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Estate of Douglas Lloyd Calkins, Deceased. v. Megan Piscitello


July 28, 2011


(Super. Ct. No. P7832)

The opinion of the court was delivered by: Butz ,j.

Estate of Calkins



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Kevin G. Calkins, appearing pro se (Calkins), appeals from an order of the probate court denying his petition to be appointed as administrator of the estate of his deceased brother, Douglas Lloyd Calkins (Decedent), and appointing instead respondent Megan Piscitello (Piscitello), whom the court found to be Decedent's lawful daughter and sole successor to his estate pursuant to Probate Code section 6402.

Calkins's principal argument is that, even though Decedent signed a stipulated judgment in 1995 acknowledging that Piscitello was his daughter, that judgment was not entered pursuant to the Uniform Parentage Act (Fam. Code, § 7600 et seq.), and therefore did not conclusively establish Decedent's paternity. We shall affirm the order.


Decedent died intestate on October 29, 2009. On December 18, 2009, Calkins filed a petition for letters of administration, alleging priority to administer the estate as Decedent's brother. The petition acknowledged the existence of an "alleged daughter," i.e. Piscitello, as set forth in a county-initiated complaint to establish parenthood, but claimed, "recent DNA tests . . . show that decedent was not the father." Attached to the petition were copies of (1) a stipulation for entry of judgment filed July 25, 1995, in which Decedent acknowledged his paternity of Piscitello and agreed to pay child support; (2) Piscitello's birth certificate showing her father's name as "NOT GIVEN"; and (3) the results of a paternity test performed by a private laboratory purporting to give a result of 0.00 percent probability of "Doug's" paternity of "Megan," but cautioning that the DNA samples were insufficient to confirm the results by independent analysis.*fn1

On January 21, 2010 (all further calendar dates are to that year), Piscitello filed a formal objection to Calkins's petition, which also requested judicial confirmation that she was Decedent's "sole legal heir" and entitled to collect his remaining personal property. The objection was accompanied by a declaration from Piscitello stating that (1) she was born in 1983 while her mother and Decedent were unmarried but dating; (2) her mother did not want to list Decedent's name as the father on her birth certificate because her mother did not want him to have any "legal claim" to Piscitello; and (3) from the time Piscitello was a baby, Decedent visited her, introduced her to others as his daughter, and gave her birthday and Christmas gifts.

Piscitello's declaration also described and attached a copy of a stipulated judgment entered July 26, 1995, in an action brought by the County of Sonoma. The judgment, which is signed by Piscitello's mother and Decedent, as well as a deputy district attorney, declares that Decedent "is the parent of [Piscitello]" and that he agrees to pay monthly child support on her behalf. In an "Advisement and Waiver of Rights for Stipulation for Entry of Judgment," to which Decedent affixed his signature, Decedent waived his right to be represented by counsel, to have a trial on the issue of his parental status, and to have blood or genetic testing as the law permits. The stipulation includes the following provision: "I understand that by signing the Stipulation for Entry of Judgment, I am admitting that I am the parent of the child[] named in the Stipulation and am giving up the rights stated above . . . ." (Italics added.)

On February 5, Piscitello filed her own petition for letters of administration and for authorization to administer the estate under the Independent Administration of Estates Act. (Prob. Code, § 10400 et seq.) Calkins filed an objection to the petition.

After several rounds of briefing on both sides, the matter was heard before Judge Raymond Giordano on March 16. There is no reporter's transcript of the hearing in the record.*fn2

By order filed May 7, Judge Giordano denied Calkins's petition and granted Piscitello's, finding that Piscitello "is the decedent's daughter and sole successor to the Estate of DOUGLAS LLOYD CALKINS," that she has a higher priority for appointment as administrator than Calkins, and that she is qualified to so act. The court also found that Calkins lacked standing to contest the paternity of Decedent under section 7630 of the Family Code.

Calkins appeals from the May 7 order.


We begin by first pointing out that the fact Calkins is representing himself does not exempt him from the rules governing appeals. A person who is representing himself is treated like any other party and is entitled to the same, but no greater, consideration than other litigants and their attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties held to the "same 'restrictive procedural rules as an attorney'"].)

I. Inadequate Briefing

The factual portion of Calkins's brief consists of a lengthy and rambling recitation of his version of the facts, based principally on his personal recollections of events, with virtually no accompanying citation to the record.

California Rules of Court, rule 8.204(a)(1)(C) provides that each factual statement in a brief must be supported by citation to the record. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408, italics added.) Any issues not fully or properly briefed are forfeited and we do not consider them. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) If an appellant's brief does not cite to the record, accompanying claims of error are forfeited. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16.)

For these reasons alone, Calkins has forfeited his claims of error and we need not consider them. But there is more.

II. Inadequate Record

Calkins's pivotal claim on appeal is that the probate court erred by finding that Piscitello was Decedent's daughter rather than accepting his own evidence of non-paternity. However, Judge Giordano heard the matter on March 16, and a transcript of that hearing is not part of the record. (See fn. 2, ante.)

The party challenging the judgment or order has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Estate of Davis (1990) 219 Cal.App.3d 663, 670 & fn. 13.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) "A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides . . . , but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.)

Here, although Calkins cites to documentary evidence that appears in the clerk's transcript, the record he produced does not include the reported proceedings that resulted in the order from which he appeals. The reviewing court "presumes the judgment of the trial court is correct and indulges all presumptions to support a judgment on matters as to which the record is silent." (Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)

In the absence of a transcript of the hearing, we are unable to determine whether the evidence is sufficient to support the order, or whether the probate court erred in any of the rulings it made at the hearing. Under such circumstances, the presumption of correctness stands unrebutted, and the order appealed from must be affirmed. (Weiss v. Brentwood Sav. & Loan Assn. (1970) 4 Cal.App.3d 738, 746-747; see also County of Los Angeles v. Surety Ins. Co. (1984) 152 Cal.App.3d 16, 23 [where "the record on appeal consists of only a clerk's transcript and exhibits and no error appears on the face of the record, the sufficiency of the evidence to support the trial court's rulings is not open to consideration by a reviewing court; in such a case, 'any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it'"].)

The fact that there may not have been a reporter at the hearing is not a valid excuse. In lieu of a reporter's transcript, an appellant may proceed by way of an agreed or settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104, 108; Cal. Rules of Court, rules 8.134, 8.137.) Calkins did not pursue either option.

III. Presumption and Lack of Standing

Independent of the foregoing grounds for affirmance, Calkins's appeal must be rejected because his position is contrary to settled law.

Probate Code section 6453 provides that "[f]or the purpose of determining whether a person is a 'natural parent' as that term is used in this chapter: [¶] (a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act . . . ." (Italics added.)

Chapter 3 of the Family Code is entitled "Establishment of Paternity by Voluntary Declaration." In Family Code section 7570, the Legislature "finds and declares" that "[t]here is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors' benefits, military benefits, and inheritance rights." (Fam. Code, § 7570, subd. (a), italics added.) Under Family Code section 7576, which appears in chapter 3, "[t]he child of a woman and a man executing a voluntary declaration of paternity on or before December 31, 1996, is conclusively presumed to be the man's child." (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 33, pp. 90-91.) Any action to rebut the presumption must be brought within three years of the execution of such a declaration. (Fam. Code § 7576, subd. (d).) It is undisputed that Decedent and Piscitello's mother executed a voluntary declaration of paternity in July 1995, and no action was ever brought to rebut the presumption. Clearly then, the stipulated paternity judgment established Decedent as Piscitello's legal father for all purposes, including her right to inherit from his estate. As the California Supreme Court has noted, "[t]he consequences of a paternity judgment . . . reach beyond the grave," since "the child will succeed to the estate of the father if he dies intestate." (Salas v. Cortez (1979) 24 Cal.3d 22, 28, fn. 3.)

Finally, as the trial court found, Calkins lacks standing to seek a declaration of non-paternity. Under the Family Code, only the child, the mother, or the presumed father may seek such a declaration. (Robert J. v. Leslie M. (1997) 51 Cal.App.4th 1642, 1646; Fam. Code, § 7630, subd. (a).) Calkins does not qualify under any of these categories.

For these additional reasons, we affirm the order of the probate court.


The order is affirmed. Respondent Piscitello shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: RAYE , P.J. HOCH ,J.

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