Cummins v. Estate of Reed
| Decision Date | 01 November 2019 |
| Docket Number | NO. 2018-CA-001281-MR,2018-CA-001281-MR |
| Parties | TERRY NEAL CUMMINS APPELLANT v. ESTATE OF CLYDE W. REED APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM LIVINGSTON CIRCUIT COURT
Cummins was born on February 8, 1961. At the time, Cummins' mother, Gloria Sue Cummins, was married to Kenneth Keen Cummins. Mr. and Mrs. Cummins are listed as Cummins' parents on his birth certificate, and Cummins grew up believing Mr. Cummins was his father. However, in 2013, Mrs. Cummins told her son that his biological father was actually Clyde Reed. She had an affair with Mr. Reed in 1960 while Mr. Cummins was away serving in the Navy. Mrs. Cummins got pregnant and gave birth to Cummins. According to Mrs. Cummins' September 15, 2013 letter and November 29, 2013 affidavit, both her husband and Mr. Reed's wife at the time knew about the affair and subsequent pregnancy, but she does not state whether Mr. Reed ever knew about the pregnancy or Cummins' birth. Mr. Reed died on July 14, 1975, and his estate was closed in 1979.1 Mrs. Cummins died in 2017.
In 2014, Cummins and his brother, Gregory Alan Cummins, underwent DNA testing which confirmed they were not full siblings. Cummins then contacted Mr. Reed's heirs to have similar testing done, but his request was denied.
In 2018, Cummins filed a petition to establish paternity against the Estate of Clyde W. Reed and, subsequently, amended that action as a petition for declaration of rights.2 Cummins' petition asked Mr. Reed's legitimate children, David Reed and Marilyn Reed Buchanan, to submit to DNA testing or agree to have Mr. Reed's body exhumed for testing. Cummins' petition did not ask for any potential inheritance. Instead, the petition sought genetic information for the benefit of Cummins, his children, and grandchildren. In response, the Estate3 filed a motion to dismiss asserting various grounds, including lack of personal and subject matter jurisdiction, insufficiency of process, and failure to state a claim.4
The trial court granted the Estate's motion and dismissed the petition for failure to state a claim upon which relief can be granted. The trial court held the Estate was no longer a legal entity and, furthermore, no Kentucky case permits forced DNA testing of an heir or exhumation of a body for curiosity about parentage. While acknowledging that DNA testing is non-invasive, the trial court held that Mr. Reed's heirs have a privacy right in not being forced to take the test. Although Cummins may have a good faith belief that the law should allow him this genealogical data, the trial court was "not convinced [] it may do so without ]guidance from a higher court or from the legislature." This appeal followed.
A motion to dismiss for failure to state a claim upon which relief may be granted "admits as true the material facts of the complaint." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton Cty., 330 S.W.2d 428, 429-30 (Ky. 1959)). A court should not grant such a motion "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . ." Id. (quoting Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). Thus, the pleadings should be liberally construed in a light most favorable to plaintiff, with all allegations being taken as true. Id. "This exacting standard of review eliminates any need by the trial court to make findings of fact," as the question is purely a matter of law. Id. "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Id. (footnote omitted).
As an initial matter, we note that Cummins' legal status as Mr. Cummins' child does not preclude him from proving filiation to Mr. Reed. Although Cummins is presumed to be Mr. Cummins' child under Kentucky Revised Statutes (KRS) 406.011 because Mr. and Mrs. Cummins were married at the time of his birth, this presumption does not bar a child from attempting to prove the identity of his biological father. J.K. v. N.J.A., 397 S.W.3d 916, 919 (Ky. App. 2013) ().
Next, we address Cummins' attempt to prove the identity of his biological father through the underlying action. Cummins initially filed a petition to establish paternity. However, the purpose of such a petition is to establish paternity for child support during the minority of the child, not to simply identify the father. See KRS 406.021; KRS 406.031. Recognizing this limitation, Cummins amended his petition to recast it as a petition for declaration of rights, claiming a declaratory judgment action can be used to establish paternity under Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991) and Ellis v. Ellis, 752 S.W.2d 781 (Ky. 1988). This is true, but only under certain circumstances.
In Wood v. Wingfield, plaintiff filed a declaratory judgment action to determine whether he was a child and heir of decedent and entitled to a share of the intestacy. The Kentucky Supreme Court held that, beside a KRS Chapter 406 paternity action, "paternity can also be established by a declaratory judgment action before or after the death of the putative father, an action to settle the estate, an action to quiet title, or by an action (such as this) for allowance of the intestacy share as a necessary condition of which the fact that the plaintiff is a child of the decedent must be established." Wood, 816 S.W.2d at 905 (footnote omitted). The Wood case did not address whether paternity may be established in a declaratory judgment action to simply identify the putative father or obtain genetic medical information. Based on the language in that decision, a declaratory judgment action can be used to establish paternity for inheritance purposes.
In the other case cited by Cummins, Ellis v. Ellis, the Kentucky Supreme Court specifically discussed, in dicta, using a declaratory judgment action to solely determine the father's identity. As in the Wood case, the plaintiff in Ellis sought a declaratory judgment that he was the decedent's illegitimate child and sole heir. The putative father died in 1981, and plaintiff brought suit more than two years later. The trial court dismissed plaintiff's claim as barred by the statute of limitations. On appeal, however, the Kentucky Supreme Court reversed, holding that destroying a claim before it legally existed "cannot be permissible if it accomplishes destruction of a constitutionally protected right of action." Ellis, 752 S.W.2d at 783 (quoting Saylor v. Hall, 497 S.W.2d 218, 225 (Ky. 1973)). That "constitutionally protected right" is the right to inherit from your father. Id. In its decision, the Court also discussed suing to determine the identity of your father:
Theoretically, appellee [adult child] could have brought an action against his putative father for a declaratory judgment as to his status as a child. Whether such an action could have been maintained in view of the lack of any legal consequence in the outcome is doubtful. If such could have been maintained, the only result would have been some personal satisfaction in having a court declare whether or not James Shelton Ellis was appellee's father. We will not now impose upon appellee a duty to have brought a speculative lawsuit which had no object other than personal satisfaction.
Id. at 784. This statement implies that an adult child may bring a declaratory judgment action for "some personal satisfaction," but that action may not survive because it would not serve any legal purpose.
Here, Cummins proffered two purposes for his declaratory judgment action: curiosity as to his parentage and the need for genetic health information for his daughter who is seeking a medical diagnosis for several health problems. He claims having only a portion of the family medical history is making it difficult to trace his daughter's illness.
Cummins' first purpose is the same as "some personal satisfaction" mentioned in Ellis, which the Kentucky Supreme Court suggested as a "doubtful" reason to maintain a declaratory judgment action. Id. at 784. While the desire to know the identity of your biological father is understandable, no Kentucky law or case has allowed a child to determine paternity through a declaratory judgment action for curiosity's sake. Thus, we conclude Cummins' petition for this purpose fails to state a claim upon which relief can be granted. Kentucky Rules of Civil Procedure (CR) 12.02(f).
Cummins' second purpose for his petition - to obtain genetic health information - bears more thought. Obviously, no child is responsible for the conditions of his birth. Cummins did not know Mr. Reed may be his father until 2013, and Mr. Reed had already been dead for thirty-eight years by that time. We must consider whether Cummins should be foreclosed from obtaining potential genetic health information through a declaratory judgment action simply because he is an illegitimate child.
Over the last forty years, courts have reconsidered how illegitimate children are treated under the law. Before 1977, an out-of-wedlock child could inherit from his mother and her kindred, but could not inherit from his fat...
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