Gross v. VanLerberg
| Decision Date | 11 June 1982 |
| Docket Number | No. 52995,52995 |
| Citation | 231 Kan. 401,646 P.2d 471 |
| Parties | Randal Paul GROSS, a minor, by his mother and next friend, Myra Gross, Plaintiff-Appellant, v. Richard O. VanLERBERG, Defendant-Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The father of an illegitimate child has a duty of support similar to that imposed upon the father of a legitimate child where the relationship of father and child has been established by acknowledgment of paternity or the judgment of a court of record having jurisdiction of the case.
2. The obligation of a father to support his child, whether legitimate or illegitimate, ends with the death of the father, absent enforceable contractual obligations to the contrary.
3. A nonstatutory action brought by an illegitimate child against his putative father to establish paternity and to obtain support does not survive the death of the putative father and cannot be continued against the decedent's personal representative.
John Ivan, Shawnee Mission, argued the cause, and Charles Rooney, Sr., Topeka, and David L. Miller, Shawnee Mission, were with him on brief for plaintiff-appellant.
Marc A. Elster, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, Chartered, Olathe, argued the cause, and Hugh H. Kreamer, Olathe, of the same firm, was with him on brief for defendant-appellee.
This is a nonstatutory action commenced by the mother of plaintiff, Randal Paul Gross, a ten-year-old minor child, seeking an adjudication that the defendant, Richard O. VanLerberg, was the natural father of plaintiff and an order requiring the defendant to provide for the support and education of the plaintiff. The action was commenced on November 29, 1977. Defendant VanLerberg died on February 1, 1979, while the action was pending. His will was thereafter admitted to probate, and coexecutors were appointed and qualified. The plaintiff then moved to substitute the coexecutors as parties defendant. This motion was followed by a motion of the defendant to dismiss the action.
The district court denied the motion for substitution and entered judgment in favor of the defendant. In his memorandum decision, the trial judge stated:
"(A)bsent a statute expressly providing for the survival of a cause of action, or of an action to establish paternity and support of an illegitimate child, neither the right of action nor an action already instituted survives the death of the putative father, so no new proceeding can be instituted against the decedent's estate, and an existing action which has not reached judgment abates and cannot be continued against decedent's personal representative."
Citing 10 C.J.S. Bastards § 47; 10 Am.Jur.2d Bastards § 97; 58 A.L.R.3d 188. The trial court reasoned that the parental obligation to support legitimate children terminates at death, and illegitimate children should not be treated more favorably. Further, the court observed that it would be extremely severe and very questionable policy to allow a living woman to swear the paternity of illegitimate offspring upon a dead man. The court noted the provisions of K.S.A. 60-225(a)(1), K.S.A. 60-1801, and K.S.A. 60-1802, and arrived at the conclusion that plaintiff did not have a cause of action or a claim for relief against a deceased parent, any more than a legitimate child, and therefore, this cause of action for support did not survive the death of the defendant.
Plaintiff appealed to the Court of Appeals which reversed in a split decision in a published opinion, Gross v. VanLerberg, 7 Kan.App.2d 99, 638 P.2d 365 (1981). The majority opinion by Judge Spencer held that the father of an illegitimate child has a duty to support similar to that imposed upon the father of a legitimate child where the relationship of father and child has been established by acknowledgement of paternity or the judgment of a court of record having jurisdiction of the case. The opinion recognized, however, that the obligation of a father to support his child, whether legitimate or illegitimate, ends with the death of the father, absent enforceable contractual obligations to the contrary. The majority upheld the trial court in its conclusion that the portion of the action seeking support for plaintiff from the deceased did not survive and thus abated on the death of the defendant.
The court then proceeded to determine this additional issue: Whether a nonstatutory action for support survives the death of the putative father to the limited extent of determining paternity, even though the action for support abated. The majority of the court held that the portion of the action seeking a determination of the status of the plaintiff as the child of the defendant did not abate at the death of the defendant. Judge Meyer disagreed with the majority and filed a dissenting opinion on this issue. The majority opinion by Judge Spencer and the dissenting opinion of Judge Meyer present an excellent discussion on the issue and each cites case law in support of his respective position. In view of the importance and novelty of the issue, the Supreme Court granted the defendant's petition for review.
We have carefully considered the matter and have concluded that the trial court and Judge Meyer were correct in holding that the entire action did not survive, and thus, abated on the death of defendant VanLerberg. In reaching this conclusion, we have considered together several Kansas statutory provisions which in our judgment clearly establish the legislative intent. Generally, it may be stated that the matter of legitimatization of a child is a creature of statute. The statutes of the different states are widely different, and each must be construed and given effect according to its own terms. The courts throughout the nation, however, are in substantial agreement that, absent a statute expressly providing for the survival of an action to establish paternity of an illegitimate child, neither an action brought after the death of the putative father nor an action already instituted but not completed before the death of the putative father survives the death of the father. This subject is discussed in a comprehensive annotation in 58 A.L.R.3d 188, where many cases are cited on the issue. On page 106 of his dissenting opinion Judge Meyer cites cases from various jurisdictions which follow the majority rule.
As stated by Judge Meyer in his dissenting opinion, the rationale for the rule varies from state to state. Some cases note the quasi-criminal nature of bastardy proceedings. Other cases observe that it would be an extremely severe and very questionable policy to allow a living woman to swear the paternity of her illegitimate offspring upon a dead man. Most of the cases noted that, under the common law, all bastardy proceedings abated upon the death of the putative father and left it up to the legislature to modify the harshness of the common law in this particular. One court opined that while a legitimate child could be disinherited by the father, to allow an illegitimate child to establish paternity after the death of the father would prevent the father from exercising that option and thus give the illegitimate offspring an advantage over the legitimate offspring.
The question of the survival of causes of action under the Kansas Code of Civil Procedure is governed by K.S.A. 60-1801 and K.S.A. 60-1802, which provide as follows:
It should be noted that a nonstatutory action for support is not one of the causes of action which survives under the provisions of K.S.A. 60-1801. In its memorandum decision sustaining the defendant's motion to dismiss, the trial court discussed the...
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