Helms v. Young-Woodard

• Citation: 411 S.E.2d 184,104 N.C.App. 746
• Decision Date: 17 December 1991
• Docket Number: M,YOUNG-WOODAR,No. 9126SC31,9126SC31
• Court: Court of Appeal of North Carolina (US)
• Parties: H. Parks HELMS, Administrator of the Estate of Jessie Hogan Jackson, Deceased, Plaintiff, v. Phyllisarcella Baker, Linda Alexander and Caroline Alexander, Defendants.

Page 184

411 S.E.2d 184

104 N.C.App. 746

H. Parks HELMS, Administrator of the Estate of Jessie Hogan

Jackson, Deceased, Plaintiff, v. Phyllis YOUNG-WOODARD, Marcella Baker, Linda Alexander and Caroline Alexander, Defendants.

No. 9126SC31.

Court of Appeals of North Carolina.

Dec. 17, 1991.

Helms, Cannon, Hamel & Henderson by H. Parks Helms and Christian R. Troy, Charlotte, for plaintiff-appellee H. Parks Helms.

Norwood, Burke, McIntosh & Edmonds by Barry S. Burke and Robert G. McIntosh, Charlotte, for defendants-appellees Phyllis Young-Woodard and Marcella Baker.

Faison, Fletcher, Barber & Gillespie by Reginald B. Gillespie, Jr., Durham, Barbara M. Sims, Buffalo, N.Y., for defendants-appellants Linda Alexander and Caroline Alexander.

LEWIS, Judge.

The issue in this case is whether a foreign legitimation action must be initiated prior to the death of the alleged father for illegitimate children to inherit under North Carolina's intestate succession laws.

The facts are not contested. Plaintiff-appellee, H. Parks Helms (administrator), is the duly qualified administrator of the estate of Jessie Hogan Jackson (decedent) who died intestate in Mecklenburg County, North Carolina on 8 August 1988. The administrator filed a declaratory judgment action seeking to determine which of the four parties making claims against decedent's estate are the lawful heirs. Defendant-appellees, Phyllis Young-Woodard and Marcella Baker, are decedent's legitimate children. Defendant-appellants, Linda and Caroline Alexander, claim to be decedent's legitimated children. Both Alexanders, domiciliaries of New York, obtained default orders of filiation from the New York Family Court on 24 February 1989, six months after Mr. Jackson's death. The Mecklenburg Superior Court reasoned that because North Carolina determines rights of inheritance at the date of death, only Young-Woodard and Baker were the lawful heirs. The trial court held that the Alexanders were not permitted to inherit by intestate succession because they were not legitimated, nor were they in the process of being legitimated, prior to decedent's death. The Alexanders appeal.

The Alexanders allege that it was error for the trial court to read into North Carolina's intestate succession laws a requirement that foreign legitimation proceedings must begin prior to the putative father's death. They allege that their exclusion from the class of heirs violates both the Full Faith and Credit (Article IV, § 1) and the Equal Protection (14th Amendment) Clauses of the United States Constitution. As their brief does not pursue their allegation of error regarding the award of attorneys' fees to defendant-appellees, we decline to address this matter. See N.C.R.App.P. 28(a).

First we will consider the administrator's claim that this Court lacks jurisdiction to hear this appeal. He alleges that the Alexanders' appeal was not timely filed because the notice of appeal in the record does not have a stamp on the face of the document indicating the date that it was filed. Appeals must be filed within 30 days of the entry of judgment. N.C.R.App.P. 3(c). Timely appeal is noted by the file stamp on the face of the notice of appeal. All papers included in the record must show the date filed by this file stamp. N.C.R.App.P. 9(b)(3). Failure to comply with the Rules of Appellate Procedure may result in dismissal of the appeal. N.C.R.App.P. 25(b) and 34(b)(1).

We recognize that "[f]ailure to give timely notice of appeal ... is jurisdictional, and ... must be dismissed." L. Harvey and Son Co. v. Shivar, 83 N.C.App. 673, 675, 351 S.E.2d 335, 336 (1987) (citation omitted). This Court would be required to dismiss this appeal if the Alexanders failed to meet the 30 day filing deadline. However, it is within this Court's discretion to dismiss or to apply another sanction for placing an unstamped copy of a timely filed notice of appeal in the record. N.C.R.App.P. 25 and 34(b)(1). This Court has obtained a stamped file copy of the notice of appeal from the Office of the Clerk of Superior Court of Mecklenburg County which indicates that the appeal was timely filed. We take notice of this fact and hear this appeal. We caution future appellants to be more diligent in complying with the Rules of Appellate Procedure.

Absent a statute to the contrary, illegitimate children have no right to inherit from their putative fathers. Hayes v. Dixon, 83 N.C.App. 52, 348 S.E.2d 609 (1986), disc. rev. denied, 319 N.C. 224, 353 S.E.2d 402 (1987), cert. denied, 484 U.S. 824, 108 S.Ct. 88, 98 L.Ed.2d 50 (1987). There are several ways to legitimate children in North Carolina: 1) verified petition filed with the superior court by the putative father, 2) subsequent marriage of the parents, or 3) civil action to establish paternity. N.C.G.S. § 49-10 through 49-14 (1984). Illegitimate children may inherit from their putative fathers if they have been legitimated by one of the above or if paternity has been established in an action for criminal non-support. N.C.G.S. § 29-19(b) (1984). Likewise, foreign illegitimate children must be legitimated in order to inherit from their North Carolina fathers. N.C.G.S. § 29-18 (1984).

The basis of the Alexanders' argument is that they have been legitimated by a foreign court and should, therefore, be permitted to inherit from their North Carolina father pursuant to N.C.G.S. § 29-18 (1984). Neither the trial court, nor this Court disputes their legitimacy. The issue before this Court is not whether North Carolina recognizes the Alexanders' foreign legitimation, but is whether this state recognizes a foreign legitimation which occurred after the death of the intestate for purposes of intestate succession. The issue before this Court is essentially one of timing. Read in pari materia, we conclude that North Carolina's intestate succession laws require that all legitimation actions, both foreign and domestic, be reduced to judgment prior to the death of the putative father.

North Carolina recognizes foreign legitimations. Under N.C.G.S. § 29-18:

A child born an illegitimate who shall have been legitimated in accordance with G.S. 49-10 or 49-12 or in accordance with the applicable law of any other jurisdiction, ... [is] entitled by succession to property by, through and from his father and mother and their heirs the same as if born in lawful wedlock....

N.C.G.S. § 29-18 (1984). On its face, this statute does not set a time requirement in which a foreign proceeding must be completed. However, read along with the other intestate succession laws enacted with it, it is clear that the legislature set the intestate's date of death as an internal statute of limitations for the completion of an action to legitimate. See Jefferys v. Tolin, 90 N.C.App. 233, 368 S.E.2d 201 (1988). The internal statute of limitations is illustrated by the fact that the statutes will not permit an illegitimate North Carolinian to be legitimated after the putative father's death, much less to inherit. All of the legitimation routes authorized by the North Carolina statutes require the proceeding to be completed prior to the putative father's death. The verified petition and marriage routes of legitimation obviously require a live putative father. The civil paternity suit means of legitimation specifically provides that "[n]o such action shall be commenced nor judgment entered after the death of the putative father." N.C.G.S. § 49-14 (1984). Even the adjudication of criminal non-support, which does not legitimate, but provides an avenue for the illegitimate child to inherit, requires a live putative father at the time of the criminal proceeding. Hence, an illegitimate North Carolina child who cannot be legitimated after the death of his alleged father, is summarily denied the right to inherit from the intestate. We reiterate the sentiments of another panel of this Court...