Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County. No. YP008060, Deanne Smith Myers, Judge, and Douglas G. Carnahan, Temporary Judge (pursuant to Cal. Const, art. VI, § 21).
Charles K. Mills for Claimant and Appellant.
Theresa A. Jones for Petitioner and Respondent.
COOPER, P. J.
Rowland Johnson, born Rowland Major, appeals from the order for final distribution of the estate of his natural father, Frank Major, and from an order denying a motion to vacate that order. The denial stemmed from a ruling that appellant, who had been adopted by his stepfather, had not advanced such evidence as would, if credited, render him an heir to his natural father’s intestate estate, under Probate Code section 6451 (undesignated section references are to that code). That section provides that adoption does not sever the parent-child relationship with a natural parent if the adoption is by the spouse of either natural parent, and “The natural parent and the adopted person lived together at any time as parent and child . . . .” (§ 6541, subd. (a)(1).) We conclude that the trial court erred in ruling that appellant had failed to show prima facie that he had lived with the decedent as parent and child. We therefore reverse the orders, and remand for redetermination of appellant’s motion to vacate, including an evidentiary resolution of the living together issue based on both sides’ evidence.
FACTS
Appellant was born out of wedlock in February 1962, to Frank Major and Rosette Hamler. Ms. Hamler subsequently married Willie Johnson, who adopted appellant in 1976, in Illinois. The adoption decree changed appellant’s surname from Major to Johnson. After appellant’s birth, Frank Major married twice, and fathered two other children, Juanita and Damon Major.
Frank Major died intestate in March 2004. His son Damon became administrator of his estate. The petition for letters of administration acknowledged that the decedent had a natural child who had been adopted “by a third party,” and it identified appellant as the decedent’s “former son.” Although the record contains no proof of service, it is agreed that the petition for administration was served on appellant.
In March 2006, the administrator filed a petition for final distribution of the estate, to himself and Juanita Major, and their assignees. The petition included a copy of appellant’s adoption decree, and alleged that by virtue of his stepparent adoption, appellant was no longer an heir of the decedent. The proof of service indicated service on appellant, on March 6, 2006, at an address in Downers Grove, Illinois.
The probate court granted the petition for distribution, and entered an order for final distribution on April 26, 2006. On June 27, 2006, appellant filed a motion to vacate that order, based on lack of notice to him, allegedly resulting in lack of jurisdiction, and also based on fraud and Code of Civil Procedure section 473. Appellant alleged and declared that he had moved from Downers Grove to Naperville, Illinois in November 2005, and had notified the administrator’s attorney of that before the petition for distribution was filed. He had not, however, received either the petition or notice of hearing on it. Appellant’s wife declared that she had told the attorney telephonically of the new address.
Appellant also declared that his natural father and mother had “lived together as husband and wife and raised me until I was approximately 6 years old,” at which point they separated. Based on this factand appellant’s stepparent adoption, appellant argued that he was an heir of his natural father, under the terms of section 6451. Appellant’s attorney declared that the court file did not reflect service on appellant of a notice of hearing of the petition for distribution. Appellant also attached a 2005 letter from the administrator’s attorney, requesting that appellant sign a declaration reciting his natural parentage and adoption.
Section 6451 provides in relevant part: “(a) An adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied: [¶] (1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person's birth. [¶] (2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents. [¶] . . . .”
On August 1, 2006, appellant filed a supplement to his motion, correcting errors that had arisen “Due to a miscommunication between the [appellant] and his attorney.” The errors concerned appellant’s history with his natural parents. Appellant now declared that for the first five years of his life, his mother and father lived a few doors down from each other. Appellant spent “part of” the time with his mother, but the decedent also took appellant to live with him and his family, for periods of a few days to two weeks. On average, appellant lived with the decedent for one week or more per month. When appellant was nearly six, his mother and her husband moved with him to Chicago, decreasing his contact with the decedent.
The administrator and his sister filed opposition to appellant’s motion. They argued that the distribution order could be vacated only for extrinsic fraud, which had not been shown. The administrator’s attorney declared that appellant had not informed him of his new address until several weeks after the distribution order, and the copy of the petition for distribution served on appellant’s prior address had been returned as undeliverable.
The opposition also included a declaration by the decedent’s first wife, Clara Major (mother of Juanita Major). She stated she had married the decedent in Arkansas in May 1962 (three months after appellant was born), and lived with him until he moved to Los Angeles seeking work in November 1964. She joined him there in 1965, but they divorced in late 1966 or 1967. Ms. Major declared that the decedent and appellant had never lived together, either between 1962 and 1968 or thereafter. Juanita Major, born in 1963, filed a similar declaration. Another witness declared that at the decedent’s funeral, appellant had stated he had met the decedent only a few times in his life.
At the hearing, the court stated that the dispositive question was appellant’s claim of heirship, because if not an heir he would not have been entitled to notice. The disputed issue was whether appellant had “lived with” the decedent “at any time,” as prescribed in section 6451, subdivision (a)(1). The court stated, “I think I may be in a position to decide the case almost as if it were a legal question, not a factual one,” by treating appellant’s supplementary declaration as true. However, the court also expressed concern about appellant’s having changed his testimony.
After submitting the matter, the court denied appellant’s motion, ruling that even if appellant’s declaration were taken as true, “it can not [sic] be concluded that he live[d] together with the decedent at any time as parent and child, their relationship being more of a temporary visitation.” Appellant filed notices of appeal from this order, and also from the order for final distribution.
DISCUSSION
The parties raise certain issues of appealability and scope of review. First, respondent argues that the minute order that denied appellant’s motion to vacate is not an appealable order. Respondent relies on cases denying appealability to minute orders under certain circumstances. But it is generally recognized that a minute order that constitutes the final disposition of a matter, and does not call for a further, written order, is appealable. (E.g., In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410.) The present order so qualifies.
The parties also dispute the scope of appellate review. The trial court ruled that, even if true, appellant’s version of the facts did not satisfy section 6451’s criterion of “living together.” Appellant contends this was a legal not a factual decision, and should be reviewed de novo. Respondent counters that because the underlying facts were heavily disputed, the decision should be reviewed either for substantial evidence or under the abuse of discretion standard generally applicable to motions under Code of Civil Procedure section 473.
Regarding present review, appellant is correct. The court in effect sustained a demurrer to appellant’s evidence, without considering the administrator’s. The court did not resolve factual conflicts, or make credibility determinations. Its ruling stemmed from application of the law, as the court construed it, to an assumed set of facts. We review this ruling de novo. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (Rutter 2007) ¶ 8:114, p. 8-65.) On the other hand, a ruling that the trial court erred in holding appellant’s testimony legally inadequate would not dispose of the case, but would require that the trial court for the first time resolve the parties’ conflicting evidence.
Appellant basically complains that he was not given notice of hearing of the petition for final distribution of the estate. There is no indication that he was. The issue, as posed by both sides, is whether such notice to appellant was required.
The Probate Code requires that written notice of a petition for distribution be given, as here relevant, to “Each known heir whose interest in the estate would be affected by the petition.” (§ 11601, subd. (b).) For intestate estates, known heirs are defined for purposes of notice as “the heirs named in the petition for letters of administration and . . . any additional heirs who become known to the person giving the notice prior to the giving of the notice.” (§ 1206, subd. (a)(1).) The question therefore devolves to whether appellant was an heir of his natural father’s estate. That is the issue on which appellant’s motion was decided below
We note preliminarily that this case differs from Estate of Carter (2003) 111 Cal.App.4th 1139, on which appellant relies. Carter affirmed the setting aside of a final distribution, on motion of two illegitimate children of the deceased who alleged heirship, but had not been served with the initial petition for administration. The court held that these possible heirs should have been so served under section 8110, subdivision (a), which requires service of a petition for administration upon “Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner.” The court applied a standard calling for notice to possible heirs of whom the administrator knew. Appellant seeks to invoke the same standard. But it is inapplicable to notice of a petition for final distribution, as opposed to the initiation of administration. The governing statutory language is different. Moreover here, unlike Carter, appellant was served with the petition for administration, and had an opportunity to advance his claim.
Turning to the question of heirship, section 6451 is derived from former section 6408, first enacted in 1983. That statute afforded an avenue for certain adopted children to inherit from an intestate natural parent. Until then, adopted children could not do so, when the parent-child relationship had been “severed by adoption.” (Former § 257.) But as presently phrased in section 6451, the necessary parent-child relationship persists if the adoption is by the spouse of either natural parent, and the intestate natural parent and the child “lived together at any time as parent and child.” (§ 6451, (a)(1) (ante, fn. 1); see Estate of Dye (2001) 92 Cal.App.4th 966, 971-972.)
The issue before the trial court was thus whether, assuming the truth of appellant’s testimony, appellant and the decedent had lived together as parent and child. In enacting this qualification, along with adoption by a natural parent’s spouse, the Legislature granted heirship to adopted children who had undergone close connections with the natural parents. The court here concluded that the intermittent nature of appellant’s staying with the decedent did not qualify as “living together at any time as paremt amd child.”
We do not agree. According to appellant’s declaration, during appellant’s early years the decedent frequently took him to stay with the decedent and his family for periods of several days to two weeks, averaging a week or more per month. The extent and consistency of this relationship resemble a post-dissolution arrangement for either joint custody or at least sole physical custody with “‘liberal visitation.’” (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 715.) Both of these arrangements are meant to further the parent-child relationship (Fam. Code, § 3020, subd. (b)), and the trial court’s treatment of visitation as a disqualifying circumstance was unwarranted. Rather, proof that appellant experienced the extent of residing with the decedent to which he testified would encompass the “living together” prescribed and called for by section 6541.
Because the denial of appellant’s motion to vacate stemmed from an incorrect assessment of appellant’s evidence, that denial must be reversed. On remand, the issue of whether appellant is an heir should be decided based on the evidence presented by both parties. If it determines that appellant was an heir, and thus entitled to notice of the petition for final distribution, the court should then decide any other question relevant to whether the distribution order should be vacated. To allow for orderly determination, that order also will be reversed.
DISPOSITION
The orders under review are reversed, and the matter is remanded for further proceedings in accordance with this decision. Appellant shall recover costs.
We concur: RUBIN, J., FLIER, J.