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

July 28, 2011

ESTATE OF DOUGLAS LLOYD CALKINS, DECEASED. KEVIN G. CALKINS, PETITIONER AND APPELLANT,
v.
MEGAN PISCITELLO, OBJECTOR AND RESPONDENT.



(Super. Ct. No. P7832)

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

Estate of Calkins

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PROCEDURAL HISTORY

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 ...


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