In Re Estate of Odom

397 So. 2d 420
CourtDistrict Court of Appeal of Florida
DecidedApril 24, 1981
Docket80-1235
StatusPublished
Cited by11 cases

This text of 397 So. 2d 420 (In Re Estate of Odom) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Odom, 397 So. 2d 420 (Fla. Ct. App. 1981).

Opinion

397 So.2d 420 (1981)

In re the ESTATE OF Lawrence Edward ODOM, Deceased.
Donna D. BERKEY, Appellant,
v.
ESTATE of Lawrence Edward ODOM, Deceased, Appellee.

No. 80-1235.

District Court of Appeal of Florida, Second District.

April 24, 1981.

*421 Michael K. Stuckey and Richard Motley, Clearwater, for appellant.

William H. Walker, St. Petersburg, for appellee.

CAMPBELL, Judge.

Pursuant to section 732.108(2)(b), Florida Statutes (1979), appellant Donna D. Berkey, as mother, guardian and next friend of Julie Diane Odom, a minor child, filed in the circuit court, probate division, a petition for appointment of personal representative, determination of beneficiaries, administration of intestate estate and adjudication of paternity in regard to the estate of Lawrence Edward Odom, deceased. Her petition alleged that Mr. Odom had previously died intestate and that no application for appointment of a personal representative had been filed. She further alleged that Mr. Odom was survived by his wife, two adult children of that marriage, one adult child of a previous marriage, and a minor child, Julie Diane Odom, who was alleged to have been born out of wedlock to Mr. Odom and appellant on November 5, 1969. Appellant, prior to the death of Mr. Odom on January 22, 1980, had filed an action against him for determination of paternity pursuant to chapter 742, Florida Statutes. That action had been dismissed by the trial court on its own motion on February 15, 1980, as a result of Mr. Odom's intervening death.

Anselaine D. Odom, as surviving spouse of Mr. Odom, filed a motion to dismiss *422 appellant's probate petition asserting that it was an action for determination of paternity brought against the estate of the putative father and, therefore, could not survive his death under the authority of Bell v. Setzer, 375 So.2d 61 (Fla.2d DCA 1979). The trial court agreed and dismissed appellant's petition specifically relying upon Bell v. Setzer, supra, as controlling over the arguments of appellant that In re Estate of Burris, 361 So.2d 152 (Fla. 1978), and section 732.108(2)(b), Florida Statutes, authorize such an action. We find the trial court's reliance misplaced and reverse.

Bell v. Setzer, supra, was an appeal from the dismissal of an action for the determination of paternity and support of a minor child born out of wedlock. The trial court there dismissed the action upon the death of the putative father prior to an adjudication of paternity. This court in Bell properly held the dismissal was proper because an action pursuant to chapter 742 abates on the death of the defendant putative father, citing as authority Carpenter v. Sylvester, 267 So.2d 370 (Fla.3d DCA 1972). Carpenter involved an appeal from an order denying a motion to dismiss an action for determination of paternity and child support under chapter 742, Florida Statutes, brought after the putative father's death against the administratrix of his estate. The district court of appeal in Carpenter reversed, properly holding that since under the common law the duty of support of minor children dies with the father, so does an action under chapter 742 likewise abate with the death of the putative father since the statute contains no language in derogation of the common law rule. Although this court in Bell discusses the possibilities of an action under section 732.108(2)(b) for the determination of paternity for inheritance purposes, that issue was not before the Bell court. Bell like Carpenter was an action for the determination of paternity for the purpose of child support pursuant to chapter 742.

Appellant's petition below did not involve chapter 742 or child support, but involved solely the determination of paternity for the purpose of inheritance under section 732.108(2)(b), a different action entirely.

In sustaining appellant's petition below, we look to a number of decisions of the Florida courts that have interpreted section 732.108(2)(b) and chapter 742, Florida Statutes, as well as decisions in other jurisdictions that have considered similar statutes. As this court in Bell pointed out, clearly the legislature by enacting section 732.108(2)(b) intended to allow an action to determine paternity for inheritance purposes. See also State Department of HRS v. West, 378 So.2d 1220 (Fla. 1979). Again as pointed out in Bell, the problem arises when chapter 742 is sought to be used as the vehicle for such an action. Carpenter and Bell both hold that a chapter 742 action abates on death. Section 742.10 provides that chapter 742 is "in lieu of" all other proceedings provided by law for the determination of paternity and support of children born out of wedlock. Chapter 742 then is not available as the vehicle for a cause of action for determination of paternity for inheritance purposes. The question then is, does a cause of action still exist in light of the "in lieu of" language of section 742.10? We hold it does, construing that language to be restrictive only to actions for child support for children born out of wedlock. Since we determine that the legislature clearly intended that an action could be maintained for the determination of paternity for inheritance purposes, we must also determine the proper method for bringing such an action.

One of equity's most important maxims is that "equity will not suffer a wrong to be without a remedy." First State Bank of Clermont v. Fitch, 105 Fla. 435, 443, 141 So. 299, 301 (1932). Since the legislature has determined that children born out of wedlock have a right to inherit from their natural father if paternity is established before or after the father's death but has not specified the type of actions to secure that right, we must assume the legislature intended a remedy that already existed. In re Estate of Burris, supra, is helpful in *423 concluding that appellant has sought the correct remedy. There the court examined section 731.29(1), Florida Statutes (1973), the predecessor to section 732.108(2). In doing so, it held section 731.29(1), Florida Statutes (1973), to be unconstitutional under our state and federal constitutions in that it restricted an illegitimate child's right to inherit intestate property of its natural father's estate only if paternity was proved by a written and witnessed acknowledgement of paternity by the father. The court there noted that the legislature had subsequently amended the provision by enacting section 732.108(2), where, in addition to written acknowledgement, an illegitimate child would be allowed to inherit from its father if paternity was adjudicated either before or after death. Since the prior statute allowed paternity for inheritance purposes to be established after the death of the father in an action against the putative father's estate only with proof of an acknowledgement in writing, the amended section 732.108(2) must be construed as expanding the method of proof of paternity based on evidence other than a written acknowledgement.

Kendrick v. Everheart, 390 So.2d 53 (Fla. 1980), involved the question of whether a father had a right to bring an action under either chapter 742 or chapter 86, Florida Statutes, to determine his paternity of his illegitimate children. The court there held that chapter 742 was intended as the natural mother's exclusive legal remedy in establishing paternity and enforcing support rights on behalf of her child.

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Bluebook (online)
397 So. 2d 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-odom-fladistctapp-1981.