Estate v. Martino

96 Cal.App.5th 596

314 Cal.Rptr.3d 630

ESTATE OF Nick MARTINO, Deceased.

Nick Zambito, Petitioner and Respondent,

v.Tracey Martino et al., Objectors and Appellants.

D080846

Court of Appeal, Fourth District, Division 1, California.

Filed October 18, 2023

Reich Radcliffe & Hoover, Richard J. Radcliffe, Long Beach, and Marc G. Reich, Newport Beach, for Objectors and Appellants.

Amanda Jereige ; Antonyan Miranda and John Melvin for Petitioner and Respondent.

BUCHANAN, J.

After Nick Martino (Decedent) died intestate, his stepson from a previous marriage, Nick Zambito, petitioned to be deemed an heir. Decedent's biological children, Tracey Martino and Joseph Martino (together, Objectors), objected. After a bench trial, the probate court determined that Decedent was Zambito's "natural parent" under Probate Code ¹ sections 6540 and 6453, which define the "natural parent" and child relationship for purposes of intestate succession.

In this appeal, we conclude that Zambito has standing to claim natural parentage heirship even though he is not the Decedent's biological child. We further conclude that Probate Code section 6454, which provides a pathway for intestate succession by stepchildren and foster children, does not operate to foreclose other available statutory methods for a stepchild to establish a right to intestate succession. Specifically, because section 6453, subdivision (a) defines natural parentage for purposes of intestate succession to include presumed parentage that is not rebutted under the Uniform Parentage Act (UPA) ( Fam. Code, § 7600 et seq. ), a stepchild may establish a right to intestate succession under Family Code section 7611, subdivision (d), which creates a presumption of natural parentage if "[t]he presumed parent receives the child into their home and openly holds out the child as their natural child." Section 6454 does not preclude this alternative pathway for intestate succession by stepchildren. And in the absence of any challenge to the sufficiency of evidence to support the probate court's factual findings under this theory, we conclude that Objectors have failed to demonstrate any reversible error. Accordingly, we affirm the probate court's order.

FACTUAL AND PROCEDURAL BACKGROUND

Because neither side has disputed the probate court's factual findings or raised a sufficiency of evidence issue, we briefly summarize the facts as stated in its order after trial.

A. Zambito's and Decedent's Relationship

Zambito's mother, Lula Taylor, married Domenick in November 1960, and Zambito was born six months later in May 1961. Taylor and Domenick divorced a few years later, and Taylor married Decedent in 1966 after they had lived together for about two years. Decedent already had a daughter, Tracey Martino, who was born in 1960 during a previous marriage. After being married for six years, Taylor and Decedent divorced in 1972. During Decedent's subsequent marriage, Joseph Martino was born in 1974. It is undisputed that Decedent was not Zambito's biological father.

For most of their marriage, Taylor and Decedent shared a home in San Diego County and Zambito lived with them. Before and after Taylor and Decedent divorced, Zambito had a close relationship with Decedent, but Zambito had little contact with Domenick. During his childhood, Zambito considered Decedent to be his true father.

After Zambito became an adult, he left California and served in the army for 20 years, but he kept in touch with Decedent. After Zambito retired from the military, he occasionally visited Decedent in San Diego, but when Decedent's health began to fail around 2018, Zambito increased his efforts to visit. Zambito spoke with Decedent often and accompanied Decedent to medical appointments.

Many of Decedent's close personal friends said that in their frequent contacts with Decedent, he always referred to Zambito as his son. Decedent's friends also referred to Zambito as Decedent's son, and in his final years, Decedent maintained a close relationship with Zambito.

B. Zambito's Petition

In February 2020, after Decedent's death, Zambito filed a petition seeking an order declaring that he was Decedent's lawful "stepchild heir" pursuant to section 6454. (See § 11700.) Section 6454 provides for intestate succession from a stepparent or foster parent when (1) the relationship with the stepparent or foster parent began during the child's minority and continued throughout their joint lifetimes; and (2) it is proven by clear and convincing evidence that the stepparent or foster parent would have adopted the person but for a legal barrier.²

Zambito asserted in his original petition that his parent-child relationship with Decedent began when he was a minor and continued through Decedent's lifetime. He also asserted that Decedent expressed a desire to adopt Zambito, but Domenick objected, which posed a legal barrier to adoption.

Zambito amended his petition in May 2020, conceding that when Domenick died in 2004, a legal barrier to adoption no longer existed. Zambito therefore abandoned his claim pursuant to section 6454, and instead asserted heirship under section 6455,³ which allows for inheritance through equitable adoption.

In January 2021, Zambito filed a second amended petition, this time adding a theory of inheritance under Probate Code section 6453, subdivisions (a) and (b)(2). Those provisions state that a "natural parent and child relationship" is established for intestate succession purposes when (1) the relationship is presumed and not rebutted pursuant to the Uniform Parentage Act (UPA) in the Family Code, or (2) in actions brought under Family Code section 7630, subdivision (c), where clear and convincing evidence establishes that the parent has openly held out the child as that parent's own. ( Prob. Code, § 6453, subds. (a) & (b)(2) ; see Fam. Code, § 7600, et seq. )

Objectors opposed the second amended petition, arguing that Decedent never intended to adopt Zambito and never held him out as his son. They contended that Zambito "did not share the close, father-son relationship falsely alleged by Zambito." Objectors also argued that Zambito could not claim "natural parentage" because he was not related by blood to Decedent.

Near the end of a five-day bench trial, the court granted Objectors' motion for judgment as to Zambito's equitable adoption claim, ruling that he failed to prove Decedent's intent to adopt. After the trial, however, the court granted Zambito's petition as to heirship under both of his section 6453 theories. (See Prob. Code, § 6453, subds. (a) & (b)(2).) First, applying section 6453, subdivision (a), the court found that Decedent was Zambito's presumed parent under the UPA, pursuant to Family Code section 7611, subdivision (d), which applies when "[t]he presumed parent receives the child into their home and openly holds out the child as their natural child." The court noted that the relationship between a petitioner and decedent need not be biological to establish a presumption of parentage under the UPA. The court further found that Objectors failed to rebut the presumption of parentage (see Fam. Code, § 7612, subd. (a) ), and that any competing presumption that Domenick was Zambito's natural parent should not control (see id. , subd. (b)⁴ ). Second, the court also found that Zambito met his burden, under his alternative theory pursuant to section 6453, subdivision (b)(2), of showing that Decedent openly held him out as his son.

More specifically, the probate court made factual findings that the relationship between Decedent and Zambito began in Zambito's childhood and continued over fifty years until Decedent's death; that the relationship was that of a child to a parent; that Decedent received Zambito into his home both in Zambito's childhood and when he was an adult; and that Decedent held out Zambito as his natural child throughout Zambito's life. The court made all of its factual findings by clear and convincing evidence.

Objectors timely appealed. They do not challenge the sufficiency of evidence to support any of the probate court's factual findings.

DISCUSSION

I

Objectors first argue that Zambito lacked standing to claim "natural parentage" for heirship purposes because it is undisputed that he is not Decedent's biological child. In response, Zambito contends that a petitioner need not be biologically related to a decedent to establish "natural parentage" under the UPA. This is a question of statutory interpretation based on undisputed facts, which we review de novo. ( Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 382, 200 Cal.Rptr.3d 884 ( Martinez ).)

A. Governing Law

A "personal representative, or any person claiming to be a beneficiary or otherwise entitled to distribution of a share of the estate, may file a petition for a court determination of the persons entitled to distribution of the decedent's estate." ( § 11700.) " ‘Intestate succession is governed entirely by statute.’ [Citations.] ‘The heirs of a person are those whom the law appoints to succeed at the decedent's death to his or her estate in case of intestacy, by virtue of the statutes of succession.’ [Citation.]" ( Estate of Britel (2015) 236 Cal.App.4th 127, 135, 186 Cal.Rptr.3d 321 ( Britel ).)

When there is no surviving spouse, the intestate share of the estate passes "[t]o the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent ...." ( § 6402, subd. (a).) " ‘Issue’ of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent." ( § 50.) "Child" means "any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved." ( § 26.) "Parent" is defined as "any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved." ( § 54.)

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