Reese v. Muret
| Decision Date | 02 February 2007 |
| Docket Number | No. 92,809.,No. 92,810.,92,809.,92,810. |
| Citation | 150 P.3d 309 |
| Parties | Heather S. REESE, formerly Heather S. Waldschmidt, Plaintiff/Appellee, v. William E. MURET, Administrator of the Estate of Wade Samuel Waldschmidt, Jr., deceased; and Deloris M. Cleary, Defendants, and Sandra I. Waldschmidt, Intervenor/Appellant. |
| Court | Kansas Supreme Court |
Rachael K. Pirner, of Triplett, Woolf & Garretson, L.L.C., of Wichita, argued the cause, and Tyler E. Heffron, of the same firm and Scott T. Curry-Sumner, of Law Offices of Scott T. Curry-Sumner of Utrecht, The Netherlands, were with her on the briefs for the intervenor/appellant.
Orvel B. Mason, of Mason & Velasquez, P.A., of Arkansas City, argued the cause, and was on the brief for the plaintiff/appellee.
The opinion of the court was delivered by
This is a 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 Heather's claim as a child in Samuel's intestate estate and filed a motion for genetic testing. Heather 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, 245 Kan. 591, 783 P.2d 331 (1989), does not apply to genetic testing in paternity cases brought by adults for the purpose of determining inheritance.
Sam married Deloris Hibbs (Deloris) on June 1, 1970. On January 25, 1971, Deloris gave birth to a daughter named Heather Shea Waldschmidt (Heather). Heather's birth certificate named Sam as her father. 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 mother, 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, he 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.
On December 18, 2002, Heather petitioned the district court to appoint administrators for Sam's estate. Sandra responded to Heather's petition, denying that Heather was Sam's daughter and requesting the court to appoint her as the administrator for Sam's estate. Sandra also filed a petition in the probate action for genetic testing to determine whether Sam was Heather's biological father. The district court appointed an attorney, who was a disinterested third party, as the administrator of Sam's estate.
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, the 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 evidentiary 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.
Sandra argues that the district court improperly applied the ruling of Ross, 245 Kan. 591, 783 P.2d 331, in determining whether to order genetic testing in a probate action and in a parentage action brought by an adult for the purposes of applying the probate code. According to Sandra, Ross is inapplicable to a probate case and inapplicable to adults. We analyze this issue as a question of law subject to de novo review because it involves stipulated facts and statutory interpretation. See In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003); In re Estate of Antonopoulos, 268 Kan. 178, 180, 993 P.2d 637 (1999).
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, 273 Kan. 97, 105, 41 P.3d 814 (2002).
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 children whose 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 scenario, 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 determined 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...
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