Estate of Ivy v. Ivy

• Decision Date: 12 September 2013
• Docket Number: No. 2011–CA–00823–COA.,2011–CA–00823–COA.
• Citation: 121 So.3d 226
• Parties: In the Matter of the ESTATE OF William Randy IVY, Deceased Legand Dakota Benton, by and Through Kelly Nicole Brand, His Mother and Next Friend, Appellant v. Joyce Ivy, As Administratrix of the Estate of William Randy Ivy, Deceased, Appellee.
• Court: Mississippi Court of Appeals

121 So.3d 226

In the Matter of the ESTATE OF William Randy IVY, DeceasedLegand Dakota Benton, by and Through Kelly Nicole Brand, His Mother and Next Friend, Appellant

v.Joyce Ivy, As Administratrix of the Estate of William Randy Ivy, Deceased, Appellee.

No. 2011–CA–00823–COA.

Court of Appeals of Mississippi.

Dec. 11, 2012.

Rehearing Denied June 18, 2013.

Certiorari Denied Sept. 12, 2013.

David H. Linder, Meridian, attorney for appellant.

William T. May, Kacey Guy Bailey, Meridian, attorneys for appellee.

EN BANC.

GRIFFIS, P.J., for the Court:

¶ 1. This appeal considers the proper determination of the heirs of William Randy Ivy (“Randy”), deceased. The chancellor determined that Randy's mother and siblings were the legal and proper heirs-at-law and wrongful-death beneficiaries. Legand Dakota Benton, through his mother, Kelly Brand, appeals the chancellor's judgment. Legand argues that the chancellor committed reversible error in: (1) the admission of an affidavit and DNA test results into evidence, and (2) the conclusion that Randy's mother and siblings were his legal and proper heirs-at-law and wrongful-death beneficiaries, rather than Legand. Finding reversible error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 2. On October 21, 2006, Randy's automobile collided with a train, and he died as a result of injuries sustained in the accident.

¶ 3. Joyce Ivy, Randy's mother, filed a wrongful-death lawsuit in Kemper County Circuit Court. The defendant in that action challenged whether Joyce was indeed a proper plaintiff. The circuit court ordered Joyce to file a chancery action to determine Randy's heirs-at-law and statutory wrongful-death beneficiaries.

¶ 4. On April 15, 2010, Joyce filed a petition for appointment of an administratrix and for the issuance of letters of administration in the Chancery Court of Kemper County. Randy's siblings, Ricky Ivy, Randall Ivy, Robin Woodall, and Rhonda Smith, joined in the petition. On May 11, 2010, the chancellor executed an order authorizing appointment of an administratrix and the issuance of letters of administration. Letters of administration were issued on May 11, 2010.

¶ 5. On June 18, 2010, Joyce, as administratrix, filed a petition to determine the wrongful-death beneficiaries and/or to determine the heirs-at-law of Randy. In the petition, Joyce claimed that Randy was not survived by a spouse or child and died intestate. Joyce also included the following allegation:

William Randy Ivy, deceased, is named as the “listed” but not the “biological” father on the birth certificate of Legand Dakota Benton, a minor male, who was born on December 21, 2004, to Kelly Nicole Brand, Mr. Ivy's former spouse. A copy of the birth certificate of Legand Benton is attached hereto as Exhibit “B.” However, Legand Benton is not the biological child of William Randy Ivy as established by DNA tests[,] which confirm “Randy Ivy is excluded as the father of Legand Benton[,]” and he “cannot be the biological father of Legand Benton.” A copy of the DNA test results are attached hereto as Exhibit “C.”

Joyce asserted that Legand was not an heir-at-law of Randy, but that Legand should be summoned “to fully adjudicate the issue of heirship.” The petition asked the chancellor to hold a hearing and “determine and adjudicate who are the wrongful[-]death beneficiaries and/or heirs-at-law of William Randy Ivy, deceased.”

¶ 6. Kelly, as the natural mother and guardian of Legand, was served a Mississippi Rule of Civil Procedure 81 summons with notice of a hearing scheduled for September 9, 2010, at 1:00 p.m. in the Winston County Courthouse in Louisville, Mississippi. The hearing was held as scheduled, but was continued at the request of counsel.

¶ 7. By order dated October 4, 2010, the chancellor determined that all parties either appeared, waived process, or were properly served with process. David Linder appeared as counsel for Kelly Brand. The chancellor found that he had personal and subject-matter jurisdiction. The chancellor continued the September 9th hearing until October 13, 2010, and allowed the parties thirty days for discovery.

¶ 8. A hearing was held on October 13, 2010. The evidence offered at the hearing consisted of six exhibits and the testimony of two witnesses, Joyce Ivy and Kelly Brand. The following facts were presented at trial.

¶ 9. On June 18, 1998, Randy and Kelly married. At that time, Randy was forty years old, and Kelly was seventeen years old.

¶ 10. On May 28, 2004, Randy filed for divorce. Randy's complaint for divorce did not identify any children born of the marriage. The complaint stated that no children were born of the marriage or were expected to be born. A final judgment of divorce was dated July 30, 2004. The judgment did not identify any children born of the marriage.

¶ 11. Legand was born on December 21, 2004. The front of Legand's birth certificate (items 7a–7d) listed Randy as Legand's father. The back of Legand's birth certificate states:

I, William Randy Ivy (Name of Father), certify and acknowledge that I am the {[ ] natural father, [x] listed father} of the child whose name appears in Item 1 of the birth certificate, and that all information in Items 7a–7d and 13–15 is correct. My Rights and Responsibilities and Right to Rescind have been explained to me. [Signed William Randy Ivy]

I, Kelly Ivy (Name of Mother), certify that I am the mother and acknowledge that the person named in 7a of the birth certificate is the {[ ] natural father, [x] listed father} of the child whose name appears in Item 1. My Rights and Responsibilities and Right to Rescind have been explained to me. [Signed Kelly Nicole Ivy]

Both certifications were notarized. There is no dispute as to the authenticity of the signatures.

¶ 12. The controversy here is whether Randy was Legand's biological father. The chancellor was specifically asked to determine who was entitled to receive any benefits from the wrongful-death action filed against the alleged tortfeasor who caused Randy's death. Either Legand was Randy's sole heir and wrongful-death beneficiary or he was not.

¶ 13. Kelly testified that Legand was conceived when she was married to Randy. Kelly also claimed that Legand was born two months early. Kelly testified that she had unprotected sexual intercourse with Randy a couple of times a week, both before and after the divorce. Their last sexual encounter was the night before he died. Kelly also testified that she continued to have sex with Randy because it “didn't feel like a divorce.” Kelly testified that Randy purchased the tests that showed she was pregnant with Legand.

¶ 14. As to the birth certificate, Kelly testified that someone in vital records told her that Randy's name had to appear on the birth certificate because she was married at the time of conception. Otherwise, Kelly said that she would have left “father” blank.

¶ 15. Kelly claims that the form, which is titled “Acknowledgement of Paternity/Name of Child,” is legally significant to establish Randy's paternity. She argues that, even if DNA evidence shows Randy was not Legand's father, it is indisputable that Randy was Legand's father. Joyce argues this was a form to execute a name change, so that according to Kelly's wishes, Legand could have a surname other than Ivy.

¶ 16. Joyce testified that Randy was not married at the time of his death. She also testified that Randy did not have a will. Randy and Kelly separated in November 2002. Joyce testified that Randy lived with her from the time of his separation from Kelly until his death. Joyce also testified that Randy was not present at Legand's birth and that he had no physical similarities to Legand. Kelly testified that Randy and Legand have similar lazy eyes.

¶ 17. At the time of Legand's birth, Michael Benton and Kelly lived together in a trailer. Joyce testified that she saw that the trailer had cardboard or plastic over its broken windows. Kelly testified that she herself broke the windows with a baseball bat. Joyce took Legand to her house because of the cold-weather exposure at Kelly's trailer.

¶ 18. Kelly testified that Randy treated Legand like his son. As evidence of such, Kelly cites to Joyce's treatment of Legand. Joyce testified that she did help take care of Legand. Joyce testified that Legand smelled of animal urine and lived in terrible conditions. Joyce testified that she saw a power cord and a water hose running from Kelly's parents' house to Kelly's trailer. Joyce testified that she took care of Legand for the love of children. According to Joyce, Kelly told Joyce that she did not have money for medicine, so Joyce bought Legand's medicine. Joyce also bought diapers and passed along clothes.

¶ 19. Kelly testified that Randy gave her cash, diapers, clothes, and food. This testimony was contradicted by her deposition testimony, where she had testified that Randy “wouldn't give [her] cash.” Kelly testified that she and Randy spent a lot of time together and that they went out to restaurants, car races, and the casino. Kelly testified that Randy only bought formula once. Kelly testified that Michael, who lived with Kelly and Legand, never bought anything for Legand. Kelly testified that Michael never had a job since she had met him.

¶ 20. Joyce went to Kelly's trailer two or three times a week, but not consistently. She visited probably five or six times a month. Her last visit was in December 2006, when she brought a tricycle to Legand. Once, she babysat Legand for a whole week because Kelly's parents had asked her to do so. She claimed that it was necessary because Kelly's parents had to work, and Kelly was in jail on felony embezzlement charges.

¶ 21. Kelly testified that around the time of Legand's conception, she had multiple sexual partners who could be Legand's father. Kelly testified, “I don't know who the father is, and I don't care.” Kelly testified that over two months after the separation,...