Thomas J. Tucker v. Cindy Tucker as Administratrix of the Estate of John Kevin Tucker ( 2021 )

RENDERED: APRIL 16, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1692-MR
THOMAS J. TUCKER APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
v. HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 19-CI-00223
CINDY TUCKER, AS
ADMINISTRATRIX OF THE ESTATE
OF JOHN KEVIN TUCKER AND AS
AN HEIR AT LAW OF JOHN KEVIN
TUCKER; AND JOYCE TUCKER, AS
A POTENTIAL HEIR AT LAW OF
JOHN KEVIN TUCKER APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: Thomas J. Tucker (“Thomas”) appeals from the Wayne Circuit
Court’s order dismissing his complaint for determination of heirship following the
death of John Kevin Tucker (“John”). Following our careful review of the record
and applicable law, and being otherwise sufficiently advised, we affirm.
I. BACKGROUND
John and Patricia Tucker (“Patricia”) married on February 22, 1986.
Thomas was born a few months later in August of 1986. John was listed as
Thomas’s father on the birth certificate. John and Patricia separated on February
20, 1989. In 1991, Patricia sought assistance from the Wayne County Attorney
with respect to child support for Thomas. Thereafter, the Wayne County Attorney
filed a support action against John on Patricia’s behalf. John’s actual paternity of
Thomas became an issue in the support action, and by order entered August 18,
1992, John was directed to submit to DNA testing, with the results to be filed in
the support action.
Blood was drawn from John, Patricia, and Thomas for the purpose of
completing the DNA testing. A paternity evaluation report from Genetic Design
was filed in the support action on October 19, 1992. In relevant part, the report
states: “The alleged father JOHN K TUCKER lacks the following genetic markers
present in the child THOMAS TUCKER and absent in the mother: HLA B61.
Therefore, the alleged father cannot be the biological father of the child. The
alleged father is also excluded by DNA probe technology.” With the assistance of
the Wayne County Attorney, Patricia moved to voluntarily dismiss the support
action. By order entered December 1, 1992, the circuit court granted Patricia’s
motion and dismissed the support action. The circuit court’s dismissal order
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expressly states: “this action is hereby dismissed on the grounds that the blood
tests taken in this action preclude the defendant from being the father of the child
named in the complaint.” A similar statement was included in the circuit court’s
findings of fact, conclusions of law, and judgment of marriage dissolution: “One
child was born during the marriage, namely, Thomas Joe Tucker, age 6, but blood
tests revealed that John K Tucker was not the biological father of said child.”
After John and Patricia’s divorce, John remained active in Thomas’s
life. Thomas maintains that John referred to Thomas as his son, kept in touch with
him, exchanged letters and cards with him, even during the period of time when
John was incarcerated in federal prison, and provided him with monetary support.
Thomas further alleges that he believed John to be his actual, biological father
during his infancy, and that he did not learn the true facts until he reached majority.
Even after adulthood, however, Thomas continued to refer to John as his father,
and John referred to Thomas as his son. The two shared holidays together and
otherwise treated one another as family.
John died intestate on January 28, 2019. At the time of his death,
John was married to Cindy Tucker (“Cindy”). Cindy was appointed as
administratrix of John’s estate. As part of the probate action, John’s heirs at law
and next of kin were identified as Cindy and John’s mother, Joyce Tucker
(“Joyce”). With the assistance of counsel, Thomas filed a petition for a
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determination of heirship in the district court probate action. The district court
dismissed Thomas’s petition for lack of jurisdiction, noting that it was adversarial
in nature and requested equitable relief making circuit court the appropriate forum
to litigate Thomas’s claims.
On August 9, 2019, Thomas filed a verified complaint in Wayne
Circuit Court. Therein, Thomas alleged he was entitled to be treated as John’s
natural child for the purposes of intestacy distribution based on the facts that (1) he
was born into the marriage of John and Patricia; (2) John had always recognized
Thomas as his son; and (3) John was listed as Thomas’s father on Thomas’s birth
certificate. Alternatively, Thomas asserted that an “adoption by estoppel” was
created where John held himself out as Thomas’s father and Thomas relied on that
fact.
John’s Estate moved to dismiss Thomas’s petition on the basis that
Thomas’s assertion that John was his natural father was barred by res judicata
because John’s paternity had been conclusively disproven during the support
action, and that as a matter of law, Kentucky did not recognize adoption by
estoppel in the context of inheritance disputes. The circuit court agreed with the
Estate and dismissed Thomas’s petition as a matter of law.
This appeal followed.
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II. STANDARD OF REVIEW
“A motion to dismiss for failure to state a claim upon which relief
may be granted ‘admits as true the material facts of the complaint.’” Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton County, 330
S.W.2d 428, 429-30 (Ky. 1959)). Accordingly, “a court should not grant such a
motion ‘unless it appears the pleading party would not be entitled to relief under
any set of facts which could be proved[.]’” Id. (quoting Pari-Mutuel Clerks’
Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551
S.W.2d 801, 803 (Ky. 1977)). “Since a motion to dismiss for failure to state a
claim upon which relief may be granted is a pure question of law, . . . an appellate
court reviews the issue de novo.” Id. (citation omitted).
III. ANALYSIS
Pursuant to KRS1 406.011, “[a] child born during lawful wedlock, or
within ten (10) months thereafter, is presumed to be the child of the husband and
wife.” As expressly stated in the statute, the presumption in favor of paternity is
rebuttable. “While paternity may be established by a paternity action during a
child’s minority, paternity can also be established by a declaratory judgment action
before or after the death of the putative father, an action to settle the estate, an
action to quiet title, or by an action (such as this) for allowance of the intestacy
1
Kentucky Revised Statutes.
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share as a necessary condition of which the fact that the plaintiff is a child of the
decedent must be established.” Wood v. Wingfield, 816 S.W.2d 899, 905 (Ky.
1991). However, “[i]f the issue of paternity is litigated and determined as an
element of an action for support, the result is res judicata as to other legal rights
which exist by virtue of paternity.” Ellis v. Ellis, 752 S.W.2d 781, 782 (Ky. 1988).
In this case, John’s paternity was litigated as part of the support action
filed by the Wayne County Attorney. In the order dismissing that action, the
circuit court expressly stated: “That this action is hereby dismissed on the grounds
that the blood tests taken in this action preclude the defendant [John] from being
the father of the child [Thomas] named in the complaint [for support].” The
district court’s order was not disputed and was a document capable of being
judicially noticed by the circuit court. As stated in Ellis, this conclusion is res
judicata as to other legal rights which exist by virtue of paternity, which would
necessarily include Thomas’s right to inherit from the Estate based on being John’s
natural child. Therefore, we cannot conclude that the circuit court erred in
concluding that the prior paternity action barred Thomas’s claim based on John’s
alleged paternity.
Next, we must consider Thomas’s claim that he should be allowed to
inherit based on a theory of equitable adoption. There are two well-settled rules
regarding adoption: (1) the right of adoption exists only by statute, and (2) there
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must be strict compliance with the adoption statutes. Wright v. Howard, 711
S.W.2d 492, 494 (Ky. App. 1986). “The law of adoption is in derogation of the
common law. Nothing can be assumed, presumed, or inferred and what is not
found in the statute is a matter for the legislature to supply and not the courts.”
S.B.P. v. R.L., 567 S.W.3d 142, 147 (Ky. App. 2018) (citing Day v. Day, 937
S.W.2d 717, 719 (Ky. 1997)). Additionally, “[t]he right of an adopted child to
inherit is, however, based upon the statute, and not upon any common-law or civil
law status.” Villier v. Watson, 168 Ky. 631, 182 S.W. 869, 871 (1916).
“Upon entry of the judgment of adoption, from and after the date of
the filing of the petition, the child shall be deemed the child of petitioners and shall
be considered for purposes of inheritance and succession and for all other legal
considerations, the natural child of the parents adopting it the same as if born of
their bodies.” KRS 199.520(2). This statute specifically provides that a judgment
of adoption must be entered to confer inheritance and succession rights on the
adopted person. No judgment of adoption was ever entered in this case. It is
beyond the power of the courts to recognize an adoption based on conduct alone
for the purpose of inheritance where a statute specifically requires entry of a
judgment of adoption.
Additionally, we cannot agree that equity would demand recognition
of adoption in this case even if it were a cognizable theory. At some point in time,
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after Thomas reached majority, and well before John died, both parties were aware
that John was not Thomas’s natural father. Had John desired to adopt Thomas, he
could have done so, thereby securing Thomas’s inheritance rights. See KRS
405.390 (“An adult person over eighteen (18) years of age may be adopted in the
same manner as provided by law for the adoption of a child and with the same
legal effect, except that his consent alone to such adoption shall be required.”).
Aware of the facts, Thomas and John carried on their relationship without having it
legally recognized. Equity then cannot step in to do what John, with full
knowledge of the facts, could have but did not seek to do during his lifetime.
III. CONCLUSION
For the reasons set forth above, we affirm the Wayne Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CINDY
TUCKER:
Donald L. Wilkerson III
David M. Cross Mark D. Knight
Albany, Kentucky Somerset, Kentucky
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