In re Estate of Fechner

• Decision Date: 02 November 2018
• Docket Number: No. 118,809,118,809
• Citation: 432 P.3d 93,56 Kan.App.2d 519
• Parties: In the MATTER OF the ESTATE OF Chad Allan FECHNER.
• Court: Kansas Court of Appeals

56 Kan.App.2d 519

432 P.3d 93

In the MATTER OF the ESTATE OF Chad Allan FECHNER.

No. 118,809

Court of Appeals of Kansas.

Opinion filed November 2, 2018.

David P. Troup, of Weary Davis, L.C., of Junction City, for appellant.

Bruce D. Woolpert, of Topeka, for appellee.

Before Leben, P.J., Green and Malone, JJ.

Leben, J.:

Rita Young and Gary Fechner both claimed an interest in an estate as relatives of a man who died with no will and no living parents, siblings, or children. But Rita suggested Gary wasn't biologically related to the man and asked for DNA testing.

The district court denied that request, concluding that it lacked authority to order such tests. After making that decision, the court heard evidence and sustained Gary's claim to a part of the estate.

But we agree with Rita that the district court had the discretionary authority to order DNA testing. And a court abuses its discretion when it fails to exercise that discretion based on a misunderstanding of the law. See Green v. Unified Gov't of Wyandotte Co./KCK , 54 Kan. App. 2d 118, 121, 397 P.3d 1211 (2017). So we will vacate the district court's judgment and send the case back for further consideration.

FACTUAL AND PROCEDURAL BACKGROUND

When Chad Fechner died in 2014, his maternal aunt, Rita Young, thought she was his only living relative, so she opened a probate estate. But Gary Fechner filed a claim in the estate alleging that he was Chad's half uncle, a claim supported by the birth certificates of Chad's father and Gary—both had the same father, making them half brothers. If true, Gary would share in Chad's estate with Rita.

Rita questioned whether those birth certificates and other records were accurate. The documents showed that Chad's father (and Gary's half brother) was Delwyne Fechner. Delwyne had died in 2002, but Rita had a letter a woman named Betty Lou had sent to Delwyne in 1999 saying that some "gossip going through Mrs. Hicklin[']s Beauty Shoppe here in Oakley" in the 1940s had been that Delwyne's real father was Earl Goble, not Willis Fechner. If so, Rita argued, Gary wasn't actually related to Delwyne or to Chad.

Rita asked that the court order Gary to submit to DNA testing to prove his biological relation to Chad. Some of Chad's DNA was available because the coroner had conducted an autopsy. Gary objected.

Gary argued that there was no authority to order DNA testing in a probate case. Rita argued that DNA testing would be the only way to tell whether Gary really was related to Chad. The court held that "[u]nder the circumstances of this case there is no authority for the Court to order the requested genetic testing."

The court then held an evidentiary hearing to determine whether Gary was one of Chad's heirs and eligible to receive some of the proceeds of Chad's estate. Gary presented his own birth certificate, which showed he was born October 27, 1946, to Dorothy Vera Fechner and Willis Wilbur Fechner. He also presented Delwyne's birth certificate, which showed he was born August 13, 1940, to Anna Laura Akers (we're told she went by Laura) and Willis Wilbur Bechner. The certificate showed that Laura and Willis were married at the time, and a 1940 Census document also showed them living together in Oxford, Kansas.

Rita presented the letter from Betty Lou. Rita noted that Delwyne's middle name, Earl, was the first name of Earl Goble, the man named in Betty Lou's letter. Rita pointed out that Delwyne was born in McPherson, Kansas, and that the birth certificate said that his mother had lived in McPherson for 15 months—while there was no evidence showing Willis had lived in McPherson. And she presented evidence that Gary didn't attend Delwyne's funeral in 2002.

Based on the evidence presented, the court held that Gary, like Chad's father, was Willis' son and that both Rita and Gary were Chad's heirs. Rita appealed to our court.

ANALYSIS

The main question in this appeal is whether the district court was mistaken when it concluded it had no authority to order DNA testing in a probate case. That presents a legal question we review independently, with no required deference to the district court. See Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015).

The answer to this question will take us into three sets of Kansas statutes: (1) the Probate Code, which tells us who shares in a person's estate when that person dies; (2) the Kansas Code of Civil Procedure, which provides general procedures for resolving most legal disputes; and (3) the Kansas Parentage Act, which has default rules for figuring out whether a parent-child relationship exists—something that's not always decided by biology. Our starting point is the Probate Code since it most directly applies when a person dies and leaves property behind.

I. The Standards of the Kansas Parentage Act Apply When Determining Who Is an Heir Under the Probate Code When a Person Dies Without a Will.

The Probate Code determines who gets the property when a person dies without a will. When a person with no will dies with a spouse and no children, for example, the entire estate goes to the spouse. K.S.A. 59-504. In Chad's case, with no spouse, child, or living parent, the property goes to "the heirs of [Chad's] parents." K.S.A. 59-508. Everyone agrees that a brother or sister of Chad's parents would be an heir, and there's no doubt that Rita was the sister of Chad's mother. If Gary is the brother of Chad's father, then he too is an heir and entitled to share in Chad's estate.

Gary is the brother of Chad's father if the two men had at least one parent in common. (That makes them half brothers, sufficient for inheritance purposes.) But Rita contests that connection, arguing that biological paternity trumps what was on the birth certificates. That's the real question lurking behind all others: does biology trump established presumptions of paternity in a probate case?

The contested factual question is whether Delwyne was Willis Fechner's child. If so, Delwyne was Gary's half brother and the uncle of Delwyne's son, Chad.

So what does the Probate Code tell us about this key question? It tells us who is legally the child of another person: " ‘Children’ means biological children, including a posthumous child; children adopted as provided by law; and children whose parentage is or has been determined under the Kansas parentage act or prior law." K.S.A. 59-501(a). That definition applies when determining who takes property when a person dies without a will, K.S.A. 59-501(a), so it applies to our case.

From the definition, we know that a biological child would qualify. But there are three ways to qualify as a child: (1) biology, (2) adoption, and (3) having parentage determined under the Kansas Parentage Act (or prior law). K.S.A. 59-501(a) connects those three by "and," showing that all three ways qualify under the Probate Code. So biological children count. And adopted children. And children whose parentage is or has been determined under the Kansas Parentage Act.

So biology doesn't trump other considerations. Adopted children needn't be biologically related to the adopting parent. And there are several paternity presumptions under the Kansas Parentage Act—like having been born during a marriage—that make a person a presumptive father even if biology might say something different. Those children inherit too.

At the heart of our case is whether there's any conflict between the first of the three ways to qualify under the Probate Code ("biological children") and the third ("children whose parentage is or has been determined under the Kansas parentage act"). Within that third option, there are two situations we need to consider. In some cases, parentage has already been determined under the Parentage Act. That's contemplated in K.S.A. 59-501(a) by its "is or has been determined under the Kansas parentage act" language. In a case in which parentage already has been determined under the Parentage Act, that determination is controlling in a later probate proceeding under our Supreme Court's ruling in Reese v. Muret , 283 Kan. 1, Syl. ¶ 2, 150 P.3d 309 (2007).

That leaves one other option from the Probate Code provision—a child "whose parentage is ... determined under the Kansas parentage act." (Emphasis added.) K.S.A. 59-501(a). And once again, two possibilities emerge. In some cases, it will be possible to bring a Kansas Parentage Act proceeding (essentially a separate lawsuit) while the probate proceeding is pending. That's actually what happened in Reese ; the Parentage Act claim and probate proceeding started at the same time. Parentage was sorted out in the Parentage Act case, and those findings were then controlling in the probate case. 283 Kan. at 5, 150 P.3d 309 ("The probate code treats a determination of parentage pursuant to the Kansas Parentage Act as conclusive.").

But what if there's no way to bring a Parentage Act case? That's the situation we're in here since the person whose parentage is in question, Delwyne, died many years ago. Only a child or a person acting "on behalf of" the child may bring a parentage action. K.S.A. 2017 Supp. 23-2209(a). By "child," we simply mean the person whose parentage is at issue, so a parentage action may be brought on behalf of an adult child. See Reese , 283 Kan. at 3, 9-12, 150 P.3d 309. But for an adult child who died in 2002, apparently with no outstanding issues about who his heirs were, there's simply no reason for anyone to bring an action "on behalf of" Delwyne to figure out who his father was. So no one today has standing to bring a Parentage Act claim about Delwyne's paternity.

That leaves us with potentially different outcomes depending on whether someone has standing to bring a Parentage Act claim. With no Parentage Act proceeding, Rita argues that we decide whether someone is an heir strictly by biology. Another possibility would be to decide the case under the same standards we'd use if someone had standing to bring the Parentage Act claim.

To settle...