Opinion
44681 Record No. 820372.
September 7, 1984.
Present: All the Justices.
Use of deceased's name as father on an illegitimate child's birth certificate which contains no further information about deceased is insufficient to establish paternity absent clear and convincing evidence that deceased agreed to be listed as the child's father; inheritance by illegitimate children discussed; provisions of Code Sec. 64.1-5.1 construed.
(1) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Statutory Construction — Meaning of Child and Related Terms (Code Sec. 64.1-5.1) — A Person Born Out of Wedlock is the Child of the Mother [Code Sec. 64.1-5.1(2)].
(2) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Statutory Construction — Evidence — Meaning of Child and Related Terms (Code Sec. 64.1-5.1); Evidence of Paternity (Code Sec. 64.1-5.2) — Person Born Out of Wedlock is Child of Father if Paternity Established by Clear and Convincing Evidence Under Code Sec. 64.1-5.2 [Code Sec. 64.1-5.1(2)(b)].
(3) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Statutory Construction — Evidence — Evidence of Paternity (Code Sec. 64.1-5.2) — Evidence Limited to Six Categories of Conduct Including, in Code Sec. 64.1-5.2(2), Consent of Putative Father to Entry of Name in Birth Record, Etc.
(4) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Statutory Construction — Meaning of Child and Related Terms (Code Sec. 64.1-5.1); Time Limitation to Establish Claim [Code Sec. 64.1-5.1(3)] — Affidavit Must be Filed and Adjudication Sought Within One Year After Putative Father's Death Unless Consent Given to Enter Name on Birth Record, Etc.
(5) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Evidence — Statutory Construction — Meaning of Child and Related Terms (Code Sec. 64.1-5.1); Time Limitation to Establish Claim [Code Sec. 64.1-5.1(3)] — Adjudication of Paternity — Burden of Proof — Rests on Child Alleging Paternity.
(6) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Evidence — Statutory Construction — Meaning of Child and Related Terms (Code Sec. 64.1-5.1); Time Limitation to Establish Claim [Code Sec. 64.1-5.1(3)]; Evidence of Paternity (Consent of Putative Father) [Code Sec. 64.1-5.2(2)] — Burden of Proof — Child Must Prove Consent by Clear and Convincing Evidence.
(7) Domestic Relations — Intestate Succession — Illegitimate Child as Heir or Distributes — Evidence — Statutory Construction — Meaning of Child and Related Terms (Code Sec. 64.1-5.1); Time Limitation to Establish Claim [Code Sec. 64.1-5.1(3)]; Evidence of Paternity (Consent of Putative Father) [Code Sec. 64.1-5.2(2)] — Claimant Fails to Establish Consent of Putative Father by Clear and Convincing Evidence, Etc.
Compton died intestate on 21 February 1980. On 5 March 1980, Donald R. Wise filed an affidavit alleging that he was Compton's biological son and was therefore entitled to his estate. In support of his claim, Wise filed a certified copy of his birth certificate which listed Compton as his father and the affidavits of his mother and of a friend of Compton's. On 20 August 1980, various relatives of Compton filed a bill of complaint seeking a determination of Compton's lawful heirs. In answer, Wise again alleged that he was Compton's biological son.
At trial, Wise testified that he was Compton's son, introduced the birth certificate listing Compton as his father, and presented a witness who testified as to Compton's age at the time of Wise's birth. The Trial Court held that there was sufficient evidence to find that Wise was Compton's son and sole heir at law. Compton's relatives appeal.
1. Under Code Sec. 64.1-5.1(2) a person born out of wedlock is a child of the mother.
2. Under Code Sec. 64.1-5.1(2)(b) a person born out of wedlock is a child of the father if paternity is established by clear and convincing evidence as set forth in Code Sec. 64.1-5.2.
3. Code Sec. 64.1-5.2 limits the evidence to establish paternity of the father to six specified categories of conduct, including in Code Sec. 64.1-5.2(2) the consent of the putative father given to a physician or other person (not including the mother) charged with the responsibility of securing information for preparing the birth record that his name be used upon the birth records as the father of the child.
4. Under Code Sec. 64.1-5.1(3) an illegitimate child or someone acting for the child must file an affidavit alleging parenthood and seek an adjudication of parenthood within one year of the putative father's death to he recognized in the settlement of the estate; but this time limitation does not apply if parenthood is established by a birth record given by or at the request of the putative father, etc.
5. In an action seeking adjudication of parenthood, the burden of proof rests on the child alleging parenthood.
6. When a child seeks an adjudication more than one year after the death of the putative father to establish paternity by showing the putative father gave consent to someone, other than the mother, responsible for providing vital statistics for the birth certificate, that his name be listed as the father as provided in Code Sec. 64.1-5.2(2), the burden is on the child to prove by clear and convincing evidence that the putative father gave this consent.
7. Here the mere listing of the putative father's name on the West Virginia birth certificate of the child as the father, even though West Virginia Code Ch. 16, Sec. 114(h) then required that the name not be entered without the putative father's consent, without further affirmative evidence of consent or evidence showing contact with the putative father is insufficient to prove paternity by clear and convincing evidence.
Appeal from a judgment of the Circuit Court of the City of Bristol. Hon. Wayne L. Bell, judge presiding.
Reversed and remanded.
Ralph M. Dillow, Jr., for appellants.
No brief or argument for appellees.
In this appeal, the question is whether the evidence is sufficient to establish that a claimant to an estate is the illegitimate child and sole heir at law of an intestate decedent.
The decedent, Roy T. Compton, a resident of Bristol, Virginia, died February 21, 1980. On March 10, 1980, Donald R. Wise filed an affidavit with the clerk of the trial court, pursuant to Code Sec. 64.1-5.1(3), asserting that he was born in West Virginia October 7, 1933, that he was the son of Compton and Mary Wise, and that he was entitled to Compton's estate as his biological son. On motion of Wise, who was a resident of Delaware, Marguerite Branson (hereafter, the Administratrix), qualified as administratrix of the estate and executed a bond, with corporate surety thereon, in the penalty of $100,000. On March 12, 1980, a certified copy of Wise's West Virginia birth certificate, listing Compton as his father, was filed with the clerk. Two days later, an affidavit of Mary Wise Barton was filed, stating that she was Wise's mother and that Compton was his father. Filed subsequently was an affidavit of William H. Davis, stating that he had been a fellow employee of Compton, that as a lay preacher he had conducted Compton's funeral service, that he had known Compton and Mary Wise in Berwind, West Virginia, that it was generally believed in that community that Compton was the father of Mary Wise's first child, and that as the child grew he bore a "striking likeness" to Compton.
On August 20, 1981, Betty Jo Rankin Johnson, the decedent's niece; Flora Compton Walker, a sister; Carl C. Compton, a brother; Dorothy Ann Rankin Farr, a niece; Kenneth Curtis Compton, a nephew; Linda Carol Compton Cain, a niece; Billie Jean Compton Ward, a niece; James Robert Compton, a great-nephew; George Thomas Compton, a great-nephew; Margaret Theresa Compton, a great-niece; and Elizabeth Susan Compton, a great-niece, filed a bill of complaint in the trial court against the Administratrix and Wise. The complainants alleged that they were Compton's only lawful heirs, that Wise was not his son, and that they had attempted unsuccessfully to have the Administratrix distribute to them the assets of the estate. They sought to have the court determine the lawful heirs of the decedent; in addition, they asked the court to remove the Administratrix and to replace her with one that they nominated.
In a joint answer, the Administratrix and Wise averred that Wise was the son of Compton and Mary Wise Barton. The Administratrix sought the guidance of the court in distributing the estate. Wise sought an adjudication that he was the beneficiary entitled to receive the entire net proceeds of the estate.
The chancellor heard the evidence ore tenus. No transcript was made, but the evidence was summarized in the final decree entered November 30, 1981, in which the court, ruling that there was "sufficient evidence" to find that Wise is the natural son of Compton and his sole heir at law, so ordered. Neither Mary Wise Barton nor William H. Davis testified in person or by deposition, and the decree expressly stated that the court did not consider the affidavits of these two individuals as evidence of paternity. On appeal, complainants below challenge the sufficiency of the evidence supporting the ruling of the trial court.
Two witnesses testified for complainants. Betty Jo Rankin Johnson, one of the complainants, testified that Compton was not the father of Donald Ray Wise. In addition, she gave the names of the complainants and their relationships to Compton.
Carl Compton, another complainant, testified that he was a brother of the decedent. He said that he lived in Bluefield, West Virginia, but that he had previously lived in Berwind, West Virginia, "almost all of his life." Replying to a question, he said that Wise was not the decedent's biological son. Explaining this answer, the witness testified, without objection, that his brother once said that he had heard a rumor about his being Wise's father, but that Wise was not his child, " 'and they are not going to put that baby on me.' " The witness further testified that the decedent knew he was born in Richlands, Virginia, where he had family whom he visited "very often."
Two witnesses testified for the respondents. Donald R. Wise testified that he was born in Welch, West Virginia, October 7, 1933. Over objection, he testified that he was Roy T. Compton's son, and he introduced in evidence a certified copy of his birth certificate and a copy of sections of the 1931 West Virginia Code. Robert Henry Branson, an employee of the Sheriff's Department in Bristol, Virginia, testified that he grew up in Berwind, West Virginia, that he and Compton worked together in Berwind from approximately 1940 to 1960, and that Compton, who was born in October of 1910, was about 22 years of age in 1933.
Donald Ray Wise's birth certificate contained typed answers to various questions. These answers stated that his parents were not married, that his mother was Mary Wise, 19, that his father was Roy Compton, 22, that both the mother and father lived in Berwind, and that the mother's birthplace was Berwind. The space for the father's birthplace contained a question mark that was handwritten in parentheses.
Chapter 16, Art. 5, Sec. 14(h) of the 1931 West Virginia Code required that the father's full name be entered on a birth certificate. This provision stated, however, that "if the child is illegitimate, the name or residence of, or other identifying details relating to, the putative father shall not be entered without his consent.
[1-3] Section 64.1-5.1(2) of the Code of Virginia provides that a person born out of wedlock is a child of the mother. Under Sec. 64.1-5.1(2)(b) such a person is also a child of the father if the paternity is established by clear and convincing evidence as set forth in Sec. 64.1-5.2. Section 64.1-5.2 limits the evidence to six specified categories of conduct by the putative father, of which only the following is relevant:
2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child.
Code Sec. 64.1-5.2(2).
In addition, Code Sec. 64.1-5.1(3) requires that no claim of succession by an illegitimate child shall be recognized in the settlement of a decedent's estate unless the child or someone acting for him shall, within one year of the parent's death, file an affidavit alleging parenthood and file an action seeking adjudication of parenthood. The limitation period does not apply if the parenthood is "established by a birth record prepared upon information given by or at the request of the parent in question.
In the present case, an affidavit alleging parenthood was filed within one year after Compton's death, but an action seeking adjudication of parenthood has never been filed by Wise or someone acting for him. In such an action, of course, the burden of proof would rest on Wise, the person alleging parenthood.
We will assume, without deciding, that Wise's affirmative response to the bill of complaint filed against him and the Administratrix more than one year after Compton's death constitutes an action seeking adjudication of parenthood under Code Sec. 64.1-5.1(3). The burden was on Wise, however, regardless of the form of the proceeding, to establish paternity by showing that Compton gave consent to someone, other than the mother, responsible for providing vital statistics for Wise's birth certificate, that his name be listed as the father. We conclude that Wise failed to prove by clear and convincing evidence that Compton gave such consent.
There is no affirmative evidence that Compton ever consented to have his name entered on Wise's birth certificate as the child's father. There is only the evidence that his name was so listed at a time when the West Virginia statute prohibited such listing without his consent. There is no evidence that the person furnishing the information for the birth certificate complied with this law by obtaining Compton's consent. Even in her ex parte affidavit, Wise's mother did not assert that Compton had consented to the entry of his name as the child's father. Indeed, the fact that the preparer of the information for Wise's birth certificate did not know Compton's birthplace strongly suggests that Compton did not supply the information. The uncontradicted evidence was that Compton knew where he was born and frequently returned there to see relatives.
There is no evidence that Compton ever had any contact with Wise. There is no evidence that Wise ever used Compton's surname, or that Compton ever claimed Wise as a dependent for tax purposes. There is no evidence that Compton ever admitted paternity in a court proceeding or in writing under oath. We hold that the mere listing of Compton's name on the West Virginia birth certificate is insufficient to prove paternity under our statute requiring such proof to be made by clear and convincing evidence.
We will reverse the final decree of the trial court ruling that Wise is Compton's son and sole heir at law and remand the case for further proceedings not inconsistent with this opinion.
Reversed and remanded.