Estate of Hicks, In re

• Citation: 90 Ohio App.3d 483,629 N.E.2d 1086
• Decision Date: 30 September 1993
• Docket Number: No. E-92-73,E-92-73
• Parties: In re ESTATE OF HICKS.
• Court: United States Court of Appeals (Ohio)

Page 483

90 Ohio App.3d 483

629 N.E.2d 1086

In re ESTATE OF HICKS.

No. E-92-73.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided Sept. 30, 1993.

C. Bradford Kelley, Lima, for appellants.

William Shirk, Lakeview, for appellee.

SHERCK, Judge.

This is an appeal from a decision of the Erie County Probate Court which found appellee Marsha Metcalfe to be the biological daughter of Dan Hicks and his sole heir at law. Because we find the decision to be contrary to the manifest weight of the evidence, we reverse.

Dan Hicks died intestate. His sister, appellant Susie Wright, was appointed temporary administrator of his estate. ¹ Appellee Marsha Metcalfe, age thirty-seven, claimed to be the biological daughter of Dan Hicks and his sole heir. Accordingly, she applied for appointment as administrator of the estate. After a hearing on the merits, the trial court found appellee to be the biological daughter of Dan Hicks.

Evidence at the hearing showed that appellee's mother, Norma Whitfield, was married to one Vernon Eagy when appellee was conceived. Appellee's birth certificate lists Eagy as the father of appellee. Nevertheless, based on the testimony of Whitfield and others, the trial court found that Dan Hicks was the biological father of appellee. As a result of that finding, the trial court determined appellee to be Dan Hicks's sole heir. Appellee was then appointed administrator of the estate.

Appellant has appealed the trial court's decision, setting forth the following three assignments of error:

"I. The decision of the trial court is contrary to the law of Ohio.

"II. The statute of limitations (O.R.C. 3111.05) bars the action brought in the trial court by the appellee.

"III. The decision of the trial court is against the manifest weight of the evidence."

I

Appellant, in her first assignment of error, argues that appellee cannot prevail in this case because appellee did not prove that she was Hicks's daughter prior to Hicks's demise. In support of this argument appellant relies in part on Beck v. Jolliff (1984), 22 Ohio App.3d 84, 22 OBR 237, 489 N.E.2d 825. In Beck, the court held that the word "child" as used in R.C. 2105.06, the statute of descent and distribution, includes children born out of wedlock, but only "if the parent-child relationship has been established prior to the death of the father pursuant to the parameters of R.C. Chapter 3111 * * *." Id. at 88, 22 OBR at 241, 489 N.E.2d at 829.

In order to fully understand the holding in Beck and its relationship to the present case, a brief history of the inheritance rights of children born to unmarried parents is necessary. Under the common law, a child born out of wedlock was not entitled to inherit from anyone, either mother or father. In addition, such a child could not be legitimized in any way. Original interpretations of R.C. 2105.06 followed the common law and excluded children born out of wedlock. See Owens v. Humbert (1916), 5 Ohio App. 312. Gradually changes occurred in the common law whereby persons born out of wedlock became legitimized if the parents married. See Beck, supra.

Over time the term "child" in R.C. 2105.06 came to include certain classes of illegitimate children. R.C. 2105.17 was enacted allowing such children the right to inherit from their mothers. However, the law provided that such a child could inherit from the child's father only if the father acted to provide for the child. The father was able to confer this right of inheritance upon a child by:

(1) intermarriage with the mother;

(2) providing for the child in a will;

(3) adopting the child;

(4) acknowledging paternity (R.C. 2105.18), or

(5) designating the child as his heir at law (R.C. 2105.15). See Beck, supra, 22 Ohio App.3d at 86, 22 OBR at 239, 489 N.E.2d at 827.

All of these methods clearly required affirmative action on the father's part that logically had to occur prior to the father's death.

Constitutional questions then surfaced as to whether such limitations can be placed on children born out of wedlock. Arguments were raised that it was a violation of the Equal Protection Clause to distinguish between a child born within a marriage and one born outside a marriage. However, it is clear by the conclusions of Trimble v. Gordon (1977), 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31, and Lalli v. Lalli (1978), 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503, that a state has the ability to restrict the rights of those born out of wedlock if the means used are substantially related to a legitimate state purpose. In Trimble, the United States Supreme Court recognized a state's right and interest in restricting an illegitimate child's right to inherit. Lalli upheld a New York statute that allowed an illegitimate child to inherit from his alleged father only if the question of parentage was resolved during the father's lifetime.

The Ohio Supreme Court first addressed the equal protection argument as it concerns the provisions of R.C. Chapter 2105 in White v. Randolph (1979), 59 Ohio St.2d 6, 13 O.O.3d 3, 391 N.E.2d 333. The court, using the analysis in Trimble and Lalli, held:

"Clearly, the Ohio classification scheme is rationally related to the legitimate state purpose of assuring efficient disposition of property at death while avoiding spurious claims. Moreover, the Ohio provisions do not discriminate between legitimate and illegitimate children per se." White v. Randolph, supra, at 10-11, 13 O.O.3d at 6, 391 N.E.2d at 335.

R.C. 2105.06 continued its evolution in 1982 with the enactment of the Ohio Parentage Act. R.C. Chapter 3111 provided an additional way for a parent-child relationship to be established by allowing a child to bring an action to determine parentage. R.C. Chapter 3111 provided the only method whereby a child born out of wedlock could take affirmative action to become "legitimate" for inheritance purposes.

It was upon this background that the Beck court reached the conclusion that the term "child" in R.C. 2105.06 in certain circumstances includes a child born out of wedlock. These circumstances were "if the parent-child relationship has been established prior to the death of the father pursuant to the parameters of R.C. Chapter 3111." Id., 22 Ohio App.3d at 88, 22 OBR at 241, 489 N.E.2d at 829. We find this holding, in part, to be in error. The conclusion that in all circumstances an action to determine the parent-child relationship must be brought before the alleged father's death is incorrect. R.C. Chapter 3111 does not require a parentage action to be brought before the death of the father. In fact, R.C. 3111.06(A) suggests quite the opposite:

"The juvenile court has original jurisdiction of any action authorized under sections 3111.01 to 3111.19 of the Revised Code. An action may be brought under those sections in the juvenile court * * * if the alleged father is deceased, of the county in which proceedings for the probate of his estate have been or can be commenced * * *." (Emphasis added.)

We conclude that parentage actions under R.C. Chapter 3111 therefore may be brought even when "the alleged father is deceased."

Therefore, the statement in Beck that parentage must be determined prior to the death of the father is correct to the extent that the parent-child relationship is being established under R.C. Chapter 2105; it, however, is erroneous as to actions establishing paternity under R.C. Chapter 3111. ² Accordingly, appellant's first assignment of error is not well taken.

II

Appellant, in her second assignment of error, asserts that the appellee should have been barred by the statute of limitations provision of R.C. 3111.05. The section states that an action to establish parentage must be brought within five years of a child's eighteenth birthday.

It is a well-established rule that statutes of limitation defenses must be affirmatively raised; if not, they are waived. See Civ.R. 8(C); Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 69 O.O.2d 350, 320 N.E.2d 668. We find no reason to depart from this rule in the present case. Furthermore, appellant's argument that a trial court has a duty to sua sponte intervene and assert an alleged affirmative defense has no support in Ohio law. Accordingly, appellant's second assignment of error is not well taken.

III

Finally, appellant argues that the decision of the trial court is against the manifest weight of the evidence and should be reversed. Judgments supported by some competent, credible evidence going to all essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d 1273, 1275.

In order for appellee to inherit as a "child" under R.C. 2105.06 she must prove that she was a "child" within the meaning of the statute. To do this, she must prove that she was a legitimate child or "legitimized" by one of the methods allowed: intermarriage of father to mother, by will, adoption, acknowledgement of paternity (R.C. 2105.18), designation of heir at law (R.C. 2105.15) or by a parentage action to determine the...