Intestate Succession--illegitimate child_-adjudication or acknowledgment during lifetime
required
The trial court did not err by granting defendants' motion to dismiss under N.C.G.S. §
1A-1, Rule 12(b)(6) in a declaratory judgment action seeking a determination that plaintiff
illegitimate child was decedent's sole heir who was entitled to inherit from her father through
this state's intestacy laws, because: (1) plaintiff's complaint did not include any claim that
decedent was adjudged to be her father or that decedent acknowledged himself to be plaintiff's
father in a written instrument which was duly executed and filed as required by N.C.G.S. § 29-
19(b)(1) and (2); (2) a positive DNA test is not enumerated in the statute as a method of meeting
the requirements to legitimate a child; and (3) although plaintiff bases her appeal on the grounds
that N.C.G.S. § 29-19 violates her equal protection and due process rights, the courts will avoid
constitutional questions even if properly presented where a case may be resolved on other
grounds.
HYLER & LOPEZ, P.A., by George B. Hyler, Jr. and Robert J.
Lopez, attorneys for plaintiff.
JAMES MICHAEL LLOYD, P.A., by James Michael Lloyd, attorney
for defendant.
TIMMONS-GOODSON, Judge.
Gwendolyn W. Phillips (“plaintiff”) appeals from a trial court
dismissal granted pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6). For the reasons stated herein, we affirm the trial
court's decision. The facts of this case are as follows: Benjamin Jay Owenby
(“decedent”) died intestate in Buncombe County, North Carolina on
29 January 2002. At the time of his death, decedent was not
married, not survived by parents, and had no children other than
plaintiff. Plaintiff is the natural and biological daughter of
decedent and Nancy Wilson Waldron. Decedent and Waldron were never
married.
On 11 March 2002, the Buncombe County Estate Division opened
decedent's estate. Marilyn Owenby Ledford and George Richard
Owenby (“defendants”), were appointed co-administrators for the
estate. Defendants are decedent's siblings.
Decedent had seven siblings, three of whom predeceased him.
Two of the deceased siblings had children and the third deceased
sibling had no children. The four surviving siblings and the
children of the deceased siblings were named in the Application of
Letters of Administration as the decedent's heirs and those persons
entitled to share in the decedent's estate, and are also defendants
in this action.
Born on 19 April 1972, plaintiff was not told that she was
decedent's daughter until several years prior to decedent's death.
After decedent was told that he was plaintiff's biological father,
plaintiff and decedent were tested by a DNA genetic paternity
testing laboratory which determined to a greater than 99% level of
certainty that decedent could not be excluded as the father of the
plaintiff. After the DNA testing, plaintiff and decedent developed
a parent-child relationship. Decedent acknowledged to his family,
friends, and the general public that he was plaintiff's father. Furthermore, decedent's siblings and their families were aware that
plaintiff was decedent's daughter. However, decedent never
legitimated plaintiff, and decedent was never adjudicated to be
plaintiff's father during his lifetime.
On 17 June 2002, plaintiff filed this action pursuant to N.C.
Gen. Stat. § 1-253, seeking a declaratory judgment that she is the
sole heir of the decedent. Defendants filed a motion to dismiss
which was granted, and an order of dismissal was entered on 17
September 2002. It is from this order that plaintiff now appeals.
Plaintiff's sole assignment of error is that the trial court
improvidently granted defendants' motion to dismiss because the
statute which stood as grounds for dismissal, N.C. Gen. Stat. § 29-
19, as applied violates plaintiff's right to due process and equal
protection under the North Carolina and United States
Constitutions. Plaintiff believes that the statute lacks a
substantial and legitimate relationship to the particular state
interest that it purports to protect, and therefore is
unconstitutional.
The first step in this Court's analysis is to consider the
trial court's treatment of the motion to dismiss. On a motion to
dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure, the standard of review is “'whether, as a matter
of law, the allegations of the complaint, treated as true, are
sufficient to state a claim upon which relief may be granted under
some legal theory.'” Block v. County of Person, 141 N.C. App. 273,
277, 540 S.E.2d 415, 419 (2000) quoting Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987). “The complaint must be
liberally construed, and the court should not dismiss the complaint
unless it appears beyond a doubt that the plaintiff could not prove
any set of facts to support his claim which would entitle him to
relief.” Id. at 277-78 citing Dixon v. Stewart, 85 N.C. App. 338,
354 S.E.2d 757 (1987). In the present case, this Court must
consider whether plaintiff's complaint, treated as if all the
allegations therein are true, would meet the statutory requirement
for an illegitimate child to inherit from her father through this
state's intestacy laws. We hold that plaintiff's complaint does
not meet this requirement.
The statute governing succession by, through and from
illegitimate children states in pertinent part:
For purposes of intestate succession, an illegitimate
child shall be entitled to take by, through and from: (1)
any person who has been finally adjudged to be the father
of such child ...; (2) any person who has acknowledged
himself during his own lifetime and the child's lifetime
to be the father of such child in a written instrument
executed or acknowledged before a certifying officer...
and filed during his own lifetime and the child's
lifetime in the office of the clerk of superior court of
the county where either he or the child resides.
N.C. Gen. Stat. § 29-19(b)(1) and (2) (2001). “Absent the statute,
an illegitimate child has no right to inherit from his or her
putative father.” Hayes v. Dixon, 83 N.C. App. 52, 54, 348 S.E.2d
609, 610 (1986) citing Herndon v. Robinson, 57 N.C. App. 318, 291
S.E.2d 305 (1982).
In her complaint, plaintiff asserts the following pertinent
allegations:
17. Several years prior to the death of the Decedent,
Benjamin Jay Owenby: a. Plaintiff learned that the Decedent was her
father;
b. Plaintiff and the Decedent developed a close
and loving relationship;
c. Decedent acknowledged and held to his family,
his friends and the general public that he was
the father of the Plaintiff;
d. Decedent's siblings and their families were
aware that the Plaintiff was the daughter of
the Decedent.
18. Several years prior to the death of the decedent,
the Plaintiff and the [D]ecedent were tested by a
genetic paternity testing laboratory and it was
determined to a greater than 99% level of certainty
that the [D]ecedent could not be excluded as the
father of the child.
Plaintiff's complaint did not include any claim that decedent
was adjudged to be her father, or that decedent acknowledged
himself to be plaintiff's father in a written instrument which was
duly executed and filed. Although the North Carolina Supreme Court
has recognized DNA profile testing to be generally admissible
evidence as a reliable technique within the scientific community,
see State v. Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854
(1990), a positive DNA test is not enumerated in the statute as a
method of meeting the requirements to legitimate a child.
“The statute mandates what at times may create a harsh result.
It is not, however, for the courts but rather for the legislature
to effect any change.” Hayes, 83 N.C. App. at 54, 348 S.E.2d at
610. The allegations set forth in plaintiff's complaint do not
satisfy the statutory requirement for an illegitimate child to
inherit through the state's intestacy laws. Therefore, these
allegations, even when treated as true, are not sufficient to state
a claim upon which relief may be granted. For this reason, weconclude that the trial court properly granted defendants' motion
to dismiss.
Plaintiff bases her appeal of the Rule 12(b)(6) dismissal on
an argument that N.C. Gen. Stat. § 29-19 violates her equal
protection and due process rights as afforded her by the North
Carolina and United States Constitutions. Because we have
determined that plaintiff's complaint does not state a claim upon
which relief can be granted, we need not address whether the
statute violates plaintiff's rights under the North Carolina and
United States Constitutions. See Anderson v. Assimos, 356 N.C.
415, 416, 572 S.E.2d 101, 102 (2002)(per curiam) (“[T]he courts of
this State will avoid constitutional questions, even if properly
presented, where a case may be resolved on other grounds”). The
trial court properly granted defendants' motion to dismiss and
therefore we decline to address the constitutional issues presented
in this appeal.
No error.
Judges HUDSON and ELMORE concur.
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