Thurston v. Thurston

777 So. 2d 1001, 2000 Fla. App. LEXIS 16357, 2000 WL 1838640
CourtDistrict Court of Appeal of Florida
DecidedDecember 15, 2000
DocketNo. 1D97-692
StatusPublished
Cited by2 cases

This text of 777 So. 2d 1001 (Thurston v. Thurston) 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
Thurston v. Thurston, 777 So. 2d 1001, 2000 Fla. App. LEXIS 16357, 2000 WL 1838640 (Fla. Ct. App. 2000).

Opinion

VAN NORTWICK, J.

Dorothy J. Thurston appeals an order denying her petition which sought a determination that she was a lineal descendant under section 732.108(2)(a), Florida Statutes (1995),1 and a beneficiary of the estate [1002]*1002of the deceased, Edward Lloyd Thurston. Appellant argues that the trial court erred in ruling (i) that a proceeding under section 732.108(2)(a) is an action relating to the determination of paternity within the meaning of section 95.11(3)(b), Florida Statutes (1995);2 and (ii) that, since appellant had reached majority more than four years prior to filing her petition, her claim was time barred under section 95.11(3)(b). We agree with the trial court that a proceeding under section 732.108(2)(a) is an action relating to paternity to which section 95.11(3)(b) applies. Accordingly, we affirm.

Dorothy J. Thurston’s mother was married to Edward Lloyd Thurston on June 5, 1948. They divorced in 1957. Thurston was born on October 23, 1966. Her birth certificate lists Edward Lloyd Thurston as her father. When Edward Thurston died intestate on September 3, 1995, appellant filed a petition seeking a determination that she was a lineal descendant of the deceased pursuant to section 732.108(2)(a).

Section 732.108(2) provides three alternative means by which a person born out of wedlock can establish that she is a putative heir for purposes of intestate succession: (a) the natural parents marry before or after the birth of the person born out of wedlock; (b) the paternity of the father is established by an adjudication before or after the death of the father; (c) the father acknowledges the paternity in writing. Breedlove v. Estate of Breedlove, 586 So.2d 466, 467 (Fla. 1st DCA 1991). We agree with the trial court that both subparagraphs (a) and (b) of section 732.108(2) require an adjudication of paternity based upon clear and convincing evidence submitted by the person born out of wedlock. Id. The instant action was brought under subparagraph (a) of section 732.108(2). Thus, the supreme court’s decision in In re Estate of Smith, 685 So.2d 1206 (Fla.1996), cert. denied sub nom., Scruggs v. Wilson, 520 U.S. 1265, 117 S.Ct. 2434, 138 L.Ed.2d 195 (U.S.Fla. June 9, 1997)(No. 96-1615), in which the court held that an adjudication under subparagraph (b) to section 732.108(2) is an action relating to the determination of paternity to which section 95.11(3)(b) applies, is controlling in the instant case.

Our interpretation of subparagraph (a) of section 732.108(2) reflects the legislative intent expressed in the amendments to this section’s predecessor. Section 731.29(1), the predecessor to section 732.108(2), provided as follows:

Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.

In Knauer v. Barnett, 360 So.2d 399 (Fla.1978), the Florida Supreme Court held that a right of inheritance under sec[1003]*1003tion 731.29(1) could be established without the necessity of establishing paternity. The Knauer declaratory judgment action required an interpretation of section 731.29(1) to determine whether Charles Barnett, who claimed to be the son and blood issue of William L’Engle Barnett, was entitled to receive trust income and corpus under a trust document which provided for distribution of income and corpus to the surviving “blood issue” of William Barnett or to the collateral kindred of William if no blood issue existed. The collateral kin of William Barnett claimed that William had no blood issue.

After Charles was born in 1913, his mother, Marcelle, and William Barnett married. William Barnett acknowledged in writing that Charles was his son. Charles was raised and educated as the son of Marcelle and William Barnett. William Barnett again acknowledged in writing that Charles was his son for purposes of establishing Charles’ United States citizenship.

Based upon these facts, this court concluded that the subsequent marriage of Marcelle and William and William’s acknowledgment of paternity had satisfied the statutory requisites of section 731.29(1) and that Charles was not required to establish separately his paternity by William Barnett. Barnett v. Barnett, 336 So.2d 1213 (Fla. 1st DCA 1976), aff'd sub nom., Knauer v. Barnett, 360 So.2d 399 (Fla.1978). The court explained that compliance with the marriage and acknowledgment provisions of section 731.29(1) “raises the presumption of parenthood of the child in question to the status of a child born in wedlock.” Id. at 1218. In so ruling, this court rejected the contrary construction placed upon the statute by the lower court, stating, as follows:

The chancellor below, in construing the statute, ruled that a child was not rendered legitimate for all purposes by the signed acknowledgment of the person who in writing acknowledges himself to be the father of the child and also marries the mother; that because the statute refers to subsequent intermarriage of the parents, such means the child’s natural parents, thereby leaving open for adjudication at some future time the question of legitimacy. This construction in our view nullifies the obvious intent of the statute which was to lay at rest the question of legitimacy when the reputed father acknowledges the child before a witness and marries the mother. We do not believe it was the legislative intent to leave this question dangling for future litigation many years later (usually at the death of the father) when the problem of proof, though it could be difficult enough at the time of acknowledgment and marriage, would be far more difficult in later years.

Id. at 1216.

On review by the Florida Supreme Court, the court agreed that, upon the written acknowledgment by William Barnett and his marriage to Marcelle, pursuant to the provisions of section 731.29(1) Charles became the legitimate child of those parties and achieved a status equal to that of a child born in wedlock. Knauer, 360 So.2d at 403. Accordingly, Charles was not required to submit factual proof of paternity. Id. Said the court:

If section 731.29(1) emphasized factual proof of paternity rather than a simple attestation by which one willingly recognizes his status as a parent, [the collateral kin] could more persuasively argue that the statute contemplates their challenge to the paternity of Charles.

Id. at 404.

In Knauer, the supreme court contrasted a proceeding under 731.29(1) with proceedings for determination of paternity under sections 742.011, 742.021, and 742.031, Florida Statutes (1973), under which a woman could seek to have an unwilling party declared the father of her child so that she might enforce support obligations upon him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DR. MARC BIVINS v. CHARLES W. DOUGLAS, etc.
District Court of Appeal of Florida, 2021
In Re Trust Created by Agreement Dated December 20, 1961
765 A.2d 746 (Supreme Court of New Jersey, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
777 So. 2d 1001, 2000 Fla. App. LEXIS 16357, 2000 WL 1838640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurston-v-thurston-fladistctapp-2000.