Knauer v. Barnett
| Decision Date | 08 June 1978 |
| Docket Number | No. 50504,50504 |
| Citation | 360 So.2d 399 |
| Parties | Donna Barnett KNAUER, Nadia Nightingale Allen, Downing Nightingale, Jr., Yvonne Barnett West, Caroline Barnett Bryan, Jane Claudia Barnett Gordon and Madeleine Camp Franklin, Petitioners, v. Charles BARNETT and William R. Barnett, Trustee, Respondents. |
| Court | Florida Supreme Court |
Jack F. Wayman, Jacksonville, for petitioners.
C. Harris Dittmar of Bedell, Bedell, Dittmar & Zehmer, Jacksonville and Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for respondents.
This cause is a petition for writ of certiorari to review a decision of the District Court of Appeal, First District, reported at 336 So.2d 1213, which is alleged to be in conflict with In re McCollum's Estate, 88 So.2d 537 (Fla.1956) and Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973). 1 Conflict is predicated upon the issue of whether the paternity of a child who has been legitimatized by both a written, attested acknowledgment and intermarriage of his parents pursuant to the provisions of Section 731.29(1), Florida Statutes (1973), is subject to attack by the collateral kindred of the child's father.
William R. Barnett, respondent/trustee here, sought a declaratory judgment in the Circuit Court for Duval County, Florida, to determine the parties entitled to receive the income and corpus of a trust previously held for the benefit of William L'Engle Barnett (hereinafter referred to as William Barnett). Under the terms of a trust document executed by William in 1959, the income and corpus are distributable to the surviving "blood issue" of William Barnett or to the collateral kindred of William if no blood issue exists. Charles Barnett, who claims to be the son and blood issue of William, was a defendant in the suit below and is a respondent in the instant proceeding. The collateral kindred of William, who claim that he had no blood issue and, consequently, that they are entitled to the trust property, are petitioners here. The issue before the lower courts and here is whether Charles is the blood issue of William under a construction of Section 731.29(1), Florida Statutes (1973), which provides:
Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents' kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.
The trial judge construed the statute to render the parentage of Charles a factual issue to be resolved in the declaratory judgment proceeding even though William had executed a written, attested document acknowledging himself to be the father of Charles and had married Charles' mother, Marcelle. The judge concluded that because the provision refers to subsequent intermarriage of the Parents, such means the child's natural (biological) parents, thereby leaving open to future adjudication the question of whether the acknowledging and marrying "father" was, in fact, the natural parent of the child. The decision of the district court under review recites the evidence upon which the circuit judge based his finding that Charles is not the blood issue of William:
Charles Barnett was born in Paris, France, on May 28, 1913, to Marcelle Perron, who was then 19 years old according to the official French record of his birth. On June 12, 1913, he was baptized in the Church of the Parish of St. Sulpice, Archbishopry of Paris, and his baptism was noted in the church's Baptismal Register with the space for his father's name left blank. In both the official civil and church records, Charles was originally identified as "Charles Perron."
On August 13, 1918, William L'Engle Barnett and Marcelle appeared before Deputy Mayor Christie of the 17th District of Paris and declared in the presence of witnesses that they "recognize as their son" the child Charles, born to Marcelle on May 28, 1913. An official entry of this act of recognition was made in the birth records of the 17th District of Paris and was signed by William, Marcelle, two witnesses and the Deputy Mayor. Four days later, on August 17, 1918, William and Marcelle appeared again before Deputy Mayor Christie, and he performed their lawful marriage, recording it in the official records. At the time of the marriage, Deputy Mayor Christie delivered to William the "Livret de Famille" the official family booklet required by French law to be retained by the head of each family as the official record of the family members. In that booklet, Deputy Mayor Christie officially recorded the marriage of William and Marcelle on August 17, 1918, and the birth of their child Charles on May 28, 1913, affixing his seal and signature.
On July 1, 1920, William and Marcelle caused Charles' official birth record to be corrected to change his name from Charles Perron to Charles Barnett. The French official corrected the original birth record by striking through the name "Perron" and writing above it the name "Barnett" and by writing on the original birth record the following:
On September 10, 1921, William and Marcelle caused the Baptismal Register of the Church of the Parish of St. Sulpice to be rectified to show "William Barnett" as the father of Charles and to change the name in the record from "Charles Perron" to "Charles Barnett." The change was made by striking through the name "Perron" and writing above it the name "Barnett" and by noting on the original record that it has been "rectified at the archbishopry on the 10 Sept. 1921." Also on September 10, 1921, William and Marcelle obtained a certificate from the Secretary of the Archbishopry certifying the baptism on June 12, 1913, of Charles, born May 28, 1913, the son of William and Marcelle.
On October 2, 1922, William and Marcelle placed Charles in the College Chaptal in Paris, where he received his formal education at their expense until November 7, 1928. During part of that time, William and Marcelle lived in Paris, and Charles lived with them.
On June 5, 1926, William was issued an identity card by the Paris police which showed him to be an American citizen with a Paris residence, and listed Marcelle as his spouse and Charles, born 1913 in Paris, as his child. A similar identity card was issued at the same time to Marcelle.
On November 7, 1928, Charles left France, traveling with William and Marcelle, and arrived in the United States on November 13, 1928. The three then drove from New York to William's home in Tangerine, Florida. Upon his arrival in Florida, Charles was registered in the Mt. Dora High School as the son of William L'Engle Barnett of Tangerine from which he graduated in the spring of 1930. In September, 1930, William took Charles to Gainesville and enrolled him in the University of Florida paying his tuition and living expenses. Between November, 1928, and September, 1930, Charles lived with William and Marcelle in the family home in Tangerine.
On August 25, 1933, William and Marcelle swore before a notary public that a petition prepared for filing with the French government was true in stating that Charles had been "acknowledged by the said William L'Engle Barnett as his son." This was for the purpose of obtaining Charles' release of allegiance to the French government preparatory to establishing his United States citizenship. On July 16, 1934, William and Marcelle executed a sworn affidavit for filing with the governments of the United States and France referring to Charles Barnett as "their son" and stating that Charles Barnett had been "acknowledged by the said William L'Engle Barnett as his son." On February 9, 1935, William signed his name in the blank for "father" on Charles' passport application and swore, before a Deputy United States Court Clerk, in an affidavit of birth to be submitted with Charles' application for passport, that Charles "is my son." 336 So.2d at 1215-16.
The evidence also revealed that Charles and his parents became estranged around 1940 due, in part, to the marriage of Charles to a woman of whom his parents did not approve. During this period of estrangement, which continued until William's death, William began referring to Charles as his "adopted son" or "step-son" and purportedly stated that "(t)here's not a drop of my blood in that boy."
On appeal, the district court reversed and remanded the cause, finding that the circuit judge had erroneously construed Section 731.29(1), supra:
This construction in our view nullifies the obvious intent of the statute which was to lay at rest the question of legitimacy when the reputed father acknowledges the child before a witness and marries the mother. We do not believe it was the legislative intent to leave this question dangling for future litigation many years later (usually at the death of the father) when the problem of proof, though it could be difficult enough at the time of acknowledgment and marriage, would be far more difficult in later years. In this connection, § 742.091, Fla.Stat. (1973), a part of the bastardy statute, should be considered in pari materia with § 731.29(1), supra. § 742.091 states as follows:
"If the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate, and upon the...
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Sanders ex rel. Wakefield v. Apfel, 98-1265-CIV-J-JES.
...Florida courts would not allow the subsequent blood tests to contest paternity in intestacy proceedings. See also Knauer v. Barnett, 360 So.2d 399, 403, 405-06 (Fla.1978); Locke v. Estate of Campbell, 305 So.2d 825, 826 (Fla. 1st DCA 1975). Since Section 416(h)(2)(A) requires this Court to ......
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