Reese v. MuretReese v. Muret
This is а paternity action in the context of a probate case. Heather S. Reese (formerly Waldschmidt) (Heather) seeks a determination that she is the child of Wade Samuel Waldschmidt, Jr. (Sam). Sam’s spouse, Sandra Waldschmidt (Sandra), opposed
Headier s claim as a child in Samuel’s intestate estate and filed a motion for genetic testing. Headier filed a paternity action pursuant to the Kansas Parentage Act, claiming that Sam was her presumptive father. Sandra intervened in the paternity action and moved for genetic testing. The district court denied Sandra’s motions in both the probate and paternity actions, and she brings this appeal, claiming that
In re Marriage of Ross,
Sam married Deloris Hibbs (Deloris) on June 1, 1970. On Januaiy 25, 1971, Deloris gave birth to a daughter named Heather Shea Waldschmidt (Heather). Heather’s birth certificate named Sam as her fаther. Deloris and Sam divorced on July 12,1972. The divorce pleadings acknowledged Heather as a child of the union. The district court ordered Sam to pay child support and granted Sam visitation with Heather.
In November 1972, Sam filed a motion to terminate his child support payments, alleging that Deloris “took the minor child of said parties and disappeared.” Sam’s motion further alleged that Deloris was unfit and that he should have custody of Heather. In December 1972, the district court entered an order terminating Sam’s child support until Deloris could show just cause to have the child support reinstated. Deloris never reinstated Sam’s child support obligation, but Sam’s Aunt Irene provided financial assistance to Deloris and Heather.
After the divorce, Sam had little contact with Heather. Sam saw Heather at Waldschmidt family gatherings for Thanksgiving and Christmas but did not attempt to have a relationship with her. However, Heather was very close to members of Sam’s family including his mothеr, Margaret; his brother, David; and his Aunt Irene. Heather was also close to her Waldschmidt cousins. Although Heather did not have a relationship with Sam, she always considered him to be her father.
Sam married Sandra Woodard in October 1976. According to Sandra, Sam said that Heather was not his child. Sam and Sandra had no children. They separated in September 1988 and divorced in 1990. Sandra moved back in with Sam in 1994, moved out again in 1995, and remarried him in 1996. After their remarriage, Sandra did not live with Sam, but visited him occasionally on weekends.
Before Sandra moved back in with Sam in 1994; Sam executed a will leaving everything to his sisters, Camille and Anna Jane. On December 10, 2002, Sam visited with an attorney about his estate. Sam told the attorney that he had a daughter. The attorney perceived that there was tension between Sam and Sandra regarding Sam’s daughter, but Sam did not explain the situation. On or about December 13, 2002, Sam committed suicide.
In response to Sandra’s motion for genetic testing, Heather filed a paternity action pursuant to the Kansas Parentage Act, seeking a determination that Sam was Heather’s father. The petition alleged that Sam was Heather’s presumed father because she was born during her mother’s marriage to Sam, Sam had acknowledged his paternity in the divorce pleadings, and Sam was ordered to pay child support on Heather’s behalf. Sandra filed a motion to intervene and a motion for genetic testing. Over Heather’s objection, the district court granted Sandra’s motion to intervene pursuant to K.S.A. 60-224(b).
Heather objected to Sandra’s motions for genetic testing. The district court then ordered a Ross hearing to determine whether it was in Heather’s best interests to grant Sandra’s motions. The parties agreed to submit the evidence for the Ross hearing based on stipulated depositions and exhibits rather than conducting an evidentiary hearing. Based on this evidence, thе district court held that it was not in Heather’s best interests to conduct genetic testing and denied Sandra’s motion.
Sandra filed a motion for an interlocutory appeal in the paternity action and requested a ruling on her petition for genetic testing in the probate action. The district court denied Sandra’s petition for genetic testing in the probate action and granted her request for an interlocutory appeal in the paternity action. Sandra filed a notice of appeal in both actions. The appeals were consolidated and transferred to this court on our motion pursuant to K.S.A. 20-3018(c).
The matter was originally set for oral argument on December 5, 2005. However, upon finding a copy of Sam’s will in the record, we remanded the matter to the district court for a determination of the validity of Sam’s will. Thereafter, Sam’s sister, Camille Pond, petitioned the district court to admit a copy of Sam’s will to probate. After an еvidentiary hearing, the district court denied Camille’s petition to probate Sam’s will because she had failed to overcome the presumption that Sam had destroyed or revoked his original will. Following the district court’s refusal to probate Sam’s will, we reinstated Sandra’s appeal.
ANALYSIS
Sandra argues that the district court improperly applied the ruling of
Ross,
The fundamental rule of statutory construction is that the intent of the legislature governs. Legislative intent is first determined by considering the language in the statute. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.
In re Conservatorship of Huerta,
Probate action
Because this action arises out of the administration of a decedent’s estate, we will begin our analysis with the probate code, K.S.A. 59-101 et seq. K.S.A. 59-501 defines children for purposes of intestate succession, stating:
“ ‘Children’ means biological children, including a posthumous child; children adopted as provided by law; and childrenwhоse parentage is or has been determined under the Kansas parentage act or prior law.”
When Heather filed the petition to administer Sam’s estate, she asserted her interest in Sam’s estate as a biological child because none of the other possible definitions in K.S.A. 59-501 applied. As long as Heather’s claim to Sam’s estate was based on her being Sam’s biological child, the genetic connection between Heather and Sam was in issue. Under this scenаrio, Sandra correctly argues that Ross is inapplicable to an intestate claim based on the biological definition of child because genetic testing is the only conclusive means of establishing biological parentage.
However, K.S.A. 59-501 does not limit the definition of children to biological offspring. Rather, the definition of children is much broader, requiring the probate court to treat any person as a child if such person’s parentage is or has been determinеd under the Kansas Parentage Act. K.S.A. 59-501(a). Heather invoked the Kansas Parentage Act as the basis for her inheritance claim under K.S.A. 59-501 when she filed her petition to determine paternity under the Act. We note that K.S.A. 59-501(a) does not require a determination under the Kansas Parentage Act to occur prior to a probate proceeding. Rather, the legislature acknowledged that proceedings under the Kansas Parentage Act may occur simultaneously with probate proceedings by incorporating the phrase “whose parentage is or has been determined” in the definition of children. See K.S.A. 59-501(a).
The probate code treats a determination of parentage pursuant to the Kansas Parentage Act as conclusive. See K.S.A. 59-501(a). Once paternity is established in accordance with the Kansas Parentage Act, the probate code provides no mechanism for challenging that paternity determination. Because Heather eliminated the issue of biological parentage in the probate action by filing her paternity action and the probate code does not authorize genetic testing to challenge a paternity determination under the Kansas Parentage Act, there is no statutory basis for Sandra’s motion for genetic testing in the probate case. Although Sandra correctly argues that Ross does not apply to an order for genetic tеsting under die probate code, the district court properly denied Sandra’s motion because there was no statutory basis for the motion.
Paternity action
Pursuant to the Kansas Parentage Act, a man is presumed to be the father of a child born while the man is married to the child’s mother. K.S.A. 38-1114(a)(1). A child or a person on behalf of the child may file an action at any time to establish paternity when there is a presumption of paternity. K.S.A. 38-1115(a)(1). However, a presumption based on genetic tеst results must relate to genetic testing that occurs prior to the filing of the paternity action. See K.S.A. 38-1114(a)(5);
In re Estate of Foley,
In
Ross,
the child, R.A.R., was born during the marriage of his mother, Sylvia, to Robert. When Sylvia and Robert divorced, Sylvia alleged that Robert was R.A.R.’s father. Robert was granted joint custody and ordered to pay child support. Two years later, Sylvia filed a petition pursuant to the Kansas Parentage Act to establish Charles as R.A.R.’s biological father. Sylvia wanted Charles tо be named R.A.R.’s father so he could consent to R.A.R.’s adoption by Sylvia’s current husband. To establish Charles as R.A.R.’s biological parent, Sylvia requested an order compelling all of the parties to submit to genetic testing. The district court ordered the genetic testing pursuant to K.S.A. 38-1118(a) and admitted the results over Robert’s
The
Ross
court reversed the district court’s order for genetic testing and the order establishing Charles as R.A.R.’s biological father.
Sandra argues that
Ross
only applies to minor children. However, in
Ferguson v. Winston,
The
Ferguson
court reversed the district court’s decision, concluding that the district court committed both legal and procedural errors.
“If DNA evidence is conclusive on the issue of paternity, we could simply do away with the judicial process in paternity cases. If the DNA test is conclusive, the paternity of children will be left for resolution by the scientists, and judges will become superfluous in that regard. We do not perceive the law to require or to recommend that result, and we hold that DNA evidence is not conclusive on the issue of paternity. On remand, if the trial court decides the DNA evidence is in Michael’s best interests, it must still consider any other evidence offered before making a final decision.”27 Kan. App. 2d at 38 .
The
Ferguson
court further concluded that the district court violated Michael’s constitutional right to due process by proceeding without joining Michael as a party or protecting his interests by appointing a guardian ad litem on his bеhalf.
Sandra attempts to distinguish Ferguson by arguing that it did not involve a question of intestate succession. Sandra further argues that Ferguson does not apply because, unlike Michael, Heather was an adult when the action was filed. Sandra also points to Heather’s representation by counsel and asserts that Heather waived her right to a Ross hearing when she filed the paternity action. Sandra focuses on the following excerpt from Ferguson:
“The facts which underlie this action give it a somewhat bizarre tilt and certainly create questions as to the relevance of the entire proceedings. To begin with, there is an obvious question as to just why tins is being litigated. Michael became an adult during the litigation, and it is apparent there were and are no issues of child custody or child support being litigated." 27 Kan. App. 2d at 35 .
Sandra’s attempt to factually distinguish
Ferguson
overlooks the legal foundation of the
Ferguson
court’s holding. Both the
Ross
and
Ferguson
сourts were concerned with the purpose for deter
mining a child’s biological paternity when there was already a presumptive father.
Ross,
We believe the Ross and Ferguson analysis applies in this case. The relevancе of who is Heather’s biological father is questionable given the strong presumption that Sam was her father. The presumption of Sam’s paternity existed for many years prior to the filing of this paternity action. Although the Ferguson court found the facts in that case were “somewhat bizarre” because it was litigated even though there were no issues regarding support or custody and the child had become an adult, this case demonstrates a set of circumstances in which an adult child may be forced to establish paternity pursuant to the Kansas Parentage Act even though a strong presumption of paternity already exists. Ross and Ferguson support the protection of presumptive paternity over biological paternity when it is in the child’s best interests. We believe that protection extends to both minor and adult children.
Extending Ross to adult children accomplishes the legislature’s intent as stated in the plain language of the statutory scheme. K.S.A. 38-1114 establishes six presumptions оf paternity. If two presumptions conflict, the court must determine which presumption is founded on “weightier considerations of policy and logic, including the best interests of the child” before deciding which presumption controls. K.S.A. 38-1114(c). If any one of the presumptions arise, that presumption is a sufficient basis for an order requiring a man to support a child. K.S.A. 38-1114(e).
Without a Ross hearing to determine whether genetic testing is in the child’s best interests, genetic testing becomes conclusive on the issue of paternity regardless of whether any other presumptions apply. As a result, denying adult children the protection of a Ross hearing is tantamount to rewriting the Kansas Parentage Act because it eliminates all of the other paternal presumptions besides genetic testing. If the legislature intended for genetic testing to be conclusive for determining the paternity of an adult child, it could have included language limiting the remaining presumptions to minor children. However, the Kansаs Parentage Act does not include such limiting language in the statutory scheme. See K.S.A. 38-1114. The Ferguson court recognized the legislature’s intent to treat all children the same, regardless of age, when it specifically held that genetic testing is not conclusive on the issue of paternity and ordered tire district court to consider all of the evidence available before deciding Michael’s paternity if it determined that genetic testing was in Michael’s best interests. Ferguson, 27 Kan. App. 2d at 38.
Extending
Ross
to adult children also furthers the purpose of the Kansas Parentage Act by protecting an adult child’s right to inherit from his or her presumptive parent. The
Ross
court noted that the purpose of the Kansas Parentage Act is to provide for the “equal, beneficial treatment of children.”
Finally, extending
Ross
to adult children recognizеs the public policy that paternity is both broader and deeper than genetics. The recognition of family identity extends beyond the years of a child’s minority. Eveiy adult continues to be someone’s son or daughter for purposes of family identification, family bonding, and inheritance. The parental relationship continues to exist regardless of whether the bonds are close, strained, or nonexistent. The presumptions of paternity set forth in K.S.A. 38-1114(a) were instituted to proteсt and maintain the concept of family identity. In
truding upon this concept can cause emotional damage to children of all ages, not only to minors. See
Ross,
This case illustrates the importance of protecting the рresumption of paternity. Although the ultimate issue in this case involves the division of a decedent’s estate, the resolution of that issue turns on the legal designation of paternity for a child born with a presumptive father. Heather was born during Sam and Deloris’ marriage. Sam’s name appears on Heather’s birth certificate. Heather was identified with Sam’s familial name and included in the membership of Sam’s family. Although her relationship with Sam was externally distant, she always believed he was hеr father. Sandra is attempting to vitiate a legal parent and child relationship that had not been questioned while Sam was alive. Requiring the district court to conduct genetic testing without determining whether it is in Heather’s best interests would allow Sandra to accomplish after Sam’s death that which could not be accomplished during Sam’s lifetime. We cannot support a policy that gives anyone an opportunity to legally undermine a child’s lifelong understanding of his or her parеntal heritage after his or her presumptive parents are deceased.
Sandra relies on
Tedford v. Gregory,
Applying the Tedford court’s reasoning to this case does not support Sandra’s argument for two reasons. First, Tedford, which is not controlling precedent, was decided before Ferguson, which is controlling precedent. Second, Heather invoked the application of the best interests standard. Under the Tedford court’s reasoning, Heather is tire proper party to invoke the stаndard. Tedford does not persuade us to allow anyone to bypass the best-interests standard simply because the child has reached the age of majority.