In re Barnes
| Docket Number | 125,990 |
| Decision Date | 22 December 2023 |
| Parties | In the Matter of the Estate of Jacob A. Barnes. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court, ROBB W. RUMSEY, judge. Submitted without oral argument. Affirmed in part and dismissed in part.
Gregory J. Barnes, appellant pro se. Jeffrey R. Emerson, of Conlee Schmidt &Emerson LLP, of Wichita, for appellee Richard Ciemny.
G Andrew Marino and Nolan W. Wright, of Gibson Watson Marino LLC, of Wichita, for appellees Charlene Killebrew, Lonnie Barnes, and Elizabeth Ann Thomas.
Before ARNOLD-BURGER, C.J., SCHROEDER and COBLE, JJ.
Jacob A. Barnes died intestate leaving seven individuals who identified as his children. Over the objection of Barnes' son, Gregory Barnes, the district court found the four children Gregory objected to were Jacob's children. Gregory now appeals pro se the district court's orders determining the four individuals were Jacob A. Barnes' children. Gregory raises four general issues on appeal: (1) The district court erroneously determined Charlene Killebrew was Jacob's child; (2) the district court further erred in determining Lonnie Barnes, Charles Johnson, and Elizabeth Ann Thomas (Ann) were also Jacob's children; (3) Jacob's body should not have been exhumed to obtain DNA in order to determine heirship of the disputed children; and (4) the district court should not have awarded Charlene her attorney fees. After the appeal was docketed, Charlene, Lonnie, and Ann jointly moved for appellate attorney fees and expenses. The administrator of the estate also moved for appellate attorney fees and expenses.
As we explain below, Gregory's notice of appeal does not provide us with jurisdiction over all of his issues. Therefore, upon review of the record presented, we affirm in part and dismiss in part. Additionally, we find the amount of attorney fees and expenses jointly requested by Charlene Lonnie, and Ann and the amount of attorney fees and expenses requested by the administrator of the estate are reasonable and grant both motions.
Upon Jacob's death in Sedgwick County in June 2019, Charlene petitioned the district court to administer Jacob's intestate estate, alleging she, Ann, Lonnie, and Gregory were Jacob's surviving children, along with Antonio Barnes and Debra Barnes who had predeceased Jacob. Charles was later added to the action. Gregory and Debra's mother, Cora Barnes, was married to Jacob at the time of their births, and Gregory admitted Jacob had adopted Antonio. Richard Ciemny, a professional fiduciary, was appointed to administer Jacob's estate. Gregory contested the heirship of Charlene, Ann, Lonnie, and Charles.
Administration of the estate did not go smoothly. Ciemny requested Ann, Charlene, Charles, Gregory, and Lonnie submit to DNA testing. Ann, Charlene, Charles, and Lonnie (the heirship claimants) complied with Ciemny's request; Gregory refused. The results of the initial DNA testing established all four heirship claimants had a common father. In light of Gregory's refusal to undergo DNA testing, Ciemny filed a petition in February 2020, asking the district court for instructions on how to proceed. Ultimately, the court requested briefing on the determination of heirs.
The district court held a hearing on December 15, 2020, and found it was undisputed Gregory was Jacob's biological child. Because the heirship claims of Ann, Charlene, Charles, and Lonnie were disputed, the district court found they had a right to establish whether they were Jacob's children and set the matter for an evidentiary hearing if any of the heirship claimants filed a petition requesting such hearing.
Charlene timely petitioned for an evidentiary hearing, alleging she was Jacob's biological child under K.S.A. 59-501(a), or, in the alternative, she qualified as a child based on a presumption of paternity under the Kansas Parentage Act (KPA), K.S.A. 2022 Supp. 23-2201 et seq., because Jacob notoriously or in writing recognized paternity of Charlene. See K.S.A. 2022 Supp. 23-2208(a)(4). The other heirship claimants did not request evidentiary hearings, although Cora's sons, born before Cora and Jacob were married, each also filed petitions requesting a hearing. The district court held a two-day hearing in September 2021 at which several witnesses testified, including Gregory, the heirship claimants, other relatives of both Jacob and Cora, a family friend, and the doctor who was also the records custodian for the company that performed the initial DNA testing.
Testimony established that Jacob had notoriously recognized Charlene, Ann, Charles, and Lonnie as his children during his lifetime and had provided for them in various ways as they grew up and became adults. Gregory admitted that, on several occasions, Jacob referred to Charlene, Lonnie, Charles, and Ann as his children. Jacob's estate planning documents and funeral program also reflected Charlene, Lonnie, Charles, and Ann were Jacob's children. While Charles did not testify at the hearing and largely has not been involved in the proceedings, comparative DNA testing reflected Charles shared a common father with the other heirship claimants.
Following this hearing, the district court issued a journal entry containing numerous findings of fact and conclusions of law. The court specifically found Charlene was Jacob's biological child and found the other three heirship claimants were likely Jacob's biological children. The court also determined that Cora's sons, born before Cora and Jacob married, were not Jacob's children.
In May 2022, Ciemny petitioned for an order to exhume Jacob's remains in order to obtain a sample for comparative DNA testing, detailing the prior unsuccessful efforts to confer with Gregory. Gregory objected to Ciemny's request, asserting the district court lacked subject matter jurisdiction to allow the heirship claimants to prove paternity in probate proceedings, and moved to dismiss Ciemny's petition. Gregory generally disputed Ann, Charlene, Charles, and Lonnie were Jacob's children because they were not born out of the marriage between Jacob and Jacob's late wife, Cora.
On June 14, 2022, the district court heard Ciemny's petition. Over Gregory's objections, the district court gave Gregory until June 17, 2022, to submit to DNA testing; otherwise, Jacob's body would be exhumed for testing. The order was memorialized in the district court's journal entry from July 22, 2022.
On September 20, 2022, Ciemny had Jacob's remains exhumed for testing pursuant to the district court's July 22, 2022 journal entry as Gregory had not complied with the district court's deadline. Ciemny subsequently filed the test report of Dr. George Maha on October 26, 2022, which indicated a 99.99 percent probability Jacob was the heirship claimants' biological father. On December 8, 2022, the district court held a hearing wherein Dr. Maha testified about the comparative DNA testing and conclusions in his report. On January 6, 2023, the district court filed its journal entry determining there was clear and convincing evidence Jacob was Ann, Charles, and Lonnie's biological father based on the results of DNA testing and a separate presumption of paternity by notorious recognition existed, which had not been rebutted. Therefore, Ann, Charles, and Lonnie were Jacob's heirs.
On January 11, 2023, Gregory filed a notice of appeal challenging the district court's January 6, 2023 journal entry. Additional facts are set forth as necessary.
Gregory's briefing of the issues is difficult to discern and is further complicated by a jurisdictional problem created by Gregory's notice of appeal. Essentially, there are three overarching considerations at issue in this appeal: (1) whether we have jurisdiction to consider Gregory's claims; (2) whether the district court acted within its statutory authority under the Kansas probate code, K.S.A 59-101 et seq., the Kansas rules of civil procedure, K.S.A. 2022 Supp. 60-201 et seq., and the KPA; and (3) whether the evidence before the district court properly supported the factual findings underlying its legal conclusions.
The heirship claimants argue Gregory's notice of appeal is largely defective as it identifies a single ruling; thus, we do not have jurisdiction over most of the issues raised in Gregory's brief. Gregory responds his notice of appeal should be liberally construed and we should review all the issues he raises.
Whether subject matter jurisdiction exists is a question of law subject to unlimited review. See Via Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 889, 451 P.3d 459 (2019). We have a duty to question jurisdiction on our own initiative, but our jurisdiction is limited by statute. Where the record discloses a lack of jurisdiction over the issues raised on appeal, those claims must be dismissed. Wiechman v. Huddleston, 304 Kan. 80, 84-85, 86-87 370 P.3d 1194 (2016).
K.S.A. 2022 Supp. 60-2103(b) provides: "The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken." (Emphasis added.) It is well-established we only obtain jurisdiction over the rulings identified in the appellant's notice of appeal. Associated Wholesale Grocers, Inc. v. Americold Corp., 293 Kan. 633, 637, 270 P.3d 1074 (2011). However, Kansas appellate courts may liberally construe pro se notices of appeal, although the liberal construction rule is generally stricter in civil cases. See Garetson Brothers v. American Warrior, Inc., 56 Kan.App.2d 623, 643, 435 P.3d 1153 (2019).
Garetson Brothers provides a helpful...
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