Retirement Bd. of Police Retirement System of Kansas City v. Noel By and Through Noel, WD

• Decision Date: 31 May 1983
• Docket Number: No. WD,WD
• Citation: 652 S.W.2d 874
• Court: Missouri Court of Appeals
• Parties: RETIREMENT BOARD OF the POLICE RETIREMENT SYSTEM OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. Barrett Craig NOEL, By and Through His Guardian Ad Litem, Phyllis NOEL, et al., Defendant-Appellant. 33576.

Page 874

652 S.W.2d 874

RETIREMENT BOARD OF the POLICE RETIREMENT SYSTEM OF KANSAS

CITY, Missouri, Plaintiff-Respondent, v. Barrett Craig NOEL, By and Through His Guardian Ad Litem, Phyllis NOEL, et al., Defendant-Appellant.

No. WD 33576.

Missouri Court of Appeals,

Western District.

May 31, 1983.

Dennis J. Brundige, Kansas City, for defendant-appellant.

Gerald W. Gorman, Truman K. Eldridge, Jr. and John A. Vering, III (argued), Kansas City, for plaintiff-respondent.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

NUGENT, Judge.

The Retirement Board of the Police Retirement System of Kansas City, Missouri brought this action in interpleader and for a declaratory judgment against Barrett Craig Noel (Barry), the putative son of slain officer Russell D. Mestdagh, and Garnett C. Bailey, the officer's mother and designated beneficiary. At issue were the amount and the proper disposition of the officer's death benefits, and the Board's entitlement to attorney's fees as a disinterested stakeholder. The court denied Barry's claim and found that the Board was not a disinterested stakeholder. Both parties appeal. We affirm the judgment.

Barry's mother and guardian ad litem asserts that the court was barred by collateral estoppel from holding that the boy was not officer Mestdagh's son; that the finding was against the weight of the evidence; and that the court denied Barry equal protection of the law in holding that "child" as used in §§ 86.447 and 86.453 ¹, dealing with benefits due dependents of deceased members of the police retirement system, excluded illegitimate children.

I. The Facts

The uncontroverted facts of this case are as follows: Phyllis Noel met and began having sexual relations with Russell Mestdagh in December, 1971. At that time, Ms. Noel was married to Jerry L. Noel from whom she was divorced in July, 1972. She gave birth to Barry Noel on October 8, 1972.

Mr. Mestdagh was never married. On January 2, 1975, he was shot and killed in the line of duty as a police officer. He was a member of the police retirement system and on September 7, 1971, had designated his mother, Garnett C. Bailey, as his sole beneficiary. On January 13, 1975, she filed a request for death benefits.

On April 11, 1975, Barry Noel, by his mother and next friend, Phyllis Noel, filed a petition for declaration of paternity in the circuit court against the estate of Mr. Mestdagh. The petition was dismissed on April 19, 1977, on the grounds that the cause of action abated on the death of the putative father. On September 20, 1977, the probate court of Jackson County determined the heirs of Mr. Mestdagh to be his parents and three sisters.

In 1978, Barry Noel submitted a workmen's compensation claim for the death of Mr. Mestdagh. Hearings were held on March 7 and 10, 1978, at which several witnesses testified that Mr. Mestdagh had admitted paternity. On June 22, 1978, the referee awarded Barry Noel death benefits of $95 per week until age eighteen (a total of $77,558), and made a finding that "although there is the strongest presumption in favor of the child being born in wedlock, I find from the facts presented here, that the burden has been met and that, in fact, Russell Mestdagh is the father of Barrett Craig Noel ...." This award was appealed (the record does not show by whom) and a settlement reached under which the police department paid Barry Noel $40,000. The officer's mother was not a party to that action.

On July 21, 1980, the Retirement Board filed a first amended petition for interpleader and declaratory judgment stating in Count I that §§ 86.447 and 86.453 ² require it to pay benefits to the children of its deceased members but that it was uncertain as to whether the section includes illegitimate children. Accordingly, it alleged that

If defendant Barrett Craig Noel is the natural child of Russell D. Mestdagh and if the words "child" and "children" as used in Section 86.447 R.S.Mo. (1978) include an illegitimate child and illegitimate children, plaintiff is required ... to pay all benefits to Barrett Craig Noel to the exclusion of Russell D. Mestdagh's named beneficiary Garnett C. Bailey. However, if Barrett Craig Noel is not the natural child of Russell D. Mestdagh or if the words "child" and "children" as used in [the statute] do not include an illegitimate child ... plaintiff is required ... to pay all benefits to Russell D. Mestdagh's designated beneficiary, Garnett C. Bailey.

Further, it stated that "[p]laintiff is ready and willing to pay said benefits to the person lawfully entitled thereto, but the plaintiff is unable to determine which one of said defendants is entitled to the same, and plaintiff may be subjected to multiple liability for a single obligation" and prayed that Barry Noel and Garnett C. Bailey be required to interplead their respective claims.

In Count II, the Retirement Board asked for clarification of the amount of benefits to be awarded Barry Noel if he were found to be the child of Russell Mestdagh (specifically, whether the workmen's compensation award must be offset against death benefits), and for its costs including a reasonable attorney's fee.

At trial, the Retirement Board offered only the testimony of Garnett C. Bailey who stated that, although she saw her son at least once a week from 1971 to 1975, he had never mentioned Phyllis Noel. He had, however, introduced her to two other girlfriends who accompanied him to family gatherings. One in particular she remembered as "like part of the family", and the one "he probably eventually would marry." She testified that in spite of a "very good relationship" with her son, he never mentioned having a child.

William Blackman, former police officer and roommate of Russell Mestdagh, testified on behalf of Barry Noel and stated that Mr. Mestdagh "was probably the best friend I ever had." He introduced Phyllis Noel to Russell Mestdagh and gave the date of their first meeting as December 4, 1971. Three weeks before his death, Mr. Mestdagh told Mr. Blackman that he intended to try to get Barry Noel's name changed to Mestdagh. According to Mr. Blackman, Russell Mestdagh "was concerned with whether or not Phyllis was going to try to shaft him for money ... but there was no question as to whether or not the boy was his."

Two other friends of Russell Mestdagh, Philip White and Kim Webb, testified that he had told them about his son, Barry. Neither knew of any support payments to Phyllis Noel.

Phyllis Noel testified that she separated from her husband, Jerry Noel, in February, 1971, by whom she had three children, aged fourteen, thirteen and ten at the time of trial. Barry Noel was then nine. She stated that her first sexual relations with Russell Mestdagh occurred sometime after December 4 but before Christmas of 1971, and that from the time of that first union until Barry was born, she had no sexual relations with any other man. She claimed to have last had sexual relations with her husband in November, 1971. She stopped seeing Mr. Mestdagh when she began to show her pregnancy and avoided him until she informed him of Barry's birth when the child was two months old. Their relationship then continued until the time of Mr. Mestdagh's death.

According to Ms. Noel, Mr. Mestdagh acknowledged that Barry was his son and provided support money, leaving $10, $15 or $20 on the television from time to time.

She testified that she did not bring a paternity suit while Mr. Mestdagh was alive because such an action probably would have cost him his job. Nevertheless, she did file a complaint with the police department on a date she could not remember. She testified that in this complaint she was not seeking support, but "was more asking that he acknowledge it." In response to the question, "So at that particular point in time, Russell was not acknowledging Barry as his son?" she replied, "Not openly, to, say, the police department, etc."

In an order dated January 14, 1982, the trial court made findings of facts including the following: Russell Mestdagh could have changed his beneficiary record to designate Barry Noel as his child, yet failed to do so; Russell Mestdagh, in light of his close personal relationship with his mother, would have been likely to mention a child to her; minor gifts of money to Phyllis Noel did not constitute significant support payments and were not an acknowledgement of paternity; photographs before the court of Russell Mestdagh and Barry Noel revealed no physical resemblance; Russell Mestdagh never, under oath, acknowledged Barry Noel as his child, nor provided for him in a will, nor legitimated him by marrying his mother; a rational basis exists for distinguishing between legitimate and illegitimate children under §§ 86.447 and 86.453 because of the practical problems in locating illegitimate children and paying them promptly, and because "paying benefits to illegitimate children as they make claims is likely to result in the plaintiff paying benefits twice"; the court was "not impressed with the testimony of witnesses Phyllis Noel, William Blackman, Phillip White and Kim Webb and their combined testimony is not persuasive on the issue of paternity"; Barry Noel "failed to carry his burden of establishing that he was in fact the illegitimate child of Russell Mestdagh"; and the Retirement Board was not entitled to attorney's fees because it is not a disinterested stakeholder and "is itself benefited from the bringing of the action herein."

The trial court concluded that Garnett C. Bailey was entitled to $2,056.93 in benefits; that Barry Noel was not entitled to benefits because he is not the child of Russell Mestdagh; and that even if Barry Noel were the child of Russell Mestdagh, he would not be entitled to benefits because "the Missouri Legislature intended that benefits under [§§ 86.447 and 86.453] be payable only to legitimate children."

On appeal Phyllis Noel argues (1) that the trial court's holding that ...