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In re Estate of Nelson

Court of Appeals of Mississippi

July 26, 2018

IN THE MATTER OF THE ESTATE OF DELVYN NELSON, DECEASED: ROBERT PERKINS, NATURAL FATHER OF DELVYN NELSON, DECEASED; L.P., A MINOR, BY AND THROUGH HER NEXT FRIEND AND NATURAL MOTHER, JUANITA CROOM; K.P., A MINOR, BY AND THROUGH HER NEXT FRIEND AND NATURAL MOTHER, ATLAY NELSON; AND A.G., A MINOR, BY AND THROUGH HIS NEXT FRIEND AND NATURAL MOTHER, NYKESHIA GREEN APPELLANTS
v.
ROSHIDA NELSON APPELLEE

          DATE OF JUDGMENT: 12/16/2016

          HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE: HON. PATRICIA D. WISE

          ATTORNEYS FOR APPELLANTS: GINNY Y. KENNEDY CECIL MAISON HEIDELBERG

          ATTORNEYS FOR APPELLEE: CARLOS EUGENE MOORE ASHLEIGH LAUREN QUINN

         EN BANC.

          CARLTON, J.

         ¶1. The Hinds County Chancery Court entered an order naming Roshida Nelson and her minor daughter Tina[1] as the sole heirs at law and wrongful death beneficiaries of Delvyn Nelson. The appellants now appeal, arguing the following assignments of error: (1) the chancellor erred in determining that Robert Perkins and his natural children were not wrongful death beneficiaries, (2) the chancellor erred by adjudicating Tina as a wrongful death beneficiary, (3) the wrongful death statute is unconstitutional, and (4) the chancellor erred by failing to apply the doctrine of unclean hands sua sponte.

         ¶2. Upon our review, we find that the chancellor erred in part in her determination of the wrongful death beneficiaries. Accordingly, we affirm in part, and reverse and render in part.

         FACTS

         ¶3. Delvyn Nelson was born to Roshida Nelson on January 26, 2012. Delvyn was transferred to the neonatal intensive care unit at the University of Mississippi Medical Center (UMMC) in Jackson and died on June 2, 2012, while a patient at UMMC. The death certificate, dated July 3, 2012, stated that Delvyn's cause of death was "sepsis, fungal" due to or as a consequence of "multiple organ system failure, cardiopulmonary disease, and congenital heart disease."

         ¶4. After Delvyn was born, Roshida filed an action to determine paternity against Robert Perkins in the District Court of Sumter County, Alabama. Roshida and Perkins were never married, and Perkins was not listed on Delvyn's birth certificate. After Roshida filed the paternity action, Perkins denied that he was Delvyn's natural father and requested genetic testing. Perkins further denied paternity when Roshida sought financial support from Perkins through the Social Security Administration.

         ¶5. Although Delvyn tragically died before the parties received the test results, the results revealed that Perkins was Delvyn's father. The results were filed with the Alabama court on June 18, 2012. On that same day, Roshida filed a motion to dismiss her action regarding paternity due to Delvyn's death, and the motion was granted without objection from Perkins. The Alabama court dismissed the action without an admission or adjudication of paternity.

         ¶6. In December 2013, Roshida, individually and on behalf of Delvyn's wrongful death beneficiaries, filed a medical malpractice suit against UMMC. The record reflects that Roshida did not name Perkins as a plaintiff and she did not notify him of the commencement of the action. The malpractice suit was settled, and the settlement proceeds were deposited in the registry of the circuit court pending the determination of Delvyn's wrong death beneficiaries.

         ¶7. On February 26, 2014, Roshida filed a petition to adjudicate Delvyn's heirs at law and wrongful death beneficiaries in the Hinds County Chancery Court, and she published notice of the petition in The Clarion Ledger on April 14, 21, and 28, 2014. Perkins acknowledged notice of the petition.

         ¶8. On February 10, 2015, nearly a year after Roshida filed her petition to adjudicate Delvyn's heirs and wrongful death beneficiaries, Perkins filed a motion asking the Alabama district court to amend its order dismissing the action regarding paternity and declare him Delvyn's father. The Alabama court granted Perkins's motion.

         ¶9. Roshida subsequently filed a motion to set aside the adjudication of paternity, which the Alabama court granted on August 12, 2015. In setting aside the adjudication of paternity, the Alabama court ultimately held that Perkins was not the legal father of Delvyn. The Alabama court explained that after the original action regarding paternity was dismissed in 2012, no subsequent hearing appeared on the docket, "nor was evidence of [Perkins's] admission of paternity presented to the [c]ourt, and [Perkins] did not admit paternity of [Delvyn] by statement in open [c]ourt nor by filing any document acknowledging paternity of [Delvyn]." Perkins appealed to the Alabama Court of Appeals, which affirmed the district court's findings.

         ¶10. Perkins then filed an answer to Roshida's February 26, 2014 petition to adjudicate Delvyn's heirs and wrongful death beneficiaries. In his answer, Perkins alleged that as Delvyn's natural father, he and his other minor children, Lisa, Kim, and Alan, qualified as wrongful death beneficiaries.[2]

         ¶11. The chancellor in the instant case entered an order on December 16, 2016, finding that Roshida and Tina were Delvyn's sole heirs at law and wrongful death beneficiaries. The chancellor held that neither Perkins nor his other minor children met the statutory requirements to be determined Delvyn's wrongful death beneficiaries and therefore they could not recover wrongful death benefits. It is from this order that Perkins, Lisa, Kim, and Alan appeal.

         DISCUSSION

         I. Determination of Wrongful Death Beneficiaries

         ¶12. In this appeal, Perkins, Lisa, Kim, and Alan argue that the chancellor's determination of wrongful death beneficiaries was clearly erroneous. "We apply a limited standard of review to appeals from chancery court." In re Estate of Ivy, 121 So.3d 226, 232 (¶29) (Miss. Ct. App. 2012). Upon review, "[w]e will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous." Id. (internal quotation mark omitted). We apply a de novo standard of review to questions of law. Id.

         ¶13. Mississippi's wrongful death statute, Mississippi Code Annotated section 11-7-13 (Rev. 2004), provides:

Whenever the death of any person . . . shall be caused by any real, wrongful or negligent act or omission . . . as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof . . . and such deceased person shall have left a . . . father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued . . . shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person . . . for the benefit of all persons entitled under the law to recover, . . . or by the parent for the death of a child . . . or by a sister for the death of a brother . . . or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.
. . . .
In an action brought pursuant to the provisions of this section by the . . . father, mother, sister or brother of the deceased . . . such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission . . ., whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows: . . .
if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. . . . There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply . . . to the mother on account of the death of an illegitimate child . . ., and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply . . . to the natural father on account of the death of the illegitimate child . . ., and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

         ¶14. We now turn to review each wrongful-death beneficiary's claim.[3]

         A. Roshida (Delvyn's Mother)

         ¶15. In her order determining Delvyn's heirs at law and wrongful death beneficiaries, the chancellor interpreted section 11-7-13 and ruled that Roshida and her daughter, Tina, were the sole wrongful death beneficiaries and heirs at law of Delvyn.

         ¶16. The record reflects that Roshida was not married to Delvyn's natural father at the time of his birth. Accordingly, Delvyn would be considered an illegitimate child. Section 11-7-13 provides that, as to the mother of an illegitimate child, "[t]he provisions of this section shall apply . . . to the mother on account of the death of an illegitimate child . . . and they shall have all the benefits, rights and remedies conferred by this section on legitimates." We therefore find that the chancellor properly determined Roshida to be a wrongful-death beneficiary of Delvyn.

         B. Tina (Delvyn's Half Sister)

         ¶17. The Appellants challenge the chancellor's finding that Tina was a wrongful death beneficiary of Delvyn. The record reflects that the Appellants never raised this argument before the chancellor, nor did they object to Tina's status as a beneficiary. However, the record further reflects that Roshida did not raise the issue of waiver on appeal.

         ¶18. Section 11-7-13 provides that the wrongful death beneficiaries are the brothers and sisters "as the deceased may have living at his or her death." Section 11-7-13 specifically provides that "[t]here shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree." Delvyn was born on January 26, 2012, and he died on June 2, 2012. At trial, Roshida testified that at the time of Delvyn's death, she did not have any other living children, nor was she pregnant.

         ¶19. On appeal, Roshida refutes the Appellants' argument that her daughter Tina is not entitled to wrongful death benefits. Roshida acknowledges that the record does not reflect when Tina was conceived, but she maintains that "on about June 19, 2014, [Tina] was approximately one year old." The record shows that Delvyn died two years prior on June 2, 2012. At trial, Roshida did not claim that she was pregnant at the time of Delvyn's death. On appeal, Roshida's counsel argues that "[t]he possibility still exists that [Tina] was conceived before [Delvyn's] death and [Roshida] was ignorant of such fact due to the tumultuous circumstances surrounding the death of her infant child, Delvyn[.]" Roshida cites to Fizer v. Davis (Estate of Davis), 706 So.2d 244, 247 (¶13) (Miss. 1998), where the supreme court held that "a preborn child who is viable at the time of a relative's death and is ultimately born alive, is 'living' such that he or she can be a wrongful death beneficiary under the law." Roshida argues that Tina "was possibly in existence" at the time of Delvyn's death, and, since Tina is living, she is entitled to wrongful death benefits. Contrary to Roshida's counsel's claims now on appeal, Roshida did not testify at trial that she was confused or ignorant regarding Tina's conception. Roshida testified that she was not pregnant at the time of Delvyn's death. The record also shows that on June 19, 2014, more than two years after Delvyn's death, Tina was approximately one year old. Accordingly, calculations show that Tina was not conceived or possibly in existence at the time of Delvyn's death on June 2, 2012.

         ¶20. In In re Estate of Davis, 706 So.2d at 247 (¶13), the supreme court reviewed a chancery court's determination of whether an unborn fetus who was at six and one-half months gestation at the time of his brother's death could recover as a wrongful death beneficiary within the meaning of section 11-7-13. The supreme court reversed the chancellor's determination and held that the facts of that case "clearly present a situation in which the preborn child . . . was viable at the time of his brother's death" and therefore it "is among that class of persons defined as 'living' for purposes of the wrongful death statute such that he is a beneficiary under the statute." Id. at 245, 248 (¶¶1, 17). The appellants submitted an affidavit from a doctor certified in the field of obstetrics and gynecology wherein the doctor stated that Rico Davis, the preborn child at issue, "was approximately six and one-half months gestation" on the day his brother died and estimated "that the probabilities of Rico's survival at that point would have been better than ninety-five percent." Id. at (¶15) (internal quotation mark omitted). The supreme court found that the appellee failed to offer any medical evidence to refute the affidavit. Id. As a result, the supreme court determined that "[t]he record evidence overwhelmingly suggests that Rico Davis reached the prenatal age of viability when destruction of his mother's life did not necessarily mean the end of his life[]" and was therefore "living" at the time of his brother's death. Id. at 248 (¶16) (citing Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (Miss. 1954); Terrell v. Rankin, 511 So.2d 126 (Miss.1987)). However, the Davis court declined to address "whether the law would allow recovery for an unborn previable child." Id. at (¶17).

         ¶21. We find that the record before us contains no evidence to show that Tina was conceived and viable, and therefore "living," at the time of Delvyn's death. Thus, under the statute, Tina is not a wrongful death beneficiary. Accordingly, we reverse and render regarding the chancellor's finding that Tina was a wrongful death beneficiary and heir-at-law of Delvyn.

         C. Perkins (Delvyn's Natural Father)

         ¶22. The chancellor ruled that Perkins failed to meet the statutory requirements to be determined a wrongful death beneficiary or an heir-at-law under section 11-7-13 and Mississippi Code Annotated section 91-1-15(3)(a)-(c) (Rev. 2013). As a result, Perkins was not entitled to share in the proceeds from the wrongful death action.

         ¶23. The record indicates that genetic testing confirmed that Perkins was Delvyn's natural father. In order to recover wrongful death benefits, section 11-7-13 requires the father of an illegitimate child to establish his right to inherit from the deceased pursuant to Mississippi Code Annotated section 91-1-15, which provides:

An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child . . .; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one year limitation shall be self-executing and may not be tolled for any reason, including lack of notice . . . .
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child . . . .

         ¶24. It was undisputed that Perkins and Roshida were never married.[4] The record contains no adjudication of paternity or legitimacy before Delvyn's death[5] or after his death, [6] because the Alabama court set aside its prior adjudication of paternity.

         ¶25. In reviewing the requirements set forth in section 91-1-15(3)(d)(i), the record contains no evidence to show that Perkins "openly treated the child as his, and has not refused or neglected to support the child." Rather, the evidence shows that Perkins never actually met Delvyn or introduced Delvyn to his family. Perkins was not listed on Delvyn's birth certificate. Moreover, Perkins neglected to support Delvyn. He failed to provide food or clothing for Delvyn and did not help with the birth expenses. When Roshida attempted to obtain child support and social security benefits from Perkins, Perkins denied paternity and challenged her efforts. Perkins did not inquire about Delvyn's condition or offer to help with Delvyn's medical or funeral expenses. Instead, he allowed the paternity action against him to be dismissed. We agree with the chancellor's determination that Perkins failed to establish the requirements of section 91-1-15. We therefore find no error in the chancellor's determination Perkins could not recover wrongful death benefits from Delvyn.

         D. Lisa, Kim, and Alan (Delvyn's Half Siblings)

         ¶26. Regarding the status of Lisa, Kim, and Alan as wrongful death beneficiaries, the chancellor held that "Perkins's other children cannot recover wrongful death benefits through the deceased child, Delvyn, because [Perkins] does not meet the requirements of section 91-1-15 (3)(a)-(c)." In her order, the chancellor explained:

The Mississippi Supreme Court has recognized the absolute necessity of meeting the requirements of section 91-1-15 in order for a father and his kindred to claim wrongful death benefits through a deceased illegitimate child. In Estate of Patterson v. Patterson, [798 So.3d 347 (Miss. 2001), ] the [supreme c]ourt held that, in an action to determine deceased illegitimate child's heirs at-law, [a] half-brother could not inherit because the father did not meet statutory requirements to inherit. In [Jones v. McCoy (In re Estate of McCoy)], 988 So.2d 929 (Miss. Ct. App. 2008), the [Mississippi C]ourt [of Appeals] reversed the chancellor's finding that [the] biological father was [an] heir-at-law because [the] father failed to show [his] right to inherit under section 95-1-15(3). See also Williams v. Farmer, 876 So.2d 300 (Miss. 2004).
[Section] 91-l-15(3)(d)(i) provides "the natural father of an illegitimate and his kindred shall not inherit: (i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child."

         ¶27. As acknowledged by the chancellor, the Mississippi Supreme Court has established that the natural father of an illegitimate child, as well as the father's "kindred," can inherit under the wrongful death statute only if the father meets the requirements of section 91-1-15. Patterson, 798 So.3d at 350 (¶17) ("The wrongful death statute provides for illegitimates to inherit, but that right is tied to [section] 91-1-15."). In Patterson, the supreme court held that a natural father and his living son (the decedent's half-brother through his father) could not recover wrongful death benefits from the decedent since the natural father failed "to prove by clear and convincing evidence [that] not only was [he] was the biological father of [the decedent], but also that he was entitled to inherit from [the decedent] as [an] heir-at-law and as a wrongful death beneficiary." Id. at (¶16); see also Bullock v. Thomas, 659 So.2d 574, 578 (Miss. 1995) (affirming the chancellor's judgment finding that a father failed to meet the requirements of section 91-1-15 and therefore the father and his children could not inherit from his illegitimate child).

         ¶28. In applying guidance from the supreme court, we find that the chancellor did not err in determining that Perkins's children, Lisa, Kim, and Alan, ...


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