# FILED

September 2, 1997 Cecil W. Crowson Appellate Court Clerk September 2, 1997 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT NASHVILLE 6 7 8 9 10 IN RE: ESTATE OF CARLTON ELLIOTT ( 11 WALTON, DECEASED, JEFFREY O. ( 12 WALTON, ADMINISTRATOR, ( 13 ( 14 Plaintiff-Appellant, ( 15 ( 16 ( Davidson Probate 17 ( 18 v . ( Hon. Frank G. Clement, Jr., 19 ( Judge 20 ( 21 ( No. 01S01-9612-PB-00252 22 LESLIE YOUNG, ( 23 ( 24 Defendant-Appellee. ( 25 26 27 28 For Plaintiff-Appellant : For Defendant-Appellee : 29 30 Jimmy A. Duncan Jack Green 31 Nashville Nashville 32 33 Dan R. Alexander 34 Nashville 35 36 37 38 39 40 41 42 43 O P I N I O N 44 45 46 47 48 49 50 51 52 53 JUDGMENT OF COURT OF APPEALS 54 REVERSED; JUDGMENT OF TRIAL COURT 55 AFFIRMED; CASE REMANDED. Reid, J. 56 57-2- This case presents for review the decision of the Court of 1 Appeals reversing the trial court’s denial of a claim of paternity. 2 For the reasons set forth, the decision of the Court of Appeals is 3 reversed and the case is remanded. 4 5

I 6 7 The decedent, Carlton E. Walton, died intestate. The 8 decedent’s son, Jeffrey O. Walton, qualified as the administrator of 9 the decedent’s estate. The petition filed in probate court states 10 that Jeffrey O. Walton is the only child of the decedent. 11 12 Leslie Young, nee, Jackson, the claimant against the 13 estate, filed a petition in the probate court alleging that she is 14 the natural or biological child of the decedent, and, therefore, 15 entitled to inherit from him according to the law of intestate 16 succession. 17 18 The case was heard by the trial judge without a jury. The 19 proof shows that when Young was born on May 9, 1972 her mother, Donna 20 Fowler, had been married to Frank Jackson, Jr. for more than three 21 years. The certificate of birth lists Jackson as the father. 22 Fowler and Jackson were divorced in March of 1973, remarried in 23 November of l973, and divorced again in 1984. In addition, Fowler 24 filed another complaint for divorce which was dismissed. In all of 25 the divorce proceedings and proof, the parties asserted that Jackson 26 was the father of the claimant. In the last divorce case, Jackson 27 was awarded custody of the claimant and she lived with him until she 28 was 16 years old. 29-3- According to Young’s testimony, Fowler told her when she 1 was 13 that Jackson was not her father, but Fowler did not tell her 2 the decedent was her father until she was 18. Fowler testified that 3 when she first learned that she was pregnant, she informed Jackson 4 and told him the decedent was the father. She also confirmed Young’s 5 testimony regarding her conversations with Young when she was 13 and 6 18. Fowler testified that she continued to have sexual relations 7 with the decedent intermittently until his death. According to 8 Jackson’s testimony, he told Young when she was 13 that the decedent 9 was her father. 10 11 When Young was about 18, she sought out the decedent and 12 they developed a relationship. The evidence regarding the nature of 13 their relationship is not altogether consistent. Young lived with 14 the decedent for short periods of time for several years before his 15 death and during that time the decedent assisted Young financially. 16 17 According to an expert witness, blood tests of Young, 18 Fowler, and Jackson show conclusively that Jackson is not Young’s 19 biological father. 20 21 The trial court found that Young failed to prove by clear 22 and convincing evidence that the decedent was her biological father 23 and dismissed her petition. The Court of Appeals, in its d e novo 24 consideration of the evidence, found that the decedent was the 25 biological father of the claimant. 26 27

I I 28 29-4- A 1 2 The claimant relies upon Tenn. Code Ann. § 31-2- 3 105(a)(2)(B) as authority for her assertion of a right to intestate 4 succession. The pertinent provisions of that section are: 5 6 If, for purposes of intestate succession, a 7 relationship of parent and child must be 8 established to determine succession by, through, 9 or from a person: ... a person born out of 10 wedlock is a child of the mother. That person is 11 also a child of the father, if: ... The 12 paternity is established by an adjudication 13 before the death of the father or is established 14 thereafter by clear and convincing proof, . . . . 15 16 17 18 Tenn. Code Ann. § 31-2-105(a)(2)(B) (Supp. 1996). 19 20 21 22 This Court recently reviewed the procedure for asserting 23 rights of inheritance pursuant to Tenn. Code Ann. § 31-2-105 in 24 Bilbrey v. Smithers , 937 S.W.2d 803 (Tenn. 1996); see also Allen v. 25 Harvey, 568 S.W.2d 829 (Tenn. 1978). Although not raised in the 26 trial court nor noted by the Court of Appeals, there is one important 27 factual difference between Bilbreyand Allenand the instant case. 28 In the prior cases, the mother of the person claiming paternity was 29 not married when the child was conceived or born. In the instant 30 case, the claimant’s mother was married at the time the claimant was 31 conceived and born. The issue of paternity cannot be considered 32 until there has been a determination that the claimant was “born out 33 of wedlock” within the meaning of Tenn. Code Ann. § 31-2-105. 34 Whether a child whose mother was married at the time of the child’s 35 birth is a child “born out of wedlock,” and therefore has standing to 36 assert a claim of inheritance, has not been decided by this Court. 371Contrary to the statement by the Court of Appeals in In Re Estate of

Armstrong( Adams v. Manis ), 859 S.W.2d 323, 327 (Tenn. App. 1993)), Tenn. Code Ann. § 31-2-105 does not define “a person born out of wedlock.” Relevant to the issue in Armstrongand the instant case, the statute provides: “A person born out wedlock is . . . a child of the father, if . . . The paternity is established . . . [after] the death of the father . . . by clear and convincing proof.” See4l Am. Jur. 2d, Illegitimate Children§ 28 (1995): In many jurisdictions, where the legitimacy or illegitimacy of a child born in wedlock is in issue, neither the husband nor the wife may testify to non-access between them, unless it is otherwise provided by statute. In some jurisdictions, the inhibition is not confined to testimony of non-access, but prevents any testimony of the husband or the wife tending to illegitimatize the issue of their marriage. Other jurisdictions, however, admit testimony of non-access from any knowledgeable witness, including the spouses themselves.

Id. at 223.

-5- In view of the Court’s finding that the proof fails to establish her 1 claim, that issue need not be considered in this case. 1 2 3

B 4 5 The only issue considered in the trial court and in the 6 Court of Appeals, and the only issue presented by the parties on this 7 appeal, is whether the claimant established paternity by clear and 8 convincing proof. As previously stated, this Court finds that the 9 claimant failed to carry her burden of proof. 10 11 The proof shows that claimant Young is not the biological 12 child of Jackson, who was married to her mother at the time she was 13 conceived and born. Of course, that proof does not establish the 14 identity of the claimant’s father. 15 16 On every significant issue the evidence is equivocal. 17 Fowler testified that Young was conceived while she and Jackson were 18 separated, and Jackson in his testimony confirmed that the child was 19-6-

not his. Fowler also testified that she and the decedent were having 1 sexual relations regularly during the time the child was conceived. 2 However, Fowler’s testimony does not foreclose the possibility that 3 another person was the father. 4 5 The proof shows that the decedent referred to Young as his 6 “young’n,” which apparently is a colloquial expression for “young 7 one.” However, the proof also shows that the decedent had, in the 8 best light, a fatherly penchant for young women and that he had 9 similar relationships with at least three other young women. Those 10 relationships included living together, providing financial 11 assistance, and referring to each as his “young’n.” 12 13 The evidence that the decedent acknowledged Young as his 14 child is conflicting. The testimony of several casual acquaintances 15 indicated that the decedent referred to Young as his child; however, 16 the decedent’s sister and a long time lover/friend both testified 17 that they never heard him say Young was his child. 18 19 Obviously, the critical evidence is the testimony of 20 Fowler. Based on this record, neither Young nor Jackson know the 21 identity of Young’s father, nor did the decedent. Fowler was the 22 source of their information; consequently, the probative value of the 23 testimony of Young and Jackson, as well as that of Fowler, depends 24 upon Fowler’s credibility. The evidence as it relates to this 25 determinative issue was summarized by the trial court: 26 27 What is for me to determine today is whether or 28 not [Young] has established by clear and 29 convincing evidence that the decedent Carl Walton 30-7- was her father. ... I cannot overlook the fact 1 that the mother [Fowler] made representations for 2 years in more than one lawsuit that [Jackson] was 3 the father and, in essence, required or had the 4 ability to require that Mr. Jackson financially 5 support and raise [Young], but now that that 6 financial obligation is gone she does a hundred 7 and eighty degree reversal and claims that Mr. 8 Walton was the father. 9 10 . . . [T]he only evidence that’s been 11 introduced through [Fowler] .... Yet her 12 credibility has been impeached because she has 13 been shown to have sworn under oath to the 14 contrary. Several witnesses testify that the 15 decedent Carl Walton claimed that [Young] was his 16 daughter and that [Young’s] son was his grandson. 17 Others have taken issue with that and claimed 18 that what he was really saying was that she was 19 his young’n and/or that he called lots of young 20 people his young’n and/or that he stated, well, 21 she’s -- I’m not saying she’s my daughter, I’m 22 saying that her mother says she’s my daughter. 23 24 . . . I am of the impression that the sole 25 basis upon which Mr. Walton believed, if he did 26 believe, that he was the father was based upon a 27 representation by Ms. Fowler and since her 28 credibility has been challenged and she has been 29 shown to have testified falsely in other matters, 30 I can only determine that the petitioner has 31 failed to convince this Court by clear and 32 convincing evidence that the decedent was her 33 biological father and therefore the petition is 34 denied. 35 36 37 38 The standard for reviewing the trial court’s decision is d e 39

novoaccompanied by a presumption of correctness, giving great weight 40 to the trial court’s determinations of credibility. “Unless 41 otherwise required by statute, review of findings of fact by the 42 trial court in civil actions shall be de novo upon the record of the 43 trial court, accompanied by a presumption of the correctness of the 44 finding, unless the preponderance of the evidence is otherwise.” 45 Tenn. R. App. P. 13(d). As stated in Randolph v. Randolph, 937 46 S.W.2d 815, 819 (Tenn. 1996), 47 48-8- We review the findings of fact by the trial court 1 d e novoupon the record of the trial court, 2 accompanied by a presumption of the correctness 3 of the findings, unless the preponderance of the 4 evidence is otherwise. Tenn. R. App. P. 13(d). 5 Because the trial judge is in a better position 6 to weigh and evaluate the credibility of the 7 witnesses who testify orally, we give great 8 weight to the trial judge’s findings on issues 9 involving credibility of witnesses. Gillock v. 10 Board of Professional Responsibility, 656 S.W.2d 11 365, 367 (Tenn. 1983). 12 13 14 15 See also Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 16 1995)(“Because this case was tried without a jury, our review of the 17 issues of fact is d e novoon the record of the trial court. However, 18 we must presume that the trial court’s findings were correct unless 19 the preponderance of the evidence is otherwise.”). 20 21 The record supports the trial court’s determination that 22 the claimant’s evidence does not reach the standard of clear and 23 convincing. 24 25 The “clear and convincing” standard falls 26 somewhere between the “preponderance of the 27 evidence” in civil cases and the “beyond a 28 reasonable doubt” standard in criminal 29 proceedings. To be “clear and convincing,” the 30 evidence must “produce in the mind of the trier 31 of facts a firm belief or conviction as to the 32 allegations sought to be established.” Hobson v. 33 Eaton, 399 F.2d 781, 784 n. 2 (6th Cir. 1968), 34 cert. denied, 394 U.S. 928 (1969). “Clear and 35 convincing evidence means evidence in which there 36 is no serious or substantial doubt about the 37 correctness of the conclusions drawn from the 38 evidence.” Hodges v. S.C. Toof & Co. , 833 S.W.2d 39 896, 901 n. 3 (Tenn. 1992). See e.g. In re 40 Estate of Armstrong, 859 S.W.2d 323, 328 (Tenn. 41 App. 1993). 42 43 44 45 Fruge v. Doe, ___ S.W.2d ___, ___ n.2 (Tenn. 1997). 46 47-9- 1 The evidence does not preponderate against the trial 2 court’s finding that the claimant failed to prove paternity by clear 3 and convincing evidence. 4 5 The judgment of the Court of Appeals is reversed, the 6 judgment of the trial court is affirmed, and the case is remanded to 7 the trial court. 8 9 Costs are taxed against the appellee, Leslie Young. 10 11

__________________________ 12 Reid, J. 13 14 15 Concur: 16 17 Anderson, C.J., Drowota, Birch, 18 and Holder, JJ. 19