Hines v. Alexander

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tracey Hines, Respondent,

v.

Tarsha Y. Alexander, Personal Representative of the
Estate of Clarence Ceal Alexander, Appellant.

Appellate Case No. 2015-000330

Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge

Unpublished Opinion No. 2016-UP-339
Submitted May 2, 2016 – Filed June 29, 2016

AFFIRMED

Ira David Levy, of Ira D. Levy, LLC, of Charleston, for
Appellant.

Ashley G. Andrews, of LaFond Law Group, PA, of
Charleston, for Respondent.

PER CURIAM: Tarsha Y. Alexander (Tarsha), as personal representative of the
estate of Clarence Ceal Alexander (Decedent), appeals the determination that
Tracey Hines was an heir to Decedent's estate. She argues the circuit court erred in
affirming the probate court, which determined Hines was entitled to inherit from
Decedent's estate although Decedent's paternity of Hines was not established
within the statutory time frame of section 62-2-109(2)(ii) of the South Carolina
Code (Supp. 2015). Additionally, Tarsha contends the probate court erred in
finding a valid contract binding Clarence A. Alexander (Clarence) existed when he
was not a party to any contract with Hines. We affirm.

Section 62-2-109 of the South Carolina Code states:

If, for purposes of intestate succession, a relationship of
parent and child must be established to determine
succession by, through, or from a person: . . . [A] person
born out of wedlock is a child of the mother. That person
is also a child of the father if . . . the paternity is
established by an adjudication commenced before the
death of the father or within the later of eight months
after the death of the father or six months after the initial
appointment of a personal representative of his
estate . . . .

(Emphasis added).

In Parker v. Parker, our supreme court considered whether Virginia Ann Martin
should be excluded as an heir pursuant to section 62-2-109. 313 S.C. 482, 485,
443 S.E.2d 388, 390 (1994). The decedent's widow filed for informal probate and
appointment as the personal representative, and she listed the appellants and
Martin as the children of the decedent. Id. at 484, 443 S.E.2d at 389. Almost four
years after the decedent's death, the appellants filed a motion to exclude Martin as
an heir pursuant to section 62-2-109. Id. The probate court denied the motion,
finding no effort had been made to exclude Martin as an heir in any prior
proceeding and determining Martin had a right to rely on the silence of the other
heirs. Id. The circuit court affirmed, stating the personal representative and
appellants did not dispute parentage "until well after the time for bringing such an
action had passed." Id. at 484-85, 443 S.E.2d at 389. The circuit court further
concluded an adjudication of paternity under section 62-2-109 was necessary only
in those cases in which paternity was questioned. Id. at 484, 443 S.E.2d at 389.

Our supreme court agreed with the circuit court that a paternity action must be
brought within the statutory time frame "if paternity is questioned by either the
personal representative or other interested party." Id. at 486, 443 S.E.2d at 390.
The supreme court determined no dispute regarding Martin's paternity arose within
the statutory time limit, finding the petition listing Martin as the decedent's
daughter, "standing alone, [was] compelling evidence that the personal
representative did not dispute . . . Martin's parentage, and therefore, that . . . Martin
was not required to defend her parentage." Id. Our supreme court stated,
"Commonly, the illegitimate heir must raise the issue to be included in the intestate
succession of the father, but in the present instance, there was no need since the
estate, through the personal representative, acknowledged at the outset . . . Martin's
parentage." Id. In affirming the probate and circuit court's rulings, our supreme
court concluded, "The plain meaning of the statute does not delineate which party
must raise parentage as an issue; however, obviously the burden must rest with any
party with an actual dispute about the parentage." Id.

Initially, we note Tarsha abandoned any challenge to the probate court's finding
that Hines was the biological son of Decedent when she confirmed during the
hearing on her motion to reconsider she intentionally was not disputing the finding
that Hines was the biological child of Decedent. See Hollins v. Wal-Mart Stores,
Inc., 381 S.C. 245, 251, 672 S.E.2d 805, 808 (Ct. App. 2008) (finding an issue was
not preserved for appellate review because the party "acquiesced in the trial court's
ruling").

Furthermore, we find the probate and circuit courts correctly determined Hines
should be included as an heir to Decedent's estate. The obituary for Decedent that
Tarsha created listed Hines as one of Decedent's children and included Hines's
children in the list of Decedent's grandchildren. We believe the obituary created an
impression that Hines's parentage was not in dispute. See Parker, 313 S.C. at 486,
443 S.E.2d at 390 (finding the petition listing the illegitimate heir as the decedent's
daughter, "standing alone, [was] compelling evidence that the personal
representative did not dispute [the illegitimate heir's] parentage, and therefore, that
[the illegitimate heir] was not required to defend her parentage"). We also find
Tarsha, through the obituary, acknowledged at the outset Hines's parentage.1 See
Parker, 313 S.C. at 486, 443 S.E.2d at 390 ("Commonly, the illegitimate heir must

1
Tarsha argues Hines was included in Decedent's obituary because she "was not
interested . . . in disagreement at that time in the funeral home when they were
coming up with [the obituary]." However, Tarsha did not attend the hearing in the
probate court, and that information was made a part of the record through an
argument by Tarsha's attorney. Thus, we cannot consider this argument. See
McManus v. Bank of Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933) ("This
court has repeatedly held that statements of fact appearing only in argument of
counsel will not be considered.").
raise the issue to be included in the intestate succession of the father, but in the
present instance, there was no need since the estate, through the personal
representative, acknowledged at the outset [the illegitimate heir's] parentage."); id.
(noting a paternity action must be brought within the statutory time frame "if
paternity is questioned by either the personal representative or other interested
party" and concluding the burden to raise parentage as an issue "must rest with any
party with an actual dispute about the parentage" (emphasis added)).

Tarsha did not indicate she was disputing Hines's parentage until she wrote to him
in November 2012 (the November 2012 Letter), after the statutory time frame for
establishing paternity had passed. In the November 2012 Letter, Tarsha stated she
and Clarence would include Hines as an heir to Decedent's estate upon being
provided conclusive DNA test results showing Hines was the biological child of
Decedent. Once Hines was aware Tarsha was contesting his paternity, he provided
her with the results of a DNA test within two weeks.2 Thus, we find section 62-2-
109 should not be used to bar Hines from inheriting from Decedent's estate in this
case because Hines established paternity within a reasonable time after paternity
was disputed.

Tarsha cites to Pinckney v. Warren for the proposition that "certain children will
not be able to inherit from their biological fathers even [when] paternity is not
disputed." 344 S.C. 382, 393, 544 S.E.2d 620, 626 (2001). However, Pinckney
dealt with a father who died at a time when illegitimate children were not
permitted to inherit from their fathers in South Carolina. Id. at 390, 544 S.E.2d at
625. Although illegitimate children were later permitted to inherit from their
fathers, those illegitimate children whose fathers died before 1977 were not
permitted to inherit unless they could satisfy a three-part test. Id. at 390-91, 544
S.E.2d at 625. Hines was not required to comply with the three-part test applied in
Pinckney because Decedent died after 1977; thus, we believe Pinckney is
inapplicable and instead believe the holding of Parker—that a paternity action
must be brought within the statutory time frame if paternity is in dispute—should
apply.

2
We note Hines filed his petition to be included as an heir in October 2012. He
stated during the probate hearing he "went down to the [p]robate [c]ourt . . . to file
the papers because [he] received a phone call that [he] was supposed to receive
some papers . . . [because Tarsha knew] she was supposed to have sent [him] a
document or notify [him]." Hines also stated Decedent's caregiver "pretty much
informed [him] on what was going on" and he took action; however, it is not clear
from the record when Hines spoke to Decedent's caregiver.
Moreover, Tarsha did not notify Hines of her appointment as personal
representative and, thus, failed to comply with the mandate of section 62-3-705 of
the South Carolina Code (Supp. 2015), which required her to inform "persons who
have or may have some interest in the estate being administered" of her
appointment within thirty days. Because Tarsha did not notify Hines of her
appointment as personal representative, Hines was not put on notice that the
statutory time frame of section 62-2-109 had begun to run.

Although Hines waited to file his petition for inclusion despite Tarsha not returning
his phone calls for six to eight months, we do not believe Hines slept on his rights
and would not be entitled to equitable relief as Tarsha contends. Rather, we find
Hines would have sought to establish paternity within the statutory time frame of
section 62-2-109 if he had been aware that his parentage was in dispute. Hines
stated during the hearing before the probate court that he did not file his petition
for inclusion earlier because he "figured [Tarsha] was going to notify [him] in the
proper time because [they] . . . talked, [and he] didn't figure anything was wrong."
Once Hines received Tarsha's November 2012 Letter requesting he submit the
results of a paternity test, he acted promptly and provided the results to Tarsha
within two weeks. Accordingly, when considering Tarsha's failure to notify Hines
of her appointment, coupled with the fact that Hines's parentage was not disputed
until after the deadlines imposed by section 62-2-109 had passed, we find it would
be inequitable to use section 62-2-109 to bar Hines from inheriting from
Decedent's estate.

Having determined Hines was entitled to inherit from Decedent's estate, we need
not reach the question of whether a valid contract binding Clarence to its terms was
created. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613,
518 S.E.2d 591, 598 (1999) (holding appellate courts need not address remaining
issues when the disposition of a prior issue is dispositive).

AFFIRMED.3

LOCKEMY, C.J., and WILLIAMS and MCDONALD, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.