Summary
affirming trial court's determination that an unborn child was a dependent of the decedent within the meaning of the Wrongful Death Act
Summary of this case from Melvin v. Patterson, (S.D.Ind. 1997)Opinion
No. 50A03-8802-CV-67.
December 29, 1988.
Appeal from the Marshall Circuit Court, Michael D. Cook, J.
John R. Obenchain, South Bend, for appellant.
Paul E. Becher, Barnes Thornburg, Elkhart, for appellee.
William J. Foster appeals from a summary judgment granted in favor of Linda Dolores Filley, special administratrix of the estate of Charles Forrest Filley IV, in which the court determined that Charles Forrest Filley V was a dependent child of Charles Forrest Filley IV within the meaning of the wrongful death statute.
The facts relevant to this appeal disclose that in June 1985 Linda discovered that she was pregnant. Linda had been dating Charles IV steadily and had not had sexual relations with anyone else. When she informed Charles IV, they determined that they would marry and they announced their engagement. Charles IV told his mother, brother, grandmother and others that Linda was pregnant with his child. Linda and Charles IV reserved a church for their wedding and wedding rehearsal. They ordered flowers, tuxes, dresses and sent invitations for the wedding. The wedding was to be held on August 3, 1985. On July 27, 1985 Charles IV was killed when the automobile in which he was a passenger collided with a car driven by Foster.
In December 1985 paternity of Linda's unborn child was established in the Elkhart Superior Court. Charles IV's mother signed a consent decree to establish Charles IV as the father. The consent decree was accompanied by affidavits wherein family members stated that Charles IV had acknowledged the child as his.
On January 28, 1986 Linda gave birth to a son, Charles Forrest Filley V. Shortly thereafter Linda changed her name to Filley.
In March 1987 the United States Department of Health and Human Services determined that Charles V was entitled to social security insurance benefits resulting from his father's death. Health and Human Services found that Charles V was a "child" of the wage earner within the meaning of the Social Security Act.
In April 1987 the parties in this action filed cross-motions for summary judgment. The trial court granted Linda's motion as to the paternity of Charles V.
Foster appeals and raises one issue: whether the trial court erred in determining that Charles V was a dependent child of Charles IV within the purview of the wrongful death statute.
The wrongful death statute allows a dependent child to recover damages for a death caused by the wrongful act or omission of another. IND. CODE § 34-1-1-2 (1985 Supp.) This Court in S.M.V. v. Littlepage (1982), Ind. App., 443 N.E.2d 103, considered the circumstances under which a posthumous illegitimate child could claim a right to participate in the proceeds of a wrongful death action. The Court in S.M.V. determined that the rigors of establishing paternity through the paternity statutes, IND. CODE § 31-4-1-1 (repealed and reenacted as 31-6-6.1-1 et seq.) and establishing a right to an inheritance through the intestate succession statutes, IND. CODE § 29-1-2-7(a) (1982) (since amended), provided sufficient assurance to prevent spurious claims against the estate of a deceased in a wrongful death action. S.M.V., supra, 443 N.E.2d at 109, (in a concurring opinion by now Chief Judge Ratliff it was noted that advances in biological testing techniques could significantly alter present methods of establishing paternity, thus rendering strict adherence to the present scheme too restrictive). Recovery was denied in S.M.V. because paternity could not be established through either the paternity statutes or intestate succession statutes.
In Hollingsworth v. Taylor (1982), Ind. App., 442 N.E.2d 1150, this Court determined that where until his death the decedent supported an illegitimate child and acknowledged the child in writing, the child was a "dependent child" within the meaning of the wrongful death statute. In reaching its decision the Hollingsworth court relied upon a portion of the paternity statutes which stated:
"The obligation of the father, where his paternity has been established during his lifetime by judgment of a court of competent jurisdiction, or where his paternity has been acknowledged by him in writing, or by the part performance of his obligations, is enforceable against his estate in such an amount as the court may determine. . . ." Hollingsworth, supra, 442 N.E.2d at 1152.
Here, paternity was established under the paternity statutes and there was evidence of past performance of decedent's obligations. The evidence indicates that Charles IV orally acknowledged Charles V as his child, Charles IV gave Linda approximately $600.00 toward support and care for his unborn child, and Charles IV had completed all arrangements to marry Linda. Under the S.M.V. analysis the court order establishing paternity for Charles V sufficiently established "dependent child" status for Charles V. Consequently, Foster's arguments that only the laws of intestate succession should be consulted in the present cause are specifically rejected.
There being no finding of error, the trial court's judgment is affirmed.
AFFIRMED.
GARRARD, P.J., and STATON, J., concur.