Weir v. Ferreira

• Decision Date: 16 December 1997
• Docket Number: No. F026210,F026210
• Citation: 59 Cal.App.4th 1509,70 Cal.Rptr.2d 33
• Parties: , 97 Cal. Daily Op. Serv. 9434, 97 Daily Journal D.A.R. 15,133 Frances WEIR, as Trustee, etc., Plaintiff and Respondent, v. Katheryne FERREIRA, Defendant and Respondent; Frank Edwin Kelm, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 33

70 Cal.Rptr.2d 33

59 Cal.App.4th 1509, 97 Cal. Daily Op. Serv. 9434,

97 Daily Journal D.A.R. 15,133

Frances WEIR, as Trustee, etc., Plaintiff and Respondent, v. Katheryne FERREIRA, Defendant and Respondent Frank Edwin Kelm, Defendant and Appellant.

No. F026210.

Court of Appeal, Fifth District, California.

Dec. 16, 1997.

Rehearing Denied Jan. 13, 1998.

Review Denied March 25, 1998.

[59 Cal.App.4th 1511] Cyril L. Lawrence, Merced, for Defendant and Appellant.

Keith C. King, Merced, for Defendant and Respondent.

No appearance for Plaintiff and Respondent.

OPINION

THAXTER, Associate Justice.

FACTUAL AND PROCEDURAL BACKGROUND

The Edith May Kelm revocable inter vivos trust dated May 16, 1990 (the trust), was established by Edith May Kelm (the trustor) for her own benefit. Upon her death the trust assets were to be distributed to her children, or if they predeceased her, to their issue. ¹ Harold Glen Kelm (the decedent), the trustor's son, predeceased her.

Frances Weir, as trustee of the trust (the trustee), filed a "Petition To Ascertain Beneficiaries And Determine Entitlement To Trust Distribution" pursuant to PROBATE CODE SECTION 17200², subdivision (b)(4), ³ asking whether Katheryne Ferreira (respondent) is the issue of decedent. In the alternative, the petition asked whether respondent was entitled to inherit through the decedent pursuant to section 6454. ⁴ The trustee alleged on information and belief that respondent would have been adopted by the decedent, that the trustor may have "mistakenly believed" respondent to be decedent's adopted daughter, and that "it may have been settlor's intent that [respondent] be included in the class" of the issue of the decedent.

Appellant Frank Edwin Kelm, the decedent's son, opposed the petition, contending that only he and his brother, Herbert Glen Kelm, were the decedent's issue. In support of his opposition appellant filed a declaration of Maria Lourdes Kelm, the decedent's former wife and appellant's mother, and a Portuguese and English copy of a Brazilian guardianship order. Appellant's brother, Herbert Glen Kelm, did not appear in the proceeding.

Respondent filed a statement of interest in support of the petition, stating her entitlement to distribution of an equal one-third share of decedent's one-third share of the trust, as one of the decedent's three lawful issue. Among the grounds asserted for her claim was an attached copy of a 1978 interlocutory judgment of dissolution of marriage entered by the Superior Court of Ventura County dissolving the marriage of the decedent and Maria Lourdes Kelm. In the judgment the court made an express finding that:

"There are four minor children of this marriage, and they are as follows:

                          "Name             Birthdate        Age         Sex
                          "Herbert           11/3/61         16         Male
                          "Richard[ 5]   2/9/63          15         Male
                          "Katheryne         8/23/64         13         Female
                          "Frank             8/8/66          11         Male"
                

The child "Katheryne" mentioned above is respondent; "Frank" is appellant here.

The interlocutory judgment incorporates by reference an "Appearance, Stipulation and Waiver of Rights Under the Soldiers' and Sailors' Relief Act of 1940." Therein, the decedent and his wife stipulated there were four minor children of the marriage, including respondent. Various provisions regarding child custody and visitation, child and spousal support, and other terms were included.

Appellant's opposition to the trustee's petition, relying on the declaration of his mother, asserted that respondent was born in Nova Soure, State of Bahia, Brazil on August 23, 1964, to Jos Ferreira dos Santos and Maria de Lourdes Souza, both Brazilian nationals. At that time, Maria Lourdes Kelm, a Brazilian, and the decedent, an American, were married and living in Brazil with their two natural children, Richard and Herbert. Appellant was born to the Kelms two years later.

According to the declaration, respondent's natural mother asked the Kelms to raise respondent under the terms of a guardianship petition, filed and signed in the Municipal Court, City of Cipo, State of Bahia, Brazil, on September 14, 1964. Under the terms of the guardianship, the decedent and Mrs. Kelm were directed to: "A) Raise and Direct [respondent's] education. B) Have her under your company and guadianship [sic ]. C) Grant or deny her concent [sic ] to marry. D) Represent her until she is sixteen (16) in acts of civil life and assist her after this age, in acts that are pertinent, granting consentment [sic ]. E) Take her in your company to any part of this country or abroad, at any time, temporarally [sic ] or permanently."

In 1973, the Kelms moved to the United States and brought the four children, including respondent, with them. They divorced in 1978.

At trial on the trustee's petition the court accepted certified copies of the interlocutory judgment of dissolution and a final judgment entered on January 19, 1979. The court ruled, based on principles of res judicata, respondent was a member of the class of the decedent's issue, entitled to distribution of his share of the trust. In a statement of decision the court gave as a legal basis for its decision that "the doctrines of res judicata and collateral estoppel preclude the relitigation of [respondent's] parentage by [appellant], the heirs and successors in interest to [the decedent], and the Trustee of [the trust]." As a further legal basis for the decision, the court relied on Family Code section 7636, which provides in part as follows:

"The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes."

This appeal is from the judgment determining that respondent is one of the lawful children and issue of the decedent.

DISCUSSION

APPELLANT IS BARRED FROM RELITIGATING THE PARENT-CHILD RELATIONSHIP BETWEEN RESPONDENT AND THE DECEDENT

A. "Issue" includes a child entitled to take by intestate succession

Appellant argues that because this case involves language used in a private trust document, the question of respondent's relationship to the decedent turns on the trustor's intent. Because neither the trustor nor the trustee was a party to the marital dissolution action, they are not bound by the court's finding in that action.

While appellant's premise may be correct, it does not support his claim that the court below erred. Words in a private instrument are ordinarily, in the absence of a showing of contrary intent, given the same effect as by statute or case law. (Wells Fargo Bank v. Huse (1976) 57 Cal.App.3d 927, 935, 129 Cal.Rptr. 522.) Appellant did not offer any evidence that the trustor, in using the word "issue," intended to include or exclude any particular persons. We must therefore, give the term its statutory meaning.

When the trustor used the term "issue" in the second amendment to her trust in 1993, section 50 defined the term as "all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent." "Child" is defined in section 26 as "any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved." Thus, in the absence of contrary evidence the trust interest goes to those persons entitled to take as children of the decedent under the laws of intestate succession.

The only evidence before the court showing that respondent was a child of the decedent was the finding in the divorce decree. The key question, then, is whether that finding is determinative for inheritance purposes. We find no direct authority answering it. Before reaching that question, we will briefly review cases involving the applicability of res judicata and collateral estoppel to findings of parentage in divorce decrees with regard to issues other than rights of inheritance.

B. Finding of parental relationship is binding on parties to divorce action

Res judicata is one of the oldest and least flexible doctrines in American jurisprudence. It is also one of the most important. As our Supreme Court held in Slater v. Blackwood (1975) 15 Cal.3d 791, 797, 126 Cal.Rptr. 225, 543 P.2d 593, "The consistent application of the traditional principle that final judgments, even erroneous ones [citations], are a bar to further proceedings based on the same cause of action is necessary to the well-ordered functioning of the judicial process. It should not be impaired for the benefit of particular plaintiffs, regardless of the sympathy their plight might arouse in an individual case."

" When all parties affected are actually or constructively before it with an opportunity to assert their contentions and to appeal from an adverse ruling, the finding of such facts by the court may be reviewed only by an appeal or other timely and available direct attack. This finding cannot be attacked in any collateral proceeding. In such situations the finding is as conclusive as any other finding of fact by the court in the original proceeding." (Estate of Estrem (1940) 16 Cal.2d 563, 570, 107 P.2d 36.)

Interlocutory and final judgments of dissolution are entitled to res judicata as to all questions determined by them. (County of San Diego v. Hotz (1985) 168 Cal.App.3d 605, 609, 214 Cal.Rptr. 658; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470, 82 Cal.Rptr. 489, 462 P.2d 17; In re Marriage of Guardino (1979) 95 Cal.App.3d 77, 87, 156 Cal.Rptr. 883.) California courts have repeatedly held a divorce judgment between husband and wife adjudicating their parental relationship to a child results in an issue adjudication binding them under the doctrine of collateral estoppel. (Adoption of Bonner (1968) 260 Cal.App.2d 17, 20, 66 Cal.Rptr. 812 [finding of parentage bars one party from adopting child without consent of other p...