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In re Estate of Shellenbarger

December 29, 2008

ESTATE OF LESLEY LOREN SHELLENBARGER, DECEASED.
LAURA A. BARNES, PETITIONER AND APPELLANT,
v.
CLIFFORD SHELLENBARGER, OBJECTOR AND RESPONDENT.



(Super. Ct. No. P079144) (Ventura County). Kent Kellegrew, Judge.

The opinion of the court was delivered by: Yegan, J.

CERTIFIED FOR PUBLICATION

One hundred years ago our Supreme Court warned that " '[s]uccession to estates is purely a matter of statutory regulation, which cannot be changed by courts' " and that " '[i]t is vain to argue against the injustice of the rule. . . .' " (Estate of De Cigaran (1907) 150 Cal. 682, 688.) This rule of law, i.e., strict adherence to the laws of succession, has not changed. (See Estate of Griswold (2001) 25 Cal.4th 904, 924.) The Court of Appeal follows the law as declared by our California Supreme Court even if we think that the rule of law is unwise or the result of the application of the rule is unfair. (See e.g. Dabney v Dabney (2002) 104 Cal.App.4th 379, 384, conc. op. Yegan, J.) Here it is unfair that father should reap a financial windfall after the death of his son. This is so because father never even saw his son for the 42 years he lived. We hold that a probate court may not, on principles of equity, disinherit a natural parent who abandons a child who later dies intestate. (Prob. Code, § 6400.)*fn1

Laura A. Barnes, administrator of the Estate of Lesley Loren Shellenbarger, appeals from an order denying her petition to exclude the natural father's entitlement to distribution in decedent's estate. (§§ 11700; 1303, subds. (f) & (g).) We affirm.

Facts and Procedural History

Lesley was born in June of 1963 and died intestate in April 2005. He had no surviving spouse, registered domestic partner, child, or issue from a predeceased child. Lesley is survived by his mother/appellant, Laura A. Barnes (Laura), and his natural father, Clifford Shellenbarger (Clifford), who were married for a short time more than 40 years ago.

In 1962 Clifford moved to Michigan, leaving Laura and their one-year old daughter Michele in New Mexico with no means of support. Laura was pregnant with Lesley.

In 1964, Clifford obtained a judgment of marital dissolution and was ordered to pay $10 a week for Michelle's and Lesley's support, commencing in March 1964 and payable to a Michigan court for delivery to Laura. In 1977, the Michigan court increased support to $25 a week per child.

After Lesley died, Laura petitioned to probate Lesley's estate and was appointed administrator. Laura also registered the Michigan judgment and support order to collect child support in a superior court action (collection action) of which we take judicial notice. (Laura Shellenbarger v. Clifford Shellenbarger, Ventura County Super. Ct., Case No. D314927.) Laura claimed the support arrearage with interest was $34,306.02 and that Clifford's interest in the estate was not exempt from execution. The collection action was dismissed with prejudice on October 17, 2006, after Clifford agreed to pay Laura an unspecified amount from his share of the estate.

Three months later, Laura filed a Petition For Instructions To Determine Entitlement To Estate, alleging that Clifford abandoned Lesley and should not take as an intestate heir. (§ 11700 et seq.) Laura stated that Clifford never visited or spoke to Lesley and that Clifford "has not paid one dime to support his children." Clifford objected to the petition, claiming that he paid child support but the records were either lost or had been destroyed.

At the hearing on the petition, the trial court phrased the issue as follows: "[C]an a bad guy luck into an inheritance, and is there an equitable way to avoid it?" It answered the second question with a "no." Laura contends that Clifford forfeited his right to take as an intestate heir because he abandoned Lesley and paid no child support. At oral argument she stressed that she was entitled to an evidentiary hearing to prove the underlying factual predicate. Appellant argues that the trial court's order is tantamount to a non-suit and that, on review, we must accept appellant's version of the facts. We disagree. Section 11704 provides that the probate court "shall consider as evidence" any statement in the petition for instructions and any statement in a responsive pleading. (See Ross, Cal. Practice Guide, Probate (Rutter 2007) ¶15:453.1, p. 15-118.1.)

The record shows that the Michigan divorce decree and the February 22, 1977 order modifying support which also orders that a $740 child support arrearage "is hereby forgiven." In the collection action, Laura calculated the support arrearage was $6,740 as of February 21, 1977 if Clifford paid no support. Based on the Michigan order, the inference can be made that Clifford paid some child support (approximately $6,000) before child support was increased. However, our opinion would be the same if Clifford paid no support whatsoever. This is an equitable consideration which is inapposite to the law of intestate succession. For the same reason, it does not matter that Clifford never even saw his son.

Law of Intestate Succession: The Statutory Will Section 6400 states: "Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as described in this part." It applies to decedents who die after January 1, 1985. (§ 6414, subd. (a).) Thus, the Legislature has, in essence, written a "default statutory will" for those who die without a will.

Section 6402, subdivision (b) provides that where the decedent dies intestate with no surviving spouse, registered domestic partner, or issue, that his or her estate passes to decedent's parents equally. The term "parent" includes "natural parent" (ยง 6450, subd. (a)) and a natural parent-child relationship is established where "[a] court order ...


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