Opinion
D072122
09-28-2018
S.S., Plaintiff and Appellant, v. S.S., as Executor etc., Defendant and Respondent.
Law Office of Rachel P. Young and Rachel Perry Young, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D558418) APPEAL from a judgment of the Superior Court of San Diego County, Enrique E. Camarena, Judge. Reversed with directions. Law Office of Rachel P. Young and Rachel Perry Young, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
S.S. appeals the family court's dismissal without prejudice of his petition to have R.D. designated his presumed father under Family Code section 7611, subdivision (d), arguing the family court had jurisdiction over the petition and should have granted it based on the evidence presented. We reverse.
Undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, S.S. petitioned the family court for an order that R.D.'s estate recognize R.D. as S.S.'s presumed father under section 7611, subdivision (d). S.S. declared that in 1982, when he was 24 years old, he met then 40-year-old R.D, who had no children and became S.S.'s father figure. In 1984, S.S. moved into R.D.'s home, where they lived together continuously for thirty years. R.D. paid for S.S.'s housing expenses, daily needs, and healthcare. R.D. and S.S. worked together professionally for 15 years, and R.D. held out S.S. as his son. In 2014, R.D. petitioned to adopt S.S.; however, R.D. died that year before the petition was adjudicated. S.S. arranged R.D.'s funeral and finalized his affairs. R.D. in his will referred to S.S. as his "adopted son," named him executor of his estate, and left him all of his property except for two $5,000 charitable gifts.
In his petition, S.S., in his capacity as executor of R.D.'s estate, claimed the estate did not object to the court designating R.D. as S.S.'s presumed father. He added: "This parentage order would fulfil the emotional wish of both [R.D.] and [S.S.], by making an order establishing that [R.D.] is my father."
At the first hearing on the matter, the family court requested S.S. brief the issue of whether the petition can be granted given that R.D. was deceased; whether S.S. needed to notify R.D.'s relatives regarding the proceedings; and whether S.S. needed to appoint someone other than S.S. to protect the estate's interests. At the second hearing, the family court requested S.S. provide a declaration regarding his family members, in order to comply with section 7630, subdivision (g)(2). At the third hearing, the family court requested briefing on the section 7540 presumption regarding a child of a marriage. The family court summarized its understanding of S.S.'s petition: "I think this case is odd from—because in the end—I think in the end, its going to have no change. It's for [S.S.'s]—I'm going to use the word 'peace of mind.' He just wants the recognition of that relationship in a legal fashion. [¶] And so, you know, we have a person well into adulthood seeking to establish parentage of someone who is now deceased, via [section 7611, subdivision (d).]"
Section 7630, subdivision (g)(2) provides that if known to the person bringing the parentage action, relatives within the second degree of the child shall be given notice of the proceeding at least 15 days prior to the hearing.
Section 7540 states: "Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."
At the final hearing on the matter, the family court explained that in light of S.S.'s substantial inheritance, "this is not based on a probate type of request. For lack of a better term, it's more of an emotional request." The court stated that because S.S. is an adult, and sections 7540 and 7611 are aimed at the care, support, health and welfare of children, S.S.'s petition was not "driv[ing] anything in this case." In that same vein, the court told S.S.'s counsel, "I think it's no secret you're trying to fit [the petition] into the existing Family Code sections, which are mainly geared toward children, not adults asking another adult, father figure, to be found to be his father." S.S.'s counsel argued that under section 7630, "It's well-settled that the finding of parentage could be made at any time, not at the time the child is a child or the child is an adult." The court countered, "In a probate setting[; but] we're not in a probate setting here."
The family court concluded it lacked jurisdiction to adjudicate the petition and dismissed it without prejudice: "[W]ithout a . . . probate request, this court has no jurisdiction to make a parentage finding under these facts. [¶] So, with that, I'm dismissing the case without prejudice. I think [S.S.] can seek further legal counsel and perhaps get some new law that says the Family Code does apply in this situation. I just don't see it. And there's no direction by the appellate courts or by the appellate courts with—in a nonprobate setting and that—I think that's the big difference here." The court also stated: "I am not, for purposes of this finding, taking into account any [section] 7540 issue, given that it was made in argument, not in a declaration."
DISCUSSION
S.S. contends: "It is clear that both [R.D. and he] intended to hold out to the world their relationship as father and son. Though [R.D.] has passed, [R.D.'s] initiation of adoption proceedings and naming [S.S.] in his own will as his son shows clear intention that he himself be adjudicated as father of [S.S.], and to entitle [S.S.] to all benefits as his son under the law, such as for instance the entitlement to survivor benefits, to inherit from [R.D.'s] estate and to inheritance related to estate documents belonging to third parties that entitle [R.D.'s] issue to various interests. A parentage finding under [] section 7611[, subdivision] (d) is supported by the facts and policy." This claim turns on the proper interpretation of section 7611, an issue that we review de novo. (See In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201, [statutory interpretation claims are reviewed de novo].)
S.S.'s attorney had raised the same point in passing during the second hearing on the petition: "Now, one of the hitches that I do see going forward, potentially, is [S.S.] inheriting, in terms of social security, interest benefits through [R.D.], right, as his natural child—as not the adopted child, but [section 7611 subdivision (d)]—child, if you will."
Section 7630, subdivision (b) provides that any interested party, which would include as here a child seeking a parentage determination, may bring an action "[a]t any time for the purpose of declaring the existence of the father and child relationship presumed under [section 7611, subdivision (d).]" Section 7611, subdivision (d) states that a person is presumed to be a child's natural parent if he or she "receives the child into his or her home and openly holds out the child as his or her natural child." Dent v. Wolf (2017) 15 Cal.App.5th 230 (Dent) is instructive. There, a 69-year-old woman named Dent petitioned in 2014 to establish a parental relationship under section 7630 with her putative father, who had died testate in 1985, and whose estate was finally adjudicated in 1993. (Dent, at p. 232.) The superior court dismissed Dent's petition, reasoning she did not have a social relationship to maintain or create with the deceased, who, moreover, could not accept or contest Dent's paternity claim. The superior court additionally ruled that her claim did not further the paternity laws, which aim to protect a child's well-being. (Ibid.) The Court of Appeal reversed, concluding that under the Uniform Parentage Act codified in section 7600 et seq., the parent-child relationship is a legal one encompassing natural and adoptive parents. It held Dent had standing to bring the paternity petition under section 7630, which "contains no conditional requirement that the child express a pecuniary interest as a condition of the paternity suit. Nor does it contain an age limitation." (Id. at p. 234.) The appellate court explained that Dent's petition fulfilled the purpose of a paternity suit, which is to determine the fundamental right a child has to a relationship between a parent and child. (Ibid.) The court concluded Dent had standing to bring her petition as she could receive effective relief in the family court despite her putative father's death foreclosing his companionship, which was only one reason for the paternity suit. As her claim was never adjudicated, it was not moot. (Id. at p. 235.)
The same analytical framework applies here. It is true the family court framed the issue as lack of jurisdiction to adjudicate S.S.'s petition, not one of standing, and it does not appear S.S. had distinguished between the two concepts. A court, however, lacks "jurisdiction" only if it has no power to render a decision over the subject in dispute. (See In re Marriage of Halpern (1982) 133 Cal.App.3d 297, 309.) In this case, S.S. seeks a declaration that under section 7611, subdivision (d), R.D. was S.S.'s presumed parent. We conclude the family court had jurisdiction to decide that matter under the Uniform Parentage Act, whose purpose is "to distinguish those who have demonstrated a commitment to the child regardless of biology and grant them the 'elevated status of presumed [parenthood].' " (E.C. v. J.V. (2012) 202 Cal.App.4th 1076.) Under section 200, "The superior court has jurisdiction in proceedings under this code." "And under the Family Law rules, 'The court has jurisdiction of the parties and control of all subsequent proceedings from the time of service of the summons and a copy of the petition.' " (In re Marriage of Lackey (1983) 143 Cal.App.3d 698, 702.)
We requested the parties brief whether S.S has standing to bring his section 7611 subdivision (d) petition; the applicability, if any, of Dent, supra, 15 Cal.App.5th 230 on the question of his standing; and what legal significance, if any, attaches to the fact that the appellant in Dent did not seek any financial relief whereas in this case S.S. seeks entitlement to survivor benefits among other financial relief. S.S. responded to these questions in a letter brief. --------
We further conclude that the gravamen of the family court ruling involved whether S.S. had standing to raise his claim in that venue. This is evidenced by the court raising the same concerns as the trial court did in the Dent case: whether the petition was proper in light of the fact R.D. was deceased and had left most of his estate to S.S., who was pursuing merely an "emotional" claim beyond the court's capacity to adjudicate, and not one for a tangible, material benefit; and S.S. is an adult not needing the kind of care and support typically seen in presumed parentage cases. " 'Standing' is a party's right to make a legal claim and is a threshold issue to be resolved before reaching the merits of an action. [Citation.] Although standing in actions to determine the existence or nonexistence of paternity under section 7630 subdivisions (a)(1) and (a)(2) is limited to presumed fathers under section 7611, subdivisions (a)-(c), any interested party may bring an action to determine the existence or nonexistence of paternity when presumed fatherhood under section 7611, subdivision (d) is involved." (Said v. Jegan (2007)146 Cal.App.4th 1375, 1382.)
As in Dent, we hold that section 7630's plain language prevails, and it does not condition when an interested party may bring a petition under section 7611, subdivision (b). (Dent, supra, 15 Cal.App.5th at p. 234.) The family court's concerns thus presented no obstacles for it to adjudicate this petition. "Once an interested party alleges facts which, if true, would bring him within section 7611, subdivision (d), he has standing under section 7630, subdivision (d) and is entitled to a determination on the merits." (Said v. Jegan, supra, 146 Cal.App.4th at p. 1382.)
DISPOSITION
The order dismissing S.S.'s petition seeking presumed parentage is reversed and the family court is directed to consider and rule upon S.S.'s petition in the first instance. S.S. is entitled to costs on appeal.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.