In re Brockmire

• Decision Date: 11 June 2013
• Docket Number: No. ED99103,ED99103
• Parties: IN THE MATTER OF LONNIE BROCKMIRE, Deceased.
• Court: Missouri Court of Appeals

IN THE MATTER OF LONNIE BROCKMIRE, Deceased.

No. ED99103

Missouri Court of Appeals Eastern District SOUTHERN DIVISION

FILED: June 11, 2013

Appeal from the Circuit Court

of Cape Girardeau County

Honorable Scott A. Lipke

Appellant, Ronald W. Brockmire, appeals from the judgment of the probate division of the Circuit Court of Cape Girardeau County granting Sherri Renee Lewis Gikovate's and Joetta K. Giles' (collectively, "Respondents") Petition for Partial Distribution of Lonnie Lee Brockmire's estate. We reverse and remand.

I. BACKGROUND

The facts of this case are undisputed. Lonnie Lee Brockmire ("Decedent") died intestate on July 18, 2009. At death, Decedent had no surviving spouse and his parents predeceased him. Decedent, however, was survived by one biological brother, Ronald W. Brockmire ("Appellant"). Decedent had one biological daughter, Sherri Renee Lewis Gikovate ("Sherri"). At the time of Decedent's death, Sherri had one biological daughter ("Granddaughter"), born in November 2007.

Prior to Decedent's death, on January 9, 2008, Sherri, as an adult, was legally adopted by her stepfather.

On June 6, 2012, the personal representatives of Decedent's estate filed a Petition for Partial Distribution in the Circuit Court of Cape Girardeau, requesting that $25,000 from Decedent's estate be distributed to Granddaughter. Thereafter, on September 24, 2012, the probate court entered its Order finding Granddaughter to be an heir of Decedent and granted the request for partial distribution.

This appeal now follows.

II. DISCUSSION

The questions involved in this intestate distribution are both novel and interesting, having reference to the effect of the adoption laws of Missouri as controlled by the laws of inheritance, and the laws of inheritance as affected by the laws of adoption. While these legal issues may be novel to Missouri Courts, we note that the facts of this case are anything but novel in our evolving, modern American families.

Directly at issue in this case are: (1) whether the legal relationship between a biological grandparent and grandchild for purposes of intestate succession are severed by the adoption of the child of the grandparent (i.e., the grandchild's biological parent); and (2) whether the Missouri intestate and adoption statutes deprive a grandchild of a vested right—specifically a grandchild-grandparent lineal relationship—without due process. On appeal, Appellant argues that the adult adoption decree severed all legal relationships between Decedent and his biological child, Sherri; because Decedent was no longer Sherri's legal parent, Decedent was no longer legally the grandparent of Sherri's daughter (i.e., Granddaughter). Conversely, the probate court read, and the Respondents urge thisCourt to also read these statutes to allow a descendant of an adopted person to inherit from his or her biological grandparent.

Standard of Review

The judgment of the probate court will be upheld on appeal, unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); see also Estate of Sullivan v. Sullivan, 366 S.W.3d 639, 642 (Mo. App. E.D. 2012). However, this case presents issues of statutory construction, a question of law, which this Court reviews de novo. In re Estate of Hayden, 258 S.W.3d 505, 508 (Mo. App. E.D. 2008).

Analysis

A. Effect of Adoption on Intestate Succession

In Missouri, both the right of inheritance and the subject of adoption with the rights and obligations springing therefrom are purely creatures of statutes. See Coon ex rel. Coon v. Am. Compressed Steel, 133 S.W.3d 75, 80 (Mo. App. W.D. 2004) ("Adoption is purely a creature of statute."); see also Morris v. Ulbright, 558 S.W.2d 660, 663 (Mo. banc 1977) ("It has long been recognized in this state that the law of inheritance is a creature of statute."); In re Cupples' Estate, 199 S.W. 556, 557 (Mo. 1917) ("the right of the Legislature to prescribe the right of descent and inheritance cannot be doubted").

First, with respect to intestate succession, Section 474.010, RSMo,¹ delineates the course of descent in cascading categories of priority depending on the existence of a surviving spouse, children of the decedent or their descendants, any surviving parents,and the decedent's siblings and their descendants, et cetera.² See Section 474.010. The relevant portions of Section 474.010 read as follows:

All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:

(1) The surviving spouse shall receive:

(a) The entire intestate estate if there is no surviving issue of the decedent;

(b) The first twenty thousand dollars in value of the intestate estate, plus one-half of the balance of the intestate estate, if there are surviving issue, all of whom are also issue of the surviving spouse;

(c) One-half of the intestate estate if there are surviving issue, one or more of whom are not issue of the surviving spouse;

(2) The part not distributable to the surviving spouse, or the entire intestate property, if there is no surviving spouse, shall descend and be distributed as follows:

(a) To the decedent's children, or their descendants, in equal parts;

See Section 474.010.

Since Decedent died without a surviving spouse, we proceed directly to subsection 2 of Section 474.010. Specifically in contention in this case is whether Decedent, at his death, had children or whether those children had descendants as prescribed by Section 474.010(2)(a). Section 474.060 defines a child for purposes of Section 474.010(2):

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, an adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and such natural parent.

See Section 474.060.1 (emphasis added). Accordingly, it is indisputable and uncontested, that Sherri is unable to inherit from Decedent, her natural father, becauseshe is not legally Decedent's child. See e.g., Wailes v. Curators of Cent. Coll., 254 S.W.2d 645, 647-49 (Mo. banc 1953) (first Missouri case establishing that an adopted child many not inherit from or through its natural parents). As Decedent had no legal child at the time of his death, there can be no "descendant" in the absence of a child. See Section 474.010(2)(a); see also e.g., In re Estate of Brittin, 664 N.E.2d 687, 691 (Ill. App. 1996) ("As with natural children, the children of the adoptee, by virtue of the adoption, become the grandchildren of the adopting parent, thereby creating a grandparent-grandchild relationship.").

Furthermore, no parent-child relationship can be established. See 474.060.1. Granddaughter seeks to inherit from Decedent's estate based upon the course of descent under Section 474.010. To inherit as descendants of Decedent's child, Granddaughter must first establish that Sherri was Decedent's daughter for purposes of the statutory scheme. See Section 474.010(2)(a). Granddaughter cannot do so, because applying the unambiguous language of Section 474.060.1, Sherri became the child of her adopting parent and no longer was the child of Decedent, Sherri's biological father. Consequently, Decedent and Sherri, while biologically father and daughter, were not legally father and daughter for purposes of intestate succession under Section 474.010. Therefore, Granddaughter is not legally the granddaughter of Decedent and may not inherit from him.

This Court finds support for its holding in Williams v. Rollins, 195 S.W. 1009 (Mo. 1917). In Williams, the adopted child ("Adoptee") predeceased her adopting father ("Adopting Father"). Id. at 1009-10. Adoptee left five surviving biological children. Id. at 1009. These five children survived the Adoptee's Adopting Father. Id. at 1010. Priorto his death, Adopting Father executed his last will and testament, bequeathing all his personal property to his wife and bequeathing a life estate in all his real estate to his wife, with remainder to Adopting Father's sister's children ("Nieces and Nephews"). Id. However, Adopting Father's wife also predeceased him. Id. The Williams court held that because Adopting Father's wife predeceased him and there was no residuary clause in his will, Adopting Father's personal property descended to the children of Adoptee as "descendants" of Adoptee. Id. That court stated that in the first clause of the intestate succession statutes, providing for distribution, "first to his children, or their descendants," the word "children" included adopted children and the word "descendants" included the children of the adopted child. Id.

Respondents argue that there is an inconsistency, or conflict, within the statute. Specifically, Respondents argue that the use of the words "surviving issue" in Section 474.010(1) requires a different interpretation, and thus, a different result. See Boatmen's Trust Co. v. Conklin, 888 S.W.2d 347, 354 (Mo. App. E.D. 1994) ("we note that our [Missouri] Supreme court declared long ago the words 'children,' 'issue,' and 'heirs' are not synonymous terms"); see also Kindred v. Anderson, 209 S.W.2d 912, 918 (Mo. 1948) (prima facie, the term 'child' "means lineal descendants of the first degree—one's own children"). "Issue" of person is defined as:

persons who take by intestate succession, includes adopted children and all lawful lineal descendants, except those who are the lineal descendants of living lineal descendants of the intestate;

See Section 472.010(16) (emphasis added); see also Kindred, 209 S.W.2d at 918 ("for purpose of inheritance, the word 'issue' generally has more broadly included lineal descendants of any degree"). Because Granddaughter is, biologically, a lineal descendant of Decedent, Respondents argue...