dissenting.
I respectfully dissent. Contrary to the majority opinion, Arkansas Code Annotated section 9-10-108 (Repl.2009) is not the exclusive means to determine paternity. According to the majority, the paternity of a child may only be determined during the lifetime of that child. The statutes cited by the majority do not so provide. Such an interpretation defeats the clear legislative intent under the wrongful-death statute that a father may be a beneficiary. See Ark.Code Ann. § 16 — 62—102(d) (Supp. 1999). If the majority is correct, the putative father of a child who dies leaving property may not share as an heir if paternity was not established before death. A putative father may not be a beneficiary under the wrongful-death statute. In Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981), this court recognized that putative fathers enjoy some due-process and equal-protection rights, but there is no consideration of those rights by the majority in the present case.
IsThe majority has made no attempt to harmonize what it has concluded are conflicting statutes. Even though the wrongful-death statute declares Scoggins has a right to participate in the action, see Ark. Code Ann. § 16-62-102(d), the majority concludes that because the legal status of fatherhood was not determined before the child’s death under the paternity statutes, “no such right exists.”
Seemingly conflicting statutes must be read harmoniously where possible. Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 83, 243 S.W.3d 285, 292 (2006). Nowhere in Title 9, Chapter 10 of the Arkansas Statutes Annotated relied upon by the majority is there a provision declaring that paternity must be established before a child dies. The majority reaches this conclusion based on its interpretation of these statutes; however, the statutes the majority relies on are longstanding and began as a means of obtaining support for living, illegitimate children. See Ark.Rev.Stat. Chapt. 24 (1847). Because the statutes relied on are intended primarily to provide support for living children, see Ark.Code Ann. § 9-10-102(e)(l) (Repl.2009) (“[T]he court shall grant a finding of paternity and establish support.”), it is hardly surprising that the majority does not discuss determination of paternity after death. The conclusion that the death of the child was not anticipated is confirmed by the language in section 9-10-202(c) that venue of paternity actions involving a juvenile shall be in the county in which the juvenile resides. Clearly, this presumes the child is alive, which would be the case where future child support is at issue. However, a juvenile is not involved in the present action. The present action concerns property arising from the juvenile’s death. The juvenile 19is deceased and is therefore not a party and will not be affected by the action. Section 9-10-102(c) can be harmonized with the wrongful-death statute because where the juvenile is deceased — in other words not involved — venue could be found to lie in the county where the plaintiff resides. See Ark.Code Ann. § 9-10-102(c). The majority errs in relying on the principle that a cause of action not existing under the common law exists in the manner and form prescribed by the statute. The paternity statutes cited by the majority are silent on determining paternity after death, but paternity has been determined by the trial courts in cases such as Lucas v. Handcock, 266 Ark. 142, 153, 583 S.W.2d 491, 496 (1979), without reference to the statutes the majority asserts alone permit a determination of paternity. In Lucas, paternity was proved in a proceeding on an heirship claim of an alleged illegitimate son of the intestate’s deceased son. In this case, paternity was determined after the death of the son. The reliance on Ludwig v. Bella Casa, LLC, 2010 Ark. 435, 372 S.W.3d 792 is misplaced. Paternity has been established outside the statutes cited by the majority.
Applying the narrow construction asserted by the majority, that a cause of action created by statute may exist only in the manner and form prescribed by the statute that created it, the wrongful-death statute clearly provides for Scoggins’s participation. The paternity statutes relied upon by the majority do not speak at all to a paternity determination after the death of a child. The requirement of harmonizing the statutes precludes the majority from simply using silence to defeat the clear intent of the General Assembly in another statute. See, e.g., Village Market, Inc. v. State Farm Gen. Ins. Co., 333 Ark. 552, 559, 970 S.W.2d 243, 248 (1998). The wrongful-death statute clearly provides that Scoggins may be a beneficiary if he is the father. Paternity has been determined by the courts of this state, as in Roque, where the issue of paternity must be decided as an ancillary issue to the action before the court. In Roque, the court held that the county court held jurisdiction to determine paternity. Under amendment 80 to the Arkansas Constitution, the circuit court now holds that jurisdiction.
In White v. White, 293 S.W.3d 1, 12 (Mo.Ct.App.2009), the Missouri Court of Appeals was faced with a similar issue as in the present case and correctly decided the paternity issue now before this court. The court noted first that the notion that the state’s paternity act was the exclusive means of establishing paternity had been rejected. Id. Further, the Missouri wrongful-death act was found to permit a father to sue but that it did not specify how paternity was to be established. Id. The court held that the procedural requirements of the paternity act could not be used to defeat a putative father’s wrongful-death action. Id. Such petitions might be brought in the context of other actions as already discussed.
The majority’s statutory interpretation holding that there is “no provision for establishing paternity when a child is deceased” errantly strips the circuit courts of their jurisdiction to determine paternity and overturns cases such as Roque and Lucas. Therefore, I dissent.
Special Justice JOHN BELEW, joins.