2020 UT App 70
THE UTAH COURT OF APPEALS
IN RE ESTATE OF JOHN CLIFFORD HEATER
GINA MALLOUGH KIRKLAND,
Appellant,
v.
JOHN CARLON,
Appellee.
Opinion
No. 20180879-CA
Filed April 30, 2020
Second District Court, Farmington Department
The Honorable David M. Connors
No. 083700165
Brent D. Wride, Attorney for Appellant
Ben W. Lieberman, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
ORME, Judge:
¶1 Gina Mallough Kirkland challenges the district court’s
ruling that her half-brother, John Carlon, is an heir of their
shared biological father’s intestate estate. She argues that the
court erroneously determined that Carlon could establish a
parent-child relationship by means other than those prescribed
by the Utah Uniform Parentage Act (the UUPA). She also
contends that the court’s order violates the onesetofparents
rule because Carlon was already entitled to inherit from the man
presumed to be his father under the UUPA. We hold that under
the plain terms of Utah’s version of the Uniform Probate Code
(the Probate Code), the district court correctly concluded that
In re Estate of John Clifford Heater
Carlon could establish a parent-child relationship with his
deceased biological father irrespective of the UUPA. We further
hold that the Probate Code does not support an extension of the
onesetofparents rule to the situation presented in this case.
Accordingly, we affirm.
BACKGROUND
¶2 The facts of this case are not in dispute. John Clifford
Heater died in 2008. He did not leave behind a will, and at that
time, his only known heirs were one daughter, Kirkland, and
one son (Brother). Over the next several years, the two siblings,
whom the district court appointed as copersonal
representatives, disputed the administration of Heater’s estate.
During this time, the court did not enter an order determining
heirs.
¶3 In 2016, Brother reached out to Carlon via social media
and informed him that he believed Heater was also Carlon’s
biological father. Carlon, who up until then had been unaware of
Heater’s passing, then moved to intervene in the probate action
to “assert his right as an heir in this case.” In conjunction with
his motion, Carlon filed his own and his mother’s affidavits. In
her affidavit, Carlon’s mother stated that she worked for Heater
for fourteen years and that, during the relevant period, they had
engaged in a sexual relationship, rendering it “probable that
John Clifford Heater is the father of my son, John Carlon.” And
in his own affidavit, Carlon stated that “[t]hroughout my young
life, . . . Heater acted towards me and my mother in a manner
that was not consistent with merely an employer and
employee.” For example, while Carlon’s mother was pregnant
with Carlon, Heater took her to doctor appointments, purchased
maternity clothes, and drove her to the hospital when the time of
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In re Estate of John Clifford Heater
delivery arrived. 1 Heater also paid for Carlon’s live-in nanny for
several years and sent Carlon birthday cards containing $100
checks well into Carlon’s adulthood. Because of this, Carlon
stated that “[w]hile I never knew for sure, I suspected for years
that . . . Heater could be my father.” Carlon also submitted DNA
evidence that he and his mother’s other son, whom he had
previously believed to be his full brother, did not share the same
biological father. Carlon also stated in his affidavit that,
according to genetic testing done through Ancestry.com, he is
closely linked to individuals who shared the same last name as
Heater’s mother.
¶4 Despite Kirkland’s vigorous opposition, 2 the district court
granted Carlon’s motion so that it could determine whether he is
Heater’s biological son and, if so, whether he is entitled to inherit
from the estate. The parties addressed the latter issue first.
Kirkland, among other things, argued that Heater “does not
meet the definition of a parent under the Probate Code” for
Carlon because his mother was married to someone other than
Heater at the time of Carlon’s birth and her husband, who raised
Carlon, was therefore his presumptive father under the UUPA. 3
1. Obviously, Carlon was not a witness to these events before his
birth, and it is odd that they were recounted by him instead of
by his mother. Cf. Utah R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge.”). But there was no motion to strike his
affidavit, and it was accepted by the court.
2. Brother did not oppose Carlon’s intervention in the probate
case or the court’s eventual determination that Carlon is an
additional heir of Heater’s estate.
3. Citing In re Estate of Hannifin, 2013 UT 46, 311 P.3d 1016,
Kirkland also argued that because “Carlon cannot inherit from
(continued…)
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In re Estate of John Clifford Heater
See Utah Code Ann. § 78B15204(1)(a) (LexisNexis 2018) 4 (“A
man is presumed to be the father of a child if . . . he and the
mother of the child are married to each other and the child is
born during the marriage . . . .”).
¶5 The court rejected this argument. Relying on section 2-114
of the Probate Code, which provides that “[t]he parent and child
relationship” for purposes of intestate succession “may be
established as provided in [the UUPA],” id. § 752114(1) (Supp.
2018) (emphasis added), the court concluded that “[t]he UUPA
has no implication as to whether, in this probate action, . . .
Carlon can establish that he is actually a child of . . . Heater for
purposes of intestate succession.” In other words, the court held
that “Carlon can establish the parent-child relationship
contemplated in section 114 irrespective of whether he could do
so under the UUPA.”
¶6 Following the court’s order, Carlon filed a motion for
partial summary judgment seeking a determination that Heater
was his biological father. In support of his motion, he provided
the court with DNA evidence establishing a 99.99% certainty
(…continued)
two sets of parents,” and he already “has legally established
parents . . . from whom he is entitled to inherit,” i.e., his mother
and her husband, “he is precluded as a matter of law from also
simultaneously inheriting from [Heater] as his alleged parent.”
The district court did not address this argument in its order.
4. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.
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that he and Brother were half-brothers. 5 And in the absence of a
meaningful challenge to the DNA evidence, the district court
granted Carlon’s motion, determining that “Carlon is the
biological son of . . . Heater.” The court later entered an “Order
Determining Heirs,” naming Brother, Kirkland, and Carlon as
heirs of Heater’s estate.
¶7 Kirkland appeals.
ISSUES AND STANDARD OF REVIEW
¶8 Kirkland argues that the district court erred in two
respects: (1) it incorrectly determined that the UUPA was not the
exclusive manner by which one could establish a parent-child
relationship for purposes of intestate succession, and (2) it
ignored the onesetofparents rule. These issues raise questions
of statutory interpretation, which we review for correctness. See
Metropolitan Water Dist. v. SHCH Alaska Trust, 2019 UT 62, ¶ 9,
452 P.3d 1158.
ANALYSIS
I. Exclusivity of the UUPA
¶9 Section 2-114 of the Probate Code provides that “for
purposes of intestate succession by, through, or from a person,
an individual is the child of the individual’s natural parents,
regardless of their marital status.” Utah Code Ann. § 752114(1)
(LexisNexis Supp. 2018) (emphasis added). It further states that
“[t]he parent and child relationship may be established as
provided in [the UUPA].” Id. (emphasis added).
5. Although Kirkland refused to submit to genetic testing, it was
uncontested that Brother is Heater’s biological son.
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In re Estate of John Clifford Heater
¶10 Kirkland argues that “the district court . . . erred in
holding that compliance with the [UUPA] is optional.” She
directs our attention to provisions of the UUPA that state that
“[a] man is presumed to be the father of a child if . . . he and the
mother of the child are married to each other and the child is
born during the marriage,” id. § 78B15204 (1)(a) (2018), and that
the presumption “may only be rebutted in accordance with
[section 607 of the UUPA],” id. § 78B-15-204(2). Kirkland then
contends that the court erred by “not acknowledg[ing] the clear
statement in the [UUPA] that the ‘only’ way to rebut the
presumption of paternity is through section 607” and instead
“rel[ying] exclusively on the Probate [Code]” without
“attempt[ing] to harmonize the two related acts and to give
application to them both.”
¶11 We conclude that Kirkland’s reliance on the UUPA is
misplaced. The UUPA expressly states that “a parent-child
relationship established under this chapter applies for all
purposes, except as otherwise specifically provided by other law
of this state.” Id. § 78B15203. Thus, the UUPA, by its own
terms, is subordinate to other statutes that provide their own
definition of a parent-child relationship for specific purposes.
The Probate Code, at least as concerns intestate succession, is
one such statute.
¶12 The Probate Code provides that a decedent’s “entire
intestate estate[,] if there is no surviving spouse, passes” first “to
the decedent’s descendants per capita at each generation.” Id.
§ 75-2-103(1)(a) (Supp. 2018). The Probate Code further defines
“Descendant” as “all of [the decedent’s] descendants of all
generations, with the relationship of parent and child at each
generation being determined by the definition of child and parent
contained in this title.” Id. § 751201(9) (emphasis added). Then,
specifically addressing the parent-child relationship for intestate
succession purposes, the Probate Code provides that “an
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individual is the child of the individual’s natural parents,
regardless of marital status.” 6 Id. § 75-2-114(1) (emphasis added).
¶13 The Probate Code’s discounting of the marital status of a
child’s parents is in direct conflict with provisions of the UUPA
that turn directly on marital status, namely those that create a
legal presumption of fatherhood for the husband of the child’s
biological mother. 7 See id. § 78B-15-204(1) (2018). And where the
6. The Probate Code defines “Parent” as “any person entitled to
take, or who would be entitled to take if the child died without a
will, as a parent under this code by intestate succession from the
child whose relationship is in question and excludes any person
who is only a stepparent, foster parent, or grandparent.” Utah
Code Ann. § 75-1-201(33) (LexisNexis Supp. 2018). It also defines
“Child” as “any individual entitled to take as a child under this
code by intestate succession from the parent whose relationship
is involved and excludes any person who is only a stepchild, a
foster child, a grandchild, or any more remote descendant.” Id.
§ 75-1-201(5).
7. For this same reason, we also reject Kirkland’s contention that
the district court erred in interpreting the term “natural parent”
in section 2-114 to mean a child’s biological parent but not the
child’s presumptive parent under the UUPA. Although the
Probate Code defines the term “Parent,” see Utah Code Ann.
§ 75-1-201(33) (LexisNexis Supp. 2018), it does not define
“natural parent.” Kirkland argues that “[i]n context, it is
apparent that the term natural parent was used in section 2-114
simply as a term that means non-adoptive parent” rather than
biological parent. But subsection (1) of section 2-114 directly
conflicts with Kirkland’s contention that the term “natural
parent” includes presumptive parents. Subsection (1) provides
that “an individual is the child of the individual’s natural
parents, regardless of marital status.” Id. § 75-2-114(1) (emphasis
(continued…)
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In re Estate of John Clifford Heater
two acts conflict, under the express provisions of the UUPA, see
id. § 78B15203, the Probate Code’s definition of the parent-child
relationship for intestate succession purposes is the definition
that directly applies to the determination of whether Carlon is an
heir of Heater’s intestate estate. Accordingly, we apply the
Probate Code’s definition, not the UUPA’s, in reviewing the
district court’s order.
¶14 Kirkland also contends that the district court erred in
relying on the word “may” in subsection (1) of section 2-114 of
the Probate Code to conclude “that compliance with the [UUPA]
was optional.” See id. § 75-2-114(1) (Supp. 2018) (“The parent and
child relationship may be established as provided in [the
UUPA].”). Instead, Kirkland argues that subsection (1) “deals
with illegitimate children who are born in cases in which there is
no marriage,” which is not the case here because “Carlon was
not illegitimate, and there was a marriage,” i.e., he was born into
the marriage of his mother and her husband. Kirkland further
contends that “[t]he proper way to read section 114 (and the way
that harmonizes and gives effect to all of the statutory
provisions) is to read it as applying to illegitimate children and
as stating that—if they wish—such children may establish a
parent-child relationship.”
¶15 But section 2-114 does not support such a limited
application of its definition of the parent-child relationship.
Instead, by its plain terms, the section provides generally that
(…continued)
added). Because the provision expressly renders the natural
parents’ marital status irrelevant, the term “natural parents”
cannot include a child’s presumptive parents because the
presumption under the UUPA is entirely based on the parents’
marital status. See id. § 78B15204(1) (2018). Accordingly, a
child’s “natural parent” is the child’s biological/genetic parent.
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“for purposes of intestate succession[,] . . . an individual is the
child of the individual’s natural parents, regardless of their
marital status.” Id. The section includes no language limiting its
definition of the parent-child relationship to illegitimate
children, as Kirkland contends. Thus, our Legislature’s use of the
word “may” when referencing the UUPA’s role in establishing a
parent-child relationship, by the plainest of terms, permits the
application of the UUPA in appropriate cases rather than
establishing it as the exclusive means by which to establish the
relationship. See id. § 68-3-12(1)(g) (2016) (stating that, when
used in a statute, the word “may” “means that an action is
authorized or permissive”). See also May, Black’s Law Dictionary
1127 (10th ed. 2014) (defining “may” as “[t]o be permitted” or
“[t]o be a possibility”); May, New Oxford American Dictionary
1082 (3d ed. 2010) (same).
II. The One-Set-Of-Parents Rule
¶16 Citing In re Estate of Hannifin, 2013 UT 46, 311 P.3d 1016,
Kirkland contends that the district court erred in not addressing
the one-set-of-parents rule. In Hannifin, the district court
determined that a nonbiological child, whom the decedent had
not legally adopted but had nonetheless raised and treated as his
own son, was an heir of the decedent’s intestate estate under the
doctrine of equitable adoption. Id. ¶¶ 1, 4–7. Our Supreme Court
reversed, holding that the Probate Code preempted the doctrine.
See id. ¶¶ 15–16. In reaching this conclusion, the Court, in part,
relied on subsection (2) of section 2114 of the Probate Code,
which provides that, for purposes of intestate succession, “[a]n
adopted individual is the child of the adopting parent or parents
and not of the natural parents.” Utah Code Ann. § 752-114(2)
(LexisNexis Supp. 2018). See Hannifin, 2013 UT 46, ¶¶ 19–26.The
Court stated that “the statute establishes a one-set-of-parents
inheritance rule” in that it “operates to prohibit adopted children
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In re Estate of John Clifford Heater
from taking by intestacy from both their natural parents and
their adoptive parents.” 8 Hannifin, 2013 UT 46, ¶¶ 22, 26 n.9.
And because “equitable adoption treats an equitable adoptee as
one entitled to inherit from a decedent as though she were the
biological or adopted child of the decedent without cutting off
inheritance rights from actual biological or adoptive parents,” it
conflicted with the statutory one-set-of-parents rule. Id. ¶ 26 n.9.
Accordingly, the Probate Code statutorily preempted the
judicially created doctrine of equitable adoption. Id. ¶ 26.
¶17 Kirkland argues that the one-set-of-parents rule precludes
Carlon from inheriting from Heater because Carlon was already
entitled to inherit from his presumptive father—with whom
Carlon had “never sought to dissolve or disclaim his filial
relationship,” and who predeceased Heater. Kirkland asserts
that, under the rule, Carlon “cannot also be the descendant and
heir of Heater.” We disagree.
¶18 Kirkland essentially argues that the one-set-of-parents
rule applies beyond the adoption context. But we do not read
Hannifin as broadly as Kirkland does. As an initial matter, the
onesetofparents rule is not a judicially created doctrine. To the
contrary, our Supreme Court discussed the rule specifically
because the statute conflicted with the judicial doctrine of
equitable adoption, thereby preempting it. See id. ¶ 13 (“We find
the [Probate] Code to displace the doctrine of equitable
adoption . . . .”). For that reason, we turn exclusively to the plain
language of the Probate Code to determine whether the rule
should apply to a circumstance beyond the one addressed in
8. Although our Supreme Court at times used language that,
when read in isolation, could be construed to suggest a broader
application of the rule, see, e.g., In re Estate of Hannifin, 2013 UT
46, ¶¶ 24–26 & n.9, 311 P.3d 1016, it relied entirely on the text of
subsection (2) in its articulation of the rule.
20180879-CA 10 2020 UT App 70
In re Estate of John Clifford Heater
Hannifin. See Timothy v. Pia, Anderson, Dorius, Reynard & Moss,
LLC, 2019 UT 69, ¶ 22, 456 P.3d 731 (stating that “[w]hen
interpreting a statute, our primary objective is to ascertain the
intent of the legislature,” the best evidence of which “is the plain
language of the statute itself”) (quotation simplified). And
Kirkland acknowledges that subsection (2)—the provision on
which the Hannifin court relied—is inapplicable in the case at
hand. Accordingly, Hannifin is of limited relevance to our
analysis and we instead turn to the Probate Code for guidance.
¶19 “We will not infer substantive terms into the text that are
not already there. Rather, the interpretation must be based on
the language used, and we have no power to rewrite the statute
to conform to an intention not expressed.” Associated Gen.
Contractors v. Board of Oil, Gas & Mining, 2001 UT 112, ¶ 30, 38
P.3d 291 (quotation simplified). And here, Kirkland has not
directed us to any statutory language suggesting that the
oneset-of-parents rule is applicable where the decedent is a
descendant’s biological—but not legal—parent. 9 Rather, the
9. Instead, Kirkland argues that “the principles supporting the
oneset-of-parents inheritance rule apply with equal force here.”
This argument invokes Utah Code section 75-1-102, which
provides that the Probate Code “shall be liberally construed and
applied to promote its underlying purposes and policies,” Utah
Code Ann. § 75-1-102(1) (LexisNexis Supp. 2018), which, among
other things, are
(a) To simplify and clarify the law concerning the
affairs of decedents, missing persons, protected
persons, minors, and incapacitated persons;
(b) To discover and make effective the intent of a
decedent in distribution of his property;
(c) To promote a speedy and efficient system for
administering the estate of the decedent and
making distribution to his successors[.]
(continued…)
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In re Estate of John Clifford Heater
plain language of the statute—that “[a]n adopted individual is
the child of the adopting parent or parents and not of the natural
parents,” Utah Code Ann. § 75-2-114(2)—limits the rule to the
adoption context. But even then, the rule does not universally
apply to all adoptions. For example, in defining the parentchild
relationship for purposes of intestate succession, subsection (2)
in its entirety provides: “An adopted individual is the child of
the adopting parent or parents and not of the natural parents,
but adoption of a child by the spouse of either natural parent has
no effect on the relationship between the child and that natural
parent.” Id. The onesetofparents rule therefore does not apply
to situations where a stepparent adopts a child. Our Legislature
has likewise provided that the rule does not extend to children
of parents whose parental rights have been terminated. See id.
§ 78A6513(1) (2018) (“An order for the termination of the
parentchild legal relationship divests the child and the parents
of all legal rights, powers, immunities, duties, and obligations
with respect to each other, except the right of the child to inherit
from the parent.”). Therefore, by the statute’s plain terms, the
one-set-of-parents rule is not a universal principle governing
intestate succession. And absent statutory language extending
the rule beyond certain adoption scenarios, we cannot conclude
that the rule applies to this case, which does not feature an
adoption of any sort.
¶20 While the conclusion that a child may inherit from both
his presumptive and biological fathers’ intestate estates certainly
seems bizarre, or at least at odds with societal expectations, the
plain language of the Probate Code dictates this conclusion. See
(…continued)
Id. § 75-1-102(2). But even when “liberally construed and
applied,” the plain language of the Probate Code does not
support the extension of the one-set-of-parents rule to the
present situation.
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In re Estate of John Clifford Heater
DeLand v. Uintah County, 945 P.2d 172, 174 (Utah Ct. App. 1997)
(“Unless a literal reading would render the statute’s wording
unreasonably inoperable or confusing, we . . . do not look
beyond plain and unambiguous language to ascertain legislative
intent.”) (quotation simplified). It is worth noting, however, that
the Uniform Law Commission has subsequently revised the
Uniform Probate Code (the UPC), making changes not yet
adopted by our Legislature, which address this exact situation.
While the UPC similarly provides that “a parent-child
relationship exists between a child and the child’s genetic
parents, regardless of the parents’ marital status,” Unif. Probate
Code § 2-117 (Unif. Law Comm’n 2010), it further provides,
under its definition of “Genetic father,” that “[i]f the father-child
relationship is established under the presumption of paternity
under [the UUPA], the term means only the man for whom the
relationship is established,” id. § 2-115. If this statutory scheme
were in effect in Utah, Kirkland would clearly prevail because
the UPC, unlike the Probate Code, provides that where a child
has a presumed father under the UUPA who is not the child’s
biological father, the presumptive father is the child’s only father
for purposes of intestate succession. This approach concededly
comports with logic and societal norms. But even though this
revision of the UPC has been available for at least ten years, our
Legislature has not seen fit to adopt it. 10 As explained above, the
version of the Probate Code adopted by our Legislature does not
include a definition of genetic (or natural) father and thus does
not support such an outcome. Therefore, Carlon, as the
biological son of Heater, may receive his intestate share from
Heater’s estate.
10. The legislatures of at least three states have adopted the
UPC’s definition of “Genetic father.” See Colo. Rev. Stat.
§ 15-11-115(5) (2010); Minn. Stat. § 524.1-201(22) (2016); N.D.
Cent. Code § 30.1-04-14(5) (2009).
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CONCLUSION
¶21 Based on a plain reading of section 2-114 of the Probate
Code, the UUPA is not the exclusive means by which a party
may establish a parentchild relationship for purposes of
intestate succession, nor does the one-set-of-parents rule apply
in a non-adoption setting where a child has different biological
and presumptive fathers.
¶22 Affirmed.
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