Brookbank v. Gray, s. 94-1945

Decision Date17 January 1996
Docket NumberNos. 94-1945,94-1946,s. 94-1945
PartiesBROOKBANK, Admr., Appellee, v. GRAY, Appellant.
CourtOhio Supreme Court

1. The term "children," as used in R.C. 2125.02(A)(1), includes all natural or adopted children, whether legitimate, legitimated, acknowledged or illegitimate.

2. A child born out of wedlock is not foreclosed from recovering damages for the wrongful death of his or her putative father, simply because paternity had not been acknowledged, adjudicated or otherwise established during the putative father's lifetime. Paternity may be established after the death of the decedent in order to permit an illegitimate child recovery under the Wrongful Death Act for the wrongful death of his or her father.

3. The court of common pleas has jurisdiction to determine the paternity of a child born out of wedlock in conjunction with a wrongful death claim.

On July 1, 1989, Thomas K. Walker was killed when the motorcycle he was operating collided with an automobile driven by appellant, Eugene P. Gray. Appellee, Kellie L. Brookbank, was appointed administrator of Walker's estate and, on March 28, 1991, filed a complaint, later amended, against appellant in the Hamilton County Court of Common Pleas, alleging the wrongful death of Walker. In her amended complaint, appellee sought "to recover hospital and funeral expenses incurred by decedent's mother and otherwise for the benefit of the beneficiaries set forth in Ohio Revised Code § 2125.02(A)(1), namely, James Tyler Brookbank, son of the decedent; Kellie L. Brookbank, wife of the decedent; Antonie Walker, mother of the decedent; and Iris Webb and Delores Martinez, sisters of the decedent."

On March 23, 1993, the trial court entered partial summary judgment against appellee "on the claims of Kellie L. Brookbank, as common-law surviving spouse, and James Tyler Brookbank, as illegitimate son, as beneficiaries under the wrongful death statute, Ohio Revised Code § 2125.01 et seq." With respect to James, the trial court, relying exclusively on Hunter-Martin v. Winchester Transp., Inc. (1991), 71 Ohio App.3d 273, 593 N.E.2d 383, motion to certify overruled, 62 Ohio St.3d 1408, 577 N.E.2d 361, found that an "[i]llegitimate child cannot maintain a wrongful death action on behalf of his deceased father where the paternity action to establish the parent-child relationship was brought after the purported father was killed in an automobile accident." The trial court rejected a challenge to its finding on equal protection grounds, finding further that "[t]he state has an obvious interest in requiring that illegitimate children be acknowledged before the death of the father to avoid establishing a process which would be ripe for fraud and the filing of multitudinous frivolous actions." The court then entered a Civ.R. 54(B) certification, finding no just reason for delay.

Appellee filed a notice of appeal with respect to both her claim as common-law wife and James' claim as the illegitimate son of decedent. In her brief to the court of appeals, however, appellee limited her argument to "only the issue concerning an illegitimate's right to recover damages for his father's wrongful death."

The court of appeals reversed the trial court, holding that "in a wrongful-death action the issue of parentage may be raised after the death of the putative father and it may be litigated in the court of common pleas." In so holding, the court of appeals found that under the Ohio Parentage Act, specifically R.C. 3111.06(A), "a paternity action can be brought in the juvenile court after 'the alleged father is deceased' "; and that "the common pleas court has concurrent jurisdiction with the juvenile court to determine whether Walker is the father of James." Accordingly, the court did not address the constitutional issues.

The cause is now before the court pursuant to the allowance of a discretionary appeal (No. 94-1945). Further, the court of appeals, finding its judgment to be in conflict with the decision of the Third Appellate District in Hunter-Martin v. Winchester Transp. (1991), 71 Ohio App.3d 273, 593 N.E.2d 383, and the Second Appellate District in Hopping v. Erie Ins. Co. (Mar. 20, 1990), Clark App. No. 2649, unreported, 1990 WL 31832, certified the record of the case to this court for review and final determination (No. 94-1946).

Richard G. Ward Co., L.P.A., and Richard G. Ward, Chillicothe, for appellee.

McCaslin, Imbus & McCaslin, John J. Finnigan, Jr., and Matthew R. Skinner, Cincinnati, for appellant.


The primary issue confronting the court is whether a child born out of wedlock is foreclosed from recovering damages for the wrongful death of his or her putative father, where paternity had not been established during the putative father's lifetime.

R.C. 2125.02(A)(1) 1 provides that an action for wrongful death shall be brought for the exclusive benefit of, among others, the "children * * * of the decedent." The term "children," however, is nowhere defined in the Wrongful Death Act, R.C. Chapter 2125. Ohio courts of appeals have, until this case, filled this gap by holding that unrecognized illegitimate children are not "children," as that term is used in the Wrongful Death Act, when suing for the wrongful death of their alleged fathers. See infra. In so holding, these courts have relied exclusively upon cases defining the term "children" or "child" in accordance with other bodies of law, particularly that of descent and distribution. Thus, in order to fully consider the propriety of these decisions, it is necessary to trace the history by which these two bodies of law--inheritance and wrongful death--became commingled.

In Muhl's Admr. v. Michigan S. RR. Co. (1859), 10 Ohio St. 272, the court considered the issue of an illegitimate child's right to recover for the wrongful death of his mother. The court found that "the nearness or remoteness of kin on the part of the son of the deceased mother * * * depended [not] at all upon the circumstances of his being born within or without lawful wedlock." Id. at 277. Accordingly, it was held that "the fact of such child's legitimacy or illegitimacy can in no respect affect the right of action in his behalf." Id. at paragraph two of the syllabus.

Later, in White v. Randolph (1979), 59 Ohio St.2d 6, 13 O.O.3d 3, 391 N.E.2d 333, appeal dismissed sub nom. Jackson v. White (1980), 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 743, the court held that the provisions of R.C. Chapter 2105, the Statute of Descent and Distribution, do not violate equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution or Section 2, Article I of the Ohio Constitution. In so holding, the court set forth the substance of those provisions and their underlying rationale as follows:

" 'In Ohio, a child born out of wedlock is capable of inheriting from and through his mother, R.C. 2105.17, but may inherit from his father only under certain circumstances. As pointed out in Moore [v. Dague (1975), 46 Ohio App.2d 75, 76-77, 75 O.O.2d 68, 69, 345 N.E.2d 449, 450], supra, the father may legitimatize an illegitimate child by afterwards marrying the mother of the illegitimate child and acknowledging the child as his. R.C. 2105.18. Further, the natural father of an illegitimate child may confer upon such child a right of inheritance from such child by several means: (1) by formal acknowledgement in Probate Court that the child is his with consent of the mother (R.C. 2105.18); (2) by designating the illegitimate child as his heir-at-law (R.C. 2105.15); (3) by adopting the illegitimate child; and (4) by making a provision for the child in his will.

" ' * * *

" 'It has long been recognized in Ohio that proof of paternity, especially after the death of the alleged father, is difficult, and peculiarly subject to abuse. One of the resultants of such abuse would be the instability of land titles of real estate left by intestate fathers of illegitimate children.' " Id. at 8, 13 O.O.3d at 4-5, 391 N.E.2d at 334.

After the court's decision in White, the General Assembly enacted the Ohio Parentage Act, R.C. Chapter 3111, effective June 29, 1982. The Act provides an alternate method of establishing the paternity of any child alleged to have been born out of wedlock. It applies to any provisions of the Revised Code which "confer or impose rights, privileges, duties, and obligations" on the basis of a parent-child relationship. R.C. 3111.01(A). The parent and child relationship established pursuant to R.C. 3111.01 to 3111.19 "extends equally to all children and all parents, regardless of the marital status of the parents," former R.C. 3111.01(B); an action for parentage may be brought by or on behalf of the child, R.C. 3111.04(A); and "[t]he judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes," R.C. 3111.13(A).

In addition, R.C. 3111.06(A), 2 in prescribing where an action may be brought, suggests that an action for establishing parentage may be brought even "if the alleged father is deceased."

Not surprisingly, a split developed in the lower courts after the enactment of the Ohio Parentage Act over whether, for purposes of inheriting from and through the putative father, an illegitimate child may establish paternity post mortem. Some courts have held in favor of allowing paternity to be established after the death of the alleged father for purposes of gaining inheritance rights. In re Estate of Hicks (1993), 90 Ohio App.3d 483, 629 N.E.2d 1086; Martin v. Davidson (Apr. 19, 1989), Summit App. No. 13840, unreported, 1989 WL 38198, certification dismissed on other grounds (1990), 53 Ohio St.3d 240, 559 N.E.2d 1348; Alexander v. Alexander (1988), 42 Ohio Misc.2d 30, 537 N.E.2d 1310 (paternity may be established by genetic testing irrespective of...

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