Nielsen Tyler v. Armstrong

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

4-14-2004

Nielsen Tyler v. Armstrong Precedential or Non-Precedential: Precedential

Docket No. 02-3961 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "Nielsen Tyler v. Armstrong" (2004). 2004 Decisions. Paper 747. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/747

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PRECEDENTIAL Rhonda Hospedales, Esq. Nichols, Newman, Logan & D’Eramo IN THE UNITED STATES COURT OF 1131 King Street - Suite 204 APPEALS Christiansted, St. Croix FOR THE THIRD CIRCUIT USVI 00820-4971 Attorney for Appellee

NO. 02-3961

OPINION OF THE COURT BEATRICE A. NIELSEN TYLER Appellant

v. STAPLETON, Circuit Judge: LOUIS ARMSTRONG, AS Beatrice Nielsen Tyler (“Tyler”) filed a ADMINISTRATOR OF THE “Petition for Legitimization” in the ESTATE OF FELIX FRANCIS Territorial Court of the Virgin Islands seeking to establish that she had been legitimated pursuant to 16 V.I.C. § 462 by On Appeal From the District Court of the her then-deceased putative father, Felix Virgin Islands Alexander Francis (“Francis”). The (D.C. Civil Action No. 00-cv-00128) Territorial Court granted a motion to District Judge: Hon. Thomas K. Moore dismiss, holding that Tyler could not state District Judge: Hon. Stanley S. Brotman a claim upon which relief may be granted Territorial Judge: Hon. Brenda J. Hollar because, inter alia, § 462 was repealed prior to the date on which she filed her petition. The Appellate Division affirmed. Submitted Pursuant to Third Circuit LAR We will reverse and remand. 34.1(a) I. Factual and Procedural Background December 8, 2003 A. The Facts As Alleged by Appellant BEFORE: NYGAARD, BECKER and Tyler was born on September 28, 1947 STAPLETON, Circuit Judges to Alice M aria Smith Nielsen, who was legally married to Heinrich Nielsen. Tyler (Opinion Filed April 14, 2004) alleges that her natural father was in fact Francis. Tyler first became aware that Eszart A. Wynter, Esq. Francis was her biological father at the age 17 Estate Whim, P.O. Box 1847 of seven in 1954. Francis acknowledged Frederiksted, St. Croix Tyler as his biological daughter to at least USVI 00841-1847 six individuals at different times in his life. Attorney for Appellant

Some of these acknowledgments occurred to financially support Tyler. Upon her before his marriage to Beryl Francis, while return to St. Croix in 1977, Francis others were subsequent. 1 assisted Tyler by getting her an apartment and supporting her financially during her Tyler alleges that she enjoyed an open transition. In 1989, Francis deeded a and loving father/daughter relationship house to Tyler out of love and affection for with Francis. She frequently visited Tyler and her son. Francis’s house, and often spent time with Francis and her biological grandmother, Francis attended various special events Josephine Francis. Francis provided in the life of Tyler’s son, Marcus Tyler financial assistance to support Tyler, and (his putative grandson). During the final paid for her primary education. Upon days of his life, Francis promised to make Tyler’s graduation from high school, changes to his bank account so that Francis gave her a card containing Marcus Tyler would be able to attend $500.00. While Tyler attended college, college and so that Tyler would not have to Francis maintained contact and continued struggle financially. Francis died on December 21, 1999.

1 At funeral services for Francis, his son, Tyler’s petition indicates that Francis Fitzgerald Francis, informed Tyler that his spoke to some individuals regarding his father told him that she was his sister. paternity “before his marriage to Beryl Francis” and “other [individuals] he spoke B. Procedural Background to subsequent.” App. at 20. The petition Tyler filed a petition for legitimation on is ambiguous as to whether Francis spoke or about May 18, 2000 under 16 V.I.C. § to these other individuals after he was 462 in the Territorial Court, seeking a married (which would have therefore decree that Tyler is the legal daughter of triggered the spousal consent requirement Francis. 2 Louis Ar mstr ong, a s of 16 V.I.C. § 462, discussed infra) or after he was no longer married (because he was a widower, therefore making the 2 spousal consent requirement inapplicable). Prior to 1998, Section 462 had At least one of the affidavits submitted by provided: Tyler suggests that Francis spoke to this The father of an illegitimate latter category of people after his wife had c h i l d , b y p ub l i c ly died. See Affidavit of Rev. Kenneth acknowledging it as his Gaddy C. Ss. R., App. at 48. As we are own, receiving it as such, reviewing the Territorial C ourt’s with the consent of his wife, disposition of a motion to dismiss, we if he is married, into his presume that Tyler alleges that Francis fa m ily, and otherw ise spoke to these other individuals after he treating it as if it were a was no longer married. legitimate child, thereby

Administrator of the Estate of Felix V.I.C. § 293(a). 4 Francis, filed a motion to dismiss. Tyler appealed the Territorial Court’s The Territorial Court granted the motion decision to the Appellate Division of the to dismiss, noting, sua sponte, that § 462 District Court (“Appellate Division”), and had been repealed in 1998. It further noted argued that the application of the Paternity that the legislature had simultaneously Statute to her (as opposed to § 462) amended the statute authorizing paternity brought about a wrongful taking and suits to provide that a father’s public deprivation of her vested inheritance rights acknowledgment of a child “provides and violated her Due Process rights. The evidence of paternity.” See 16 V.I.C. § Appellate Division affirmed the Territorial 295(a) (the “Paternity Statute”). 3 The Court on two grounds. First, the Appellate Territorial Court apparently interpreted this to mean that, after 1998, the Paternity 4 Statute was the exclusive means of 16 V.I.C. § 293(a), in pertinent part, accomplishing what Tyler sought to provides: accomplish. Because Tyler was not among the classes authorized to bring an action Proceedings under this chapter under the Paternity Statute, the Territorial may be instituted by (1) any Court dismissed her petition. See 16 female resident of the Virgin Islands who has delivered an out-of-wedlock child or by (2) any male resident of the Virgin adopts it as such; and Islands who is alleging to be the such child is father of an out-of-wedlock thereupon deemed child, or (3) any legal custodian for all purposes of an out-of-wedlock child. legitimate from the Proceedings herein can be time of its birth. instituted at any time before a child’s eighteenth birthday, 3 16 V.I.C. § 295(a), as amended in including any child for whom a 1998, provides: paternity action was previously dismissed under a statute of The deceased father of a child limitations of less than eighteen born out-of-wedlock, by having (18) years. . . . acknowledged the child as his own, or having received the child The Territorial Court noted that Tyler is into his family and otherwise over the age of 18 and is not the parent of having treated it as if it were a a minor child, thereby making her not legitimate child, thereby provides within the classes authorized to bring suit evidence of paternity. under § 293(a).

Division agreed with the Territorial Court Properties Inc. v. Government of U.S. that Tyler could not bring an action under Virgin Islands, 299 F.3d 207, 210 (3d Cir. § 295 because she was not within the class 2002); Parrott, 230 F.3d at 618; of persons entitled to bring such an action Government of Virgin Islands v. United under § 293(a). Second, the Appellate Indus. Workers, N.A., 169 F.3d 172, 175 Division determined that Tyler’s argument (3d Cir. 1999). that § 462 should have been applied to her In reviewing the Appellate Division’s was “totally without merit” because “[t]he orders, this Court “should review the trial changes made to Title 16 of the Virgin court’s determination using the same Islands Code in 1998 have no bearing on standard of review applied by the first whatever inheritance rights Tyler may appellate tribunal.” Semper v. Santos, 845 claim to have against the estate of her F.2d 1233, 1235 (3d Cir. 1988); alleged biological father, Felix A. Francis. Government of Virgin Islands v. Albert, Indeed, Tyler’s claim of heirship is 241 F.3d 344, 347 n.3 (3d Cir. 2001) currently pending in the separate probate (same); see also Government of Virgin proceeding, which is not before us.” App. Islands v. Marsham, 293 F.3d 114, 117 (3d Div. Op. at 5. Cir. 2002) (“We review the Appellate Tyler appealed the decision of the Division’s statutory interpretation de Appellate Division to this Court, and again novo.”); BA Properties Inc., 299 F.3d at argues, inter alia, that the failure to apply 212 (same). § 462 to her resulted in the denial of her In reviewing the grant of a motion to right to Due Process and an unjust taking dismiss for failure to state a claim, an of her vested rights. appellate court’s review of the trial court is II. Jurisdiction and Standard of Review de novo. See Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). The Territorial Court had jurisdiction to “We accept all well pleaded factual entertain the Petition under 4 V.I.C. § 76. allegations as true and draw all reasonable See In re Baby Girl Lake, 33 V.I. 66, *6 inferences from such allegations in favor (V.I. Terr. Ct. 1995); In re Williams, 16 of the complainant.” Id. (citing Weston v. V.I. 529, 530 n.1 (V.I. Terr. Ct. 1979). Pennsylvania, 251 F.3d 420, 425 (3d The Appellate Division had jurisdiction to Cir.2001)). “Dismissal for failure to state review a judgment of the Territorial Court a claim is appropriate only if it ‘appears under both local law, 4 V.I.C. § 33, and beyond doubt that plaintiff can prove no the Revised Organic Act, 48 U.S.C. § set of facts in support of his claim which 1613a(a). See Parrott v. Government of would entitle him to relief.’ ” Id. (quoting Virgin Islands, 230 F.3d 615, 618 (3d Cir. Conley v. Gibson, 355 U.S. 41, 45-46 2000). We have jurisdiction to review (1957)). final orders of the Appellate Division under 48 U.S.C. § 1613a(c). See, e.g., BA

III. The § 462 Claim purpose. Prior to 1998, 16 V.I.C. § 462 (entitled The basis for the Appellate Division’s “Legitimation by acknowledgment”) disposition of this claim is not altogether provided: clear to us. At one point, it seems to suggest tha t the 1998 statutory The father of an illegitimate child, by amendments have “no bearing on whatever publicly acknowledging it as his own, inheritance rights Tyler may claim to receiving it as such, with the consent have” and that she may assert those rights of his wife, if he is married, into his in a pe nding “sep arate pr o b a te family, and otherwise treating it as if proceeding.” App. Div. Op. at 5. At the it were a legitimate child, thereby same time, the “Conclusion” of its opinion adopts it as such; and such child is states that “Tyler lacks the standing to thereupon deemed for all purposes pursue her allegations under the law as it legitimate from the time of its birth. was amended and revised in May, 1998” Id. Section 462 was repealed in 1998. See and it affirms the Territorial Court’s order 1998 V.I. Sess. Laws 6228 § 18, at 318 dismissing the Petition without expressly (repealing Title 16, Chapter 15 of the preserving Tyler’s right to press her § 462 Virgin Islands Code). claim elsewhere. Id. The Appellate Division further commented in a footnote Tyler’s most serious challenge on that an “illegitimate child’s right to share appeal is her claim that Francis had in the . . . estate is governed by 15 V.I.C. § satisfied all of the requirements for 84(13).” Id. at 5 n.3. That section legitimation under § 462, and Tyler had provides: accordingly been legitimated thereunder, prior to the repeal of § 462.5 As a result, An illegitimate child shall be she insists that she must be “deemed for all considered to have the same status, purposes legitimate from the time of [her] for the purpose of the descent and birth.” Intestate distribution is one such distribution of the property of his or her ancestors, as if he or she were born in lawful wedlock provided that 5 in cases where the ancestor in We agree with the Territorial Court question is a father, he admitted of that Tyler is not among those listed in 16 record paternity of such child by V.I.C. § 293(a) as being authorized to signing the official birth certificate; bring a paternity suit under 16 V.I.C. § or he was adjudged the father of such 295. As we explain hereafter, however, 16 child by a court of competent V.I.C. § 462, prior to 1998, was an j u ri s d i c t i o n ; o r b y w r i t t e n alternative remedy independent of the acknowledgment he recognized such availability of paternity proceedings under child as his. Title 16, Chapter 11 of the Virgin Islands Code.

15 V.I.C. § 84(13). jurisdiction is to be construed to mean what the highest court of the jurisdiction We conclude that Tyler is entitled to from which it was taken had, prior to its have the merits of her § 462 claim enactment in the Virgin Islands, construed adjudicated by the Territorial Court. it to mean.”) (footnote omitted). Because we are concerned that the presently outstanding judgment might California’s Court of Appeal has preclude her from doing so, we will explained the purpose behind § 230 as reverse and remand for further proceedings follows: consistent with this opinion. Thus, section 230, in providing that A. The Virgin Islands Statutory Scheme the father of an illegitimate child Prior to 1998 adopts his offspring by publicly acknowledging it as his own, uses Section 462, on its face, is self- the term “adopts” in the sense of executing. If the putative father acts to “legitimates” and the effect of the acknowledge his paternity in a certain father’s act “. . . is to change the manner, the child is deemed to be status and capacity of an illegitimate legitimate without the necessity of a child to the status and capacity of a judicial proceeding. That this literal child born in Lawful wedlock.” In re reading was the intended one is confirmed Navarro, [175 P.2d 896, 898 (Cal. by the legislative history of § 462 and the Dist. Ct. App. 1946)]; Blythe v. Virgin Islands case law. Ayres, [31 P. 915, 916 (Cal. 1892)]. The Revision Note for § 462 in the The purpose of the code section is Virgin Islands Code indicated that § 462 to permit the father to make was based upon § 230 of the Civil Code of reparation to the child by taking it California, which has since been repealed. into his home without the publicity See 1975 Cal. Repealed Stat. 1244 § 8, at which would be incidental to a 3196. The Virgin Islands Territorial Court judicial proceeding of adoption. As has recognized this history and has stated by the code commissioners, interpreted § 462 by reference to cases the publicity of a judicial proceeding interpreting the California statute. See In (see [Cal.] Civil Code, § 221 et seq.) re Williams, 16 V.I. 529, 532-33 (V.I. would brand the child with the very Terr. Ct. 1979) (“Section 462 is based on stigma from which a repentant father and is virtually identical to section 230 of would desire to save it. the Civil Code of California. . . . Consequently, the court turns to the cases Darwin v. Ganger, 344 P.2d 353, 358 interpreting the California statute because (Cal. Dist. Ct. App. 1959). According to in the Virgin Islands the language of a Darwin, California therefore provided for Virgin Islands statute which has been two methods of legitimation: “judicial taken from the statutes of another proceedings” under one section of the

California Civil Code or “a course of accident that California’s § 230 (or the conduct” under § 230. Id. Virgin Islands’s § 462) made no mention of judicial proceedings being necessary to The Virgin Islands had a similar procure any right under that statute. legislative scheme. As recognized in In re Section 462 provided a means by which a Baby Girl Lake, 33 V.I. 66 (V.I. Terr. Ct. child will be “deemed for all purposes 1995): legitimate from the time of its birth” once In the Virgin Islands, an a certain course of conduct had been met illegitimate child can be legitimized by the putative father. in four ways: by pub lic We think it clear that if § 462 had not acknowledgment of the child by the been repealed and Tyler were able to father (V.I. Code Ann. tit. 16, § 462 establish that Francis acknowledged her in (1964)); by the father signing a the required manner, she would be deemed notarized affidavit acknowledging his legitimate child and would participate paternity (V.I. Code Ann. tit. 19, § as such in the distribution of intestate 832 (1976)); by a court order assets under 15 V.I.C. § 84. establishing paternity upon the petition of the mother or the father Contrary to the suggestion of the (V.I. Code Ann. tit. 16, §§ 291-303 Territorial Court, the Paternity Statute (1964 & Supp. 1995)); or by the would not have foreclosed Tyler because § marriage of the parents (V.I. Code 462 and paternity proceedings under Title Ann. tit. 16, § 461 (1964)). 16, Chapter 11 of the Virgin Islands Code were alternative remedies prior to 1998. Id. at *6-*7. Contrary to the suggestion of the In 1998, the Virgin Islands legislature Appellate Division, 15 V.I.C. § 84(13) repealed 16 V.I.C. §§ 461, 462. See 1998 would not have foreclosed Tyler because V.I. Sess. Laws 6228 § 18, at 318. But the that subsection applies only to an very scheme discussed in Darwin, “illegitimate child.” Other portions of § whereby an individual could be 84 prescribe the inheritance rights of legitimated through judicial paternity legitimate children, including a child who proceedings or through a course of must be “deemed for all purposes conduct by the putative father (saving both legitimate” under § 462. As the California the parent and child from the publicity of Supreme Court has explained with respect a judicial proceeding) was present in the to their analogous statute, § 230, and a Virgin Islands with respect to 16 V.I.C. §§ California probate statute providing for 291-303 and 16 V.I.C. § 462, respectively, distribution to illegitimates, “the two before the 1998 changes by the Virgin sections provide alternate methods by Islands legislature. which a person may become the heir of his Darwin therefore suggests that it was no father.” In re Garcia’s Estate, 210 P.2d

841, 842 (Ca. 1949). “A child who is headed, to take place, or for ‘deemed for all purposes legitimate’ legitimation from the time of birth of cannot be regarded as still illegitimate for the child to take place, as stated in some purposes, and a child who has the body of the section, the decedent, become legitimate can no longer be during his lifetime, must have regarded as an ‘illegitimate child.’” Id. acknowledged said child as his own by doing all of three things: (a) he The independence of § 462 from the must have publicly acknowledged it paternity proceedings authorized by § 295 as his natural child; (b) he must have and referenced in § 84(13) is reflected in received it as his natural child, with the Virgin Islands case law. While § 462 the consent of his wife, if married, was self-executing and legitimation into his family; and (c) he must have thereunder came solely as a result of the otherwise treated claimant as if conduct of the father, the Virgin Islands claimant was a legitimate child. courts found implicit authority in that section for judicial proceedings seeking a *** declaration that legitimation had indeed By the most liberal construction occurred. Such proceedings were regarded of these grounds, individually or as a by the Virgin Islands courts, however, to whole, the Court can find no factual be a remedy distinct from paternity basis for a finding that decedent proceedings. In In re Estate of Moolenaar, received claimant as his natural 24 V.I. 234 (V.I. Terr. Ct. 1989), for child, with the consent of his wife, example, the petitioner sought to share in into his family. the intestate distribution of her putative father’s assets. She asked that the court Moolenaar, 24 V.I. at 242. adjudicate the paternity of her putative B. The Effect of the Repeal of § 462 in father so that she might share under § 1998 84(13) and, alternatively, that the estate administrator be ordered to acknowledge We now turn to the issue of whether, her earlier legitimation under § 462. The assuming Tyler could establish that the court read § 84(13) and the then-current requirements of § 462 were met prior to paternity statute as depriving it of 1998, the repeal of that statute rendered jurisdiction to adjudicate the paternity of a her illegitimate again. We conclude that it putative father after his death. This did not. conclusion did not, however, dispose of Section 50(a) of Title I of the Virgin the petitioner’s § 462 claim, which the Islands Code provides: court disposed of on its merits: The repeal of any Act, part of any A careful analysis of § 462 Act, or provision of this Code does indicates that for “legitimation by not release or extinguish any right acknowledgment,” as this section is

acquired, or penalty, forfeiture, or natural child into his family, with the liability incurred, under the Act, part, consent of his wife, during Tyler’s or provision, and existing at the time lifetime. However, Appellant’s petition in of the repeal, unless the repealing fact alleges that Francis acknowledged his Act expressly so provides, and the paternity to some “before his marriage” Act, part, or provision shall be and to others “subsequent” thereto. App. treated as still remaining in force for at 20. It is true, as Appellee suggests, that the purpose of sustaining any proper In re Estate of Moolenaar, 24 VI 234, 243 action or proceeding for the (V.I. Terr. Ct. 1989), indicated that enforcement of the right, penalty, separation between a putative father and forfeiture, or liability. his spouse would not waive the “consent of his wife” requirement of § 462. But The Act of the Virgin Islands even accepting that principle, Tyler has Legislature repealing § 462 does not alleged that Francis acknowledged his expressly provide that the rights of paternity before he was married and after children previously legitimated by their his wife had died. At this stage, that is father pursuant to that section are to be sufficient. released or extinguished. It follows, we conclude, that if Tyler can satisfy the Armstrong further argues that Virgin Territorial Court that the requirements of § Islands law does not permit Tyler to bring 462 were met prior to the repeal of that a legitimation action under § 462 after the statute in 1998, she must be deemed to be death of her putative father. Armstrong’s a legitimate child for all purposes only support for this proposition is In re including the intestate distribution Estate of Moolenaar, 24 V.I. 234 (V.I. provisions of 15 V.I.C. § 84. We, of Terr. Ct. 1989). As we have indicated, course, express no opinion as to whether how ever, Moolenaar confined its Tyler will be able to make such a showing. discussion of the posthumous availability of relief under § 84(13) to that section IV. Alternate Grounds for Affirmance based on the statutory text of that section, Armstrong asks us to affirm on two and specifically went on to consider the alternate grounds, neither of which is merits of an illegitimate child’s claim persuasive. Armstrong argues that Tyler under § 462 after the death of the child’s never qualified for legitimation under § putative father. See id. at 241-43; see also 462 as a matter of law ostensibly because In re Baby Girl Lake, 33 V.I. 66, *8-*11 of that statute’s requirement that the (V.I. Terr. Ct. 1995) (considering on the putative father have received the child merits a claim of legitimation under § 462 “with the consent of his wife, if he is after the death of the putative father while married.” Armstrong argues that recognizing in another part of the opinion Appellant’s petition reveals no allegation Moolenaar’s requirement that paternity be that Francis received Appellant as his adjudicated prior to the putative father’s

death). Citing Baby Girl Lake and Moolenaar, the Territorial Court in this case recognized that the Virgin Islands has allowed § 462 actions to be brought after a putative father’s death, and we see no basis for disturbing that conclusion.6 V. Conclusion For the foregoing reasons, we will reverse the judgment of the Appellate Division and remand with instructions to return this matter to the Territorial Court. The Territorial Court will adjudicate Tyler’s 16 V.I.C. § 462 claim in this proceeding, in the pending probate proceeding, or in a proceeding that consolidates both of those proceedings.

6 Possibly seeking to suggest an additional alternate ground for affirmance, Armstrong suggests in his brief that Tyler “had already been adjudged the legal heir/daughter to Heinrich Nielsen for purposes of descent and distribution.” Appellee’s Brief at 33. We decline to address and express no opinion with respect to any estoppel argument suggesting that Tyler is precluded from bringing a legitimation action because of any proceedings with respect to Heinrich Nielsen’s estate. The issue has not been adequately briefed and will therefore not be considered as a possible alternate ground for affirmance.