In re Estate of Flaws

• Decision Date: 31 August 2016
• Docket Number: No. 27511.,27511.
• Citation: 885 N.W.2d 336
• Parties: In the Matter of the ESTATE OF Lorraine Isburg FLAWS, Deceased.
• Court: South Dakota Supreme Court

885 N.W.2d 336

In the Matter of the ESTATE OF Lorraine Isburg FLAWS, Deceased.

No. 27511.

Supreme Court of South Dakota.

Argued on March 22, 2016.
Decided Aug. 31, 2016.
As Modified on Denial of Rehearing Oct. 13, 2016.

885 N.W.2d 339

Robert R. Schaub of Schaub Law Office, PC, Paul O. Godtland, Chamberlain, South Dakota, Attorneys for appellants Audrey Isburg Courser and Clinton Baker.

Derek A. Nelsen of Fuller & Williamson, LLP, Sioux Falls, South Dakota, David J. Larson, Chamberlain, South Dakota, and Jonathan K. Van Patten, Vermillion, South Dakota, Attorneys for appellee Yvette Herman.

KERN, Justice.

¶ 1.] Decedent named heirs in her will, but all heirs predeceased her, causing her estate to become subject to the laws of intestate succession. Decedent's brother had two children from his only marriage. These children were designated as heirs. The circuit court determined that decedent's brother's illegitimate daughter was also an heir entitled to inherit equally from decedent's estate. Brother's legitimate children appeal. We reverse and remand.

BACKGROUND

[¶ 2.] On February 18, 2010, Lorraine Isburg Flaws, a member of the Crow Creek Tribe, died testate. Lorraine's will distributed her property to her husband and her only child, both of whom predeceased her. Lorraine's parents and Donald Isburg, her only sibling, also predeceased her. Her will did not designate contingent beneficiaries, making her estate subject to the laws of intestate succession. Under the laws of intestate succession, Lorraine's estate would pass to Donald's children. Donald had two children from his marriage to Mavis Baker: Audrey Isburg Courser and Clinton Baker (Appellants). Donald also purportedly had two illegitimate daughters from other relationships: Yvette Herman, born June 1, 1970, and Tamara Isburg Allen, born October 11, 1965.

[¶ 3.] At the time of his death on August 24, 1979, Donald, a member of the Crow Creek Tribe, owned tribal land held in trust by the United States Government. Accordingly, the United States Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals, Probate Hearings Division (collectively the Interior Board of Indian Appeals or IBIA) probated his estate. In October 1980, the Crow Creek Bureau of Indian Affairs (BIA) Superintendent filed a form entitled Data for Heirship Finding and Family History. This form disclosed Donald's assets and indicated that Audrey and Clinton, also enrolled members of the Tribe, were Donald's children.

[¶ 4.] In April 1981, a notice of probate hearing was mailed to potential heirs, including his sister, Lorraine, and his legitimate children, Audrey and Clinton. In a letter made under oath, Lorraine reported to the IBIA that she was Donald's sister and that Donald's only children were Audrey and Clinton. The IBIA completed the probate on June 8, 1981 and entered an order declaring Audrey and Clinton to be the sole heirs of Donald's estate. Audrey and Clinton inherited Donald's trust land in which he shared an ownership interest with Lorraine. Audrey and Clinton became tenants in common with Lorraine.

[885 N.W.2d 340

In July 2003, fee simple patents were issued to Lorraine, Audrey, and Clinton, removing their land from trust. At the time of Lorraine's death in 2010, none of her land was held in trust with the federal government.

¶ 5.] This appeal concerns Yvette. She contends that, in addition to Appellants, she is entitled to a share of Lorraine's estate.¹ In order to receive a share of Lorraine's estate, Yvette must establish Donald's paternity under SDCL 29A–2–114(c). SDCL 29A–2–114 provides in relevant part:

(a) For purposes of intestate succession by, from, or through a person ... an individual born out of wedlock is the child of that individual's birth parents.

....

(c) The identity of the mother of an individual born out of wedlock is established by the birth of the child. The identity of the father may be established by the subsequent marriage of the parents, by a written acknowledgement by the father during the child's lifetime, by a judicial determination of paternity during the father's lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father's estate.

(Emphasis added.) Yvette concedes that Donald did not recognize her in writing during his lifetime and that she was not judicially determined to be Donald's child prior to his death.

[¶ 6.] Yvette submits, however, that she has proven through DNA evidence that she is Lorraine's niece and Donald's daughter. DNA samples submitted by Yvette and Lorraine in 2005 established with 94.82% probability that Donald was Yvette's father. In 2008, relying on the DNA results, Yvette petitioned and received from the Crow Creek Sioux Tribal Court an order of paternity identifying Donald as her father. At Yvette's request, the South Dakota Department of Health issued Yvette a new birth certificate listing Donald as her father.

[¶ 7.] In early March 2010, after Lorraine's death, Audrey filed a petition for formal probate of Lorraine's estate in state court. Audrey petitioned for appointment as personal representative and to have Lorraine's heirs judicially determined. Tamara and Yvette objected to Audrey's appointment and requested appointment as co-personal representatives. After a hearing, the court appointed attorney Stan Whiting as special administrator of the estate.

[¶ 8.] In June 2010, Tamara and Yvette filed separate petitions with the IBIA to reopen Donald's probate to prove they were Donald's daughters and heirs. These requests were made 31 years after Donald died and 29 years after the probate was closed. While this matter was pending with the IBIA, Audrey and Clinton moved for partial summary judgment in state court against Yvette. They alleged that Yvette lacked standing to assert she was an heir because she could not satisfy any of the four methods set forth in SDCL 29A–2–114(c) to establish her father's identity. Yvette filed a motion contending that SDCL 29A–2–114 was facially unconstitutional because it prohibited her right to recover as an illegitimate child in violation of the Equal Protection Clause.

[¶ 9.] The circuit court agreed that Yvette could not comply with the first three methods of proving paternity set forth in SDCL 29A–2–114(c). In an incorporated memorandum decision and order, the court found that Yvette's parents did not marry, Donald did not acknowledge

[885 N.W.2d 341

her in writing, and she was not judicially determined to be his child during his lifetime. The court found that Yvette's petition to reopen Donald's estate would likely take more than one year to resolve and granted partial summary judgment to Audrey and Clinton. The court denied Yvette's constitutional challenge, holding that the statute did not “create an insurmountable burden for” Yvette to inherit. Rather, according to the court, the statute served as a “legitimate limitation on the right of the child” to prove her right to inherit.

¶ 10.] Yvette appealed the circuit court's decision, raising several issues, which we addressed in In re Estate of Flaws (Flaws I), 2012 S.D. 3, 811 N.W.2d 749. She argued that the four methods of establishing paternity set forth in SDCL 29A–2–114(c) did not foreclose other avenues of proof because “the identity of the father may be established” in certain ways as listed. Id. ¶ 17, 811 N.W.2d at 753 (emphasis added). We held that the methods of establishing paternity were indeed exclusive to those listed. Because Yvette could not satisfy any of the methods set forth in SDCL 29A–2–114(c), we held that her only remaining option was to present her proof in Donald's estate. Yvette's petition to reopen Donald's estate was still pending with the IBIA at the time of her appeal to this Court. Therefore, we reversed and remanded to the circuit court to await the IBIA's final determination regarding Donald's estate. We declined to address the issue regarding the constitutionality of SDCL 29A–2–114.

[¶ 11.] In June 2011, the IBIA issued a show cause order, to which Appellants responded. In April 2012, the Indian Probate Judge denied Yvette's request to reopen Donald's probate. The probate court found that because the real property had “passed out of trust” it was “no longer subject to the probate jurisdiction of the Department of Interior.” Estate of Donald Isburg, 59 IBIA 101, 101, 2014 WL 4262746, at *1 (Aug. 20, 2014).²

[¶ 12.] In September 2014, Appellants again moved for partial summary judgment in state court against Yvette, alleging she lacked standing to assert she was an heir. In response, Yvette filed a second notice challenging the constitutionality of SDCL 29A–2–114. After a hearing, the court denied the motion for partial summary judgment and set the matter for a court trial.

[¶ 13.] At the court trial in Lorraine's estate court proceeding, Yvette again presented evidence of Donald's paternity, despite her inability to prove paternity by any of the methods set forth in SDCL 29A–2–114(c). She also alleged the statute was unconstitutional as applied. Yvette argued that the statute impermissibly limited the forms of proof available to her as an illegitimate child in violation of the Equal Protection Clause. Yvette contended that her DNA evidence should be admissible in Lorraine's estate proceedings as it is reliable and widely accepted as a means to prove paternity. Additionally, she asserted that the State's only interest in this...