellants failed to demonstrate by clear and convincing evidence that
Mobley was the Appellants’ biological father; and (2) the Appellants were estopped
from asserting that they were Mobley’s children because the Appellants had
previously claimed to be Nathaniel Rhodes’s children. For the reasons set forth
below, we affirm. “We will not set aside a probate court’s findings unless they are clearly
erroneous, and when such findings are supported by any evidence, they will be upheld
on appeal. The probate court’s application of the law, however, is subject to de novo
review.”1
So viewed, the record shows the following. After Mobley’s death, Malathia
Mobley, who is one of Mobley’s children, filed a petition to determine heirs. The
probate court held a hearing — which was not transcribed — to decide whether the
Appellants were Mobley’s children.2 At the hearing, Levolia Rhodes, the Appellants’
mother, testified that at the time of the Appellants’ births, she was married to
Nathaniel Rhodes. However, she stated that she engaged in an extramarital affair with
Mobley. According to Levolia Rhodes, she removed her IUD, had intercourse with
Mobley, and then became pregnant with Alicia Rhodes. She then repeated this
process with Ryan Rhodes. Levolia Rhodes testified that she did not give her husband
1 (Citations and punctuation omitted.) In re Estate of Jenkins, 366 Ga. App. 628, 629 (883 SE2d 843) (2023); accord In re Estate of Hawkins, 328 Ga. App. 436 (762 SE2d 149) (2014). 2 Our understanding of the testimony presented at the hearing is based on the trial court’s order.
2 “access” to her during this time. Despite these assertions, Nathaniel Rhodes was listed
as the father on the Appellants’ birth certificates.
When Nathaniel Rhodes died intestate in 2006, Alicia Rhodes attested that she
was Nathaniel Rhodes’s child. Levolia Rhodes, on behalf of Ryan Rhodes (who was
a minor at the time), also attested that Ryan Rhodes was Nathaniel Rhodes’s child.
While the Appellants waived their claims to Nathaniel Rhodes’s personal property,
they did inherit a portion of Nathaniel Rhodes’s real estate.
As additional evidence that the Appellants were Mobley’s children, they
submitted documentation at the hearing showing that, at one point in 1996, Levolia
Rhodes lived with Mobley. Mobley also listed the Appellants as beneficiaries on one
of his bank accounts. In 1999, Mobley bought United States savings bonds for the
Appellants. The Appellants submitted text messages between the Appellants and
Malathia Mobley discussing Mobley’s funeral and handling other issues stemming
from Mobley’s death. Mobley’s funeral program listed the Appellants as Mobley’s
children. Finally, a close friend of Mobley testified at the hearing that Mobley had
told him that the Appellants were his children.
After the hearing, the probate court found that there was both “significant
evidence” that the Appellants were Mobley’s children and “significant evidence” that
3 they were not. The court recounted the evidence above, but also found that the
Appellants lived with Nathaniel Rhodes for several years, the Appellants were listed
in Nathaniel Rhodes’s obituary as his children, there was no written document —
such as a birthday card or insurance policy — where Mobley identified the Appellants
as his children, and there was testimony that Mobley gave gifts to many individuals.
The court also noted that the Appellants did not petition for DNA testing. Based on
this “contradictory evidence,” the probate court found that the Appellants failed to
show that they were Mobley’s children by “clear and convincing proof.” This appeal
from the Appellants followed.
1. The Appellants argue that the probate court erred in finding that they did not
carry their burden of showing that Mobley was their biological father. We disagree.
Under OCGA § 53-2-3 (2) (A), a child born out of wedlock may inherit from
a father who died intestate only if:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law; (ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity; (iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
4 (iv) The father has signed the birth certificate of the child; or (v) There is other clear and convincing evidence that the child is the child of the father.
Notwithstanding the above, a DNA test showing paternity creates a rebuttable
presumption of kinship.3 A party whose kinship is in question may petition the court
for DNA testing upon “good cause shown[.]”4
The Appellants in this case did not request DNA testing, but instead relied on
OCGA § 53-2-3 (2) (A) (v): “clear and convincing evidence that the child is the child
of the father.” “‘Clear and convincing evidence’ is an intermediate standard of proof,
greater than ‘the preponderance of evidence,’ but less than the ‘beyond a reasonable
doubt’ standard applicable in criminal cases.”5
In Varner v. Sharp, we affirmed the trial court’s finding that the putative
daughter had proved that she was the decedent’s child by clear and convincing
evidence.6 In that case, the daughter presented evidence that she visited the decedent
3 See OCGA § 53-2-3 (2) (B). 4 See OCGA § 53-2-27. 5 (Citations and punctuation omitted.) Sharp v. Varner, 226 Ga. App. 570, 572 (2) (486 SE2d 701) (1997). 6 219 Ga. App. 125, 127-128 (464 SE2d 388) (1995).
5 regularly as a child, the decedent paid child support to the daughter’s mother, he paid
for her to attend college, he attended her wedding, acknowledged the daughter’s sons
as his grandchildren, helped pay his grandchild’s tuition, introduced her to his friends
as his daughter, and told his girlfriend that he wanted her to meet his daughter.7
Similarly, in Youmans v. Ormandy, we affirmed the jury’s finding that the putative
daughter had proved that she was the decedent’s child by clear and convincing
evidence.8 There, the daughter presented evidence that she grew up with her brother
believing they were siblings, the decedent supported the daughter financially and
emotionally, he celebrated her birthday and Christmas with gifts, he carried
photographs of his daughter and granddaughter, and the decedent told his mother that
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FIRST DIVISION BARNES, P. J., LAND and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 3, 2023
In the Court of Appeals of Georgia A23A0827. IN RE ESTATE OF MARVIN MOBLEY, JR., DECEASED.
WATKINS, Judge.
Marvin Mobley, Jr. (“Mobley”) died intestate in December 2020. Alicia
Rhodes and Ryan Rhodes (the “Appellants”) appeal from the probate court’s order
that determined Mobley’s heirs. They contend that the probate court erred in finding
that: (1) the Appellants failed to demonstrate by clear and convincing evidence that
Mobley was the Appellants’ biological father; and (2) the Appellants were estopped
from asserting that they were Mobley’s children because the Appellants had
previously claimed to be Nathaniel Rhodes’s children. For the reasons set forth
below, we affirm. “We will not set aside a probate court’s findings unless they are clearly
erroneous, and when such findings are supported by any evidence, they will be upheld
on appeal. The probate court’s application of the law, however, is subject to de novo
review.”1
So viewed, the record shows the following. After Mobley’s death, Malathia
Mobley, who is one of Mobley’s children, filed a petition to determine heirs. The
probate court held a hearing — which was not transcribed — to decide whether the
Appellants were Mobley’s children.2 At the hearing, Levolia Rhodes, the Appellants’
mother, testified that at the time of the Appellants’ births, she was married to
Nathaniel Rhodes. However, she stated that she engaged in an extramarital affair with
Mobley. According to Levolia Rhodes, she removed her IUD, had intercourse with
Mobley, and then became pregnant with Alicia Rhodes. She then repeated this
process with Ryan Rhodes. Levolia Rhodes testified that she did not give her husband
1 (Citations and punctuation omitted.) In re Estate of Jenkins, 366 Ga. App. 628, 629 (883 SE2d 843) (2023); accord In re Estate of Hawkins, 328 Ga. App. 436 (762 SE2d 149) (2014). 2 Our understanding of the testimony presented at the hearing is based on the trial court’s order.
2 “access” to her during this time. Despite these assertions, Nathaniel Rhodes was listed
as the father on the Appellants’ birth certificates.
When Nathaniel Rhodes died intestate in 2006, Alicia Rhodes attested that she
was Nathaniel Rhodes’s child. Levolia Rhodes, on behalf of Ryan Rhodes (who was
a minor at the time), also attested that Ryan Rhodes was Nathaniel Rhodes’s child.
While the Appellants waived their claims to Nathaniel Rhodes’s personal property,
they did inherit a portion of Nathaniel Rhodes’s real estate.
As additional evidence that the Appellants were Mobley’s children, they
submitted documentation at the hearing showing that, at one point in 1996, Levolia
Rhodes lived with Mobley. Mobley also listed the Appellants as beneficiaries on one
of his bank accounts. In 1999, Mobley bought United States savings bonds for the
Appellants. The Appellants submitted text messages between the Appellants and
Malathia Mobley discussing Mobley’s funeral and handling other issues stemming
from Mobley’s death. Mobley’s funeral program listed the Appellants as Mobley’s
children. Finally, a close friend of Mobley testified at the hearing that Mobley had
told him that the Appellants were his children.
After the hearing, the probate court found that there was both “significant
evidence” that the Appellants were Mobley’s children and “significant evidence” that
3 they were not. The court recounted the evidence above, but also found that the
Appellants lived with Nathaniel Rhodes for several years, the Appellants were listed
in Nathaniel Rhodes’s obituary as his children, there was no written document —
such as a birthday card or insurance policy — where Mobley identified the Appellants
as his children, and there was testimony that Mobley gave gifts to many individuals.
The court also noted that the Appellants did not petition for DNA testing. Based on
this “contradictory evidence,” the probate court found that the Appellants failed to
show that they were Mobley’s children by “clear and convincing proof.” This appeal
from the Appellants followed.
1. The Appellants argue that the probate court erred in finding that they did not
carry their burden of showing that Mobley was their biological father. We disagree.
Under OCGA § 53-2-3 (2) (A), a child born out of wedlock may inherit from
a father who died intestate only if:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law; (ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity; (iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
4 (iv) The father has signed the birth certificate of the child; or (v) There is other clear and convincing evidence that the child is the child of the father.
Notwithstanding the above, a DNA test showing paternity creates a rebuttable
presumption of kinship.3 A party whose kinship is in question may petition the court
for DNA testing upon “good cause shown[.]”4
The Appellants in this case did not request DNA testing, but instead relied on
OCGA § 53-2-3 (2) (A) (v): “clear and convincing evidence that the child is the child
of the father.” “‘Clear and convincing evidence’ is an intermediate standard of proof,
greater than ‘the preponderance of evidence,’ but less than the ‘beyond a reasonable
doubt’ standard applicable in criminal cases.”5
In Varner v. Sharp, we affirmed the trial court’s finding that the putative
daughter had proved that she was the decedent’s child by clear and convincing
evidence.6 In that case, the daughter presented evidence that she visited the decedent
3 See OCGA § 53-2-3 (2) (B). 4 See OCGA § 53-2-27. 5 (Citations and punctuation omitted.) Sharp v. Varner, 226 Ga. App. 570, 572 (2) (486 SE2d 701) (1997). 6 219 Ga. App. 125, 127-128 (464 SE2d 388) (1995).
5 regularly as a child, the decedent paid child support to the daughter’s mother, he paid
for her to attend college, he attended her wedding, acknowledged the daughter’s sons
as his grandchildren, helped pay his grandchild’s tuition, introduced her to his friends
as his daughter, and told his girlfriend that he wanted her to meet his daughter.7
Similarly, in Youmans v. Ormandy, we affirmed the jury’s finding that the putative
daughter had proved that she was the decedent’s child by clear and convincing
evidence.8 There, the daughter presented evidence that she grew up with her brother
believing they were siblings, the decedent supported the daughter financially and
emotionally, he celebrated her birthday and Christmas with gifts, he carried
photographs of his daughter and granddaughter, and the decedent told his mother that
his daughter was his child.9
By contrast, in In re Estate of Burton, the Supreme Court of Georgia held that
the probate court erred in finding that the appellee had proved paternity by clear and
convincing evidence.10 In that case, the decedent had no contact with the appellee for
7 See id. at 127. 8 Youmans v. Ormandy, 206 Ga. App. 255, 257 (1) (424 SE2d 828) (1992). 9 See id. at 256-257 (1). 10 265 Ga. 122, 124 (453 SE2d 16) (1995).
6 the first 20 years of the appellee’s life and the decedent never mentioned having a son
to close family members.11 While one of the decedent’s employees testified that the
decedent introduced the appellee as his son to her, another employee testified that the
decedent would claim the appellee as his son on one occasion only to vehemently
disavow paternity on the next occasion. Yet another employee testified that the
decedent had stated that he was childless when interviewed by a local television
station.12
In this case, it was within the probate court’s discretion to decide that the
evidence presented by the Appellants did not establish paternity. Ultimately, it was
for the factfinder, not this Court, “to weigh the evidence” and “to assess witness
credibility.”13 As noted by the probate court, the evidence was “contradictory,” and
the Appellants did not petition for DNA testing. Additionally, in the absence of a
transcript, we “must assume that the evidence adduced below was sufficient to
support the probate court’s findings.”14
11 See id. at 123. 12 See id. at 123-124. 13 Sharp, 226 Ga. App. at 571 (2). 14 Price v. Price, 281 Ga. 126, 127 (636 SE2d 546) (2006).
7 Accordingly, the probate court did not err in finding that the Appellants failed
to prove paternity by clear and convincing evidence. We thus affirm.
2. The Appellants also argue that the trial court erred in finding that the
Appellants were estopped from asserting that they were Mobley’s children because
the Appellants previously claimed to be Nathaniel Rhodes’s children in inheriting his
property. Having reached the merits in Division 1 above, we need not address this
claim of error.
Judgment affirmed. Barnes, P. J., and Land, J., concur.