S.M.V. v. Littlepage, 1-880A205

• Decision Date: 21 December 1982
• Docket Number: No. 1-880A205,1-880A205
• Citation: 443 N.E.2d 103
• Parties: S.M.V., Mother and Natural Guardian of L.D.V., Petitioner-Appellant, v. Ruth E. LITTLEPAGE, Personal Representative of the Estate of Randy D. Bonham, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 103

443 N.E.2d 103

S.M.V., Mother and Natural Guardian of L.D.V., Petitioner-Appellant, v. Ruth E. LITTLEPAGE, Personal Representative of the Estate of

Randy D. Bonham, Respondent-Appellee.

No. 1-880A205.

Court of Appeals of Indiana,

First District.

Dec. 21, 1982.

John A. Hamilton, Bunner, John & Heathcotte, Evansville, for petitioner-appellant.

Richard W. Yarling, John W. Hammel, Yarling, Tunnell, Robinson & Lamb, Indianapolis, for amicus curiae.

NEAL, Judge.

STATEMENT OF THE CASE

This is an appeal by petitioner-appellant S.M.V., mother and natural guardian of L.D.V., from an adverse summary judgment on her petition seeking a distributive share of proceeds from the settlement of a wrongful death suit brought by Ruth E. Littlepage (Littlepage), Personal Representative of the Estate of Randy D. Bonham (Bonham), deceased.

We affirm.

STATEMENT OF THE FACTS

The appeal comes to us from the trial court's action granting Littlepage's motion for summary judgment. Therefore only the facts most favorable to S.M.V. will be considered. Bonham was killed on October 9, 1976, in an automobile accident, and L.D.V. (the Child) was born out of wedlock on November 5, 1976. S.M.V. and Bonham had lived together out of wedlock for some years. A paternity proceeding was initiated by S.M.V. against Bonham's estate on October 11, 1979, but was dismissed because it had not been brought within Bonham's lifetime. No acknowledgment of paternity, written or otherwise, is shown to exist. The action for Bonham's wrongful death brought on behalf of a surviving legitimate child was settled, and S.M.V. claims a distributive share of those proceeds on behalf of her illegitimate Child.

ISSUE

S.M.V. assigns six errors for our consideration on appeal. However, we perceive that only one question is presented as follows:

Under what circumstances is an illegitimate child a "dependent child" under the wrongful death statute, IND.CODE 34-1-1-2?

DISCUSSION AND DECISION

Littlepage did not favor this court with an appellee's brief. Therefore, this court may reverse upon the showing by the appellant of prima facie error in the trial court's judgment; however, we are not compelled to do so. We may in our discretion consider the questions properly presented and decide the case on its merits. Contech Architects and Engineers, Inc. v. Courshon, (1979) Ind.App., 387 N.E.2d 464. We have the benefit of an able brief submitted by Amicus Curiae Allstate Insurance Company, which insured the defendant in the wrongful death action prosecuted by Littlepage. It appears to us that the briefs on file adequately enable the court to review the questions presented in the appeal.

Constitutional considerations

Numerous cases decided by the Supreme Court of the United States in recent years address the problem of statutorily imposed burdens or statutorily denied rights involving illegitimate children, and the relation of those statutes, rights and burdens to the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. In the interest of brevity, we have distilled from those cases certain general rules which we will summarize. In general, a statute may not deny an illegitimate child rights given to children generally. The rationale for the rule is that a state should not attempt to influence the actions of men and women by imposing sanctions on the children of illicit relationships. Visiting condemnation upon the head of an innocent child who is not responsible for his birth is illegal and unjust, as well as an ineffectual way of deterring parents. A state may create statutory classifications, and great respect, deference and latitude is accorded them by the courts. However, the classifications must, at a minimum, be rational and bear a reasonable relation to statutory objectives and legitimate state interests in order to satisfy equal protection requirements. A state may not create a classification if the classification results in an "invidious discrimination" against a particular class, and if the classification unnecessarily excludes illegitimate children, it is constitutionally flawed.

However, when paternity is at issue, the resolution of potentially difficult problems of proof and the prevention of spurious claims are legitimate state interests which will be respected by the courts as valid. A legal framework may justly require a more demanding standard of proof for an illegitimate child claiming from his putative father than that required of an illegitimate child claiming from his mother, or of a legitimate child claiming from either parent. Yet, the state statutory scheme may not create an "insurmountable barrier" that works to shield otherwise invidious discrimination. The state's interest in these cases is substantial, and reasonable means adopted to insure the accurate resolution of paternity disputes and to minimize the potential for the disruption of estate administration are valid. See Parham v. Hughes, (1979) 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269; Lalli v. Lalli, (1978) 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503; Trimble v. Gordon, (1977) 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31; Jimenez v. Weinberger, (1974) 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363; Gomez v. Perez, (1973) 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56; Weber v. Aetna Casualty & Surety Co., (1972) 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768; Levy v. Louisiana, (1968) 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436.

The creation of "insurmountable barriers" in statutes which render it legally impossible for an illegitimate child to gain entrance to a class violates equal protection. Weber, supra (Workmen's Compensation); Gomez, supra (enforceable right to support); Trimble, supra (inheritance from father). For our purposes, a closer analysis of Lalli, supra, one of the most recent cases, is desirable. That case involved a New York inheritance statute, which bears some similarities to our own. It provided that an illegitimate child could inherit from his father only if paternity had been established by a court of competent jurisdiction during the father's lifetime. The New York courts rejected the equal protection argument, and their decision was affirmed by the Supreme Court of the United States, even though the father had acknowledged paternity of the child in writing before a notary. The Court distinguished Trimble, an earlier case, which had held invalid an Illinois inheritance statute as a violation of equal protection; that statute had not provided any way, including paternity adjudication, by which an illegitimate child could inherit. The Court discussed the state's power to create an appropriate legal framework and procedure to address the difficult task of proof of paternity and the related danger of spurious claims. The Court stated that the New York statute, by lifting the absolute bar to paternal inheritance, tended to achieve the desired effect of softening the rigors of previous law which permitted illegitimates to inherit only from their mothers. The Court then said:

"The single requirement at issue here is an evidentiary one--that the paternity of the father be declared in a judicial proceeding sometime before his death. The child need not have been legitimated in order to inherit from his father. Had the appellant in Trimble been governed by Sec. 4-1.2, she would have been a distributee of her father's estate." (Footnote omitted.)

Lalli, supra, 439 U.S. at 267, 99 S.Ct. at 524. Parham, supra, applied the Lalli rationale to a wrongful death case where a father attempted to sue for the wrongful death of a child.

Two Wisconsin cases, Krantz v. Harris, (1968) 40 Wis.2d 709, 162 N.W.2d 628, and In re Estate of Blumreich, (1978) 84 Wis.2d 545, 267 N.W.2d 870, appeal dismissed, 439 U.S. 1061, 99 S.Ct. 822, 59 L.Ed.2d 26, are important as bearing on the constitutionality of statutory schemes in wrongful death cases respecting illegitimates. Those two cases are nearly identical to the facts in the case at bar; that is, posthumous illegitimate children claimed the right to participation in an action for wrongful death of their putative fathers. Appeal in Blumreich was dismissed by the United States Supreme Court because of the lack of a substantial Federal question. Wisconsin had a statutory scheme in wrongful death actions which provided in effect that if no spouse survived, then the proceeds were to be distributed to the lineal heirs of the decedent as determined by the laws of descent. Section 237.06 of the descent statute made an illegitimate child a lineal heir of his father only if (1) the father had acknowledged the child in writing, (2) paternity had been adjudicated under Wisconsin's paternity statute in the father's lifetime, or (3) he had admitted in open court that he was the father. The question in both cases was whether a posthumous illegitimate child could recover for the wrongful death of his putative father where none of the conditions of heirship was met. The Wisconsin Supreme Court held in both cases that the child could not recover. The Blumreich court rejected due process and equal protection arguments and stated that the child must bring itself within the statute. The fact that the illegitimate parents cohabited, and the deceased orally acknowledged the unborn child to acquaintances, was insufficient.

Statutory scheme respecting illegitimates

Resolution of the basic questions first demands an examination of statutory and case law in Indiana pertaining to the rights and treatment of illegitimate children in relation to their putative fathers. The wrongful death statute, Ind.Code 34-1-1-2, provides that the proceeds of the wrongful death recovery shall, as relevant here, "inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased." (Emphasis added.)...