Nielsen Tyler v. Armstrong

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

4-14-2004

Nielsen Tyler v. Armstrong
Precedential or Non-Precedential: Precedential

Docket No. 02-3961

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 PRECEDENTIAL Rhonda Hospedales, Esq.
Nichols, Newman, Logan & D’Eramo
IN THE UNITED STATES COURT OF 1131 King Street - Suite 204
APPEALS Christiansted, St. Croix
FOR THE THIRD CIRCUIT USVI 00820-4971
Attorney for Appellee

NO. 02-3961

OPINION OF THE COURT
BEATRICE A. NIELSEN TYLER
Appellant

v.
STAPLETON, Circuit Judge:
LOUIS ARMSTRONG, AS Beatrice Nielsen Tyler (“Tyler”) filed a
ADMINISTRATOR OF THE “Petition for Legitimization” in the
ESTATE OF FELIX FRANCIS Territorial Court of the Virgin Islands
seeking to establish that she had been
legitimated pursuant to 16 V.I.C. § 462 by
On Appeal From the District Court of the her then-deceased putative father, Felix
Virgin Islands Alexander Francis (“Francis”). The
(D.C. Civil Action No. 00-cv-00128) Territorial Court granted a motion to
District Judge: Hon. Thomas K. Moore dismiss, holding that Tyler could not state
District Judge: Hon. Stanley S. Brotman a claim upon which relief may be granted
Territorial Judge: Hon. Brenda J. Hollar because, inter alia, § 462 was repealed
prior to the date on which she filed her
petition. The Appellate Division affirmed.
Submitted Pursuant to Third Circuit LAR We will reverse and remand.
34.1(a)
I. Factual and Procedural Background
December 8, 2003
A. The Facts As Alleged by Appellant
BEFORE: NYGAARD, BECKER and
Tyler was born on September 28, 1947
STAPLETON, Circuit Judges
to Alice M aria Smith Nielsen, who was
legally married to Heinrich Nielsen. Tyler
(Opinion Filed April 14, 2004)
alleges that her natural father was in fact
Francis. Tyler first became aware that
Eszart A. Wynter, Esq.
Francis was her biological father at the age
17 Estate Whim, P.O. Box 1847
of seven in 1954. Francis acknowledged
Frederiksted, St. Croix
Tyler as his biological daughter to at least
USVI 00841-1847
six individuals at different times in his life.
Attorney for Appellant
Some of these acknowledgments occurred to financially support Tyler. Upon her
before his marriage to Beryl Francis, while return to St. Croix in 1977, Francis
others were subsequent. 1 assisted Tyler by getting her an apartment
and supporting her financially during her
Tyler alleges that she enjoyed an open
transition. In 1989, Francis deeded a
and loving father/daughter relationship
house to Tyler out of love and affection for
with Francis. She frequently visited
Tyler and her son.
Francis’s house, and often spent time with
Francis and her biological grandmother, Francis attended various special events
Josephine Francis. Francis provided in the life of Tyler’s son, Marcus Tyler
financial assistance to support Tyler, and (his putative grandson). During the final
paid for her primary education. Upon days of his life, Francis promised to make
Tyler’s graduation from high school, changes to his bank account so that
Francis gave her a card containing Marcus Tyler would be able to attend
$500.00. While Tyler attended college, college and so that Tyler would not have to
Francis maintained contact and continued struggle financially. Francis died on
December 21, 1999.

1 At funeral services for Francis, his son,
Tyler’s petition indicates that Francis
Fitzgerald Francis, informed Tyler that his
spoke to some individuals regarding his
father told him that she was his sister.
paternity “before his marriage to Beryl
Francis” and “other [individuals] he spoke B. Procedural Background
to subsequent.” App. at 20. The petition
Tyler filed a petition for legitimation on
is ambiguous as to whether Francis spoke
or about May 18, 2000 under 16 V.I.C. §
to these other individuals after he was
462 in the Territorial Court, seeking a
married (which would have therefore
decree that Tyler is the legal daughter of
triggered the spousal consent requirement
Francis. 2 Louis Ar mstr ong, a s
of 16 V.I.C. § 462, discussed infra) or
after he was no longer married (because he
was a widower, therefore making the
2
spousal consent requirement inapplicable). Prior to 1998, Section 462 had
At least one of the affidavits submitted by provided:
Tyler suggests that Francis spoke to this The father of an illegitimate
latter category of people after his wife had c h i l d , b y p ub l i c ly
died. See Affidavit of Rev. Kenneth acknowledging it as his
Gaddy C. Ss. R., App. at 48. As we are own, receiving it as such,
reviewing the Territorial C ourt’s with the consent of his wife,
disposition of a motion to dismiss, we if he is married, into his
presume that Tyler alleges that Francis fa m ily, and otherw ise
spoke to these other individuals after he treating it as if it were a
was no longer married. legitimate child, thereby

2
Administrator of the Estate of Felix V.I.C. § 293(a). 4
Francis, filed a motion to dismiss.
Tyler appealed the Territorial Court’s
The Territorial Court granted the motion decision to the Appellate Division of the
to dismiss, noting, sua sponte, that § 462 District Court (“Appellate Division”), and
had been repealed in 1998. It further noted argued that the application of the Paternity
that the legislature had simultaneously Statute to her (as opposed to § 462)
amended the statute authorizing paternity brought about a wrongful taking and
suits to provide that a father’s public deprivation of her vested inheritance rights
acknowledgment of a child “provides and violated her Due Process rights. The
evidence of paternity.” See 16 V.I.C. § Appellate Division affirmed the Territorial
295(a) (the “Paternity Statute”). 3 The Court on two grounds. First, the Appellate
Territorial Court apparently interpreted
this to mean that, after 1998, the Paternity
4
Statute was the exclusive means of 16 V.I.C. § 293(a), in pertinent part,
accomplishing what Tyler sought to provides:
accomplish. Because Tyler was not among
the classes authorized to bring an action Proceedings under this chapter
under the Paternity Statute, the Territorial may be instituted by (1) any
Court dismissed her petition. See 16 female resident of the Virgin
Islands who has delivered an
out-of-wedlock child or by (2)
any male resident of the Virgin
adopts it as such; and Islands who is alleging to be the
such child is father of an out-of-wedlock
thereupon deemed child, or (3) any legal custodian
for all purposes of an out-of-wedlock child.
legitimate from the Proceedings herein can be
time of its birth. instituted at any time before a
child’s eighteenth birthday,
3
16 V.I.C. § 295(a), as amended in including any child for whom a
1998, provides: paternity action was previously
dismissed under a statute of
The deceased father of a child limitations of less than eighteen
born out-of-wedlock, by having (18) years. . . .
acknowledged the child as his
own, or having received the child The Territorial Court noted that Tyler is
into his family and otherwise over the age of 18 and is not the parent of
having treated it as if it were a a minor child, thereby making her not
legitimate child, thereby provides within the classes authorized to bring suit
evidence of paternity. under § 293(a).

3
Division agreed with the Territorial Court Properties Inc. v. Government of U.S.
that Tyler could not bring an action under Virgin Islands, 299 F.3d 207, 210 (3d Cir.
§ 295 because she was not within the class 2002); Parrott, 230 F.3d at 618;
of persons entitled to bring such an action Government of Virgin Islands v. United
under § 293(a). Second, the Appellate Indus. Workers, N.A., 169 F.3d 172, 175
Division determined that Tyler’s argument (3d Cir. 1999).
that § 462 should have been applied to her
In reviewing the Appellate Division’s
was “totally without merit” because “[t]he
orders, this Court “should review the trial
changes made to Title 16 of the Virgin
court’s determination using the same
Islands Code in 1998 have no bearing on
standard of review applied by the first
whatever inheritance rights Tyler may
appellate tribunal.” Semper v. Santos, 845
claim to have against the estate of her
F.2d 1233, 1235 (3d Cir. 1988);
alleged biological father, Felix A. Francis.
Government of Virgin Islands v. Albert,
Indeed, Tyler’s claim of heirship is
241 F.3d 344, 347 n.3 (3d Cir. 2001)
currently pending in the separate probate
(same); see also Government of Virgin
proceeding, which is not before us.” App.
Islands v. Marsham, 293 F.3d 114, 117 (3d
Div. Op. at 5.
Cir. 2002) (“We review the Appellate
Tyler appealed the decision of the Division’s statutory interpretation de
Appellate Division to this Court, and again novo.”); BA Properties Inc., 299 F.3d at
argues, inter alia, that the failure to apply 212 (same).
§ 462 to her resulted in the denial of her
In reviewing the grant of a motion to
right to Due Process and an unjust taking
dismiss for failure to state a claim, an
of her vested rights.
appellate court’s review of the trial court is
II. Jurisdiction and Standard of Review de novo. See Worldcom, Inc. v. Graphnet,
Inc., 343 F.3d 651, 653 (3d Cir. 2003).
The Territorial Court had jurisdiction to
“We accept all well pleaded factual
entertain the Petition under 4 V.I.C. § 76.
allegations as true and draw all reasonable
See In re Baby Girl Lake, 33 V.I. 66, *6
inferences from such allegations in favor
(V.I. Terr. Ct. 1995); In re Williams, 16
of the complainant.” Id. (citing Weston v.
V.I. 529, 530 n.1 (V.I. Terr. Ct. 1979).
Pennsylvania, 251 F.3d 420, 425 (3d
The Appellate Division had jurisdiction to
Cir.2001)). “Dismissal for failure to state
review a judgment of the Territorial Court
a claim is appropriate only if it ‘appears
under both local law, 4 V.I.C. § 33, and
beyond doubt that plaintiff can prove no
the Revised Organic Act, 48 U.S.C. §
set of facts in support of his claim which
1613a(a). See Parrott v. Government of
would entitle him to relief.’ ” Id. (quoting
Virgin Islands, 230 F.3d 615, 618 (3d Cir.
Conley v. Gibson, 355 U.S. 41, 45-46
2000). We have jurisdiction to review
(1957)).
final orders of the Appellate Division
under 48 U.S.C. § 1613a(c). See, e.g., BA

4
 III. The § 462 Claim purpose.
Prior to 1998, 16 V.I.C. § 462 (entitled The basis for the Appellate Division’s
“Legitimation by acknowledgment”) disposition of this claim is not altogether
provided: clear to us. At one point, it seems to
suggest tha t the 1998 statutory
The father of an illegitimate child, by
amendments have “no bearing on whatever
publicly acknowledging it as his own,
inheritance rights Tyler may claim to
receiving it as such, with the consent
have” and that she may assert those rights
of his wife, if he is married, into his
in a pe nding “sep arate pr o b a te
family, and otherwise treating it as if
proceeding.” App. Div. Op. at 5. At the
it were a legitimate child, thereby
same time, the “Conclusion” of its opinion
adopts it as such; and such child is
states that “Tyler lacks the standing to
thereupon deemed for all purposes
pursue her allegations under the law as it
legitimate from the time of its birth.
was amended and revised in May, 1998”
Id. Section 462 was repealed in 1998. See and it affirms the Territorial Court’s order
1998 V.I. Sess. Laws 6228 § 18, at 318 dismissing the Petition without expressly
(repealing Title 16, Chapter 15 of the preserving Tyler’s right to press her § 462
Virgin Islands Code). claim elsewhere. Id. The Appellate
Division further commented in a footnote
Tyler’s most serious challenge on
that an “illegitimate child’s right to share
appeal is her claim that Francis had
in the . . . estate is governed by 15 V.I.C. §
satisfied all of the requirements for
84(13).” Id. at 5 n.3. That section
legitimation under § 462, and Tyler had
provides:
accordingly been legitimated thereunder,
prior to the repeal of § 462.5 As a result, An illegitimate child shall be
she insists that she must be “deemed for all considered to have the same status,
purposes legitimate from the time of [her] for the purpose of the descent and
birth.” Intestate distribution is one such distribution of the property of his or
her ancestors, as if he or she were
born in lawful wedlock provided that
5 in cases where the ancestor in
We agree with the Territorial Court
question is a father, he admitted of
that Tyler is not among those listed in 16
record paternity of such child by
V.I.C. § 293(a) as being authorized to
signing the official birth certificate;
bring a paternity suit under 16 V.I.C. §
or he was adjudged the father of such
295. As we explain hereafter, however, 16
child by a court of competent
V.I.C. § 462, prior to 1998, was an
j u ri s d i c t i o n ; o r b y w r i t t e n
alternative remedy independent of the
acknowledgment he recognized such
availability of paternity proceedings under
child as his.
Title 16, Chapter 11 of the Virgin Islands
Code.

5
15 V.I.C. § 84(13). jurisdiction is to be construed to mean
what the highest court of the jurisdiction
We conclude that Tyler is entitled to
from which it was taken had, prior to its
have the merits of her § 462 claim
enactment in the Virgin Islands, construed
adjudicated by the Territorial Court.
it to mean.”) (footnote omitted).
Because we are concerned that the
presently outstanding judgment might California’s Court of Appeal has
preclude her from doing so, we will explained the purpose behind § 230 as
reverse and remand for further proceedings follows:
consistent with this opinion.
Thus, section 230, in providing that
A. The Virgin Islands Statutory Scheme the father of an illegitimate child
Prior to 1998 adopts his offspring by publicly
acknowledging it as his own, uses
Section 462, on its face, is self-
the term “adopts” in the sense of
executing. If the putative father acts to
“legitimates” and the effect of the
acknowledge his paternity in a certain
father’s act “. . . is to change the
manner, the child is deemed to be
status and capacity of an illegitimate
legitimate without the necessity of a
child to the status and capacity of a
judicial proceeding. That this literal
child born in Lawful wedlock.” In re
reading was the intended one is confirmed
Navarro, [175 P.2d 896, 898 (Cal.
by the legislative history of § 462 and the
Dist. Ct. App. 1946)]; Blythe v.
Virgin Islands case law.
Ayres, [31 P. 915, 916 (Cal. 1892)].
The Revision Note for § 462 in the
The purpose of the code section is
Virgin Islands Code indicated that § 462
to permit the father to make
was based upon § 230 of the Civil Code of
reparation to the child by taking it
California, which has since been repealed.
into his home without the publicity
See 1975 Cal. Repealed Stat. 1244 § 8, at
which would be incidental to a
3196. The Virgin Islands Territorial Court
judicial proceeding of adoption. As
has recognized this history and has
stated by the code commissioners,
interpreted § 462 by reference to cases
the publicity of a judicial proceeding
interpreting the California statute. See In
(see [Cal.] Civil Code, § 221 et seq.)
re Williams, 16 V.I. 529, 532-33 (V.I.
would brand the child with the very
Terr. Ct. 1979) (“Section 462 is based on
stigma from which a repentant father
and is virtually identical to section 230 of
would desire to save it.
the Civil Code of California. . . .
Consequently, the court turns to the cases Darwin v. Ganger, 344 P.2d 353, 358
interpreting the California statute because (Cal. Dist. Ct. App. 1959). According to
in the Virgin Islands the language of a Darwin, California therefore provided for
Virgin Islands statute which has been two methods of legitimation: “judicial
taken from the statutes of another proceedings” under one section of the

6
California Civil Code or “a course of accident that California’s § 230 (or the
conduct” under § 230. Id. Virgin Islands’s § 462) made no mention
of judicial proceedings being necessary to
The Virgin Islands had a similar
procure any right under that statute.
legislative scheme. As recognized in In re
Section 462 provided a means by which a
Baby Girl Lake, 33 V.I. 66 (V.I. Terr. Ct.
child will be “deemed for all purposes
1995):
legitimate from the time of its birth” once
In the Virgin Islands, an a certain course of conduct had been met
illegitimate child can be legitimized by the putative father.
in four ways: by pub lic
We think it clear that if § 462 had not
acknowledgment of the child by the
been repealed and Tyler were able to
father (V.I. Code Ann. tit. 16, § 462
establish that Francis acknowledged her in
(1964)); by the father signing a
the required manner, she would be deemed
notarized affidavit acknowledging
his legitimate child and would participate
paternity (V.I. Code Ann. tit. 19, §
as such in the distribution of intestate
832 (1976)); by a court order
assets under 15 V.I.C. § 84.
establishing paternity upon the
petition of the mother or the father Contrary to the suggestion of the
(V.I. Code Ann. tit. 16, §§ 291-303 Territorial Court, the Paternity Statute
(1964 & Supp. 1995)); or by the would not have foreclosed Tyler because §
marriage of the parents (V.I. Code 462 and paternity proceedings under Title
Ann. tit. 16, § 461 (1964)). 16, Chapter 11 of the Virgin Islands Code
were alternative remedies prior to 1998.
Id. at *6-*7.
Contrary to the suggestion of the
In 1998, the Virgin Islands legislature
Appellate Division, 15 V.I.C. § 84(13)
repealed 16 V.I.C. §§ 461, 462. See 1998
would not have foreclosed Tyler because
V.I. Sess. Laws 6228 § 18, at 318. But the
that subsection applies only to an
very scheme discussed in Darwin,
“illegitimate child.” Other portions of §
whereby an individual could be
84 prescribe the inheritance rights of
legitimated through judicial paternity
legitimate children, including a child who
proceedings or through a course of
must be “deemed for all purposes
conduct by the putative father (saving both
legitimate” under § 462. As the California
the parent and child from the publicity of
Supreme Court has explained with respect
a judicial proceeding) was present in the
to their analogous statute, § 230, and a
Virgin Islands with respect to 16 V.I.C. §§
California probate statute providing for
291-303 and 16 V.I.C. § 462, respectively,
distribution to illegitimates, “the two
before the 1998 changes by the Virgin
sections provide alternate methods by
Islands legislature.
which a person may become the heir of his
Darwin therefore suggests that it was no father.” In re Garcia’s Estate, 210 P.2d

7
841, 842 (Ca. 1949). “A child who is headed, to take place, or for
‘deemed for all purposes legitimate’ legitimation from the time of birth of
cannot be regarded as still illegitimate for the child to take place, as stated in
some purposes, and a child who has the body of the section, the decedent,
become legitimate can no longer be during his lifetime, must have
regarded as an ‘illegitimate child.’” Id. acknowledged said child as his own
by doing all of three things: (a) he
The independence of § 462 from the
must have publicly acknowledged it
paternity proceedings authorized by § 295
as his natural child; (b) he must have
and referenced in § 84(13) is reflected in
received it as his natural child, with
the Virgin Islands case law. While § 462
the consent of his wife, if married,
was self-executing and legitimation
into his family; and (c) he must have
thereunder came solely as a result of the
otherwise treated claimant as if
conduct of the father, the Virgin Islands
claimant was a legitimate child.
courts found implicit authority in that
section for judicial proceedings seeking a ***
declaration that legitimation had indeed
By the most liberal construction
occurred. Such proceedings were regarded
of these grounds, individually or as a
by the Virgin Islands courts, however, to
whole, the Court can find no factual
be a remedy distinct from paternity
basis for a finding that decedent
proceedings. In In re Estate of Moolenaar,
received claimant as his natural
24 V.I. 234 (V.I. Terr. Ct. 1989), for
child, with the consent of his wife,
example, the petitioner sought to share in
into his family.
the intestate distribution of her putative
father’s assets. She asked that the court Moolenaar, 24 V.I. at 242.
adjudicate the paternity of her putative
B. The Effect of the Repeal of § 462 in
father so that she might share under §
1998
84(13) and, alternatively, that the estate
administrator be ordered to acknowledge We now turn to the issue of whether,
her earlier legitimation under § 462. The assuming Tyler could establish that the
court read § 84(13) and the then-current requirements of § 462 were met prior to
paternity statute as depriving it of 1998, the repeal of that statute rendered
jurisdiction to adjudicate the paternity of a her illegitimate again. We conclude that it
putative father after his death. This did not.
conclusion did not, however, dispose of
Section 50(a) of Title I of the Virgin
the petitioner’s § 462 claim, which the
Islands Code provides:
court disposed of on its merits:
The repeal of any Act, part of any
A careful analysis of § 462
Act, or provision of this Code does
indicates that for “legitimation by
not release or extinguish any right
acknowledgment,” as this section is

8
 acquired, or penalty, forfeiture, or natural child into his family, with the
liability incurred, under the Act, part, consent of his wife, during Tyler’s
or provision, and existing at the time lifetime. However, Appellant’s petition in
of the repeal, unless the repealing fact alleges that Francis acknowledged his
Act expressly so provides, and the paternity to some “before his marriage”
Act, part, or provision shall be and to others “subsequent” thereto. App.
treated as still remaining in force for at 20. It is true, as Appellee suggests, that
the purpose of sustaining any proper In re Estate of Moolenaar, 24 VI 234, 243
action or proceeding for the (V.I. Terr. Ct. 1989), indicated that
enforcement of the right, penalty, separation between a putative father and
forfeiture, or liability. his spouse would not waive the “consent
of his wife” requirement of § 462. But
The Act of the Virgin Islands
even accepting that principle, Tyler has
Legislature repealing § 462 does not
alleged that Francis acknowledged his
expressly provide that the rights of
paternity before he was married and after
children previously legitimated by their
his wife had died. At this stage, that is
father pursuant to that section are to be
sufficient.
released or extinguished. It follows, we
conclude, that if Tyler can satisfy the Armstrong further argues that Virgin
Territorial Court that the requirements of § Islands law does not permit Tyler to bring
462 were met prior to the repeal of that a legitimation action under § 462 after the
statute in 1998, she must be deemed to be death of her putative father. Armstrong’s
a legitimate child for all purposes only support for this proposition is In re
including the intestate distribution Estate of Moolenaar, 24 V.I. 234 (V.I.
provisions of 15 V.I.C. § 84. We, of Terr. Ct. 1989). As we have indicated,
course, express no opinion as to whether how ever, Moolenaar confined its
Tyler will be able to make such a showing. discussion of the posthumous availability
of relief under § 84(13) to that section
IV. Alternate Grounds for Affirmance
based on the statutory text of that section,
Armstrong asks us to affirm on two and specifically went on to consider the
alternate grounds, neither of which is merits of an illegitimate child’s claim
persuasive. Armstrong argues that Tyler under § 462 after the death of the child’s
never qualified for legitimation under § putative father. See id. at 241-43; see also
462 as a matter of law ostensibly because In re Baby Girl Lake, 33 V.I. 66, *8-*11
of that statute’s requirement that the (V.I. Terr. Ct. 1995) (considering on the
putative father have received the child merits a claim of legitimation under § 462
“with the consent of his wife, if he is after the death of the putative father while
married.” Armstrong argues that recognizing in another part of the opinion
Appellant’s petition reveals no allegation Moolenaar’s requirement that paternity be
that Francis received Appellant as his adjudicated prior to the putative father’s

9
death). Citing Baby Girl Lake and
Moolenaar, the Territorial Court in this
case recognized that the Virgin Islands has
allowed § 462 actions to be brought after
a putative father’s death, and we see no
basis for disturbing that conclusion.6
V. Conclusion
For the foregoing reasons, we will
reverse the judgment of the Appellate
Division and remand with instructions to
return this matter to the Territorial Court.
The Territorial Court will adjudicate
Tyler’s 16 V.I.C. § 462 claim in this
proceeding, in the pending probate
proceeding, or in a proceeding that
consolidates both of those proceedings.

6
Possibly seeking to suggest an
additional alternate ground for affirmance,
Armstrong suggests in his brief that Tyler
“had already been adjudged the legal
heir/daughter to Heinrich Nielsen for
purposes of descent and distribution.”
Appellee’s Brief at 33. We decline to
address and express no opinion with
respect to any estoppel argument
suggesting that Tyler is precluded from
bringing a legitimation action because of
any proceedings with respect to Heinrich
Nielsen’s estate. The issue has not been
adequately briefed and will therefore not
be considered as a possible alternate
ground for affirmance.

10