Ginochio v. Ginochio

Opinion

Petitioner Seane Ginochio (“Seane”) appeals from an order denying his motion to set aside the order admitting the will of Edward J. Ginochio, deceased, (“Edward”) to probate.

The summarized facts indicate that Seane was born July 15, 1961, as a natural child of Marietta Cartillar (“Marietta”) and Edward. At the time of Seane’s birth Edward was lawfully married to Perrina J. Ginochio (“Perrina”), which marriage lasted from August 30, 1925 until Edward’s death. On April 4, 1966, Marietta brought a paternity action against Edward. After a trial in which the issue of paternity was vigorously contested, Edward was found to be Seane’s father and ordered to pay child support for him. On May 10, 1966, after the judgment establishing paternity was entered, Edward made a will in which he left his entire estate

While paternity is a precondition of legitimation by adoption under Civil Code, section 230, and the judicial determination thereof is. conclusive in such a proceeding (Adoption of Pierce (1971) 15 Cal.App.3d 244 , 249 [ 93 Cal.Rptr. 171 ]; Garcia v. Garcia (1957) 148 Cal.App.2d 147 [ 306 P.2d 80 ]), it is to be observed that the establishment of paternity is neither a statutory requisite to obtain inheritance rights under section 255, nor can it serve as a substitute for the statutory mandate which requires in clear and unequivocal terms that the father acknowledge “himself to be the father” in writing, signed in the presence of a competent witness. In light of the clear statutory language, appellant’s contention that the judicial determination of paternity should be equated with the public acknowledgment of the child, which by definition postulates a voluntary act on the part of the father, is contrary to law (cf. In re Estate of Pakarinen (1970) 287 Minn. 330 [ 178 N.W.2d 714 , 715], app. dism. 402 U.S. 903 [ 28 L.Ed.2d 644 , 91 S.Ct. 1384 ]), and cannot be accepted.

The foregoing discussion inevitably leads to the conclusion that the legal issue of whether or not appellant became Edward’s heir does not turn on the judicial determination of paternity, but rather on the factual question whether or not he was acknowledged by Edward in the prescribed statutory fashion. To this question the record at hand gives a definite and unequivocal answer. It shows beyond any shred of doubt that Edward was declared Seane’s father against his own will. He denied paternity in the action which was brought by Marietta to establish the parent-child relationship. Although he paid the child support ordered by the court, at

We next examine appellant’s assertion that section 255 is unconstitutional because it discriminates between legitimate and illegitimate children and between the father and mother of illegitimate children. Although an equal protection challenge to California’s laws of intestate succession has not been considered by any prior reported decision (see Steed V. Imperial Airlines (1974) 12 Cal.3d 115 , 124, fn. 6 [ 115 Cal. Rptr. 329 , 524 P.2d 801 ]), there is abundant direct authority from other jurisdictions, including decisions of the United States Supreme Court, to persuade us that the constitutional attack must fail.

The constitutional precepts concerning impermissible, invidious discrimination have been promulgated and reiterated on numerous occasions. Article I, sections 11 and 21 of the California Constitution guarantee that all laws of general nature shall have a uniform operation, and that no citizen or class of citizens shall be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. The Fourteenth Amendment of the United States Constitution likewise mandates that no state may deny any person within its jurisdiction equal protection of the laws. However, as has been repeatedly pointed out, the equal protection preserved by both state and federal Constitutions does not preclude the state from drawing any distinctions between different groups of individuals, but requires only that persons similarly situated receive like treatment (In re King (1970) 3 Cal.3d 226 , 232 [ 90 Cal.Rptr. 15 , 474 P.2d 983 ]; Purdy & Fitzpatrick v. State of California (1969) 71 Cal. 2d 566 , 578 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ]). As has been recently phrased in Reed v. Reed (1971) 404 U.S. 71 , 75-76 [ 30 L.Ed.2d 225 , 229, 92 S.Ct. 251 ]: “The Equal Protection Clause . . . [denies] to the States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” (Italics added. See also: Eisenstadt v. Baird (1972) 405 U.S. 438 , 446-447 [ 31 L.Ed.2d 349 , 358-359, 92 S.Ct. 1029 ]; Weber v. Aetna Casualty

Our position that section 255 withstands the constitutional challenge has firm support not only in the foregoing cases, but also in Labine v. Vincent (1971) 401 U.S. 532 [ 28 L.Ed.2d 288 , 91 S.Ct. 1017 ]. At issue in Labine were certain provisions of a Louisiana succession statute that imposed far greater restrictions on.illegitimate children than does section 255. Under those provisions an illegitimate child, although duly acknowledged by the natural father, could not claim the rights of legitimate children and could inherit from him only when the father left no descendants, ascendants, collateral relations or surviving wife, and only to the exclusion of the state. The illegitimate child in Labine assailed the constitutionality of the statute on both due process and equal protection grounds, advancing in essence the very same arguments as appellant here. In rejecting the claim that barring the illegitimate child from his father’s estate constitutes an invidious discrimination, the United States Supreme Court held that the Constitution does not give the court the power to overturn the state’s choice under the guise of constitutional interpretation because the justices of the court believe that they can provide better rules. The power to make rules to establish, protect and strengthen family life as well as to regulate the disposition of property is committed by the Constitution to the people and the Legislature of the state; and, absent specific constitutional guarantees, it is for the Legislature, not the judiciary, to select from among possible laws. “Nor is it the court’s function to weigh the social value of the statute to determine whether a classification may have been more finely drawn. [Citation.]” (Steed v. Imperial Airlines, supra, p. 124.)

We are further confirmed in our conclusion by Estate of Pakarinen, supra, a case closely analogous to that at bench. In Pakarinen, the statute under attack provided in part that “An illegitimate child shall inherit from his mother the same as if bom in lawful wedlock, and also from the person

It is easy to see that all that has been said in Pakarinen especially holds true in the instant case where the intent of the decedent is not based on a presumption or sheer speculation but on a record, which affirmatively shows that by his will Edward left all his estate to his wife and/or his legitimate daughter to the exclusion of appellant. In addition, the language

We are satisfied that the cases cited by appellant in his brief do not impel a different result and are distinguishable from the case at bench. Thus, in Levy v. Louisiana (1968) 391 U.S. 68 [ 20 L.Ed.2d 436 , 88 S.Ct. 1509 ], the court held invalid as denying equal protection of laws a Louisiana statute which barred an illegitimate child from recovering for the wrongful death of its mother when such recoveries by the legitimate children were authorized. However, Levy was later held inapplicable to cases involving inheritance statutes in Labine. In distinguishing Levy the court stated: “The cause of action alleged in Levy was in tort. It was undisputed that Louisiana had created a statutory tort and had provided for the survival of the deceased’s cause of action, so that a large class of persons injured by the tort could recover damages in compensation for their injury. Under those circumstances the Court held that the State could not totally exclude from the class of potential plaintiffs illegitimate children who were unquestionably injured by the tort that took their mother’s life. Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring.” (Labine v. Vincent, supra at pp. 535-536 [28 L.Ed.2d at p. 292]; italics added; fns. omitted.)

Weber v. Aetna Casualty & Surety Co., supra, another case upon which appellant places his main reliance, is also distinguishable from the case at bench. While the court concluded in Weber that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen’s compensation benefits for the death of their parent, it clearly distinguished the case from the situation presented in Labine by spelling out that the decision in Labine “reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders [citation]. The Court has long afforded broad scope to state discretion in this area.” (P. 170 [31 L.Ed.2d p. 776]; italics added.) The other cases referred to by appellant (cf. Gomez v. Perez (1973) 409 U.S. 535 [ 35 L.Ed.2d 56 , 93 S.Ct. 872 ]; New Jersey Welfare Rights Org. v. Cahill (1973) 411 U.S. 619 , etc. [ 36 L.Ed.2d 543 , 93 S.Ct. 1700 ]) likewise involve state-created compensation schemes designed to provide close relatives and dependents a means of recovery. They are, therefore, inapposite to the case at bench.

The judgment is affirmed.

Taylor, P. J., and Rouse, J., concurred.