Pamela J. Mohr, plaintiff-appellant/cross-appellee v. Jonathon Langerman and Joan Mohr, defendants-appellees/cross-appellants.

IN THE COURT OF APPEALS OF IOWA
No. 13-1422
Filed October 15, 2014
PAMELA J. MOHR,
Plaintiff-Appellant/Cross-Appellee,
vs.
JONATHON LANGERMAN and
JOAN MOHR,
Defendants-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Osceola County, Carl J. Petersen,
Judge.
A surviving spouse appeals from the denial of her petition for declaratory
judgment seeking to declare the decedent’s biological son is not an heir. The
son cross-appeals the denial of his motion for summary judgment. AFFIRMED
ON BOTH APPEALS.
Andrea M. Smook and Stephen F. Avery of Cornwall, Avery, Bjornstad &
Scott, Spencer, for appellant Pamela Mohr.
Donald Molstad, Sioux City, for appellee Joan Mohr.
Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West
Des Moines, Kevin Murray, Sac City, and John M. Sandy, Spirit Lake, for
appellees Jonathan and Amy Langerman.
Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
2
MULLINS, J.
A surviving spouse appeals from the district court’s denial of her petition
for declaratory judgment. She seeks a declaration that the decedent’s biological
son is not an heir under Iowa Code section 633.222 (2011). The biological son
appeals from the denial of his motion for summary judgment, contending he
established his heirship. In deciding these appeals, we must determine whether
establishing heirship under Iowa Code section 633.222 requires proof of both
paternity and recognition. We must also determine whether the surviving spouse
or the biological child listed as an heir in the probate inventory bears the burden
of proof, what the burden is, and whether the burden was met in this case.
We conclude Iowa Code section 633.222 demands proof of both paternity
and recognition to establish heirship. We further find the surviving spouse had
the burden to prove by clear and convincing evidence the declaration she was
seeking, and she did not meet the burden. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Jerry Mohr, a resident of Arizona, died intestate in August 2011. At the
time of his death, Jerry was married to Pamela Mohr, the plaintiff in this action.
They were married in 1986 and remained married until his death. They lived in
Scottsdale, Arizona during the first part of their marriage.
In 1994, Jerry engaged in planned sexual relations with Amy Langerman
for the express purpose of conceiving a child. Amy had already had a child
conceived in this manner with a different man. On December 25, 1994, Amy
gave birth to Jonathan Langerman, the defendant in this action. In 1996, Jerry
3
moved to Flagstaff, Arizona, and thereafter maintained infrequent phone contact
with both Pamela and Amy. Sometime in 2000, Jerry began living with Beth
Cairns and helping to raise her son from another relationship. He lived with her
until his death in August 2011.
Amy had moved to California and did not learn of Jerry’s death for several
months. Upon learning of his death, she filed a petition in an Arizona probate
court to establish paternity of Jerry Mohr as the father of Jonathon, then a minor.
Based on DNA evidence, and with no objection by Pamela, the Arizona court
determined that Jerry was the father of Jonathon and ordered Jonathon’s birth
certificate amended to so reflect.
At the time of his death, Jerry owned a one-half interest in 160 acres of
farmland in Osceola County, Iowa. This land is the subject of ancillary
administration in Osceola County.1 Based on the establishment of paternity in
Arizona, the Iowa estate’s personal representative, Joan Mohr, Jerry’s sister-in-
law, filed a probate inventory listing Jonathan as an heir to the Iowa estate.
Pamela filed in Iowa district court a petition for declaratory judgment
seeking a declaration that, under Iowa probate law, Jonathan was not an heir to
Jerry Mohr.2 Jonathan filed a motion for summary judgment based on the
1
See Iowa Code §§ 633.500-.504.
2
At the time of her initial filing in Arizona, Amy Langerman filed on behalf of Jonathan,
who was still a minor. In the present case, Pamela’s petition for declaratory judgment
identified the defendants as, Joan Mohr, the administrator, Jonathan Langerman, and
Amy Langerman his mother. Jonathan has since turned eighteen years of age and is no
longer a minor. Mohr voluntarily dismissed Amy as a defendant. Therefore, Joan Mohr
and Jonathan Langerman are the remaining defendants in this action. Joan Mohr filed
an answer to the declaratory judgment motion, but did not appear personally or through
counsel at the trial.
4
Arizona paternity order finding Jerry was Jonathan’s father. The district court
granted partial summary judgment, finding that the Arizona order established
paternity. However, the court denied summary judgment on the question of
whether Jerry had recognized Jonathan as his son. The case proceeded to trial
on that single issue. Following trial, the district court found Pamela failed to carry
the burden to show Jerry did not recognize Jonathan, and found he was
therefore an heir to the estate. Pamela appeals and Jonathan cross appeals.
II. STANDARD OF REVIEW.
A challenge to inheritance is tried in equity. In re Estate of Evjen, 448
N.W.2d 23, 24 (Iowa 1989). The applicable standard of review in cases tried in
equity is de novo. Iowa R. App. P. 6.907. On appeal from denial of a motion for
summary judgment, our review is for correction of errors of law. Shriver v. City of
Okoboji, 567 N.W.2d 400 (Iowa 1988).
Summary judgment is appropriate when no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Id. The
burden is on the moving party to show the nonexistence of material facts and to
prove the party is entitled to judgment as a matter of law. Knapp v. Simmons,
345 N.W.2d 188, 121 (Iowa 1984). A genuine issue of material fact exists if
evidence is such that a reasonable jury could return a verdict in favor of a
nonmoving party. Fees v. Mut. Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa
1992). To uphold the district court’s summary judgment ruling, we must confirm
that no disputed issues of material fact existed to render summary judgment
inappropriate, and the district court correctly applied the law to those undisputed
5
facts. Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988). We view the facts
in the light most favorable to the nonmoving party. Shriver, 567 N.W.2d at 400.
III. ANALYSIS.
The parties raise numerous issues on appeal. Pamela appeals from
denial of her petition for declaratory judgment arguing the district court wrongly
placed the burden of proof on her and applied the wrong standard of proof. She
further argues the evidence presented at trial met the appropriate standard of
proof. Jonathan cross appeals from the district court’s ruling on the motion for
summary judgment that Iowa law applies in this case and that establishing
heirship requires proof of both paternity and recognition. To resolve these issues,
we must answer the following questions: (1) What state’s law is applicable to the
question of heirship as to Iowa real property? (2) Is proof of paternity alone
sufficient to establish heirship under Iowa Code section 633.222? (3) When the
probate inventory names a person as an heir, does the person challenging that
designation bear the burden of proving that such person is not an heir? (4) If the
challenger bears the burden of proof, what is the standard of proof for showing
recognition under section 633.222? (5) Was that standard met here?
We find it most convenient to address Jonathan’s cross-appeal issues
first. Jonathan asserts the district court erred in failing to grant him summary
judgment on all issues. He contends the court erred in finding (1) the Iowa laws
of descent apply and (2) heirship requires proof of recognition as well as
paternity.
6
A. What State’s Law Is Applicable to the Question of Heirship?
In its ruling on the motion for summary judgment, the district court found
with respect to Osceola land, the Iowa laws of descent apply because the land is
situated in Iowa. Jonathan asserts, “The issue here is ‘legitimacy’ not paternity”
and cites the Restatement (Second) Conflict of Law’s rule governing legitimacy.
This provides, “Whether a child is legitimate is determined by the local law of the
state which, with respect to the particular issue, has the most significant
relationship to the child and the parent.” Restatement (Second) Conflict of Laws
§ 287. Jonathan urges the State of Arizona has the most significant relationship
and our court should apply Arizona law to determine he is “legitimate.”3
Despite his attempts to reframe the issue as one of “legitimacy,” the
questions in this action are as to the right to inherit land situated in the State of
Iowa. Inheritance rights are statutory. Iowa Code section 633.222 sets out how
a child may inherit from a biological father. Further, the descent of real property
is governed by the laws of the state wherein the land in situated, regardless of
the domicile of the deceased. Whisler v. Whisler, 88 N.W.2d 68, 70 (Iowa 1958);
In re Estate of Barrie, 35 N.W.2d 658, 660-61 (Iowa 1949); see also 1 Sheldon F.
Kurtz, Kurtz on Iowa Estates, § 7.9 (3d ed. 1995). Accordingly, we apply Iowa
law to the question of heirship in this appeal.
B. Is Proof Of Paternity Alone Sufficient To Establish Heirship?
Iowa Code section 633.222 currently provides:
3
Jonathan also makes an argument that the “law where the status was created” should
govern in probate contests, citing a Montana case and a Minnesota case.
7
Unless the child has been adopted, a biological child inherits from
the child’s biological father if the evidence proving paternity is
available during the father’s lifetime, or if the child has been
recognized by the father as his child; but the recognition must have
been general and notorious, or in writing. Under such
circumstances, if the recognition has been mutual, and the child
has not been adopted, the father may inherit from his biological
child.
Jonathan contends that because the Arizona order established his paternity,
proof of recognition is not required to establish his heirship, and the district court
should have granted his motion for summary judgment. Jonathan adduces three
arguments to support his position. First, he asserts the plain language of the
statute provides only paternity or recognition is required, not both. Iowa Code
section 633.222 does provide “a biological child inherits from the child’s biological
father if the evidence proving paternity is available during the father’s lifetime, or
if the child has been recognized by the father as his child.” (Emphasis added.)
Our supreme court has, however, determined that a party claiming
heirship pursuant to section 633.222 must show both paternity and recognition by
the father. In Evjen, 448 N.W.2d at 23-25, the claimant sought a declaration that
he was an heir when his biological father died only one week after discovering
the claimant’s mother was pregnant with the claimant. The claimant was able to
prove paternity readily. Evjen, 448 N.W.2d at 24. The court stated
We believe the evidence clearly establishes that [the decedent] is
the father of [the claimant]. Proving paternity, however, is not
enough to establish heirship under section 633.222. It must also be
shown that the father ‘recognized’ the child as his own, a difficult
matter to prove in this case because of the short time between
conception and the father’s death.
8
Id. The court ultimately found the father had recognized the child and declared
the claimant was an heir. Id. at 26. Thus, the claimant was required to prove
both paternity and recognition. The Iowa federal district court also has found
both are required. In Abkes v. Apfel, 30 F. Supp. 2d 1149, 1154 (Iowa N.D.
1998), the federal court for Iowa’s Northern District, citing Evjen, found a child
was not entitled to Social Security survivor benefits where he failed to show
adequate evidence of recognition. This court also has required paternity and
recognition. In In re Estate of Pena, No. 12-0559, 2012 WL 5563116, at *1 (Iowa
Ct. App. Nov. 12, 2012), an unpublished disposition, this court, citing Evjen,
found a pair of brothers failed to prove by clear and convincing evidence that the
alleged father recognized them.
Next, Jonathan argues that section 633.222 has been amended to provide
for a new and different procedure for establishing inheritance rights such that
biological children who prove paternity need not prove recognition. The Iowa
legislature enacted section 633.222 in 1963 as part of their adoption of the Iowa
probate code effective January 1, 1964, and amended it in 1986 and 1994. See
Iowa Acts ch. 1086, §1; 1994 Iowa Acts ch.1046, §28. The 1963 act provided, in
relevant part:
Sec. 222. Illegitimate child—inherit from father. Unless he has
been adopted, an illegitimate child shall inherit from his natural
father when the paternity is proven during the father’s lifetime or
when the child has been recognized by the father as his child; but
such recognition must have been general and notorious, or else in
writing.
1963 Iowa Acts ch. 326, §222. The legislature amended section 633.222 in
1986, making the following changes:
9
Unless the child has been adopted, an illegitimate child shall inherit
inherits from the child’s natural father when if the paternity is proven
evidence proving paternity is available during the father’s lifetime,
or when if the child has been recognized by the father as his child;
but such the recognition must have been general and notorious, or
else in writing.
1986 H.F. 2252; 1986 Iowa Acts ch. 1068, §1. Thus, a biological child could
prove paternity even after the death of the biological father, so long as evidence
proving the paternity was available during the father’s lifetime. In 1994, the
legislature amended the section to its current form as quoted at the beginning of
this analysis, removing the disfavored terms “illegitimate” and “natural,” and
replacing them with “biological.” We note that the conjunction joining the
paternity clause and the recognition clause throughout the development of this
code section has been “or.” This has not changed. Yet our case law determines
that both paternity and recognition are required.
Prior to 1963, Iowa laws governing intestacy provided for inheritance by
biological children in language nearly identical to the 1963 enactment—thus, the
paternity clause and the recognition clause were joined by the conjunction “or.” 4
It is significant that case law prior to 1963 addressing inheritance by biological
children from a biological father also required proof of both paternity and
recognition. For example, in Robertson v. Campbell, 147 N.W. 301, 301-02
(Iowa 1914), our supreme court found, under Iowa Code section 3385 (1897), 5 a
biological child attempting to quiet title against the collateral heirs of the decedent
4
See notes 5 and 6.
5
Iowa Code section 3385 (1897) provides:
They shall inherit from the father when the paternity is proven during his
life, or they have been recognized by him as his children; but such
recognition must have been general and notorious, or else in writing.
10
biological father was required to show both paternity and recognition. See also
Watson v. Richardson, 80 N.W. 407, 409 (1899) (finding Iowa Code section 3385
(1897) required proof of both paternity and recognition, and claimant failed to
make sufficient proof). In Van Horn v. Van Horn, 77 N.W. 846, 847 (Iowa 1899),
our supreme court, citing Iowa Code section 2466 (1873),6 found the claimant
had to show paternity and recognition, and he had adduced sufficient evidence of
both.
Thus, although the language of the statute providing for inheritance of
biological children from biological fathers has always included the word “or”
between the paternity clause and the recognition clause, it has also always been
interpreted to require proof of both. Jonathan insists the 1986 amendment to
section 633.222 was intended to address the preceding case law and alter it
such that only one was required. However, Evjen, Abkes, and Pena were all
decided after the 1986 amendment and are consistent with prior holdings that
both are required. The 1986 amendment also simply provides a biological child
can prove paternity after the deceased father’s death and does nothing to alter
the meaning of the conjunction “or” or the recognition clause that follows it. Thus
the amendment is of no avail in Jonathan’s argument. The language—
specifically, the presence of “or”—has not changed since the inception of the
code section providing for inheritance by biological children.
6
Iowa Code section 2466 (1873) provides:
They shall inherit from the father whenever the paternity is proven during
the life of the father, or they have been recognized by him as his children,
but such recognition must have been general and notorious or else in
writing.
11
Finally, Jonathan argues his case is distinguishable from the above cases
because of the availability of “conclusive DNA evidence,” and that where
paternity is established through “conclusive DNA evidence” nothing further
should be required to establish heirship.7 We are mindful that the predecessor
language of our section 633.222, dating back to the 1800s, was written at a time
when paternity was difficult to prove, and “recognition” was a significant part of
the proof necessary to establish heirship. We also recognize, however, that the
1986 and 1994 amendments were approved by the legislature at times during
which DNA testing had become a common method of providing evidence, if not
conclusive proof, of paternity. Nonetheless, the legislature did not amend the
recognition clause of the statute, which has been judicially interpreted in the
same manner for more than a hundred years.
Nowhere does section 633.222 indicate that a particularly strong showing
of paternity is sufficient to negate the requirement of recognition. The fact of
paternity alone is insufficient under Iowa law to provide inheritance: a father’s
recognition of the relationship between himself and the biological child must
justify the entitlement to inherit; mere genetic relationship is insufficient.8 Iowa
7Jonathan further claims Evjen, Abkes, and Pena, the three cases decided after the
1986 amendment, required the claimant prove recognition because the evidence of
paternity was inconclusive or unavailable. This claim is incorrect. In Evjen and Pena,
the courts found sufficient evidence to establish paternity and insufficient evidence of
recognition. Evjen, 448 N.W.2d at 24; Pena, No. 12-0559, 2012 WL 5563116 at *1. In
Abkes, the administrative law judge accepted the state district court’s determination that
the claimant “narrowly carried” the burden of proving paternity, but found the claimant
failed to prove recognition. Abkes, 30 F. Supp. 2d at 1155.
8
Mohr raises for the first time in her reply brief the argument that Jonathan failed to
establish even paternity as an element of proof. The district court addressed the
question of paternity in the ruling on the motion for summary judgment and found there
12
Code section 633.3(5) further supports the conclusion that biology is not enough.
It provides that the word “child,” when used in the probate code, “includes an
adopted child but does not include a grandchild or other more remote
descendants, nor, except as provided in sections 633.221 [inheritance by a
biological child from a mother] and 633.222, a biological child.” Thus, we clearly
must apply Iowa Code section 633.222, and may not simply find heirship upon a
finding of paternity.
The district court found it was “bound” by the case law to find both
paternity and recognition are required. Although we recognize the case law
deviates from the plain language of the statute in interpreting the “or” to mean
“and,” we too are bound by this long-standing supreme court precedent. See
State v. Hastings, 466 N.W.2d 697, 700 (Iowa Court. App. 1990) (“We are not at
liberty to overturn Iowa Supreme Court precedent”). If this interpretation is to be
overturned, it must be done by the supreme court. Id. Therefore, we also
conclude establishing heirship under Iowa Code section 633.222 requires proof
of both paternity and recognition; proof of paternity alone, however conclusive, is
insufficient. We affirm on the cross-appeal.
C. Who Bears the Burden Of Proof as to Heirship?
We next address the issues in Pamela’s appeal from denial of the petition
for declaratory judgment. Pamela contends the district court erred in finding (1)
she bore the burden of proof in the declaratory judgment action; (2) the standard
was sufficient evidence of paternity, granting Jonathan summary judgment on that issue.
Mohr never appealed or challenged that ruling until her reply brief on appeal. We will not
consider issues first raised in a reply brief. State v. Walker, 574 N.W.2d 280, 288 (Iowa
1998). Therefore, we do not address it.
13
of proof was clear and convincing evidence; and (3) the evidence failed to meet
the standard of proof.
With regard to who bore the burden of proof, the district court said:
A declaratory judgment declares the rights, duties, status
and or other legal relationship of the parties. See Iowa R. Civ. P.
1.1101. . . .
The burden of proof in a declaratory judgment action is the
same as in ordinary actions at law or suits in equity. . . the burden
of proof is on the plaintiff to show that conditions exist to justify the
court exercising its discretionary powers to grant declaratory relief.
See Gen. Cas. Co. of Wisconsin v. Hines, 156 N.W.2d 118, 121
(Iowa 1968). Where the defendant denies the plaintiff’s allegations,
the plaintiff must then prove the proof of the allegations within his or
her pleading. See Gen. Cas. Co. of Wisconsin at 742.
....
As stated above, the burden of proof in a declaratory
judgment is the same as in a typical action at law or equity. See
Owens v. Brownilie, 610 N.W.2d 860, 866 (Iowa 2000). The
plaintiff bringing the action has the burden of proof, even if a
negative declaration is sought. Owens at 866
The plaintiff in the present action argues the burden of proof
should be on the Defendants in this matter. To support her claim,
Petitioner provides several Iowa cases where the disputed heir was
taxed with the burden of proof to prove they were the rightful heir.
See [Abkes, Evjen, Pena, Robertson v. Campbell, Watson v.
Richardson, Craven v. Sellway, 246 N.W.2d 821 (Iowa 1933); Prior
v. Singmaster, 167 N.W.2d 538 (Iowa 1918)]. . . . The
aforementioned cases all concern the disputed heir as the moving
party. However, in the present case, the Court finds itself in the
odd position where the moving party seeking declaratory action is
not the contested heir. Rather, the Plaintiff, Pamela Mohr, is
petitioning the Court to rule that Jonathan Langerman is not an heir
to Jerry Dean Mohr’s estate as he has already [been]
acknowledged by the executor to be such an heir. Thus, Plaintiff,
Pamela Mohr, has the burden of proving Jonathan Langerman
cannot meet the elements to be considered an heir under Iowa
Code section 633.222. Therefore, Plaintiff, Pamela Mohr, has the
burden of proof to prove a negative declaration.
14
The district court later stated, “While this seems to be an uncommon way of
deciding the issues at hand, this is what the declaratory judgment standards
require.”
Pamela renews her contention that she should not bear the burden of
proof in this case. She cites again Craven v. Selway, 246 N.W.2d 821 (Iowa
1933)—a case where marital heirs to an estate brought a petition to quiet title
against a biological heir. In that case, our supreme court stated the burden of
proof was with the person claiming heirship. Craven, 246 N.W. at 822-23. In
Craven, however, the contested biological heir brought his own action making a
claim on the estate. See id. at 822. Thus, he properly bore the burden of
proving his claim.
Pamela further argues the question of who bears the burden should not be
based on who files with the court first. If the estate’s personal representative had
not listed Jonathan as an heir in the initial report and inventory, the burden would
have been on Jonathan to prove heirship in a claim against the estate. Pamela
also argues the district court gave improper weight to the listing of Jonathan as
an heir of the estate. The Iowa probate code provides the personal
representative of the estate shall file a report with the court containing, among
other things, “Name, relationship, and post office address . . . of each heir if the
decedent died intestate.” Iowa Code § 633.361.
In a case that predates the adoption of the Iowa probate code, our
supreme court said, “[I]n the absence of any showing to the contrary, [the
inventory, including the list of heirs] is presumed to be correct.” Sutherland v.
15
Briggs, 166 N.W. 477, 479 (Iowa 1918). We have found no other Iowa cases
citing that proposition. The 1963 adoption of Iowa Code section 633.367,
provides the inventory and appraisement “may be given in evidence in all
proceedings, but shall not be conclusive and other evidence may be introduced
to vary the effect thereof.” Thus, we conclude that under the current code
provision, the probate inventory is not presumptively correct, but is evidence, the
effect of which other evidence may vary. In her declaratory judgment action,
Pamela is attempting through the introduction of other evidence to change the
effect of the inventory listing Jonathan as an heir.
The next question is who bears the burden to prove the asserted change.
Pamela contends the burden should shift to Jonathan in the same way that the
burden shifts to the nonmoving party in other common actions, although she cites
no example within the context of an heirship contest.9 She argues this is
appropriate “when such a shift is reasonable to ensure that the party with access
to the necessary evidence carries the burden.” Pamela urges the court to shift
9
As examples, Mohr cites the following:
In employment discrimination claims, the burden shifts from the
employee to show a prima facie case of discrimination, to the employer to
show nondiscriminatory reasons for their actions, back to the employee to
show nondiscriminatory reasons were merely a pretext for discriminatory
behavior. Klein v. Dubuque Human Rights Comm’n, 829 N.W.2d 190(Iowa Ct. App. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973)).
False imprisonment charges require a shifting burden as the
plaintiff first shows a warrantless arrest and the burden then shifts to the
defendant to show a justification for the arrest. Children v. Burton, 331
N.W.2d 673, 679 (Iowa 1983). In contract law, when a person
challenging a contract demonstrates a confidential relationship, the
presumption of undue influence arises and the burden shifts to the other
party to the contract to rebut that presumption. Jackson v. Schrader, 676
N.W.2d 599, 605 (Iowa 2003).
16
the burden in this case also to “ensure[ ] that the issue before the court is
affirmatively answered by evidence, or lack thereof” rather than by who brings
the claim first.
Other than these arguments, Pamela adduces no authority within the
context of an heirship contest to justify shifting the burden to Jonathan. Pamela
initiated the action now before us, stating in her petition, “[T]he Petitioner
requests the Court enter a judgment declaring that Jonathan Langerman is not
an heir of Jerry Dean Mohr and is not entitled to inherit from the Estate of Jerry
Dean Mohr.” Because this is her prayer, the burden is on her to prove the
allegations within the petition justifying a declaration by the court, even if this
requires proving a negative declaration. See Owens, 610 N.W.2d at 866. Thus,
we affirm the district court’s ruling that Pamela, as the petitioner, bears the
burden of proof.
D. What Is The Standard Of Proof For Showing Recognition?
A contested heir must show heirship by clear and convincing evidence.
Evjen, 448 N.W.2d at 24. Pamela contends, if she does indeed bear the burden
of proof for showing a lack of recognition, the court should not hold her to the
same standard of proof as the contested heir. Rather, she proposes a
preponderance-of-the-evidence standard as “a plausible standard to adopt”
because it is the same standard required of a party making a claim against the
estate. See Iowa Code § 633.10.
This argument again belies the nature of the action before the court.
Pamela filed for a declaratory judgment regarding heirship, so she must be
17
bound by the standards guiding heirship determinations, even though she is
seeking a negative declaration. See Owens, 610 N.W.2d at 866. This standard
is clear and convincing evidence. Further, Pamela does not adduce adequate
reasons for lowering the standard of proof in her case.
E. Was The Standard Met Here?
Based on the foregoing Pamela was required to show by clear and
convincing evidence that Jerry did not recognize Jonathan.10 Pamela contends
on appeal that she met this burden. Recognition means “to admit the fact, truth
or validity of a matter.” Evjen, 448 N.W.2d at 25 (internal quotation omitted). In
the context of heirship, it means the father admitted or acknowledged the
paternity. Id. Recognition need not be universal or so general and public as to
have been known by all. Id. At trial, the parties introduced numerous exhibits.
The only witnesses were Pamela Mohr and Amy Langerman. The parties
produced the following evidence:
Pamela testified she was married to Jerry for twenty-four years. They
resided in Scottsdale, Arizona. After about nine years of marriage, he moved to
Flagstaff, Arizona, to begin a new business. Pamela stayed in Scottsdale to
manage their equine business there. Pamela and Jerry traveled back and forth
for a few years. Pamela testified that they began to grow apart in the early 2000s
and saw each other less frequently, but maintained phone contact. Pamela was
10
Mohr asserts the district court erred in requiring her to show that Jerry did not
recognize Jonathan. She asserts this was error and she needed to show only that
Jonathan could not prove recognition by clear and convincing evidence, the standard
Jonathan would have met had he made the original claim. She argues requiring her to
prove non-recognition is a heightened burden.
18
aware Jerry was having affairs with other women. She maintained they
remained “very, very, very close” in the last years of his life, and spoke often on
the phone, until he died in August 2011. Pamela testified she asked Jerry if he
had any children as a result of his affairs and he stated he did not. Prior to the
paternity action being filed in March 2012, Pamela was not aware of Jerry having
a child. She also was not aware until Jerry’s death that he had been living with
Beth Cairns for the previous ten or eleven years, or that Beth was a named
beneficiary on his $1 million life insurance policy. Pamela and Jerry continued to
file joint tax returns, and claimed no dependent children. Pamela testified Jerry
did not provide any financial support to Jonathan or Amy Langerman. Jerry was,
however, raising Beth Cairn’s son, and named that child as a contingent
beneficiary on his life insurance policy.
Amy Langerman testified that she and Jerry decided to have sex with the
purpose of conceiving a child. Amy already had another child conceived in this
manner, and Jerry offered to father a second child. Amy testified she saw Jerry
occasionally during her pregnancy. When he visited, he would kiss her belly and
speak to the baby. Amy testified, when consulting with a doctor about Amy’s
gestational health, Jerry stated, “My girlfriend and I are having a child.” During a
doctor’s visit, Jerry told Amy to introduce him to the doctor as the baby’s dad.
Amy testified she had a high-risk pregnancy, and was ordered to be on bed rest
after the twenty-sixth week of pregnancy. Jerry was not present when Jonathon
was born on December 25, 1994. Amy testified he intended to be there but,
because the birth occurred on Christmas day, obligations to Pamela prevented
19
him from attending. No father was listed on Jonathan’s birth certificate,11 and
Jonathan bears his mother’s last name.
Jerry moved to Flagstaff in mid-1996. For the first eighteen months or so
of Jonathan’s life, Amy and Jerry had no arrangement for financial support or for
visitation. Amy testified Jerry offered to give her money, but she declined. Jerry
visited occasionally when Jonathan was an infant and toddler. After he moved to
Flagstaff, Jerry called occasionally and inquired after Jonathan, but did not see
him again.
A few years later, Amy moved with her children to California. Over the
years, Amy sent Jerry numerous pictures, Christmas cards, and Father’s Day
cards. On the occasion of Jonathan’s bar mitzvah, she invited Jerry to attend
and offered to introduce him to Jonathan so Jerry could get to know him. Shortly
before his death, Jerry offered to help Amy pay for Jonathan’s college expenses.
When Amy questioned whether Pamela would be upset, Jerry indicated he would
give Amy the money “under the table.” Amy was not aware Jerry had died until
several months had passed, and a mutual friend notified her. She then began
proceedings in Arizona and Iowa to confirm paternity and heirship.
The district court found Pamela’s testimony regarding her close
relationship with Jerry was strongly contradicted by the fact that Pamela was
unaware Jerry had cohabited with Beth Cairns for a decade. The court found,
“Mohr’s testimony concerning her relationship with Jerry Dean Mohr lacks
11
A new certificate of live birth was issued on July 10, 2012, naming Jerry Dean Mohr as
father.
20
credibility, and her assertions that he denied having children [are] not persuasive
on the Court.” With regard to Amy Langerman, the court found:
Amy Langerman is credible as to the events leading up to Jonathan
Langerman’s conception and birth. She appears credible as to the
circumstances of the relationship with Jerry Dean Mohr until they
lost contact. . . . The Court lends less weight to her testimony
concerning what occurred thereafter, including the time after Jerry
Dean Mohr’s death. Amy Langerman was not even aware of his
death for several months thereafter.
In the absence of written recognition, “recognition must have been general
and notorious.” Iowa Code § 633.222. Our supreme court has explained that for
a biological child to be considered an heir, “recognition need not be universal or
so general and public as to have been known by all.” Evjen, 448 N.W.2d at 25.
“[R]ecognition is a mental process . . . made manifest by overt acts or speech.”
Id. Recognition may occur even though there are efforts to conceal the facts
from some. Id. The district court found it was presented with very little evidence
regarding Jerry’s state of mind regarding Jonathan, particularly in the later years
of his life when he was living with Beth Cairns and had very limited contact with
either Pamela or Amy.
We too find the evidence adduced to support Pamela’s assertion that
Jerry did not recognize Jonathan is sparse. It appears Jerry took steps to
conceal Jonathan’s existence from Pamela. It is not surprising he was not
forthcoming to his wife concerning a child he had fathered with another woman.
He was also not forthcoming about his long-term living arrangement with Beth
Cairns, nor about naming Cairns and her son as beneficiaries on his life
insurance policy.
21
Jerry was not listed on the birth certificate as Jonathan’s father. Yet,
according to Amy, Jerry was introduced to Jonathon’s doctor as the father of the
child, and in some other early circumstances, Jerry appeared to treat Jonathan
as his child. Jerry had no direct contact with Jonathan after Amy moved to
California. Later, however, according to Amy, Jerry offered to pay for Jonathan’s
college tuition. We defer to the district court’s findings that Amy was more
credible than Pamela, and that Amy was more credible regarding circumstances
prior to losing contact with Jerry. We conclude Pamela has not carried her
burden of proving by clear and convincing evidence that Jerry did not recognize
Jonathan.
IV. CONCLUSION.
We conclude the district court correctly found Iowa law was applicable to
the resolution of the issues here, and correctly determined that proof of both
paternity and recognition are required to establish heirship under section
633.222. Consequently, we affirm the partial denial of Jonathan’s motion for
summary judgment.
We further conclude the district court correctly determined Pamela had the
burden of proving, by clear and convincing evidence, that Jerry did not recognize
Jonathan, and did not err in concluding that Pamela failed to carry her burden.
Consequently, we affirm the denial of her petition for declaratory judgment.
AFFIRMED.