                                        No. 118,809

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                               In the Matter of the Estate of
                                 CHAD ALLAN FECHNER.


                              SYLLABUS BY THE COURT

1.
       If whether a person is an heir is contested in a probate proceeding, the district
court has the authority to order DNA testing to help determine the contested issue.


2.
       When factual questions about paternity are contested in a probate proceeding, the
Kansas Parentage Act presumptions for determining paternity set out in K.S.A. 2017
Supp. 23-2208 apply whether or not any of the parties to the probate proceeding would
have standing to bring a separate Parentage Act case.


3.
       In deciding whether to order DNA testing to determine paternity in a probate
proceeding, the district court should consider (1) whether the DNA evidence would be
relevant; (2) whether providing a sample will unduly infringe on privacy rights;
(3) whether there is a reasonable possibility of match or non-match; (4) the presumptions
of paternity set out in the Kansas Parentage Act; and (5) the best-interests-of-the-child
test from In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).


4.
       A district court abuses its discretion by failing to exercise that discretion based on
a misunderstanding of the law.


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       Appeal from Geary District Court; CHARLES A. ZIMMERMAN, magistrate judge. Opinion filed
November 2, 2018. Vacated and remanded with directions.


       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.
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        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

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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


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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.




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       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 ("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.

                                              6
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. 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 which approach to take, we've considered the language in the Probate
Code—a child "whose parentage is . . . determined under the Kansas parentage act."
There are at least two ways that phrase might be understood. First, it might mean a child
whose parentage is determined under the standards of the Kansas Parentage Act. In that
case, the standards would be the same whether or not someone had standing to bring a
Parentage Act claim. Second, it might mean a child whose parentage is determined in an
action under the Kansas Parentage Act. In that case, we'd perhaps have different
standards depending on whether someone had standing to bring a Parentage Act claim.
We can't imagine why the standards should differ.


       There is, of course, no problem regarding standing in the probate proceeding; both
Rita and Gary have standing to present their respective claims to Chad's estate. And the
Probate Code itself references the determination of paternity issues under the Parentage
Act. The first two options under the Parentage Act—biology and adoption—make it clear
that biology isn't the only consideration. In addition, Kansas Supreme Court caselaw
strongly supports fully considering the presumptions of paternity that are part of the

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Kansas Parentage Act. There are two key cases: In re Marriage of Ross, 245 Kan. 591,
783 P.2d 331 (1989), and Reese.


       In Ross, the court considered whether to order genetic testing to determine which
of two men was the child's father. One of the men had been married to the mother when
the child was born, had acknowledged that he was the father, had been listed on the birth
certificate as the father, had been given visitation rights when he and the mother
divorced, and had been ordered to pay child support. Even so, the mother filed a paternity
action three years after the divorce, claiming that another man was the biological father.
The trial court ordered genetic testing, which established that the other man was, indeed,
the biological father.


       But our Supreme Court said that it had been wrong to order genetic testing before
first considering the best interests of the child. The court did this even though the
statutory language about testing said that the court "shall order" testing when paternity is
disputed. See K.S.A. 38-1118 (Ensley 1986). That "shall order" language remains in
statutes today, K.S.A. 2017 Supp. 23-2212(a), while the rule of Ross continues to require
that we do not literally follow it. Instead, for important policy reasons, judges must
consider the best interests of the child before ordering paternity tests.


       Ross involved a minor child, so the interest in promoting family stability for that
child was especially strong. In Reese, the court considered whether to extend the Ross
rule to questions about the paternity of an adult involved in a dispute about whether she
was an heir to a probate estate. The woman whose status came into dispute, Heather, had
been born to Sam and Deloris Waldschmidt shortly after they married; Sam was listed on
the birth certificate. Sam and Deloris got divorced, and Sam remarried before he died.
After his death, his widow challenged Heather's right to inherit and sought DNA tests to
determine whether Heather was Sam's biological daughter.


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       Both a probate case and a Parentage Act case proceeded simultaneously, and the
district court determined—under the Parentage Act and applying the Ross presumption—
that genetic testing was not in Heather's best interests. Once again, though, the relevant
statute provided that the court "shall order" genetic testing if paternity is disputed. See
K.S.A. 2017 Supp. 23-2212(a). But the Kansas Supreme Court affirmed the district court
decision and held that the Ross rule applied even when the "child" whose parentage was
in dispute was an adult:


               "We cannot subvert the presumption of paternity in favor of biology without
       requiring a court to consider whether it is in the child's best interests regardless of the
       child's age. Interpretation of the relevant statutes, controlling precedent, and public policy
       support the district court's decision to hold a Ross hearing in Heather's [Parentage Act]
       action." 283 Kan. at 12.


       From Reese, we know what standards come into play when the child whose
parentage is at issue is still alive and brings a Parentage Act claim to settle the paternity
question. The Ross rule—considering the child's best interests (even if that child is an
adult)—applies. And the determination in the Parentage Act case, under which Ross is
applied, is binding in the probate proceedings. 283 Kan. at 5.


       Our case differs because no one had the ability to bring a Parentage Act claim, but
we conclude that the same standards apply under K.S.A. 59-501(a). From that
conclusion, we can say that if DNA testing is authorized for our case, the district court
would still have to consider the presumptions of paternity under the Parentage Act and
consider whether the testing was in the best interests of the child (here, Delwyne). We
turn next to consider whether DNA testing is authorized in probate proceedings at all.




                                                      9
II. Genetic Testing Can Be Ordered by the District Court in a Probate Case.


       The district court in our case held that it had "no authority . . . to order the
requested genetic testing." Rita argues that the court was wrong on this legal point.


       Rita says that the general discovery provisions in the Kansas Code of Civil
Procedure provide the authority. A provision of the Probate Code, K.S.A. 59-2212,
provides that the Kansas Rules of Evidence apply in determining contested probate
matters. But no provision in the Kansas Probate Code specifically incorporates the
Kansas Rules of Civil Procedure. See In re Estate of Wolf, 32 Kan. App. 2d 1247,
Syl. ¶ 4, 96 P.3d 1110 (2004), aff'd 279 Kan. 718, 112 P.3d 94 (2005).


       Even so, the Kansas Supreme Court has provided in Supreme Court Rule 144 that
when a factual issue is contested in a probate case, "the discovery procedures" under the
Kansas Code of Civil Procedure apply. 2018 Kan. S. Ct. R. 212. Since the Probate Code
doesn't have its own provisions for discovery, there's no conflict between this Supreme
Court rule and any statutory provision. See In re Estate of Wolf, 279 Kan. 718, 724, 112
P.3d 94 (2005) (holding that civil-procedure pleading rules didn't apply in probate
proceeding because the Probate Code had its own pleading rules). We therefore apply the
discovery rules of the Kansas Rules of Civil Procedure here.


       To compare Gary's and Chad's DNA as Rita requested, Gary would have had to
provide a DNA sample. That could be obtained with a cheek swab, but even this simple
process is a physical intrusion to Gary. That makes it a form of physical examination,
something provided for in the civil discovery rules. K.S.A. 2017 Supp. 60-235(a)(1) lets
the court order "a party whose . . . physical condition, including blood group, is in
controversy to submit to a physical . . . examination by a suitably licensed or certified
examiner." The order may be made if a party shows "good cause" to do so. K.S.A. 2017
Supp. 60-235(a)(2).

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       While this statutory provision, first adopted in 1963, mentions testing for a
person's "blood group," it never mentions DNA testing. And we have no Kansas caselaw
about whether DNA testing may be ordered under this provision. But our civil-procedure
rules are based on the parallel Federal Rules of Civil Procedure, so caselaw from federal
courts is especially persuasive when interpreting our rules. See Douglas Landscape &
Design v. Miles, 51 Kan. App. 2d 779, 783, 355 P.3d 700 (2015). There is federal
caselaw that supports Rita's position.


       The relevant part of Rule 35 of the Federal Rules of Civil Procedure is the same as
our Kansas rule; it lets the court "order a party whose . . . physical condition—including
blood group—is in controversy to submit to a physical . . . examination by a suitably
licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). Like the Kansas rule, the federal
rule requires that the requesting party show "good cause" for the order. Fed. R. Civ. P.
35(a)(2).


       Federal courts have used the authority of Rule 35 to order DNA testing in sexual-
harassment lawsuits, e.g., D'Angelo v. Potter, 224 F.R.D. 300, 302, 304 (D. Mass. 2004);
McGrath v. Nassau Health Care Corp., 209 F.R.D. 55, 60, 65 (E.D.N.Y. 2002); Strong v.
Wisc., No. 07-C-086-C, 2007 WL 5445863, at *1 (W.D. Wis. 2007) (unpublished
opinion); to establish standing to bring a wrongful-death claim, Turk v. Mangum, 268 F.
Supp. 3d 928, 939 (S.D. Tex. 2017); and to help determine whether the beneficiary of a
murdered victim's insurance proceeds may have been involved in the murder, Kiniun v.
Minnesota Life Insurance Company, No. 3:10CV399/MCR/CJK, 2012 WL 12899102, at
*2-3 (N.D. Fla. 2012) (unpublished opinion). The discovery provision found in our
statute and Federal Rule 35 explicitly allows for blood tests, one method by which DNA
samples could be obtained and a more intrusive method than the cheek swabs often used
now.


                                             11
       At least two other states have interpreted similar civil-discovery provisions to
allow DNA testing. E.g., Kaull v. Kaull, 26 N.E.3d 361, 367 (Ill. App. 2014); In re Estate
of Gaynor, 13 Misc. 3d 331, 333, 818 N.Y.S.2d 747 (2006). We see no reason to interpret
our state's similar provision differently.


       Having established that testing may be ordered, when should a court find "good
cause" to do so? Federal courts generally require a showing that (1) the DNA evidence is
relevant; (2) providing a sample will not unduly infringe on privacy rights; and (3) there
is a reasonable possibility of a match or non-match, depending on the party seeking the
test. Kiniun, 2012 WL 12899102, at *2 (citing cases); Hudson v. Dr. Michael J.
O'Connell's Pain Care Center, Inc., No. 11-CV-278-JD, 2012 WL 405483, at *1 (D.N.H.
2012) (unpublished opinion) (considering whether [1] DNA test relevant; [2] the extent
of the intrusion into privacy; and [3] the protections to guard the information to avoid
privacy concerns); see also Hawkins-Robertson v. Hessler, 945 So. 2d 139, 143 (La. App.
2006) (adopting similar factors). The considerations used by these courts seem
appropriate. They recognize the significant privacy concerns raised by DNA testing—
particularly when used to establish family heritage. In addition, in a case challenging a
presumption of paternity, the court must consider the basis for any applicable
presumptions and, under Ross, the child's best interests.


       We recognize, of course, that the Ross best-interests test may not have any
significant weight here. Delwyne died in 2002, so there may be no "best interests" reason
to avoid testing—though we don't know whether reconsidering his lineage would have
any potential effect on people who may still be alive. We leave those considerations in
the first instance to the district court.




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III. The District Court Abused Its Discretion in This Case Because It Did Not Realize It
Had the Discretion to Order Genetic Testing and Thus Didn't Consider the Discretionary
Judgment Call It Needed to Make.

       Because the Ross test and Parentage Act presumptions apply, whether to order
DNA testing—even if legally authorized—is a discretionary decision the trial court must
make after considering the presumptions and the child's best interests. We review
discretionary decisions only for abuse of discretion. That discretion is abused when the
court bases its decision on an error of fact or law or when its decision is highly
unreasonable. State v. Miles, 300 Kan. 1065, 1066, 337 P.3d 1291 (2014). A
court abuses its discretion by failing to exercise that discretion based on a
misunderstanding of the law. See Green, 54 Kan. App. 2d at 121.


       In our case, the district court thought it had no authority to order DNA testing, so
it made its decision based on an error of law: The district court never considered the
factors we've identified here in deciding whether to order the testing. That's an abuse of
discretion.


       We express no opinion about whether DNA testing should be ordered. The district
court may still conclude—after considering the factors we've noted in our opinion—that
testing should not take place. That decision would be supported by several paternity
presumptions under the Kansas Parentage Act and would avoid raising questions about
Delwyne's family heritage after his death. But that is a discretionary judgment call for the
trial court to make, not us.


       We vacate the judgment of the district court and send the case back to that court
for further proceedings.




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