Anderson v. Richard

• Decision Date: 20 February 2015
• Docket Number: No. 112027.,112027.
• Parties: Gregory P. ANDERSON, Appellant, v. Shannon L. RICHARD, Appellee.
• Court: Kansas Court of Appeals

343 P.3d 152 (Table)

Gregory P. ANDERSON, Appellant

v.Shannon L. RICHARD, Appellee.

No. 112027.

Court of Appeals of Kansas.

Feb. 20, 2015.

Joseph A. Allen and James D. Sweet, of Allen & Sweet, of Minneapolis, for appellant.

Janice Norlin, of Marietta, Kellogg, and Price, of Salina, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Gregory P. Anderson appeals the trial court's judgment dismissing his paternity action with prejudice. On appeal, Anderson contends that the trial court abused its discretion in dismissing his paternity action. Finding merit in Anderson's contention, we reverse and remand with directions to the trial court to allow Anderson to amend his pleadings.

Anderson filed a petition to determine the paternity of A.A.R. In his petition, Anderson requested genetic testing because he believed that he is the biological father of A.A.R. He joined A.A.R.'s mother, Shannon L. Richard (mother), in the petition. But, he did not join A.A.R. or A.A.R.'s presumed father, Anthony A. Richard, in the petition.

In response, the mother moved to dismiss the matter with prejudice. The mother argued that Anderson did not meet the presumption of paternity under the Kansas Parentage Act (KPA), see K .S.A.2014 Supp. 23–2201 et seq., and consequently Anderson lacked standing to bring the action. The trial judge decided to have both parties submit proposed findings of facts and law.

Based on both parties proposed findings, the trial judge held a hearing and dismissed Anderson's paternity action with prejudice. The trial judge found that the trial court lacked jurisdiction because Anderson did not join A.A.R. or Anthony A. Richard, necessary parties, in his petition. Moreover, the trial judge held that “Anderson lacks the standing necessary to bring the action that he has filed in this matter, that he is unable to bring, join, and name additional parties which would be required, [and] that there is a presumed father to the minor child in this matter....”

The trial judge specifically found that Anderson lacked standing because K.S.A.2014 Supp. 23–2209(a)(2) “may only be employed if there is not already a father and child relationship that is presumed.”

Did the Trial Court Err When it Dismissed Anderson's Paternity Action With Prejudice?

A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services, 296 Kan. 906, 935, 296 P.3d 1106 (2013). “An abuse of discretion necessarily results when the district court applies incorrect legal standards in the exercise of its discretion.” Graham v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013). Moreover, interpretation of a statute is a question of law over which this court has unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). When a statute is plain and unambiguous, this court should not speculate about the legislative intent behind that clear language, and it should not read something into the statute that is not readily found in its words. 298 Kan. at 738–39.

On appeal, Anderson concedes that he did not join A.A.R. or the presumed father Anthony A. Richard as parties in his paternity action. Except in child support actions as provided in K.S.A.2014 Supp. 23–2211(b), K.S.A.2014 Supp. 23–2211(a) of the KPA requires that the child, mother, and each presumed or alleged father be made parties to any action. Not joining the proper parties deprives the trial court of subject matter jurisdiction. State ex rel. Secretary of SRS v. Stephens, 13 Kan.App.2d 715, 717, 782 P.2d 68 (1989) (superseded regarding child support actions by Florida Dept. of HRS v. Breeden, 21 Kan.App.2d 490, 901 P.2d 1357 [1995] ). Thus, under Anderson's original petition, the trial court lacked subject matter jurisdiction.

Nevertheless, Anderson argues the trial court abused its discretion when it dismissed his case with prejudice. Anderson specifically argues that the trial court should have given him leave to amend his petition to comply with K.S.A.2014 Supp. 23–2211 or dismiss his case without prejudice. As discussed below, the trial judge dismissed Anderson's paternity action with prejudice because he determined that Anderson did not have standing and could never have standing under K.S.A.2014 Supp. 23–2209(a). The trial court, however, incorrectly interpreted K.S.A.2014 Supp. 23–2209(a). Thus, the trial court abused its discretion when it dismissed Anderson's paternity action with prejudice.

Before the trial court, Anderson argued that he had standing to bring a paternity action under K.S.A.2014 Supp. 23–2209(a)(2). K.S .A.2014 Supp. 23–2209(a)(2) states that “[a] child or any person on behalf of such a child, may bring an action at any time until three years after the child reaches the age of majority to determine the existence of a father and child relationship which is not presumed under K.S.A.2014 Supp. 23–2208, and amendments thereto....” (Emphasis added.) Anderson interpreted the statute to mean that he or any other person on behalf of the child could bring a paternity action.

In its finding, however, the trial judge dismissed Anderson's paternity action with prejudice because he found that Anderson could never have standing under K.S.A.2014 Supp. 23–2209(a)(2). In regards to this conclusion, the trial judge stated the following:

“Mr. Sweet [Anderson's attorney] has argued that the statute should be read and interpreted that any person and his brief and response to the brief in this matter continues to point out that Mr. Anderson, in his opinion, would not be barred from pursuing this matter because any person may from the reading of the statute as Mr. Sweet has advanced the case to the Court at this time.

“However, Miss Norlin [mother's attorney] points out 23–2209(a) may only be employed if there is not already a father and child relationship that is not presumed and in the instant case we have that presumption and the father is present and has been in the child's life since birth.

“The law at this point in time, is that Mr. Anthony Richard is A.A.R.'s presumed and legal father and under those circumstances as Mr. Sweet is asking that the Court find that any person may, K.S.A. 23–2209(a)(2) would not apply on behalf of Mr. Anderson.”

Nonetheless, the plain language of the KPA, caselaw, and the family law handbook the trial judge relied on in his decision do not support the trial judge's interpretation of K.S.A.2014 Supp. 23–2209(a). First, the plain language of K.S.A.2014 Supp. 23–2209(a) does not say anything about barring a person from bringing an action once a presumed father exists. K.S.A.2014 Supp. 23–2209(a) clearly states that “any person on behalf of such child” may bring an action to determine the existence of a father and child relationship presumed under K.S.A.2014 Supp. 23–2208 or to determine the existence of a father and child relationship at any time until 3 years after the child reaches the age of majority when there is no presumed father under K.S.A.2014 Supp. 23–2208. As a result, K.S.A.2014 Supp. 23–2209(a)(l) does not prevent others from bringing an action because a presumed father already exists.

Furthermore, K.S.A.2014 Supp. 23–2208(c) discusses what factors a trial court should consider when there are two or more presumed fathers. For example. K.S.A.2014 Supp. 23–2208(c) requires that a determination must be made as to which presumption will be in the best interest of the child. Thus, because K.S.A.2014 Supp. 23–2208(c) sets out a procedure for what should occur when multiple presumed fathers exist, this shows that the trial judge's statutory interpretation of K.S.A.2014 Supp. 23–2209(a) was incorrect. For if no other man trying to establish paternity would have...