FILED

September 2, 1997

Cecil W. Crowson

Appellate Court Clerk

1 September 2, 1997

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT NASHVILLE

7

8

9

10

11 IN RE: ESTATE OF CARLTON ELLIOTT (

12 WALTON, DECEASED, JEFFREY O. (

13 WALTON, ADMINISTRATOR, (

14 (

15 Plaintiff-Appellant, (

16 (

17 ( Davidson Probate

18 (

19 v . ( Hon. Frank G. Clement, Jr.,

20 ( Judge

21 ( 

22 ( No. 01S01-9612-PB-00252

23 LESLIE YOUNG, (

24 (

25 Defendant-Appellee. (

26

27

28

For Plaintiff-Appellant 29 : For Defendant-Appellee :

30

31 Jimmy A. Duncan Jack Green

32 Nashville Nashville

33

34 Dan R. Alexander

35 Nashville

36

37

38

39

40

41

42

43

44 O P I N I O N

45

46

47

48

49

50

51

52

53

54 JUDGMENT OF COURT OF APPEALS

55 REVERSED; JUDGMENT OF TRIAL COURT 

56 AFFIRMED; CASE REMANDED. Reid, J.

57
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1 This case presents for review the decision of the Court of

2 Appeals reversing the trial court’s denial of a claim of paternity. 

3 For the reasons set forth, the decision of the Court of Appeals is

4 reversed and the case is remanded. 

5

6 I

7

8 The decedent, Carlton E. Walton, died intestate. The

9 decedent’s son, Jeffrey O. Walton, qualified as the administrator of

10 the decedent’s estate. The petition filed in probate court states

11 that Jeffrey O. Walton is the only child of the decedent. 

12

13 Leslie Young, nee, Jackson, the claimant against the

14 estate, filed a petition in the probate court alleging that she is

15 the natural or biological child of the decedent, and, therefore,

16 entitled to inherit from him according to the law of intestate

17 succession. 

18

19 The case was heard by the trial judge without a jury. The

20 proof shows that when Young was born on May 9, 1972 her mother, Donna

21 Fowler, had been married to Frank Jackson, Jr. for more than three

22 years. The certificate of birth lists Jackson as the father. 

23 Fowler and Jackson were divorced in March of 1973, remarried in

24 November of l973, and divorced again in 1984. In addition, Fowler

25 filed another complaint for divorce which was dismissed. In all of

26 the divorce proceedings and proof, the parties asserted that Jackson

27 was the father of the claimant. In the last divorce case, Jackson

28 was awarded custody of the claimant and she lived with him until she

29 was 16 years old.
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1 According to Young’s testimony, Fowler told her when she

2 was 13 that Jackson was not her father, but Fowler did not tell her

3 the decedent was her father until she was 18. Fowler testified that

4 when she first learned that she was pregnant, she informed Jackson

5 and told him the decedent was the father. She also confirmed Young’s

6 testimony regarding her conversations with Young when she was 13 and

7 18. Fowler testified that she continued to have sexual relations

8 with the decedent intermittently until his death. According to

9 Jackson’s testimony, he told Young when she was 13 that the decedent

10 was her father.

11

12 When Young was about 18, she sought out the decedent and

13 they developed a relationship. The evidence regarding the nature of

14 their relationship is not altogether consistent. Young lived with

15 the decedent for short periods of time for several years before his

16 death and during that time the decedent assisted Young financially. 

17

18 According to an expert witness, blood tests of Young,

19 Fowler, and Jackson show conclusively that Jackson is not Young’s

20 biological father. 

21

22 The trial court found that Young failed to prove by clear

23 and convincing evidence that the decedent was her biological father

and dismissed her petition. The Court of Appeals, in its d e 24 novo

25 consideration of the evidence, found that the decedent was the

26 biological father of the claimant. 

27

28 I I

29
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1 A

2

3 The claimant relies upon Tenn. Code Ann. § 31-2-

4 105(a)(2)(B) as authority for her assertion of a right to intestate

5 succession. The pertinent provisions of that section are:

6

7 If, for purposes of intestate succession, a

8 relationship of parent and child must be

9 established to determine succession by, through,

10 or from a person: ... a person born out of

11 wedlock is a child of the mother. That person is

12 also a child of the father, if: ... The

13 paternity is established by an adjudication

14 before the death of the father or is established

15 thereafter by clear and convincing proof, . . . .

16

17

18

19 Tenn. Code Ann. § 31-2-105(a)(2)(B) (Supp. 1996).

20

21

22

23 This Court recently reviewed the procedure for asserting

24 rights of inheritance pursuant to Tenn. Code Ann. § 31-2-105 in

Bilbrey v. Smithers 25 , 937 S.W.2d 803 (Tenn. 1996); see also Allen v.

26 Harvey , 568 S.W.2d 829 (Tenn. 1978). Although not raised in the

27 trial court nor noted by the Court of Appeals, there is one important

28 factual difference between Bilbrey and Allen and the instant case. 

29 In the prior cases, the mother of the person claiming paternity was

30 not married when the child was conceived or born. In the instant

31 case, the claimant’s mother was married at the time the claimant was

32 conceived and born. The issue of paternity cannot be considered

33 until there has been a determination that the claimant was “born out

34 of wedlock” within the meaning of Tenn. Code Ann. § 31-2-105. 

35 Whether a child whose mother was married at the time of the child’s

36 birth is a child “born out of wedlock,” and therefore has standing to 

37 assert a claim of inheritance, has not been decided by this Court. 
1

Contrary 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 Armstrong and 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.” See 4l 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. 

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1 In view of the Court’s finding that the proof fails to establish her

claim, that issue need not be considered in this case. 1

2

3

4 B

5

6 The only issue considered in the trial court and in the

7 Court of Appeals, and the only issue presented by the parties on this

8 appeal, is whether the claimant established paternity by clear and

9 convincing proof. As previously stated, this Court finds that the

10 claimant failed to carry her burden of proof. 

11

12 The proof shows that claimant Young is not the biological

13 child of Jackson, who was married to her mother at the time she was

14 conceived and born. Of course, that proof does not establish the

15 identity of the claimant’s father. 

16

17 On every significant issue the evidence is equivocal. 

18 Fowler testified that Young was conceived while she and Jackson were

19 separated, and Jackson in his testimony confirmed that the child was
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1 not his. Fowler also testified that she and the decedent were having

2 sexual relations regularly during the time the child was conceived.

3 However, Fowler’s testimony does not foreclose the possibility that

4 another person was the father. 

5

6 The proof shows that the decedent referred to Young as his

7 “young’n,” which apparently is a colloquial expression for “young

8 one.” However, the proof also shows that the decedent had, in the

9 best light, a fatherly penchant for young women and that he had 

10 similar relationships with at least three other young women. Those

11 relationships included living together, providing financial

12 assistance, and referring to each as his “young’n.” 

13

14 The evidence that the decedent acknowledged Young as his

15 child is conflicting. The testimony of several casual acquaintances

16 indicated that the decedent referred to Young as his child; however,

17 the decedent’s sister and a long time lover/friend both testified

18 that they never heard him say Young was his child.

19

20 Obviously, the critical evidence is the testimony of

21 Fowler. Based on this record, neither Young nor Jackson know the

22 identity of Young’s father, nor did the decedent. Fowler was the

23 source of their information; consequently, the probative value of the

24 testimony of Young and Jackson, as well as that of Fowler, depends

25 upon Fowler’s credibility. The evidence as it relates to this

26 determinative issue was summarized by the trial court: 

27

28 What is for me to determine today is whether or

29 not [Young] has established by clear and

30 convincing evidence that the decedent Carl Walton
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1 was her father. ... I cannot overlook the fact

2 that the mother [Fowler] made representations for

3 years in more than one lawsuit that [Jackson] was

4 the father and, in essence, required or had the

5 ability to require that Mr. Jackson financially

6 support and raise [Young], but now that that

7 financial obligation is gone she does a hundred

8 and eighty degree reversal and claims that Mr.

9 Walton was the father.

10

11 . . . [T]he only evidence that’s been

12 introduced through [Fowler] .... Yet her

13 credibility has been impeached because she has

14 been shown to have sworn under oath to the

15 contrary. Several witnesses testify that the

16 decedent Carl Walton claimed that [Young] was his

17 daughter and that [Young’s] son was his grandson. 

18 Others have taken issue with that and claimed

19 that what he was really saying was that she was

20 his young’n and/or that he called lots of young

21 people his young’n and/or that he stated, well,

22 she’s -- I’m not saying she’s my daughter, I’m

23 saying that her mother says she’s my daughter.

24

25 . . . I am of the impression that the sole

26 basis upon which Mr. Walton believed, if he did

27 believe, that he was the father was based upon a

28 representation by Ms. Fowler and since her

29 credibility has been challenged and she has been

30 shown to have testified falsely in other matters,

31 I can only determine that the petitioner has

32 failed to convince this Court by clear and

33 convincing evidence that the decedent was her

34 biological father and therefore the petition is

35 denied.

36

37

38

39 The standard for reviewing the trial court’s decision is d e

40 novo accompanied by a presumption of correctness, giving great weight

41 to the trial court’s determinations of credibility. “Unless

42 otherwise required by statute, review of findings of fact by the

43 trial court in civil actions shall be de novo upon the record of the

44 trial court, accompanied by a presumption of the correctness of the

45 finding, unless the preponderance of the evidence is otherwise.” 

46 Tenn. R. App. P. 13(d). As stated in Randolph v. Randolph , 937

47 S.W.2d 815, 819 (Tenn. 1996),

48
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1 We review the findings of fact by the trial court

2 d e novo upon the record of the trial court,

3 accompanied by a presumption of the correctness

4 of the findings, unless the preponderance of the

5 evidence is otherwise. Tenn. R. App. P. 13(d). 

6 Because the trial judge is in a better position

7 to weigh and evaluate the credibility of the

8 witnesses who testify orally, we give great

9 weight to the trial judge’s findings on issues

10 involving credibility of witnesses. Gillock v.

11 Board of Professional Responsibility , 656 S.W.2d

12 365, 367 (Tenn. 1983).

13

14

15

16 See also Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn.

17 1995)(“Because this case was tried without a jury, our review of the

18 issues of fact is d e novo on the record of the trial court. However,

19 we must presume that the trial court’s findings were correct unless

20 the preponderance of the evidence is otherwise.”). 

21

22 The record supports the trial court’s determination that

23 the claimant’s evidence does not reach the standard of clear and

24 convincing.

25 

26 The “clear and convincing” standard falls

27 somewhere between the “preponderance of the

28 evidence” in civil cases and the “beyond a

29 reasonable doubt” standard in criminal

30 proceedings. To be “clear and convincing,” the

31 evidence must “produce in the mind of the trier

32 of facts a firm belief or conviction as to the

33 allegations sought to be established.” Hobson v.

34 Eaton , 399 F.2d 781, 784 n. 2 (6th Cir. 1968),

35 cert. denied , 394 U.S. 928 (1969). “Clear and

36 convincing evidence means evidence in which there

37 is no serious or substantial doubt about the

38 correctness of the conclusions drawn from the

39 evidence.” Hodges v. S.C. Toof & Co. , 833 S.W.2d

40 896, 901 n. 3 (Tenn. 1992). See e.g. In re

41 Estate of Armstrong , 859 S.W.2d 323, 328 (Tenn.

42 App. 1993).

43

44

45

46 Fruge v. Doe , ___ S.W.2d ___, ___ n.2 (Tenn. 1997).

47
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1

2 The evidence does not preponderate against the trial

3 court’s finding that the claimant failed to prove paternity by clear

4 and convincing evidence.

5

6 The judgment of the Court of Appeals is reversed, the

7 judgment of the trial court is affirmed, and the case is remanded to

8 the trial court.

9

10 Costs are taxed against the appellee, Leslie Young.

11

12 __________________________

13 Reid, J.

14

15

16 Concur:

17

18 Anderson, C.J., Drowota, Birch,

19 and Holder, JJ.