Gross v. Vanlerberg

• Decision Date: 17 December 1981
• Docket Number: No. 52995,52995
• Citation: 638 P.2d 365,7 Kan.App.2d 99
• Parties: Randal Paul GROSS, a minor, by his mother and next friend, Myra Gross, Appellant, v. Richard O. VANLERBERG, Appellee.
• Court: Kansas Court of Appeals

Page 365

638 P.2d 365

7 Kan.App.2d 99

Randal Paul GROSS, a minor, by his mother and next friend Myra Gross, Appellant, v. Richard O. VANLERBERG, Appellee.

No. 52995.

Court of Appeals of Kansas.

Dec. 17, 1981.

Syllabus by the Court

1. The father of an illegitimate child has a duty 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. In an action commenced on behalf of a minor child to establish paternity of that child and to enforce the putative father's nonstatutory obligation for support, it is held: Even though an action for support will abate upon the death of the putative father, an action to establish paternity will survive. Accordingly, the trial court erred in its denial of plaintiff's motion for substitution and in the entry of summary judgment for defendant.

John Ivan, Shawnee Mission, Charles Rooney, Sr., Topeka, and David L. Miller, Shawnee Mission, for appellant.

Hugh H. Kreamer and Marc A. Elster, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, Chartered, Olathe, for appellee.

Before ABBOTT, P. J., and SPENCER and MEYER, JJ.

SPENCER, Judge:

Issues presented in this cause are (1) whether a nonstatutory action commenced on behalf of a minor child to establish paternity of that child survives the death of the alleged father; and (2) whether summary judgment was properly entered.

This action was commenced November 29, 1977, by the mother and next friend of plaintiff, a child then ten years of age, seeking an adjudication that defendant was the natural father of plaintiff; that defendant be required to provide for the support and education of plaintiff; for counsel fees and for costs of suit. Defendant died February 1, 1979. His will was thereafter admitted to probate and co-executors were appointed and qualified. Plaintiff then moved to substitute the co-executors as parties defendant. This was followed by defendant's motion to dismiss, together with memoranda in support and in opposition to that motion. In this posture, the trial court denied the motion for substitution and entered summary judgment in favor of defendant. In doing so, the trial judge concluded that:

"(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 judge reasoned that parental obligation to support legitimate children terminates at death, and illegitimate children should not be treated more favorably. Further, 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 judge also considered the provisions of K.S.A. 60-225(a) (1), 60-1801 and 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 did not survive the death of the defendant.

It is important to note that plaintiff's action was predicated on a father's nonstatutory obligation to support his illegitimate child, as was recognized in Doughty v. Engler, 112 Kan. 583, 211 P. 619 (1923), and not by means of paternity proceedings under K.S.A. 38-1101 et seq.

We also note that the father of an illegitimate child has a duty 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. State ex rel. v. Schutts, 217 Kan. 175, 179-180, 535 P.2d 982 (1975).

In Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974), it was observed that in Kansas we have two distinct proceedings in which the paternity of an illegitimate child may legally be determined, one to be brought by the mother under the statute (K.S.A. 38-1101 et seq.), and the other by the child based on the decision in Doughty. The court stated:

"In comparison the child's action under Doughty is different in various ways. It is initiated in the district court as any other civil action. Its purpose is to force the putative father to support the illegitimate child. The action is based on the father's obligation to support his children. That obligation extends to legitimate and illegitimate children alike and arises from the public policy of this state.... In such an action paternity has to be established in order to give rise to an obligation to support." 215 Kan. at 452, 524 P.2d 743.

In this case, plaintiff seeks to establish his status as a child of defendant, and, paternity having been so established, to require defendant to provide for his support and education. Clearly, 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. In re Estate of Sweeney, 210 Kan. 216, 228-229, 500 P.2d 56 (1972). Accordingly, the trial court was partially correct in that the portion of this action seeking support for plaintiff from the defendant did not survive the death of defendant. Does it then follow that the portion of this action aimed at a determination of the status of this child as the child of defendant must also end with the death of defendant? We think not.

Although it appears this precise issue has not previously been considered in this state, there are numerous cases involving decedents and decedents' estates in which paternity has been the controlling issue.

In McLean v. McLean, 92 Kan. 326, 140 P. 847 (1914), the question to be determined was whether plaintiff was the illegitimate son of a decedent, and whether the decedent had recognized such relationship in a general and notorious manner. The court stated:

"These are questions of fact for the determination of the jury under proper instructions as to what constitutes a general and notorious recognition of the relation of father and son on the part of the father." 92 Kan. at 329, 140 P. 847.

Record v. Ellis, 97 Kan. 754, 156 P. 712 (1916), was an appeal by the administrator of a decedent's estate from a decision adjudging the plaintiff competent to inherit from the decedent, which involved questions of paternity and of general and notorious recognition of such.

Smith v. Smith, 105 Kan. 294, 182 P. 538 (1919), was an action for the partition of real estate wherein one of the principal questions presented for determination was whether an illegitimate son of decedent was so recognized by the alleged father as to be entitled to inherit from him.

Nolting v. Holt, 113 Kan. 495, 215 P. 281 (1923), an action in ejectment and for partition, was commenced by two plaintiffs to recover real estate as recognized sons and heirs of a decedent. Plaintiffs were conceived and born while their mother was living with her husband. After proving it was impossible for their mother's husband to be their father, the children called their mother as a witness and she testified the decedent was their father. It was held the testimony was properly received and the plaintiffs prevailed.

Lynch v. Rosenberger, 121 Kan. 601, 249 P. 682 (1926), was an action for partition in which an issuable fact was the paternity of one of the claimants who successfully claimed the whole of a decedent's estate as an illegitimate son of the decedent.

In Jensen v. Reeble, 167 Kan. 1, 2, 204 P.2d 703 (1949), the court reviewed the result of a "proceeding wherein one claiming to be an heir of decedent sought in probate court to have that relationship established." On appeal to the district court and finally to the Supreme Court, the claimant prevailed.

In In re Estate of Julian, 184 Kan. 94, 334 P.2d 432 (1959), an appeal arising out of a dispute as to who were the heirs of an intestate decedent, the court reviewed and upheld proceedings conducted to determine the status of a person alleged to be the daughter of the decedent.

The foregoing are not intended as a complete listing of cases wherein paternity has been an issue and the alleged parent deceased. However, the issue of paternity has long been recognized as one determinable by our courts, even though the putative father may at the time of such determination be deceased. We believe our position on this matter is bolstered by the provisions of K.S.A. 38-1109 which provide the mother's action to determine paternity shall survive the death of the alleged father, and by the provisions of K.S.A. 59-501 relating to intestate succession, wherein the definition of "children" includes illegitimate children when applied to father and child "where the father has notoriously or in writing recognized his paternity of the child ...."

In N.R. v. R.J.D., 588 S.W.2d 76 (Mo.App.1979), the identical issue here presented was considered. The court observed that in most states where the issue has been determined, the action for paternity was created by statute and it has been held the action abates in the absence of a statute to the contrary. It was stated:

"In other states it is said that, being governed by the common law, the action abates because such actions abated at common law. The cases we have read holding the latter view cite no authority for the assertion that the action abated at common...