This action to determine paternity was brought by verified petition dated February 26, 1982, pursuant to General Statutes § 46b-160.
The administratrix filed a motion to dismiss the action pursuant to Practice Book §§ 142 and 143 (1), maintaining
In its decision on the motion to dismiss, the trial court described the issues to be whether Connecticut statutes require a determination of paternity during the lifetime of the putative father, and if such a determination is required, whether that requirement passes constitutional muster. In concluding affirmatively in each instance, it found the language of § 46b-160 plain and unambiguous in providing that a summons be issued to the "putative father" to appear in court to show cause why the prayer of the plaintiff's petition should not be granted. The court decided that because this statute was in derogation of the common law, it was therefore required to be strictly construed. It also noted that § 46b-160 contained no express provision for survival of the action after the death of the putative father. The trial court pointed out that courts in other jurisdictions have held that where the putative father dies before a paternity action is brought, the action does not survive even where there is a general statute providing for the survival of actions. In that regard, it observed that our general survival of actions statute; General Statutes § 52-599;
The plaintiff claimed below that it was necessary to construe § 46b-160 to allow commencement of the paternity suit against the putative father's estate in order for her to establish paternity under § 45-274 (b)
On appeal, the plaintiff claims that the "only method" of establishing paternity by a court of competent jurisdiction is that "mandated" by § 46b-160.
In turning to the plaintiff's claims on statutory construction, we recognize certain settled tenets of statutory construction. "A cardinal rule of statutory construction is to construe statutes in a manner which gives effect to the apparent intention of the legislature. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980) (citations omitted). `It has often been said that the legislative intent is
An examination of § 46b-160 demonstrates that the paternity action must be instituted by service of a verified petition, summons and order upon the putative father himself. This statute provides in part: "Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived
Moreover, § 46b-160 provides that the verified petition which may be brought by either "the mother or expectant mother" shall be filed in the Superior Court for the geographical area in which either "she or the putative father resides." (Emphasis added.) The mandate that the putative father shall be summoned "to appear" to answer the petition further indicates the legislative intent that he be alive. There is nothing in this statute or, for that matter, in the statutory scheme in which it appears, which is expressive of any other
Although the plaintiff can point to nothing in the statutory scheme of § 46b-160 that belies the plain legislative intent that § 46b-160 requires that a paternity action must be instituted during the lifetime of the putative father, she seems to argue, recognizing that the action must be instituted by verified petition, that the balance of the statute is procedural and not substantive. The plaintiff claims that while the "procedural method" might be "flawed" by the death of the putative father, that will not destroy the action. To support
We first point out that because § 46b-160 is in derogation of the common law, it is to be strictly construed. Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).
"At common law all causes of action by or against a person terminated and abated upon such person's death. Survival of causes of action arise only through the medium of so-called `survival statutes.'" Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 123, 145 A.2d 716 (1958); see Freeman v. Giacomo Costa Fu Andrea, 282 F. Sup. 525, 526 (E.D. Pa. 1968). Section 52-599, which is entitled "Survival of actions and causes of actions," provides, inter alia: "(a) A cause or right of action shall not be lost or destroyed by the
The plaintiff seeks only the determination of "paternity" which is defined as "the quality or state of being a father." Webster, Third New International Dictionary. "A paternity proceeding is a proceeding instituted to determine a relationship or status between individuals and, as such, it is purely personal to the parties." In the Matter of Mary Ellen C. v. Joseph William C., 79 App. Div.2d 1024, 1025, 435 N.Y.S.2d 738 (1981). Section 52-599 is also in derogation of the common law. The paternity proceeding authorized by § 46b-160, which was not instituted prior to the death of the putative father, does not survive, as claimed, under § 52-599.
Further support for our determination that the paternity proceeding does not survive is found in our survival statute itself. The nature of this paternity action or proceeding is one in which, at the very least, the "defense depends upon the continued existence of the ... defendant[s]...." General Statutes § 52-599 (c) (2). We are aware that the plaintiff seeks only the determination of paternity, but another statute bearing on her claim of survival is § 46b-171 which provides that after a "defendant is found guilty," the court may impose certain financial orders, together with a surety bond to perform such orders, and his failure to comply with any of these may result in his incarceration until he complies. If, as claimed, a paternity proceeding could be instituted against the administratrix of the putative father's estate, "[t]he incongruities that would beset such a proceeding are obvious
The final branch of the plaintiff's claim of survival concerns § 45-274 (b) (2) which, she maintains, "enlarged" the means of establishing paternity to include in rem proceedings against the decedent's estate. This claim is without merit. She is the party who has invoked § 46b-160 as the predicate for this paternity proceeding to determine the relationship between individuals which is "purely personal to the parties." In the Matter of Mary Ellen C. v. Joseph William C., supra. "A proceeding in rem is essentially a proceeding to determine the right in specific property, against all the world, equally binding on everyone." 1 Am. Jur. 2d, Actions § 40. Conceptually, "in rem" jurisdiction is based upon a court's control over a "res" rather than a defendant as a person. Unlike a valid marriage which creates a legal status between the parties and has been said to be the marital res capable of furnishing the basis for jurisdiction of a court, the birth of a child out of wedlock does not, per se, create any legal status between the child and a putative father. Generally, the legitimatization of such a child vis-a-vis his "father" is a matter of statute. The plaintiff, therefore, assumes a false premise when she argues that the jurisdiction of
While it is true that the 1978 amendment to § 45-274 "enlarged" the ability of an illegitimate child to inherit from his or her father,
With this construction of the statutory scheme for the establishment of paternity in mind, we now turn to the plaintiff's constitutional claims. The plaintiff also appears to claim, in effect, that a construction of this statutory scheme to prevent her institution of a paternity action prevents her from establishing her child's ability to inherit under § 45-274 (b) (2) from the decedent's estate. She argues that the death of the putative father cannot be used to defeat the right of action
At the outset, we must note that absent from the plaintiff's brief is any reference to two significant United States Supreme Court decisions. They are Lalli v. Lalli, supra, and Trimble v. Gordon, supra.
In Lalli, the court observed that it had reaffirmed what it said in Trimble, supra, 767, that while "classifications based on illegitimacy are not subject to `strict scrutiny,' they nevertheless are invalid [on equal protection grounds] under the Fourteenth Amendment if they are not substantially related to permissible state interests." Lalli v. Lalli, supra, 265. The New York statute in Lalli, like § 45-274 (b) (2), renders the marital status of the "parents" irrelevant. The Lalli court said that "[t]he single requirement [under the New York statute] at issue here is an evidentiary one — that the paternity of the father be declared in a judicial proceeding sometime before his death." Lalli v. Lalli, supra, 267.
The primary state objective of the challenged aspect
After alluding to problems concerning the administration of estates in this context such as spurious claims that might be difficult to expose, harassing litigation, the need to facilitate administration of estates and the like, the Lalli court concluded that the state's interests were "substantial." In finding no equal protection violation, the court considered the means adopted by New York, embodied in its statute, to further its substantial interests. The court opined that the placing of paternity disputes in a judicial forum during the putative father's lifetime enhanced "accuracy" in resolving such disputes. Indeed, it referred with approval to the observations of the New York Court of Appeals that "the `availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process.'" Lalli v. Lalli, supra, 271. It also said that requiring that the order of paternity be issued during the putative father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims
Our in-depth discussion of Lalli brings into focus the striking similarities of the plaintiff's equal protection constitutional claims. Parsed to basics, § 46b-160 requires that the paternity proceeding be instituted during the lifetime of the putative father and § 45-274 (b) (2) permits inheritance where paternity has been adjudicated or acknowledged as that statute sets out. The substantial state interests effectuated by the Connecticut statutory framework, which we find are similar to those explicated in Lalli, cause us to reject the plaintiff's equal protection claims.
In this opinion SPEZIALE, C. J., PETERS and PARSKEY, Js., concurred.
SHEA, J., concurring. "A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person." General Statutes § 52-599 (a). Although this survival statute is in derogation of the common law, it is also remedial and should be interpreted broadly to achieve the purposes intended by the legislature. The only exceptions to the broad sweep of § 52-599 (a) are those set forth in § 52-599 (c): "(1) ... any cause or right of action or ... any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) ... any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) ... any civil action upon a penal statute."
The majority opinion holds that a paternity action falls within the second of these exceptions and assumes that such an action "depends upon the continued existence of the persons who are plaintiffs or defendants," because of the references to the "putative father" in § 46b-160 and also the difficulty of defending such a suit without having the putative father available. The references to the father in § 46b-160 do not preclude its application to the representative of his estate when he is deceased, nor are the problems of defending a suit against an estate based upon a transaction with the decedent peculiar to paternity suits.
I am convinced, nevertheless, that the legislature in enacting General Statutes § 45-274 (b) (2), allowing illegitimate children to inherit from their fathers,
Since the only purpose of this paternity action is to establish the right of the child to inherit from the estate of his father, an objective which conflicts with the intention of § 45-274 (b) (2) as indicated by its legislative history, the action falls within the exception to survival created by General Statutes § 52-599 (c): "any cause or right of action ... the purpose or object of which is defeated or rendered useless...."Accordingly, I concur in the result.
"(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months thereafter and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year thereafter, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.
"(c) The provisions of this section shall not apply: (1) To any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3) to any civil action upon a penal statute."
"(a) After distribution has been made to the husband or wife of the intestate of such portion or share of the estate of the intestate as such husband or wife is entitled to by law, all the residue of the real and personal estate shall be distributed in equal proportions, according to its value at the time of distribution, among the children and the legal representatives of any of them who may be dead, except that children or other descendants who receive estate by advancement of the intestate in his lifetime shall themselves or their representatives have only so much of the estate as will, together with such advancement, make their share equal to what they would have been entitled to receive had no such advancement been made.
"(b) (1) Children born before marriage whose parents afterwards inter-marry shall be deemed legitimate and inherit equally with other children. (2) A child born out of wedlock shall inherit from (A) his or her mother and (B) his or her father, provided such father (i) has been adjudicated the father of such child by a court of competent jurisdiction, or (ii) has acknowledged under oath in writing to be the father of such child.
"(c) For the purposes of this section (1) issue shall include children born out of wedlock and the issue of such children provided both the child born out of wedlock and any of such issue qualify for inheritance under this section; (2) legal representatives shall include legal representatives of children born out of wedlock, provided both the child born out of wedlock through whom such legal representatives inherit and the legal representatives qualify for inheritance under this section."
In 1978, Public Acts 1978, No. 78-199, § 1 designated the former first sentence as subsection (a), designated the former second sentence as subsection (b) (1) and added subsection (b) (2) and subsection (c).
General Statutes § 45-272 (a) provides: "COURT TO ASCERTAIN HEIRS AND DISTRIBUTEES. The court of probate shall ascertain the heirs and distributees of each intestate estate, and the heirs and disbributees of, and their respective shares in, each testate estate so far as the will may leave the same indefinite and necessary to be defined or so far as it is necessary to give effect to an agreement made in accordance with the provisions of section 45-272a."