Pierce v. Higgins

531 A.2d 1221, 1987 Del. Fam. Ct. LEXIS 171
CourtDelaware Family Court
DecidedMay 10, 1987
StatusPublished
Cited by2 cases

This text of 531 A.2d 1221 (Pierce v. Higgins) is published on Counsel Stack Legal Research, covering Delaware Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pierce v. Higgins, 531 A.2d 1221, 1987 Del. Fam. Ct. LEXIS 171 (Del. Super. Ct. 1987).

Opinion

WAKEFIELD, Judge.

The present action is one to register in Delaware a New Jersey support order against the personal representative of a deceased Delaware support obligor, and, inferentially, to enter judgment against such administratrix.

On December 20, 1976, a New Jersey County Court found decedent, Owen S. Brown, to be the father of Cheri Yvette Pierce, daughter of Petitioner, Lorraine Pierce, and ordered him to pay $14.00 per week support. The Order was made retroactive to July 22, 1974, and all payments were to be made by decedent to the Cumberland County Probation Department. Petitioner alleges that no support payments were ever made.

On December 21, 1983, Owen Brown, a Delaware resident, died. On February 13, 1984, Petitioner filed a Statement of Claim with Respondent as administratrix of Owen Brown’s Estate. Respondent is also the mother of two other illegitimate children of decedent.

On February 20, 1984, counsel for the decedent’s estate rejected the claim. As a result, on March 14, 1984, Petitioner filed a Statement of Claim with the Register of Wills and, thereafter, filed a complaint with the Court of Chancery on May 17, 1984. Respondent filed a Motion to Dismiss the Chancery action which was stayed by order of that Court on October 14, 1984 pending this Court’s determination of whether or not support is owed.

On July 11, 1985, Petitioner then filed a petition with this Court to register the December 20, 1976 support order and on July 16, 1985, Respondent filed a Petition to Vacate Registration of Foreign Support Order. These are the petitions presently before the Court for decision.

The threshold issue to be considered is whether New Jersey or Delaware law [1223]*1223governs the present action. Whether we look at the New Jersey choice of law statute or Delaware’s counterpart, the result is the same — Delaware law is to be applied. NJSA 2A:4-30.31 provides:

Duties of support applicable under this act are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding State during the period for which support is sought until otherwise shown.

Delaware’s choice of law statute is substantially similar to New Jersey’s. 13 Del.C. § 620 provides:

Duties of support applicable under this chapter are those imposed or imposable under he laws of any State where the obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

Application of either statute would lead to the conclusion that Delaware law applies to the case at bar since it appears that the decedent was a Delaware resident during all operative periods.

The substantive issue of whether this Court can hold a decedent’s estate liable for arrears which accrued but were not reduced to judgment prior to his death is an issue of first impression for this Court. However, other jurisdictions have addressed this exact issue in a variety of ways.

In Smith v. Bramhall, Tex.App., 556 S.W.2d 112 (1977) in connection with divorce proceedings, decedent had been ordered to pay child support during his lifetime which he had failed to do prior to his death. The mother made a claim against the decedent’s estate which the personal representative refused. The Court held that pursuant to 14.09(c) of the Texas Family Code1 and existing case law, unpaid child support was a debt for which judgment could be entered. Holding further that the decedent’s estate is responsible for his accrued debts, the Court reached the “logical conclusion” that the Court could render judgment for accrued but unpaid child support against decedent’s executor.

Similarly, in In re Lunah, S.C.App., 288 S.C. 530, 343 S.E.2d 649 (1986), the former spouse of a deceased support obligor brought a claim against his estate for ar-rearages on a foreign child support order. The South Carolina Court rejected the estate’s contention that accrued child support does not constitute a debt and held that "... where the obligor parent has not paid all sums due prior to his death, under an order for support of his child in a proceeding for a divorce or separation, the amount of arrears is a proper claim against his estate.” Furthermore, the Court refused to require the obligee to obtain a judgment and then present that judgment to the personal representative before it could constitute a claim against the estate.

Although the Delaware Code requires that a claim be presented before constituting a claim against the estate, those requirements would appear to have been complied with (see discussion infra) and, therefore, would not constitute a significant difference such as to render the foregoing decision unpersuasive. However, there is one significant difference between Delaware law and that of South Carolina. Specifically, South Carolina considers a foreign divorce decree providing for monthly payments of child support a “final decree” which is entitled to full faith and credit. The order in case at bar is neither part of a divorce decree nor is it necessarily considered a “final decree” in Delaware.

Similarly, in In re Weaver’s Estate, Ill.App., 3 Ill.App.2d 448, 122 N.E.2d 599 (1954) a support order was entered in con[1224]*1224nection with the parties’ divorce. Upon decedent’s death and some eight years after the child reached the age of majority, the mother made a claim against the father’s estate for support arrears. The Illinois Court held that the amount of support which accrued up to the time the son attained the age of majority could be asserted as a debt against the estate recoverable by the child’s mother. See also, In re Estate of Bell, 210 Ill.App. 350, Pilackus v. Pilackus, Ill.App., 328 Ill.App. 126, 65 N.E.2d 223. The Court declined to comment on any defenses the estate may have had.

Courts in both New York and California have also determined that petitioners are entitled to judgment against the estate of a deceased person for support which accrued prior to the obligor’s death. See, Chiaramonte v. Chiaramonte, 106 Misc.2d 822, 435 N.Y.S.2d 523 (1981) also holding no triable issues existed; Pelser v. Pelser, Cal.App., 117 Cal.App.2d 228, 2 Cal.Rptr. 259 (1960) citing Saunders v. Simms, Cal., 190 P. 806, Anderson v. Mart, Cal., 47 Cal.2d 274, 303 P.2d 539 and Hilton v. McNitt, Cal., 49 Cal.2d 79, 315 P.2d 1.

A case which seems to run counter to the general rule is Pryor v. Jump, Okla.Supr., 183 Okl. 560, 83 P.2d 828 (1938) cited by the Petitioner in which the Oklahoma Supreme Court determined that proceedings in bastardy cannot be instituted against the personal representative. However, the facts in Pryor significantly differ from those in the case at bar. In Pryor,

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Bluebook (online)
531 A.2d 1221, 1987 Del. Fam. Ct. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-higgins-delfamct-1987.