on the issue of Joshua’s intervention, two judges of the court of appeals agreed with the lead opinion, two judges concurred with the result, and two judges dissented
How later courts described this case
- on the issue of Joshua’s intervention, two judges of the court of appeals agreed with the lead opinion, two judges concurred with the result, and two judges dissented
Written by the judges who cited it.
The opinion
OHN B. ROBBINS, Chief Judge, concurring. While I concur with the majority’s disposition of this appeal, I disagree with its rationale in disposing of appellants’ first issue, i.e., whether the probate court erred in approving the wrongful-death settlement because it did not provide for Joshua. Joshua contended that he was a biological child of the decedent and was entitled to participate in the wrongful-death proceeding inasmuch as “children” are included as beneficiaries under the wrongful-death statute.
The majority cited Standridge v. Standridge, 304 Ark. 364 , 803 S.W.2d 496 (1991), as authority for the proposition that the probate court has the power to decide who the beneficiaries are in a wrongful-death action, but then held that the burden was on Joshua to prove that he was the son of the decedent, and thus a beneficiary. The majority concluded that, because Joshua had failed to do so, the probate court did not err in approving the settlement without Joshua’s involvement, even though the trial court did so on the mistaken basis that Ark. Code Ann. § 28-9-209 (d) (1987), pertaining to heirship rights of illegitimate children, was applicable.
Although I agree that section 28-9-209(d) is inapplicable to the determination of beneficiary status in a wrongful-death proceeding, I disagree that the probate court had jurisdiction to adjudicate Joshua’s paternity. While Standridge v. Standridge, supra, pertained to a determination of beneficiary status in a wrongful-death proceeding, it did not involve paternity. The beneficiary categories in contention there were “surviving spouse” and “persons to whom the deceased stood in loco parentis.” Consequently, I submit that Standridge is not authority for probate court jurisdiction to determine paternity. Arkansas Code Annotated section 9-10-101(a)(l) (Repl. 1998) provides that “chancery court shall have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity” (emphasis added); and Ark. Code Ann. § 16-13-304 (b) (Supp. 1999) provides as follows:
Notwithstanding the provision of the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity. (Emphasis added.)
Our supreme court has had occasion to compare the subject-matter jurisdiction of the probate court and the chancery court in the area of paternity determinations, In re: Estate of F.C., 321 Ark. 191 , 900 S.W.2d 200 (1995), and made this observation:
The probate court has jurisdiction over the administration, setdement, and distribution of estates of decedents and the determination of heirship. See Ark. Code Ann. § 28-1-104 (1987). Chancery court, however, has concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity. Ark. Code Ann. § 9-10-101 (Repl 1993); Ark. Code Ann. § 16-13-304 (b) (Repl. 1994); Ark. Const, amend. 67. In the instant case, the sole purpose of the action is to establish paternity. Consequently, the probate court was without jurisdiction to hear the matter.
Id. at 193 , 900 S.W.2d at 201 .
Consequently, in the case now before us, inasmuch as Joshua’s paternity had not been adjudicated prior to his seeking to intervene in the wrongful-death proceeding, and because the probate court lacked jurisdiction to make a paternity determination, there was no error committed in dismissing Joshua’s motion to intervene.
ROAF, J., joins in this opinion.