Appeal from the Superior Court of the District of Columbia. (Hon. Eugene N. Hamilton, Trial Judge)
Before Ferren, Steadman, and Schwelb, and Schwelb, Associate Judges. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Associate Judge Ferren.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: The principal substantive issue in this remarkable probate case is whether the trial Judge committed reversible error in finding, in significant part on the basis of a distinctly problematical birth certificate, that plaintiff Mignon K. Cooper is the daughter of George Cooper, the intestate decedent, rather than his sister, and that she is therefore entitled to share in George Cooper's estate. Before we reach that issue, however, we must resolve a jurisdictional question raised by the court, sua sponte, following oral argument, namely, whether the trial Judge's decision in Mignon Cooper's favor is an appealable final order.
We now hold that the order is appealable and that this court therefore has jurisdiction to entertain the appeal. On the merits, we conclude that although the Judge analyzed the difficult human issues in this case in a thoughtful and insightful manner, he failed to some extent to apply correct legal principles in the course of his determination of Mignon Cooper's relationship to the decedent. Accordingly, we remand for further proceedings.
THE TRIAL COURT PROCEEDINGS
George Washington Cooper *fn1 died intestate in May, 1986, as a result of multiple gunshot wounds. On May 30 of that year, in conformity with the provisions of D.C. Code § 20-303 (1989), the court granted the initially unopposed petition of Margaret P. Murphy, a daughter of the decedent, to be appointed George Cooper's personal representative.
On December 1, 1986, Mignon Cooper and her own adult daughter, LaShawn J. McCloud, as plaintiffs, filed what they styled as a "Verified Complaint (To Remove Personal Representative)." They named as defendants Ms. Murphy, as well as three other children of George Cooper, namely Ricky Washington Cooper, Georgette Cooper Blocker, and Patricia Cooper. The plaintiffs alleged that Margaret Murphy "is not in any way related to the decedent either by blood, marriage or adoption," and that Ms. Murphy had misrepresented her relationship to the decedent in obtaining her appointment as George Cooper's personal representative. Mignon Cooper and Ms. McCloud further alleged that Mignon Cooper is the "natural daughter" of the decedent, and that Ms. Murphy had "purposely omitted" Mignon Cooper, in the Petition for Probate, from the list of persons having an interest in the estate. The plaintiffs prayed that Ms. Murphy be removed as personal representative, that Ms. McCloud be appointed in her stead, *fn2 and that Mignon Cooper be declared to be George Cooper's daughter and a person with an interest in his estate. *fn3
The defendants filed an answer, verified by each of them, in which, inter alia, they denied both the allegation that Mignon Cooper is George Cooper's daughter and the allegation that Margaret Murphy is not. The defendants alleged that "the Verified Complaint contains representations which the plaintiffs know to be reckless and false."
A non-jury trial commenced on March 13, 1992, continued through March 16, 1992, and resumed on April 21, 1992 and again on June 17, 1992. At trial, the plaintiffs did not pursue their allegation that Margaret Murphy is not George Cooper's daughter and introduced no evidence in support of that claim. The trial thus centered on the question whether Mignon Cooper is George Cooper's daughter or his sister. After hearing the evidence, the Judge found that Mignon Cooper is George Cooper's daughter. He found that Margaret Murphy is also George Cooper's daughter, and he declined to remove her as personal representative. The defendants filed a timely appeal.
Appeal was unknown at common law, and in this country "the right of appeal has always been recognized as the creature of statutory enactment . . . requiring express provision of law for its existence." United States ex rel. Brightwood Ry. Co. v. O'Neal, 10 App. D.C. 205, 244 (1897), aff'd sub nom. Capital Traction Co. v. Hof, 174 U.S. 1, 43 L. Ed. 873, 19 S. Ct. 580 (1899). Many states have enacted statutory provisions specifically regulating the right of appeal in probate proceedings. See 3 WILLIAM J. BOWE and DOUGLAS H. PARKER, PAGE ON THE LAW OF WILLS, § 26.126, at 271 n.1 (1961). The District of Columbia has no statute explicitly addressing appellate probate practice, however, and appeals in probate cases are therefore subject to the same statutory limitations as appeals in other civil proceedings.
This court has jurisdiction, inter alia, of all final orders and judgments of the Superior Court. D.C. Code § 11-721 (a)(1) (1989). Ms. Murphy *fn5 contends that the trial Judge's decision declaring that Mignon Cooper is George Cooper's daughter, and therefore has an interest in his estate, is a final order within the meaning of the statute. *fn6
In determining whether the order appealed from in this case is an appealable final order, we must also consider the statutory provisions governing probate practice in the Superior Court. Our statute provides that upon a sufficient request, the Probate Court may direct the institution of a "plenary proceeding," which then proceeds by petition and sworn answer. D.C. Code § 16-3105 (1989). In such a "plenary proceeding," the case proceeds to trial, and "the Probate Court shall give judgment, or decree upon the bill answer." Id., § 16-3106. The court is authorized to enforce its judgment or decree, inter alia, by exercise of the contempt power and by attachment and sequestration. Id., §§ 16-3105, -3106, -3107. The court may also issue execution on any judgment. Id., § 16-3112. The "plenary" proceeding thus has most or all of the hallmarks of a conventional lawsuit.
"An order is final only if it disposes of the whole case on its merits, so that the court has nothing remaining to do but to execute the judgment or decree already rendered." In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C. 1993) (en banc) (internal quotation marks omitted) (quoting McBryde v. Metropolitan Life Ins. Co., 221 A.2d 718, 720 (D.C. 1966)). If the administration of the estate is viewed as a single "whole case," then, for the reasons set forth below, the trial Judge's order plainly does not dispose of it in its entirety.
"The approval of the final account shall automatically close the estate, and if the final account so requests and the court approves, shall terminate the appointment of the personal representative." D.C. Code § 20-1301 (1989). In the present case, the final account has neither been submitted to the court nor approved, and the administration of the estate is incomplete. Indeed, the identity of the appropriate personal representative --the individual responsible for preparing the final account -- was one of the issues presented to the trial court by Mignon Cooper and her daughter. Moreover, the decision that Mignon Cooper is George Cooper's daughter and eligible to inherit from him did not conclusively establish even her own rights, for it did not determine the amount of money or property, if any, that she would ultimately be entitled to receive. The judgment "did not decree the payment of any money, which was the only purpose of the suit. It opened the way to that end, but nothing more." Benjamin's Heirs v. Dubois, 118 U.S. 46, 48, 30 L. Ed. 52, 6 S. Ct. 925 (1886); see also Burtoff v. Burtoff, 390 A.2d 989, 991 (D.C. 1978). "An order is not final and appealable where the issue of the amount of damages remains for determination." 4 C.J.S. Appeal and Error § 85, at 157 (1993).
Ms. Murphy contends, however, that this line of authority is not controlling because the litigation regarding Mignon Cooper's relationship to the decedent should be viewed as a separate "whole" case, distinct from the administration of the estate. Her counsel puts it this way in his supplemental memorandum:
There is a clear delineation between adversary proceedings in estate cases and the process of usual estate administration. In the one instance there are disputed questions of law and fact requiring court intervention. On the other hand, the orderly process of probate is controlled by filing and time procedures supervised by the Office of the Register of Wills.
Appellants contend that the adjudication of any complaint litigated pursuant to Superior Court Probate Rule 107 *fn7 would be appealable to this Court when final. This rule provides for procedures leading to trial which directly track those applicable in the Civil Division of Superior Court. The contested issues raised pursuant to this rule are completely independent from orderly estate administration. However, the resolution of such disputes directly impacts on the identity of heirs and their shares of any distributions. Accordingly, appellate review must occur as a prerequisite to a final accounting.
Ms. Murphy contends that the appealability of the Judge's determination that Mignon Cooper is entitled to an interest in George Cooper's estate is established by this court's decision in In re Estate of Glover, 470 A.2d 743 (D.C. 1983). In Glover, a man alleged that he was the decedent's out-of-wedlock son, and claimed that he had been improperly excluded from participation in the probate proceedings. He brought an action against the personal representative, asking that he be declared the decedent's son and thus a party with an interest in the estate. The trial court dismissed the action on the ground that such a proceeding must be brought during the decedent's lifetime. On appeal, this court considered this issue on the merits and reversed the trial court's decision. Ms. Murphy contends that the court exercised appellate jurisdiction, that it therefore must have had jurisdiction, and that "there is no principled distinction between the appealability of the judgment in Glover and the finality of the ruling in the present case.
There is no indication in Glover, however, that any jurisdictional question was raised. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." Webster v. Fall, 266 U.S. 507, 511, 69 L. Ed. 411, 45 S. Ct. 148 (1925); see also Thompson v. United States, 546 A.2d 414, 423 n.14 (D.C. 1988) (quoting Webster). "The rule of stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question." Fletcher v. Scott, 201 Minn. 609, 277 N.W. 270, 272 (Minn. 1938) (citations omitted). "A point of law merely assumed in an opinion, not discussed, is not authoritative." In re Stegall, 865 F.2d 140, 142 (7th Cir. 1989). Moreover, we are dealing here with a jurisdictional issue, and "when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine, 415 U.S. 528, 533 n.5, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974).
No case law from other jurisdictions has been cited to us, and our own research has disclosed none, that is directly on point. A few cases are somewhat helpful by analogy. In In re Estate of Berger, 185 Neb. 702, 178 N.W.2d 585 (Neb. 1970), the Supreme Court of Nebraska held that " decree determining the heirs and the right of descent of real and personal property is by statute declared to be a final order and, unless appealed from, is binding and conclusive." Id. at 587 (emphasis added). Similarly, in In re Estate of Jerrido, 339 So. 2d 237 (Fla. App. 4th Dist. 1976), an order adjudicating the appellant to be the decedent's common law wife was held to be "a final order subject to plenary appear pursuant to the applicable Florida statute. Id. at 239 (emphasis added). In In re Estate of Hutchins, 120 Ill. App. 3d 1084, 458 N.E.2d 1356, 1357, 76 Ill. Dec. 556 (Ill. App. Ct. 4th Dist. 1984), the court held that, under the applicable Illinois statute, an order entered in the administration of an estate which finally determined the status of a party was appealable as of right. In Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W. Va. 502, 250 S.E.2d 369, 372 (W. Va. 1979), on the other hand, an order declaring that the claimant was not the decedent's child was deemed not to be final or appealable; a later decree ordering the distribution of the principal of a testamentary trust, however, was held to be a final order. Collectively, these decisions lend a measure of support for the proposition that contested litigation as to the status of an heir is conceptually separate from the day-to-day administration of an estate, that an order disposing of such litigation is "final" for purposes of appeal, and that it would be impracticable to view the administrative process as some kind of "umbrella" lawsuit which deprives an order such as the one here at issue of the requisite finality.
Although the statutory provisions governing proceedings in the Superior Court's Probate Division, see D.C. Code § 16-3101, et seq., do not deal expressly with appeals, we conclude that they also lend support to Ms. Murphy's position. They contemplate a "plenary proceeding," § 16-3105, which is terminated by an enforceable judgment. We think it unlikely that the legislature, having invested the trial court with the authority to make and enforce judgments, intended to postpone the initiation of any appellate proceedings until the entire administration of the estate has been completed. We note, in that connection, the following Discussion in Vineyard v. Irvin, 855 S.W.2d 208 (Texas Ct. Civ. App. 1993):
A probate order or judgment is final if it conclusively disposes of or is decisive of the issue or controverted question for which that particular part of the proceeding was brought, even if the decision does not fully and finally dispose of the entire probate proceeding. In other words, a probate order is appealable if it finally adjudicates a substantial right; on the other hand, if it merely leads to further hearings on the issue, it is interlocutory . . . . The probate court conducts its business in a continuing series of events. The nature of "administration" contemplates decisions to be made on which other decisions will be based. There must be a practical way to review erroneous, controlling, intermediate decisions before the consequences of the error do irreparable injury.
Id. at 210 (citations and internal quotation marks omitted).
If Mignon Cooper had instituted an action during the decedent's lifetime to establish that he was her father, see In re D.M., 562 A.2d 618 (D.C. 1989), there would surely have been no question that an order declaring her to be his daughter would have been appealable. Although the situation be comes more complex when such a suit is brought within the context of an ongoing probate case, we conclude that the "plenary" paternity proceeding is distinct from the administration of the estate, and that the order determining paternity is therefore appealable as a final order. Cf. Perry v. Wilson, 60 App. D.C. 109, 110, 48 F.2d 1021, 1022 (1931) (holding that the removal of the administrator of an intestate decedent was appealable). *fn8
The testimony in this case reveals that the matriarch of the Cooper family was "Ma Pearl" Cooper, the mother of George Cooper. According to her obituary, Pearl Cooper was born on July 23, 1903 and died on January 24, 1985. She was survived by a total of 62 linear descendants (including children, grandchildren, and great-grandchildren). It is undisputed that Mignon Cooper was raised as "Ma Pearl's" daughter (and thus as George Cooper's sister), and the trial Judge so found. Mignon Cooper contends, however, that she is in fact Pearl Cooper's granddaughter and George Cooper's daughter. The trial court resolved that question in Mignon Cooper's favor.
At trial, the plaintiffs called LaShawn McCloud, who is Mignon Cooper's daughter and co-plaintiff. Ms. McCloud testified that George Cooper was Mignon Cooper's father, "as her birth certificate states." Although, under the plaintiffs' theory of the case, George Cooper was Ms. McCloud's grandfather, she testified that he had been her "legal guardian" and that he had taken care of Mignon Cooper's children when their mother was incarcerated. Ms. McCloud described George Cooper as being "like a father to us." Ms. McCloud testified that her mother was raised by Pearl Cooper, but she claimed no other personal knowledge of her mother's relationship to Pearl Cooper and George Cooper.
The plaintiffs also introduced a "Certificate of Live Birth" of Mignon Kathleen Cooper. The certificate, signed by George T. Walker, M.D. on October 27, 1947, reflects that Mignon Kathleen Cooper was born on October 21, 1947 at 69 O Street, N.W. in Washington, D.C. The father is identified as George Cooper, aged 35, born in Wilmington, N.C. The mother is identified as Kathleen Hayes Cooper, aged 34, also born in Wilmington, N.C. There is an imperfect circle around the word Cooper, and the Judge found that some entries in the document appear to be in different handwriting from other entries. The birth certificate also contains an entry stating that there were three other living children born to the mother. Dr. Walker's certification states that the information for the document was provided by Kathleen Cooper. *fn9
At the Conclusion of the plaintiffs' case, counsel for the defendants made an oral motion for judgment, noting, inter alia, that Mignon Cooper had not testified on her own behalf and that there were serious discrepancies in the birth certificate. The Judge denied the motion without comment.
Margaret Murphy testified that she is the daughter of George Cooper, and that George Cooper had three other children, namely Georgetta Blocker, Ricky W. Cooper, and Patricia Cooper. She stated that all of the Cooper children knew who their parents were, and that there was no confusion in the family on the subject. She described Pearl Cooper and Mignon Cooper as mother and daughter, and explained that Pearl Cooper was Ms. Murphy's grandmother. According to Ms. Murphy, therefore, Mignon Cooper was not Ms. Murphy's sister but her aunt.
Ms. Murphy testified that she called George Cooper "dad," but that Mignon Cooper addressed him as "George" and that Mignon Cooper's children called him "uncle." She also stated that the Cooper family came from two towns in Duplin County, North Carolina and that, to the best of her knowledge, the Coopers had no relationship to Wilmington, North Carolina. Ms. Murphy's testimony that Mignon Cooper was Pearl Cooper's daughter, George Cooper's sister, and Ms. Murphy's aunt was confirmed by Ms. Murphy's sister, Georgetta Blocker, and by her brother, Ricky Cooper, both of whom also testified for the defense. *fn10
Archie Bowman, then seventy years of age, and the stepfather of Margaret Murphy, also testified on behalf of the defendants. He related that he "ran with" George Cooper in the two men's younger days, and that they were "cut buddies." According to Mr. Bowman, Mignon Cooper was Pearl Cooper's daughter and George Cooper's sister. He remembered Kathleen Hayes as one of George Cooper's daughters "outside of marriage." He further recalled, however, that George Cooper had a relationship with a prostitute named Katherine, or Kitty.
The defense also introduced three significant exhibits. The first was a "Certified Certificate of Birth" for George Washington Cooper, which was authenticated by the Assistant Registrar of Deeds of Duplin County, North Carolina. It appears from this Certificate that George Cooper was born in Duplin County on January 10, 1926, 21 years before Mignon Cooper's birth as reflected in her birth certificate.
The second exhibit was the program for Pearl Cooper's funeral service. The "obituary" which appeared in this program revealed that "Ma Pearl" left five sons, two daughters, forty grandchildren and fifteen great-grandchildren. Mignon Cooper was identified by name in the obituary as one ...