Estate of Lamey v. Lamey

• Decision Date: 22 December 1997
• Docket Number: No. 49A04-9704-CV-167,49A04-9704-CV-167
• Citation: 689 N.E.2d 1265
• Parties: In the Matter of ESTATE OF Randall H. LAMEY, Deceased, Yvonne K. Lamey, Administratrix, Appellant, v. Raymond LAMEY, et al., Appellees.
• Court: Indiana Appellate Court

Page 1265

689 N.E.2d 1265

In the Matter of ESTATE OF Randall H. LAMEY, Deceased,

Yvonne K. Lamey, Administratrix, Appellant, v. Raymond LAMEY, et al., Appellees.

No. 49A04-9704-CV-167.

Court of Appeals of Indiana.

Dec. 22, 1997.

Transfer Denied April 23, 1998.

Michael Cheerva, Phelps & Fara, Indianapolis, for Appellant.

Steve Carlock, Indianapolis, for Appellees.

OPINION

CHEZEM, Judge.

Case Summary

Appellant-Respondent, Yvonne Lamey ("Mother"), on her own behalf and on behalf of her minor child, V.L., brings this interlocutory appeal challenging the trial court's order requiring Mother and V.L. to submit to blood testing to determine whether V.L. is the biological daughter of Randall Lamey ("Decedent"). We reverse and remand for further proceedings consistent with this opinion.

Issue

We restate the issue raised on appeal as: when a petition to determine heirship has been filed, can a decedent's former wife and child be ordered to submit to paternity blood testing when the child was born into an intact marriage and the decedent never challenged his paternity in the child. ¹

Facts and Procedural History

Mother and Decedent were married on July 15, 1978. V.L. was born during this marriage, on November 14, 1985, and Mother and Decedent remained married for approximately ten more years until their divorce on or about July 19, 1995. When Decedent and Mother divorced, their Decree of Dissolution of Marriage stated there was one child born of the parties, V.L., born November 14, 1985. (R. 68). Decedent died intestate on June 30, 1996. On July 10, 1996, Mother, on behalf of V.L., filed a Petition for Appointment of a Personal Representative and for Supervised Administration of Decedent's estate. On August 28, 1996, Decedent's brother, Raymond Lamey ("Uncle"), filed a Petition to Determine Heirship. On October 11, 1996, Uncle moved in open court for an order for blood tests relating to the heirship of V.L. ² The trial court granted Uncle's request on March 19, 1997, and certified its order for interlocutory appeal in accordance with Appellate Rule 4(B)(6). We accepted jurisdiction of this appeal on May 20, 1997.

Discussion and Decision

Initially, we note our standard of review. We generally review interlocutory orders under an abuse of discretion standard. Hollingsworth v. Key Benefit Adm'rs, Inc., 658 N.E.2d 653, 655 (Ind.Ct.App.1995), trans. denied. "An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law." Id. (internal citation omitted).

Both Mother and Uncle urge this Court to categorize the present case as either a "Paternity" case or an "Heirship" case. However, the issues raised herein are complex and necessarily involve elements of both bodies of law, therefore we decline such invitation. Mother further asserts that the trial court abused its discretion in granting Uncle's request to order blood testing to determine whether V.L., who was born to an intact marriage, was the biological child of Decedent. We agree.

Indiana Code Section 29-1-2-1(d)(1) provides in pertinent part that when a person dies intestate and without a spouse, his net estate shall be distributed to "the issue of the intestate". This section further provides that "[i]f there is no surviving spouse or issue of the intestate, then to the surviving parents, brothers and sisters ... of the intestate." Ind.Code § 29-1-2-1(d)(3). Because Decedent died without a spouse and V.L. is his only living child (or issue), probate law indicates she is his sole heir and thus will inherit his entire estate. Uncle, however, in requesting paternity blood testing under the auspices of an heirship determination request, challenges V.L.'s right to inherit Decedent's estate.

Indiana law provides that "[a]t any time during the administration of a decedent's estate, ... any interested person may petition the court to determine the heirs of said decedent and their respective interests in the estate or any part thereof." Ind.Code § 29-1-6-6(a). Because Uncle, according to intestate succession law, would be eligible to inherit a portion of Decedent's estate if V.L. was deemed not to be an heir, he is a potential heir and thus an interested person with standing to petition the court to determine the heirs of Decedent.

Until recently, Uncle's request to determine Decedent's heirs would be quickly resolved. A person's heirs are determined at the time of the decedent's death and encompass those persons entitled to take under the statutes of intestate succession on decedent's death intestate unless otherwise defined or limited by a will. Ind.Code § 29-1-1-3 (emphasis added). Additionally, Indiana Code Section 29-1-2-6 states as follows:

Descendants of the intestate, begotten before his death but born thereafter, shall inherit as if they had been born in the lifetime of the intestate and had survived him. With this exception, the descent and distribution of intestate estates shall be determined by the relationship existing at the time of the death of the intestate.

(Emphasis added). Thus, V.L., who was the only child born during the marriage of Mother and Decedent, is Decedent's sole heir.

The aforementioned statutes, coupled with our state's case law serves as further evidence that our Legislature intended for all heirship relationships to become absolute at decedent's death, except as provided for by statute relating to a child born out of wedlock. See, e.g., Montgomery v. Estate of Montgomery, 677 N.E.2d 571 (Ind.Ct.App.1997) (holding that a surviving spouse's share of real estate vests at death); Scott v. Scott, 238 Ind. 474, 150 N.E.2d 740 (1958) (holding that while children may become heirs on the death of their parent, they do not have a vested interest in the property during the parent's lifetime, but have an expectancy which is dependant on the law in force at the time of the parent's death); State ex rel. Paxton v. Porter Superior Court, 467 N.E.2d 1205 (Ind.1984) (holding that divorce proceedings terminate in their entirety upon the death of one of the parties).

In an attempt to circumvent this "time of death" policy found in our state's probate laws, Uncle asserts Ind.Code § 29-1-2-7 allows him to request paternity blood testing if such request is made within five months of Decedent's death. Uncle's reliance on this statute is misplaced. Indiana Code Section 29-1-2-7(b) provides in part:

For the purpose of inheritance (on the paternal side) to, through, and from a child born out of wedlock, the child shall be treated as if the child's father were married to the child's mother at the time of the child's birth, if:

(1) the paternity of the child has been established by law in a cause of action that is filed:

(A) during the father's lifetime; or

(B) within five (5) months after the father's death; or

(2) the putative father marries the mother of the child and acknowledges the child to be his own.

Contrary to Uncle's assertion, a careful reading of the language found in this statute provides a limited opportunity for an illegitimate child or putative father to establish paternity in a decedent, not an avenue for third parties to disestablish paternity following a presumptive father's death.

Uncle counters that in light of several recent Indiana Supreme Court decisions, the presumption that a child born during a marriage is the biological child of the father is no longer conclusive and may be rebutted by direct, clear and convincing evidence. In so doing, Uncle is asking this Court to judicially alter the relationship between V.L. and Decedent which was "frozen" at Decedent's death according to Indiana's probate laws.

Uncle is correct in his assertions that a presumptive father's paternity may be rebutted by "direct, clear, and convincing evidence," R.D.S. v. S.L.S., 402 N.E.2d 30, 31 (Ind.Ct.App.1980), and that blood tests indicating at least a ninety-nine percent probability that a man is the biological father of a child constitutes clear and convincing evidence of paternity. Ind.Code § 31-14-7-1(4). However, Uncle is wrong in assuming that, by virtue of petitioning the court to determine heirship, he has automatic standing to petition the court to order paternity blood testing for a child for whom he is not also asserting his own paternity.

A man is presumed to be a child's biological father if the "man and the child's biological mother are or have been married to each other ... [and the] child is born during the marriage or not later than three hundred (300) days after the marriage is terminated by death, annulment, or dissolution[.]" Ind.Code § 31-14-7-1(1)(A) and (B). Mother and Decedent were married on July 15, 1978. V.L. was born on November 14, 1985. The marriage was dissolved on July 19, 1995. Thus, the undisputed facts show that V.L.'s birth took place during Mother and Decedent's marriage. Accordingly, V.L. is presumed to be Decedent's biological child and thereby entitled to inherit Decedent's entire estate. Moreover, according to our probate laws, this presumption for heirship purposes became irrefutable upon Decedent's death and, thus, cannot now be challenged by Uncle.

Indiana's paternity statute states that the only people authorized to file paternity actions are the mother, a man alleging to be a child's biological father (the "putative father"), both the mother and putative father filing jointly, or the child. Ind.Code § 31-14-4-1. Uncle is not alleging to be V.L.'s biological father and has no direct interest in any paternity proceedings involving V.L., other than his interest to illegitimatize her so that he may become eligible to inherit a portion of Decedent's estate. Thus, he has no standing under our paternity statutes to try to establish or disestablish V.L.'s paternity. ³ In fact, Uncle is attempting to do what Decedent himself would be precluded from doing if he were...