Casey v. Self

KAUGER, Justice,

with whom DOOLIN, ALMA WILSON and SUMMERS, JJ., join, dissenting:

The primary goal of statutory construction is to ascertain and follow the intention *469of the Legislature.1 The majority ignores this maxim and makes an unnecessary venture into constitutional analysis2 by holding that before a child born out of wedlock may inherit from his/her putative father pursuant to 84 O.S.1981 § 215,3 paternity must be established by clear and convincing evidence. I respectfully dissent.

FACTS

A more detailed analysis of the facts than the sparse account given in the majority opinion is necessary to an understanding of this case. On December 10, 1985, while living with the appellee, Jimmy Ray Self (Self), Robert D. (Bunk) King (King) executed a will (King will). Although King had living relatives — three sisters, one brother, and a niece — the only devisees named under the King will are Self, who was named executor, and Charles Hare (Hare) — neither of whom are related to King. King died on February 21, 1986, and five days later, on February 26, 1986, Self petitioned the district court for probate of King’s will.

Two of King’s sisters, Margaret Tankers-ley and Vera Dorsey, and a niece, Vera Mangum (collectively, King relatives), filed an objection to the will on March 17, 1986. King’s sisters and niece alleged that the will was procured through undue influence and coercion, or, in the alternative, that King lacked capacity to execute a will. The King relatives asserted that Self had previously inherited property from his uncle under questionable circumstances similar to the instant cause. They also alleged that Self had removed King from his home against his wishes, and without notifying any of the his relatives. On April 24,1986, the trial court admitted the will to probate, finding that King was possessed of testamentary capacity, and that he had not been subjected to duress, fraud, menace, or undue influence at the time the will was executed. Letters testamentary were issued to Self as personal representative on April 28,1986. The King relatives filed a motion *470for new trial on May 2, 1986, which was overruled on June 13,1986. No appeal was taken from this order.

On June 24, 1986, the appellant, J.D. Casey (Casey), filed a petition to set aside the order admitting the King will to probate. Casey alleged that he was a child born out of wedlock, that King was his father, and that he was entitled to the entire King estate. Attached to the petition were four affidavits. In each of these instruments, the affiants affirmed that Casey was the son of King, and that King had publicly acknowledged Casey, had received Casey into his home, and had treated Casey as a child born in wedlock. On August 11, 1986, Casey dismissed without prejudice his petition to set aside the order admitting the King will to probate.

Thereafter, on February 6, 1987, Casey filed an application for determination of heirship as an unintentionally omitted child4 which was heard on May 28, 1987. Conflicting testimony was presented at the hearing on the issues of Casey’s parentage, and King’s public acknowledgment of Casey as his son. However, it is undisputed that: 1) Casey was born out of wedlock on January 17, 1948; 2) Casey’s mother and King had been intimate during the months prior to Casey’s birth; 3) for the first six or seven years of Casey’s life, he and his mother lived across the street from King; and 4) although King was married, he and his wife (Pearl) had been separated for a number of years during the marriage.

Hazel Babb, Casey’s mother, testified that: King was the father of her son; that she dated only King before her son’s birth; that King paid the medical bills when Casey was born; that King provided support for her and her son throughout the years when Casey was growing up; that King bought Casey a motorcycle and acknowledged Casey as his son in his place of business; and that King treated Casey’s three children as his grandchildren. She testified that she did not have King’s name put on Casey’s birth certificate as the father, because at the time Casey was bom she was living across the street from King and his wife, Pearl. Pearl’s best friend, Louise Burke, testified that she and Pearl had discussed the fact that Casey was King’s child. Casey presented seven other witnesses, three of whom were King’s relatives by blood or marriage,5 who testified that King had acknowledged Casey as his son, or that Pearl had told them that Casey was her husband’s child. There was also testimony that Pearl had welcomed Casey into her home, and that Casey had eaten meals there prepared by Pearl. Casey testified that he had not seen King in the seven years preceding his death; that he did not know when King died; and he did not attend the funeral.

Self countered Casey’s evidence with testimony from King’s niece, Vera Mangum, who helped King with his business in the years preceding his death. She stated that King had neither acknowledged Casey as his son nor denied being his father. Self testified that King had indicated that Casey might have been his son. Hare, the other beneficiary under the King will, testified that King had no children. There was also testimony indicating that King was unable to father a child. When the standard forms for King’s obituary were completed, the same niece indicated that King had no children. King’s insurance agent, who wrote the King will,6 testified that King had never mentioned a child. He also presented an insurance application in which King indicated that he had never had children.

*471On June 18, 1987, the trial court denied Casey’s application. Although the trial court recognized that there had been an intimate relationship between Casey’s mother and King, it found that Casey failed to present clear and convincing evidence that Casey was King’s son. Here, Self agrees with the trial court and asserts that the clear and convincing7 standard of proof should be applied whenever a child born out of wedlock attempts to inherit from his/her father’s estate. Casey counters, arguing that a child bom out of wedlock may show paternity by a preponderance of the evidence8 under § 215.9

TO INHERIT FROM A FATHER PURSUANT TO 84 O.S.1981 § 215, A CHILD BORN OUT OF WEDLOCK MUST SHOW PATERNITY BY A PREPONDERANCE OF THE EVIDENCE.

Generally, there are three methods to determine paternity of a child born out of wedlock: 1) through a proceeding to establish paternity brought pursuant to 10 O.S.Supp.1989 § 70;10 2) through a proceeding to establish statutory adoption by acknowledgment pursuant to 10 O.S.1981 § 55;11 or 3) through proof established pursuant to 84 O.S.1981 § 215.12

A.

Paternity must be established by a preponderance of the evidence pursuant to 10 O.S.Supp.1989 § 70.

Although this Court has not determined what degree of proof is necessary under § 215, we have addressed the requisite standard of proof necessary in paternity actions, and in actions to establish statutory adoption. It is well settled in Oklahoma that an action to determine paternity is a civil proceeding, and that a party must prove the cause by a fair preponderance of the evidence.13

B.

Paternity must be established by a preponderance of the evidence pursuant to 10 O.S.1981 § 55.

Although it is well established that paternity actions require a showing by a prepon*472derance of the evidence, our decisions on the degree of proof necessary to establish statutory adoption appear to conflict. Self relies on two decisions — In re Gathings’ Estate, 199 Okla. 460, 187 P.2d 981, 984 (1947) and In re Cravens’ Estate, 268 P.2d 236, 240 (Okla.1954) — for the proposition that strict proof14 is required to establish adoption pursuant to 10 O.S.1981 § 55. Casey finds support in Thompson v. Thompson, 177 Okla. 437, 60 P.2d 615-16 (1936). Thompson involved a father’s statutory adoption of a child born out of wedlock.15 The only fact at issue in Thompson was whether the child had been received into the family with the wife’s consent. The parties were required to show reception by a preponderance of the evidence.

The majority harmonizes these opinions by finding that Cravens’ and Gathings’ stand for the proposition that paternity must be proven by clear and convincing evidence and that Thompson merely requires that all other elements — out of wedlock birth, public acknowledgment, reception of the child, and treatment of the child as if it were legitimate — be shown by a preponderance of the evidence. No such distinction was made in Thompson. The Court merely stated that the burden had been met on all elements except reception into the family with the wife’s consent, and that the proof required is by a preponderance of the evidence. It does not provide, as the majority opinion represents, different standards of proof for the individual elements.16

Gathings’, Cravens’, and Thompson cannot be reconciled in a vacuum as the majority attempts to do. When these cases were decided, there was no controlling legislation concerning the degree of proof necessary to sustain a showing of statutory adoption. In 1989, the Legislature enacted 10 O.S.Supp.1989 § 76.117 which provides . that the burden of proof in paternity, support, custody, and visitation actions shall be the same as in an action for divorce. Moreover, in Chamberlain v. Chamberlain, 121 Okla. 145, 247 P. 684, 686 (1926) and Hartshorn v. Hartshorn, 67 Okla. 45, 168 P. 822-23 (1917), we determined that grounds for divorce must be proven by a fair preponderance of the evidence. A showing under § 55 of a father’s statutory adoption is one way to establish paternity. The Legislature spoke on the requisite degree of proof necessary to establish paternity, with its enactment of § 76.1. To establish paternity pursuant to § 55, a child must show statutory adoption by a preponderance of the evidence.

The majority finds that § 76.1 is inapplicable to an action by a child born out of wedlock to establish paternity for inheritance purposes. In so doing, the majority ignores the plain language of the statute which provides that the burden of proof in a paternity action “shall be the same as in an action for divorce.” This it is not free to do.18

*473C.

Paternity must be established by a preponderance of the evidence pursuant to 84 O.S.1981 § 215.

Actions brought pursuant to § 215 are brought for the purpose of establishing paternity just as are actions associated with statutory adoption. Although § 76.1, providing for a showing of paternity by a preponderance of the evidence, was not enacted until two years after the instant cause was filed, even before § 76.1’s enactment, the Legislature had indicated that the degree of evidence necessary to establish paternity under § 215 should be by a preponderance of the evidence. On December 7, 1976, this Court promulgated Estate of Benson, 558 P.2d 384, 387 (Okla.1976) holding that an adjudication of paternity did not create a right to inheritance pursuant to 84 O.S.1971 § 215.19 The Legislature responded by amending § 215 and adding subsection (d). Subsection (d) provides that a child born out of wedlock inherits from his/her father if the father has been judicially determined to be the parent in a paternity proceeding.20 By adding subsection (d) to § 215, the Legislature overruled Benson by statute, and incorporated a method which requires a showing of paternity by a preponderance of the evidence.21

Relevant portions of a statute and related enactments should be considered together to give force and effect to all of them.22 The Legislature enumerated four avenues under § 215 through which a child born out of wedlock may show paternity: 1) a written acknowledgment by the father, 2) intermarriage of the child’s parents and acknowledgment by the father, 3) public acknowledgment and receiving the child into his family, or 4) a judicial order of paternity. The degree of proof required in paternity and statutory adoption proceedings is proof by a preponderance of the evidence. By assuming that the Legislature requires stricter standards for one method of showing legitimation under § 215 than other methods, the majority creates an internal inconsistency within the statute,23 and ignores the Legislature’s mandate that proof of paternity is to be by a preponderance of the evidence.

CONCLUSION

The policy of the law has always been to favor legitimization of children.24 The Leg*474islature has chosen to further this policy by abolishing the terms “illegitimate” and “bastard” in statutory enactments and substituting the term “child bom out of wedlock”; 25 by decreeing that all children are legitimate;26 and by adopting the traditional degree of proof — by a preponderance of the evidence — for a showing of paternity. Certainly proof of paternity is required; however, the standard is not so strict that it results in those with worthy claims being denied recovery. Considering the legislative posture, it is incongruous to require a higher degree of proof than a preponderance of the evidence to establish paternity pursuant to 84 O.S.1981 § 215. Because the trial court applied a higher degree of proof than was required for the showing of paternity, the cause should be remanded.

. Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 764 P.2d 172, 179 (Okla.1988); Fuller v. Odom, 741 P.2d 449, 452 (1987).

. Although I have no quarrel with the way that the United States Supreme Court has analyzed paternity cases, because the proper degree of proof under § 215 is a preponderance of the evidence rather than the standard of clear and convincing evidence utilized by the trial court, it is unnecessary to address the constitutional challenges to 84 O.S.1981 § 215, see note 3, infra and 10 O.S.1981 § 55. Title 10 O.S.1981 § 55 provides:

"The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court.
The foregoing provisions of this article do not apply to such an adoption.”

The Court of Appeals reversed the trial court holding that 84 O.S.1981 § 215, see note 3, infra, was unconstitutional because it denied equal protection to nonconnubial children in probate cases involving paternity and the right of inheritance by intestate succession. It remanded with instructions for a new trial to establish paternity by a preponderance of the evidence. We granted certiorari on December 12, 1989, to consider a question of first impression.

This Issue of whether the different standards set forth in 84 O.S.1981 § 215, see note 3, infra, for inheritance through maternal and fraternal lines violates either the Oklahoma or United States Constitutions is not here.

.Title 84 O.S.1981 § 215 provides:

“For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child’s birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.
For all purposes, the issue of all marriages null in law, or dissolved by divorce, are deemed to have been born in wedlock."

.Title 84 O.S.1981 § 132 provides:

"When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.”

. One of these witnesses was King’s sister who had testified at the original will contest that King’s only heirs were his brothers and sisters.

. The King will was executed while King was living in the home of Self. At the same time that King was residing with Self, Hare had taken up residence in King’s home.

. Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. In the Matter of C.G., 637 P.2d 66, 71 (Okla.1981). The standard requires a higher degree of proof than a preponderance of the evidence. It is an intermediate standard falling between a preponderance and proof beyond a reasonable doubt. American Cyanamid Co. v. Electrical Indus., 630 F.2d 1123, 1127 (5th Cir.1980); Alexander v. Warren, Arkansas, School Dist. No. 1 Bd., 464 F.2d 471, 474 (8th Cir.1972); Succession of Bartie, 472 So.2d 578, 582 (La.1985).

. Preponderance of the evidence is the lowest degree of proof known to the law. Arco Metalscraft Co. v. Shaw, 364 Pa. 39, 70 A.2d 850, 853 (1950). It does not mean the greater number of witnesses testifying to a fact but means that which, to the mind of the trier of fact or the seeker of the truth, seems most convincing and more probably true. Marshall v. Amos, 471 P.2d 896, 905 (Okla.1970); Morris v. Leverett, 434 P.2d 912, 924 (Okla.1967); Peyton v. McCaslin, 417 P.2d 316, 321-22 (Okla.1966).

. Title 84 O.S.1981 § 215, see note 3, supra.

. Title 10 O.S.Supp.1989 § 70 provides in pertinent part:

"Proceedings to establish paternity may be brought:
1. in district court by civil proceedings brought by the mother, the father, guardian or custodian of the child, the Department of Human Services, the district attorney, a public or private agency or authority chargeable with the support of the child, or by the child_”

. Title 10 O.S.1981 § 55, see note 2, supra.

. Estate of Benson, 558 P.2d 384, 389 (Okla.1976) (Doolin, J., dissenting), in which Justice Doolin states that § 215 provides one method of proving paternity. This position was adopted by the Legislature in 1977 with the addition of subsection (d) of § 215, see note 3, supra, providing that a child born out of wedlock may inherit from his/her father when paternity has been established before a court of competent jurisdiction.

. Leach v. State, 398 P.2d 848, 851 (Okla.1965); McKiddy v. State, 366 P.2d 933, 935 (Okla.1961); Buck v. State, 206 Okla. 71, 241 P.2d 191 (1952); Roberts v. State, 205 Okla. 632, 240 P.2d 104, 106 (1951); Boston v. State ex rel. Mayberry, 182 Okla. 181, 77 P.2d 13-14 (1938); Greenback v. State, 169 Okla. 616, 36 P.2d 882-83 (1934); Miller v. State, 156 Okla. 253, 10 P.2d 697 (1932); Jones v. State, 152 Okla. 139, 4 P.2d 85-86 (1931); Powelson v. State, 69 Okla. 72, 169 P. 1093-94 (1917); Libby v. State, 42 Okla. 603, 142 P. 406-07 (1914).

. Strict proof requires proof by a preponderance of the clear and positive proof. Sherman v. Goloskie, 95 R.I. 457, 188 A.2d 79, 84 (1963). Presumably, “strict proof falls somewhere between the degrees of preponderance of the evidence and clear and convincing evidence.

. The statute under consideration in Thompson v. Thompson, 177 Okla. 437, 60 P.2d 615, 616 (1936), Okla.Stat. § 1715 (1931), is virtually identical to 10 O.S.1981 § 55, see note 2. It provides:

"The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate- child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court.
The foregoing provisions of this article do not apply to such an adoption."

. Nothing in the language of § 215 indicates, as the majority has judicially legislated, that "paternity must be proven by clear and convincing evidence, but the remaining elements must be proven by a preponderance of the evidence."

. Title 10 O.S.Supp.1989 § 76.1 provides:

“The issues of paternity, support, custody and visitation shall be tried before a judge of the district court and the burden of proof and procedure shall be the same as in an action for divorce."

. State v. Sims, 690 P.2d 1052, 1054 (1984); Allgood v. Allgood, 626 P.2d 1323, 1327 (1981).

. Title 84 O.S.1971 § 215 provides:

“Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate.”

. Title 84 O.S.1981 § 215, see note 3, supra. See also, Note, “Protecting the Illegitimate’s Right to Inherit,” 6 Okla. City U.L.Rev. 469, 486-87 (1981).

. Leach v. State, see note 13, supra; McKiddy v. State, see note 13, supra; Buck v. State, see note 13, supra; Roberts v. State, see note 13, supra; Boston v. State ex rel. Mayberry, see note 13, supra; Greenback v. State, see note 13, supra; Miller v. State, see note 13, supra; Jones v. State, see note 13, supra; Powelson v. State, see note 13, supra; Libby v. State, see note 13, supra.

. Anderson v. Dyco Petroleum Corp., 782 P.2d 1367, 1376 (Okla.1989); Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, see note 1, supra; AMF Tubescope Co. v. Hatchet, 547 P.2d 374, 379 (Okla.1976).

. See, Note, "Inheritance by and From Illegitimate Children,” 3 Okla.City U.L.Rev. 439-40 (1978), in which the author states that the same proof of legitimacy that would satisfy the requirements of the § 215 would also satisfy § 55.

. Matter of Swarer, 566 P.2d 126-27 (Okla.1977); In re Estate of LaSarge, 526 P.2d 930, 932 (Okla.1974); Colpitt v. Cheatham, 267 P.2d 1003, 1007 (Okla.1954).

. Title 10 O.S.1981 § 1.1 provides:

"Wherever reference is made in the Oklahoma Statutes to 'illegitimate' or ‘bastard’ it shall be deemed to refer to a 'child born out of wedlock.’ ”

. Title 10 O.S.1981 § 1.2 provides:

"On and after the date this act becomes operative, all children born within the State of Oklahoma shall be legitimate.”