Willbanks v. Stein

Willbanks v. Stein, 4 N.M.I. 205 (1994) Dolores S. Willbanks, Plaintiff/Appellee, v. Francisco B. Stein, Jesus B. Stein, Olympia R. Sablan, Antonia R. Tenorio and Richard B. Stein, Defendants/Appellants. Appeal No. 93-036 Civil Action No. 91-0337 Order Denying Rehearing December 6, 1994 Counsel for appellants: Juan T. Lizam a, Saipan. Counsel for appellee: Jam es H. Grizzard, Saipan. BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. PER CURIAM : The plaintiff/appellee, Dolores S. W illbanks, filed a petition for rehearing following our decision reversing the trial court judgm ent and ordering further proceedings to determine the question of inheritance rights, under Cham orro custom , of children born out of wedlock. Willbanks v. Stein, 4 N.M .I. 195 (1994). W illbanks contends that we misconstrued the issue raised on appeal. See Com. R. App. P. 40(a). She asserts that we erroneously viewed the issue as that of W illbanks’s paternity, rather than whether, having proven paternity below, Cham orro custom allows her to inherit. W e find no merit to this contention. W e did not view paternity as the issue being raised by the defendants/appellants. The issue we addressed was whether, having proven paternity, a child born out of wedlock m ay inherit under Cham orro custom . The issue raised by the appellants was whether, having proven paternity, a child born out of wedlock may inherit when the biological father failed to acknowledge the child as his.1 They assert that under Cham orro custom the natural father must acknowledge the child as his before the child m ay inherit. W e reversed the trial court’s judgm ent because, after deciding that Cham orro custom applies, the court held that 8 CM C § 2918(b)(2) is the “best evidence of applicable Chamorro custom.” Willbanks v. Stein, Civ. No. 91-0337 (N.M .I. Super. Ct. July 19, 1993) (decision and order at 3). W e held that this section of the NM I probate code, however, sim ply sets forth a standard of proof, not custom . Our opinion in this case also clarifies In re Estate of Aldan, 2 N.M .I. 288 (1991). The trial court interpreted Aldan as authority for the proposition that our probate code is evidence of custom in this case and, therefore, establishes the applicable custom . As we explained in our opinion, the probate code is inapplicable and cannot be viewed as evidence of custom in m atters involving a decedent who died prior to February 1984. W hile the probate code m ay reflect certain aspects of custom , it does not, standing alone, establish custom as a m atter of law. In our opinion we held that even if one has proven paternity, it is unclear whether, under Cham orro 1 W e note that the appellants conceded that paternity was proven only for purposes of this appeal. See Appellants’ Brief at 8. The trial court ruled that W illbanks proved paternity by clear and convincing evidence. custom , that fact by itself means that a child born out of wedlock m ay inherit. The trial court must still determ ine whether and how a child born out of wedlock may inherit under Chamorro custom. W e reversed and remanded because we were unable to determ ine from the record before us whether any such custom exists, much less how that custom should apply. Our opinion instructs the trial court to take further evidence, if warranted, on the issue of custom . Based on the foregoing, the petition for rehearing is hereby DENIED.