The opinion
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SUPREME COURT OF ARKANSAS
No. CV-13-623
CARMELLA BELL Opinion Delivered FEBRUARY 20, 2014
APPELLANT
APPEAL FROM THE WHITE
V. COUNTY CIRCUIT COURT
[NO. PR-2012-34-1]
LANA EAGLE MCDONALD HONORABLE THOMAS HUGHES,
APPELLEE JUDGE
AFFIRMED.
CLIFF HOOFMAN, Associate Justice
Appellant Carmella Bell appeals from the circuit court’s dismissal with prejudice of her
petition to inherit from the Estate of Carl McDonald as a pretermitted child. On appeal,
appellant argues (1) that the circuit court erred in finding that she did not meet the statutory
requirements to inherit as an illegitimate child under Ark. Code Ann. § 28-9-209(d) and in
dismissing her petition on this basis; and (2) that the circuit court’s interpretation and
application of the statute violated her rights to due process and equal protection under the
United States Constitution. We assumed jurisdiction of this case pursuant to Ark. R. Sup.
Ct. 1-2(b)(3), (5), and (6), as it involves issues of statutory and federal constitutional
interpretation. We affirm.
Carl F. McDonald died on November 30, 2011, and the personal representative of his
estate, appellee Lana Eagle McDonald, filed a petition to probate his will on February 14,
2012. The will, which was dated February 2, 2010, made no mention of appellant and stated
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that the decedent had no children or other descendants. All of the decedent’s property was
devised to his sister, Rachael Phillips.
On February 27, 2012, and March 1, 2012, appellant filed identical pro se notices of
her intent to contest the will, alleging that she was the decedent’s sole child and heir. On
May 24, 2012, after retaining counsel, appellant filed a Petition of Pretermitted Child to
Receive Distribution, a Petition for Contest of the Will, and a Demand for Notice of
Proceedings. The petition to receive distribution claimed that appellant was the pretermitted
child of the decedent, that she was entitled to receive all of his estate as his sole heir, and that
she was asserting her claim against his estate within 180 days of his death as required under
Ark. Code Ann. § 28-9-209(d).
On June 4, 2012, appellee filed a motion to dismiss appellant’s petition to receive
distribution as a pretermitted child, asserting that appellant was not a child of the decedent and
that she was not entitled to inherit from the decedent’s estate because she did not timely
comply with the requirements of Ark. Code Ann. § 28-9-209(d). Specifically, appellee
alleged that appellant failed to file an action or claim against the estate and to establish her
paternity within the 180-day period required under the statute. Appellee noted that
appellant’s mother, Regina Wingard, had recently filed a motion to establish paternity in a
separate division of the White County Circuit Court, and appellee attached a copy of this
motion as an exhibit.1 Wingard asserted in that motion that appellant was actually the
1
This motion to establish paternity has a certificate of service on appellee that is dated
May 21, 2012, although there is no file stamp to indicate when and if it was filed with the
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decedent’s child, although appellant had been presumed to be the legitimate child of Wingard
and her ex-husband, Paul McDonald, who was also the decedent’s brother, because Wingard
and Paul McDonald had been married at the time of appellant’s birth. Wingard requested that
scientific paternity testing be conducted to formally establish paternity of appellant.
In response to appellee’s motion to dismiss, appellant argued that she had filed her
petition to receive distribution, which she asserted was a claim against the decedent’s estate,
within the 180-day time period required by the statute. Appellant further asserted that her
mother had commenced a paternity action on or about May 21, 2012, and that the conditions
listed in Ark. Code Ann. § 28-9-209(d)(1)–(6) do not have to be satisfied within 180 days of
the decedent’s death. Appellant argued that it was unreasonable to require that a paternity
action be completed within 180 days and that the additional burden that would be placed on
an illegitimate child from this interpretation of the statute would be a violation of her
constitutional rights to due process and equal protection.
After a hearing was held on appellee’s motion to dismiss, the circuit court entered an
order on March 28, 2013, dismissing appellant’s petition with prejudice due to her failure to
comply with Ark. Code Ann. § 28-9-209(d). The court rejected appellant’s interpretation
of the statute and found that appellant had failed to satisfy any of the conditions set forth in
section 28-9-209(d)(1)–(6) within 180 days of the decedent’s death. The court also rejected
appellant’s constitutional argument that this construction of the statute violated her rights to
circuit court.
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due process and equal protection. The court further found that appellant’s petition to receive
distribution did not constitute an action commenced or claim asserted against the estate.
Appellant filed a timely notice of appeal from the circuit court’s order.
On appeal, appellant argues that the circuit court erred in finding that she did not meet
the statutory requirements to inherit as an illegitimate child and in dismissing her claim against
the estate with prejudice. When reviewing a circuit court’s decision on a motion to dismiss
for failure to state a claim pursuant to Ark. R. Civ. P. 12(b)(6), we treat the pleadings and the
allegations in the complaint as true and view them in the light most favorable to the plaintiff.
Fitzgiven v. Dorey, 2013 Ark. 346, ___ S.W.3d ___. Although we review probate proceedings
de novo, we do not reverse the circuit court’s findings unless they are clearly erroneous.
Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005). We also review issues of
statutory interpretation de novo and are not bound by the circuit court’s interpretation of a
statute. Id. However, in the absence of a showing that the circuit court erred, its
interpretation will be accepted as correct on appeal. Id.
The primary issue in this appeal is the interpretation of Ark. Code Ann. § 28-9-209(d)
(Repl. 2012), which is set forth below:
(d) An illegitimate child or his or her descendants may inherit real or personal property
in the same manner as a legitimate child from the child's mother or her blood kindred.
The child may inherit real or personal property from his or her father or from his or
her father's blood kindred, provided that at least one (1) of the following conditions
is satisfied and an action is commenced or claim asserted against the estate of the father
in a court of competent jurisdiction within one hundred eighty (180) days of the death
of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has
determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this
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section;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man's name appears with his written consent on the birth certificate as the
father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth
of the child by a marriage solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid; or
(6) The putative father is obligated to support the child under a written voluntary
promise or by court order.
The cardinal rule of statutory construction is to give effect to the intent of the
legislature. Burns, supra. We construe the statute just as it reads, giving the words their
ordinary and usually accepted meaning in common language. Id. When the language of a
statute is plain and unambiguous and conveys a clear and definite meaning, there is no need
to resort to rules of statutory interpretation. Id.
Appellant first argues that the circuit court erred in finding that her petition to receive
distribution as a pretermitted child did not qualify as a timely “action commenced” or “claim
asserted” against the decedent’s estate under section 28-9-209(d). She contends that her
petition clearly asserted a claim against the estate by asserting her right to inherit from the
decedent, that it was filed with a court of competent jurisdiction that was handling the
probate matter, and that the petition was filed within 180 days of the decedent’s death. We
need not address the merits of this particular contention, however, because we find our
decision on appellant’s next argument to be dispositive of her first point on appeal.
Appellant next contends that the circuit court erred in interpreting the statute to
require that not only must an action be commenced or a claim asserted within 180 days of a
decedent’s death, one of the six conditions listed in subsection (d) must also be completed
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within that time period. According to appellant, the 180-day time limitation contained in
subsection (d) applies only to the filing of a claim or commencement of an action, not to the
requirement in the statute that at least one of the conditions be satisfied. As support for this
argument, appellant submits that five out of the six conditions require compliance prior to the
father’s death and that there would be no reason for the legislature to apply the 180-day time
limitation to these conditions. Further, with regard to subsection (d)(1), which was the only
condition that appellant claimed to be satisfied in this case, appellant asserts that her mother
commenced a paternity action in a court of competent jurisdiction within the 180-day time
period and argues that a litigant has little control over the completion of such an action.
Thus, she contends that the circuit court erred in dismissing her petition while the paternity
action was pending.
With respect to appellant’s argument that the paternity action had been commenced,
if not concluded, within 180 days of the decedent’s death and that this was sufficient to
prevent dismissal of her petition, appellee correctly notes that the copy of the motion to
establish paternity filed by appellant’s mother that is included in the addendum and the record
is not file-marked by the circuit court. Appellee thus contends that appellant has failed to
demonstrate that a paternity action was in fact filed within the required time period in a court
of competent jurisdiction.
Regardless of whether appellant has shown that a paternity action was timely filed,
however, this court has previously interpreted section 28-9-209(d) as requiring that at least
one of the conditions listed in the subsection be satisfied within the 180-day time period. See
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Burns, supra. In Burns, an illegitimate child filed a petition for appointment of administrator
of his putative father’s estate. While this petition was filed within 180 days, this court held
that the petition did not constitute an action commenced or claim asserted against the estate
because he had never been determined a legitimate heir of the decedent. Id. at 284, 219
S.W.3d at 137. We also addressed Burns’s second point on appeal, which was virtually
identical to appellant’s argument in this case, that he was not required to satisfy one of the six
conditions set out in section 28-9-209(d) within 180 days. Id. We rejected Burns’s argument,
stating that the plain language of the statute indicated that both requirements, the filing of the
claim and the satisfaction of one of the conditions, must be satisfied within the 180-day time
frame. Id. at 285, 219 S.W.3d at 138.
Appellant contends that this court is not bound by our holding in Burns, supra, because
the portion of the opinion where we address whether the statutory conditions are subject to
the 180-day limitation is merely dicta and is not controlling in this case. However, even if
appellant is correct in this contention, we find under a plain reading of the language in the
statute that one of the six conditions must have been satisfied and an action commenced or
a claim asserted against the estate prior to the expiration of the 180-day time period. We note
that five out of the six statutory conditions may only be satisfied prior to the putative father’s
death and that the remaining condition found in subsection (d)(1), on which appellant relies,
uses the past tense and states that “[a] court of competent jurisdiction has established the
paternity of the child . . . .” Ark. Code Ann. § 28-9-209(d)(1) (Repl. 2012) (emphasis
added). While appellant attempts to support her suggested interpretation of the statutory
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language by referring to other portions of the statute in an attempt to determine the
legislature’s intent, we will not search for legislative intent where the relevant language is plain
and unambiguous. McMillan v. Live Entm’t, Inc., 2012 Ark. 166, 401 S.W.3d 473.
Appellant cites to several other cases in an attempt to show that this court has only
applied the 180-day limitation to the filing of the claim or the commencement of the action,
and not to the conditions listed in subsection (d)(1)– (6). See In re Estate of Keathley, 367 Ark.
568, 242 S.W.3d 223 (2006); In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995);
Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988). However, none of these cited
cases directly addressed the issue of whether one of the six statutory conditions must be
satisfied prior to the expiration of 180 days. In fact, our decision in Boatman, supra, is contrary
to appellant’s suggested interpretation of the statute, as we stated in that case that Ark. Code
Ann. § 28-9-209 “is a statute creating a new right, and the right is created for only the 180
days.” Id. at 424, 743 S.W.2d at 802. Thus, the circuit court did not err in its interpretation
of the statute or in finding that appellant did not timely meet the statutory requirements, and
we affirm on this point.
In her second point on appeal, appellant argues that if the circuit court’s interpretation
of the statute as requiring completion of one of the six conditions within 180 days of the
death of the putative father is correct, then the dismissal of her claim with prejudice denies
her the protection guaranteed in the equal-protection and due-process clauses of the federal
constitution. She contends that this state’s probate scheme, including the statute in question,
places burdens on those attempting to inherit as illegitimate children that are not required of
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legitimate children.
We find no merit to appellant’s constitutional arguments. As appellee asserts, this court
has previously rejected an equal-protection argument with regard to this statute in Boatman,
supra. In Boatman, we upheld the constitutionality of Ark. Code Ann. § 28-9-209, stating that
“the Supreme Court has recognized that a statutory differentiation based solely on illegitimacy
can be justified by a state’s interests in preventing spurious claims against intestate estates, and
in the maintenance of a prompt and accurate method of distributing an intestate’s property.”
Id. at 423, 743 S.W.2d at 801 (citing Lalli v. Lalli, 439 U.S. 259 (1978)). We noted that in
Lalli, the Supreme Court upheld a statute that required an illegitimate child to assert a claim
during the lifetime of the father. Boatman, 294 Ark. at 423, 743 S.W.2d at 802. We therefore
held that our statute, which gives an illegitimate child 180 days to make her claim, clearly
does not violate the equal-protection clause. Id.
Appellant recognizes this court’s holding in Boatman, but contends that, in the context
of this case, a requirement that an illegitimate child must start and conclude a paternity action
within 180 days of a putative father’s death, even if the administration of the estate is not yet
concluded, cannot be justified by any state interest. However, as appellee correctly points out
in her brief, appellant is not even authorized to file a paternity action on her own behalf under
Ark. Code Ann. § 9-10-104 (Repl. 2009) because she is a person for whom paternity is
presumed. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997). Thus, appellant cannot
argue that her equal-protection rights are violated by a requirement that she complete a
paternity action within 180 days when she had no right to bring the action at all under a
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different statute that is not challenged in this appeal.
With regard to her due-process claim, appellant similarly argues that an interpretation
of Ark. Code Ann. § 28-9-209(d) that requires an illegitimate child to have not only begun,
but also completed, a paternity suit within 180 days of the decedent’s death “creates
constitutional infirmities relating to due process.” However, as stated above, appellant has no
right to bring a paternity action in the first instance under the facts in this case; therefore, she
cannot show an infringement on her due-process rights from the circuit court’s interpretation
of the statute requiring her to have completed a paternity action within 180 days of the
decedent’s death. Thus, the circuit court did not err in dismissing appellant’s petition due to
her failure to satisfy the statutory requirements, and we affirm.
Affirmed.
BAKER and HART, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. The majority has clearly erred in
holding that Arkansas Code Annotated section 28-9-209(d) (Repl. 2012), bars Carmella Bell
from inheriting from the Estate of Carl McDonald. By its plain wording, section 28-9-209(d)
applies only to “illegitimate” children. As the majority notes, Ms. Bell was born while her
mother, Regina Wingard, was married to Paul McDonald. Arkansas Code Annotated section
28-9-209(a)(2) states: “(2) A child born or conceived during a marriage is presumed to be the
legitimate child of both spouses for the same purposes.” Accordingly, Ms. Bell was not an
illegitimate child.
Not only has the majority failed to acknowledge that this section is inapplicable, it has,
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lamentably, also endorsed a patently wrong construction of section 28-9-209(d), first
promulgated in Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005), to cut off Ms.
Bell’s bid to inherit from a man who, if proven to be her biological father, had never
supported her. Section 28-9-209(d) states as follows:
(d) An illegitimate child or his or her descendants may inherit real or personal property
in the same manner as a legitimate child from the child's mother or her blood kindred.
The child may inherit real or personal property from his or her father or from his or
her father's blood kindred, provided that at least one (1) of the following conditions
is satisfied and an action is commenced or claim asserted against the estate of the father
in a court of competent jurisdiction within one hundred eighty (180) days of the death
of the father:
(1) A court of competent jurisdiction has established the paternity of the child or has
determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this
section;
(2) The man has made a written acknowledgment that he is the father of the child;
(3) The man’s name appears with his written consent on the birth certificate as the
father of the child;
(4) The mother and father intermarry prior to the birth of the child;
(5) The mother and putative father attempted to marry each other prior to the birth
of the child by a marriage solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid; or
(6) The putative father is obligated to support the child under a written voluntary
promise or by court order.
The Burns court interpreted the phrase “within one hundred eighty (180) days of the
death of the father” to not only modify the time within which an action or claim against the
estate must be initiated, but also to set temporal parameters for satisfying at least one of six
conditions. The apparent myopia of the Burns court—and today’s majority—comes from the
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fact that only one of the conditions may possibly accrue after the death of the father.
However, if the 180-day limitation applies to the first condition, it must also apply to the
other five conditions. Not only does the majority’s interpretation violate the rules of grammar
regarding independent clauses, it also defies logic and the rules of statutory construction.
Because this proposition is obviously untenable, it shows that the majority’s interpretation of
the statute is misguided. I cannot ignore that the Burns court denied the right to inherit to
a child who did have a DNA test that showed he was 99.9% likely the biological child of the
decedent.
Further, I cannot agree with the majority’s analysis of Ms. Bell’s second point wherein
she asserts that she was denied due process. The majority disposes of Ms. Bell’s constitutional
arguments relating to section 28-9-209 by citing yet another statute, Arkansas Code
Annotated section 9-10-104 (Repl. 2009), for the proposition that Ms. Bell is not authorized
to file a paternity action on her own behalf. In doing so, the majority fails to address whether
the latter statute, by not expressly authorizing a presumptively legitimate child to be a party
who may bring a paternity action, suffers from similar equal protection or due process
infirmities. Thus the majority, by answering one constitutional argument by citing to another
statute, fails to address the core constitutional claims raised by Ms. Bell.
The purpose behind the Due Process Clause is to guarantee a litigant access to enough
legal process to secure justice under the law. I cannot agree with the majority when it states
that Ms. Bell’s right to due process has not been violated because she had no right to bring
a paternity action. In my opinion, such a pronouncement offends both logic and justice.
I respectfully dissent.
BAKER, J., joins.
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Hyden, Miron & Foster, PLC, by: Shaneen Sloan and Guy W. Murphy, Jr., for appellant.
Steven B. Jordan, P.A., by: Steven B. Jordan, for appellee.
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