IN RE ESTATE OF DELARA, 2002-NMCA-004,
131 N.M. 430, 38 P.3d 198
IN THE MATTER OF THE ESTATE OF PAUL E.
DELARA, Deceased.
APPLICATION FOR FORMAL APPOINTMENT OF PERSONAL
REPRESENTATIVE, and JONATHAN NILES KESTERSON, a
minor, and SARAH ASHLEY KESTERSON, a
minor, REPRESENTED BY THEIR MOTHER,
MARGARET KESTERSON,
Plaintiff-Appellant,
vs.
ROSEMARY M. DELARA, Personal Representative of the Estate
of Paul E. DeLara, Deceased, Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
2002-NMCA-004, 131 N.M. 430, 38 P.3d 198
APPEAL FROM THE DISTRICT COURT OF
SANDOVAL COUNTY. Kenneth G. Brown, District Judge.
As Corrected January 29, 2002.
Certiorari Denied, No. 27,278, January 8, 2002. Released for Publication
January 11, 2002.
Kim E. Kaufman, Albuquerque, NM, for
Appellant.
Alan R. Rackstraw, Placitas, NM, for
Appellee.
RICHARD C. BOSSON, Chief Judge. WE CONCUR:
LYNN PICKARD, Judge, IRA ROBINSON, Judge.
AUTHOR: RICHARD C. BOSSON
{1} In this appeal we
determine whether the Uniform Parentage Act (UPA),§§ NMSA 1978, 40-11-1 to -23
(1986, as amended through 2001), allows children born outside of marriage to
obtain past and future child support from their father's estate. The district
court ruled against that claim because no action for paternity or child support
had been filed before their father's death. We reverse. We hold that the UPA
authorizes children born outside of marriage to file suit against their
father's estate for child support.
{2} Paul DeLara died
intestate on January 30, 1999. At the time of his death, Mr. DeLara and his
wife, Rosemary DeLara, had been married for thirty-six years, and had two
children. Sometime during the marriage, Mr. DeLara had two other children,
Jonathan and Sarah, with another woman, Margaret Kesterson. During his
lifetime, Mr. DeLara apparently provided some support
{*432}
to Jonathan and Sarah and maintained a relationship with them.
{3} In April 1999,
three months after Mr. DeLara's death, Ms. Kesterson filed a petition to
establish parentage under the UPA, seeking to establish that Mr. DeLara was the
father of Jonathan, born January 10, 1986, and Sarah, born August 3, 1989. Ms.
Kesterson's petition was filed within the statute of limitations established in
the UPA, which required her to file suit within three years of her children
reaching their age of majority. Section 40-11-23(A). The petition named Ms.
DeLara as Defendant acting in her capacity as personal representative of Mr.
DeLara's estate.
{4} Ms. Kesterson's
petition also sought an award of past and future child support and discovery
pertaining to Mr. DeLara's assets. In the course of the proceedings, paternity
testing established that Mr. DeLara was the father. The district court entered
an order establishing paternity, but deferred ruling on Ms. Kesterson's other
claims. The order establishing paternity was not appealed.
{5} Ms. DeLara filed a
motion to dismiss that portion of Ms. Kesterson's petition regarding child
support. She raised several arguments: (1) that the children could not receive
child support if no court order requiring child support had been entered before
the father died, (2) that Ms. Kesterson's claim was barred by laches and
waiver, and (3) that all community property owned by Mr. DeLara and Ms. DeLara
at the time of death passed directly to Ms. DeLara by operation of law which
left no community assets from which to pay child support for Jonathan and
Sarah.
{6} The district court
ruled that, after paternity was established, the children had received all of
the relief to which they were entitled under the UPA. The court authorized the
children to share in Mr. DeLara's separate property under the laws of intestate
succession. However, the court ruled that the children had no claim for child
support against Mr. DeLara's estate because they had not filed such an action
before his death. Any such claim on behalf of the children was described as
"not supported by statute or case law and . . . in derogation of the
common law." The district court then dismissed Ms. Kesterson's petition
with prejudice.
{7} This case presents
a matter of statutory construction which is a question of law reviewed de novo.
Bajart v. Univ. of N.M., 1999-NMCA-64, P7,
127 N.M. 311,
980 P.2d 94.
Ms. Kesterson's Right to Child Support Under the
UPA
{8} The UPA deals with
establishing paternity. Sections 40-11-4, -7, -10, -11. It provides for
recovering child support and other costs from the father. Section 40-11-15(C)
to (F). The UPA also allows suits against the father's estate. Section
40-11-8(C) provides: "The action may be brought in the county in which any
party resides or is found or,
if the father is deceased, in which
proceedings for probate of his estate have been or could be
commenced." (Emphasis added.)
{9} Thus, Section
40-11-8(C) clearly envisions a suit under the UPA after the death of the
father. It does not express whether, as a condition precedent to a suit against
the father's estate, an action to establish paternity and obtain child support
must have been filed prior to the father's death. Consequently, in interpreting
the UPA we must determine legislative intent, reading the statute as a whole
and considering its purposes.
D'Avignon v. Graham,
113 N.M. 129, 131,
823 P.2d 929, 931 (holding the cardinal rule of statutory construction is to
determine legislative intent);
City of Las Cruces v. Davis,
87 N.M. 425,
426,
535 P.2d 68, 69 (Ct. App. 1975) (recognizing parts of an act must be
considered as a whole);
Mutz v. Mun. Boundary Comm'n,
101 N.M. 694, 698,
688 P.2d 12, 16 (1984) ("We interpret statutes in order to facilitate
their operation and the achievement of their goals.").
{10} This Court has
previously stated that "the primary purpose of a paternity proceeding is
to compel the father to support his child."
State ex rel. Human Servs.
Dep't v. Aguirre,
110 N.M. 528, 531,
797 P.2d 317, 320 ;
see also
Aldridge v. Mims,
118 N.M. 661, 665, 884
{*433}
P.2d 817, 821 (Ct. App. 1994). Our Supreme Court has characterized child
support as a parent's "most important single obligation."
Niemyjski
v. Niemyjski,
98 N.M. 176, 177,
646 P.2d 1240, 1241 (1982) (emphasis
omitted). Children born outside of marriage are entitled to support from their
parents, just as children who are born to married parents.
Tedford v.
Gregory, 1998-NMCA-67, P24,
125 N.M. 206,
959 P.2d 540. The state also has
an interest in children being supported by their father.
Aguirre, 110
N.M. at 531, 797 P.2d at 320 (by establishing paternity the state ensures that
the child is financially cared for by the father and that "such
responsibility does not needlessly fall on the state"). Our law reflects a
strong public policy in favor of support.
Wallis v. Smith, 2001-NMCA-17,
PP9-11,
130 N.M. 214,
22 P.3d 682 (holding that a father could not rely on a
theory of contraceptive fraud to avoid his child support obligation);
D'Avignon,
113 N.M. at 130-37, 823 P.2d at 930-37 (holding that father could not use personal
exemptions to defeat a claim for back child support). We interpret the UPA
against this backdrop.
{11} Although the UPA
is silent as to whether a support order must have been entered before the
father's death, Ms. DeLara argues that this condition is implicit in existing
New Mexico case law. She relies primarily on two cases in which the children
were allowed to make claims against their father's estate based on prior child
support orders that had been entered while the fathers were still alive.
See
Hill v. Matthews,
76 N.M. 474, 476,
416 P.2d 144, 145 (1966);
D'Avignon,
113 N.M. at 130-37, 823 P.2d at 930-37. Ms. DeLara cites these opinions for the
proposition that, without a prior legal action or support order, no claim
against the estate is allowed under the UPA.
{12} We do not find
either of these two opinions persuasive for the proposition asserted. While it
is true in both cases that prior support orders were enforced against the
father's estate or the father's property, it is also true that neither case
addresses the statutory language of the UPA or the precise issue under
consideration here.
Hill was decided in 1966, twenty years before the
enactment of the UPA. In
D'Avignon, the child support claim was brought
against the father, not the father's estate, and the opinion does not address
the UPA at all.
Hill and
D'Avignon provide relevant context, but
they cannot be expanded to support a proposition never considered by either
court.
See Fernandez v. Farmers Ins. Co.,
115 N.M. 622, 627,
857 P.2d
22, 27 (1993) (stating the general rule that cases are not authority for
propositions not considered).
{13} The legislature
clearly intended the UPA to have broad application. An action may be brought by
"any interested party," §§ 40-11-7 and -21, against an estate, §
40-11-8(C), and under an extraordinary statute of limitations, § 40-11-23
(allowing up to 21 years to bring a UPA action). The importance of child
support, both to the child and to the state, cannot be questioned.
Niemyjski,
98 N.M. at 177, 646 P.2d at 1241;
Aguirre, 110 N.M. at 531, 797 P.2d at
320. The UPA's only express limitation on a paternity and support action
depends on the age of the child, not on the death of the father, nor on whether
suit was filed before the father died.
See § 40-11-23(A). Given the lack
of any statutory language in the UPA imposing such a condition, and our strong
public policy favoring support, we are not persuaded that the legislature
intended to require any such action prior to the father's death as a prerequisite
to filing a claim against the father's estate. We will not read into the UPA
language that is not there.
See Perez v. Health & Soc. Servs. Dep't,
91 N.M. 334, 336,
573 P.2d 689, 691 ("We will not read into a statute
language that is not there if [the statute] makes sense as written.").
{14} Ms. DeLara's
additional arguments are equally unpersuasive. She argues that NMSA 1978,
Section
40-4A-2(H), (L) (1997) of the Child Support Enforcement Act, §§ NMSA
1978, 40-4A-1 to -19 (1985, as amended through 1997), preclude an action
against the estate because an "obligor" is defined therein as a
"person," which does not include an "estate." Section
40-4A-2(L) (defining "person" as "an individual, corporation,
partnership, governmental agency, public office, or other entity"). We
reject this argument.
{*434} The
definition of "obligor" from a statute other than the UPA is not
dispositive when the UPA expressly provides for suits against the father's
estate. Moreover, we are not persuaded that "other entity," as used
in Section 40-4A-2(L), would necessarily exclude an estate.
{15} Finally, relying
on
Hill, Ms. DeLara argues that allowing Ms. Kesterson's children to
pursue a claim against Mr. DeLara's estate would place children born outside of
marriage in a position superior to children born within marriage. We disagree.
The Supreme Court in
Hill was persuaded that children who were the
beneficiaries of a divorce-related child support order should be able to make
claims against their father's estate on an equal plane with general creditors
of the estate.
Hill, 76 N.M. at 476, 416 P.2d at 145. If we allow Ms.
Kesterson's support action against Mr. DeLara's estate, her children will be in
a position, relative to general creditors, comparable to the children in
Hill.
If we were to reject Ms. Kesterson's argument, her children would be in a
position inferior to both general creditors of the estate and to other children
of the deceased born within marriage. In promulgating the UPA, the legislature
intended to place children born outside of marriage on a roughly equal footing
with children born within marriage, no better and no worse.
{16} Ms. DeLara also
argues that there are "practical obstacles" to allowing this kind of
suit, because Mr. DeLara is a "necessary party" and the only one who
could testify as to the support arrangements he agreed to and apparently
honored during his lifetime. This argument is equally unpersuasive. Mr. DeLara
is not the only witness. Ms. Kesterson and perhaps her children can testify to
these facts; there may be documentary evidence as well. While Mr. DeLara's
death may create evidentiary issues, it is no reason to read language into the
UPA that conflicts with legislative intent and overriding public policy.
{17} Ms. DeLara argued
below that Ms. Kesterson's suit was barred by laches and waiver. The district
court did not base its ruling on laches or waiver. It ruled instead, as a
matter of law, that the children had no claim because they did not file suit
before their father's death. We have reversed that decision. On remand, if Ms.
DeLara decides to pursue her theories of laches and waiver, the district court
may consider any factual issues concerning those theories. However, we note
that New Mexico law does not favor laches or waiver in this context.
See
Sisneroz v. Polanco, 1999-NMCA-39, PP11-18,
126 N.M. 779,
975 P.2d 392
(waiver);
Bustos v. Bustos, 2000-NMCA-40, P18,
128 N.M. 842,
999 P.2d
1074 (laches).
Mr. DeLara's One-half Community Property Interest
{18} Ms. DeLara argued
below that even if Ms. Kesterson could bring her claim under the UPA without
first filing suit before Mr. DeLara's death, her claim for child support
against the estate could only be satisfied from Mr. DeLara's separate property
and not from his undivided one-half interest in the community. Ms. DeLara also
argued that certain property passed to her automatically upon her husband's
death, and by operation of law is not available to satisfy Ms. Kesterson's
claim against the estate. Because the district court ruled against Ms.
Kesterson's claim altogether, it had no reason to decide how such a claim could
be satisfied. Therefore, these issues as well are best left to the district
court on remand.
{19} We reverse the
district court's dismissal of Ms. Kesterson's claims against the estate for
child support. We remand to the district court for further proceedings.
RICHARD C. BOSSON, Chief Judge