Opinion
No. 108,778.
2013-06-7
In the Matter of E.G.S., a Minor Child, Born 8–2006, By and Through Hans Larson, Next Friend and Biological Father, Appellees, v. Jeannie Nicole SONNIER, Appellant.
Appeal from Lincoln District Court; Kim W. Cudney, Judge. Joseph A. Allen and James D. Sweet, of Allen & Sweet, of Minneapolis, for appellant. Weston R, Moore, of Moore Law Center, of Olathe, for appellees.
Appeal from Lincoln District Court; Kim W. Cudney, Judge.
Joseph A. Allen and James D. Sweet, of Allen & Sweet, of Minneapolis, for appellant. Weston R, Moore, of Moore Law Center, of Olathe, for appellees.
James M. Johnson, of Frasier & Johnson, LLC, of Beloit, guardian ad litem.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Jeannie Nicole Sonnier, the biological mother of E.G.S., appeals the district court's finding that Hans Larson is the presumed father of E.G.S. under K.S.A. 38–1114(a)(4) (now codified at K.S.A.2012 Supp. 23–2208[a] [4] ). Because the district court's finding of presumed paternity is supported by substantial competent evidence, we affirm the district court's judgment.
Sonnier and Larson have had a long-standing relationship. They dated while they were both in high school and broke up around August 2005. At that point, Larson lived in Oklahoma, and Sonnier lived in Kansas. In December 2005, Sonnier called Larson and told him she was pregnant. Sonnier and Larson had no contact between August and December 2005, and both parties agree that Larson is not the biological father of Sonnier's child. The biological father is unknown.
After Sonnier told Larson she was pregnant, she began driving down to Oklahoma once or twice a month to see Larson as well as some family that lived in the area. Both Sonnier and Larson characterized their relationship as a friendship. Larson asked if he could be present for the child's birth, and Sonnier consented to his presence as a friend.
Sonnier gave birth to E.G.S. in August 2006, at which Larson was present. In the months following E.G.S.'s birth, Sonnier and Larson continued to see each other a few times a month as friends. Larson testified that he regarded E.G.S. as his daughter from the day she was born and that he undertook parental duties when he saw E.G.S.
In December 2006, Larson moved from Oklahoma back to Kansas. According to Larson, he began seeing E.G.S. every 2 to 3 days. He testified that he told Sonnier that he wanted to be E.G.S.'s father and felt like he was the child's father and that Sonnier did not object to this relationship.
In August 2007, shortly after E.G.S.'s first birthday, Sonnier and E.G.S. moved into an apartment with Larson and with Sonnier's cousin. Sonnier and E.G.S. shared a bedroom, and Larson had his own bedroom. At some point, Larson taught E.G.S. to call him Dad. Sonnier also began referring to Larson as E.G.S.'s father. Sonnier testified that she acquiesced to referring to Larson as E.G.S.'s father because Larson called himself Dad to E.G.S. and she did not want to confuse the child. Larson asked Sonnier if he could adopt E .G.S., but she refused consent to an adoption.
In March 2008, Sonnier and E.G.S. moved out of the shared apartment. Shortly thereafter, Larson and his mother spoke with Sonnier about continuing contact with E.G.S. Beginning in August 2008, Sonnier and Larson reached an informal arrangement whereby E.G .S. would spend approximately every other weekend and occasional special events with Larson and his family. During this time, Larson began giving Sonnier about $200 per month to help with E.G.S.'s expenses.
Larson and his family regularly visited with E.G.S. between August 2008 and October 2010. Larson continued to give Sonnier money—regular monthly support as well as occasional additional funds—during this time period. Sonnier admitted that she allowed assistance from Larson because he repeatedly insisted that he was E.G.S.'s father. Sonnier and her new boyfriend, Joel Hensley, continued to refer to Larson as Dad to E.G.S., even after Sonnier and E.G.S. began living with Hensley. However, E.G.S. also referred to Hensley as Dad. Larson's parents referred to themselves as E.G.S.'s grandparents, and E.G.S. called them her grandparents, to which Sonnier acquiesced. Larson's family considered E.G.S. to be a part of their family. In addition, Sonnier allowed Larson to be listed on E.G.S.'s preschool enrollment form as E.G.S.'s father so that Larson could have direct contact with the school concerning E.G .S.
In October or November 2010, Sonnier decided for a number of reasons to terminate contact between Larson, Larson's family, and E.G.S. Larson tried to get Sonnier to allow him to have contact with E.G.S., but Sonnier refused.
In May 2011, Larson filed a petition for determination of parentage seeking to have his paternity established with respect to E.G.S. Sonnier filed an answer denying Larson's paternity of E.G.S. The district court appointed a guardian ad litem to represent E.G.S.'s interests in the litigation. After an evidentiary hearing, the district court found that Larson has notoriously recognized the paternity of E.G.S. since the time of her birth or very soon thereafter, and that his actions make him a presumed father as set forth in K.S.A. 38–1114(a)(4). Sonnier timely appealed the district court's judgment.
The statute at the heart of this case is K.S.A. 38–1114. It states in part:
(a) A man is presumed to be the father of a child if:
(1) The man and the child's mother are, or have been, married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce.
(2) Before the child's birth, the man and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable ...
...
(3) After the child's birth, the man and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted, marriage is void or voidable ...
...
(4) The man notoriously or in writing recognizes the paternity of the child, including but not limited to a voluntary acknowledgement made in accordance with K.S.A. 38–1130 or 65–2409a, and amendments thereto.
(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.
(6) The man has a duty to support the child under an order of support regardless of whether the man has ever been married to the child's mother.
(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence. (Emphasis added.)
On appeal, Sonnier argues that the district court's finding that Larson notoriously recognized his paternity of E.G.S. was not supported by substantial competent evidence and thus could not support its legal conclusion that Larson was the presumed father of E.G.S. under K.S.A. 38–1114(a)(4). Larson and the guardian ad litem each argue that the district court's factual findings were supported by substantial competent evidence and supported its legal conclusion that Larson is the presumed father of E.G.S.
Whether the district court erred in finding that Larson is the presumed father of E.G.S. under K.S.A. 38–1114(a)(4) involves a mixed question of fact and law. An appellate court reviews the district court's findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The district court's conclusions of law are reviewed de novo. American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192 P.3d 614 (2008). Additionally, to the extent that resolution of this issue requires interpretation of the Kansas Parentage Act (KPA), K.S.A. 38–1110 et seq. (now codified at K.S .A.2012 Supp. 23–2201 et seq.), an appellate court's review is unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The only finding of fact disputed by the parties is the district court's finding that Larson notoriously recognized his paternity of E.G.S. The district court concluded that Larson notoriously recognized the paternity of E.G.S. based in part on his and his family's regular contact with E.G.S. even after Larson no longer cohabitated with Sonnier and E.G.S., Larson's expressed desire to adopt E.G.S., Larson's regular financial support of E.G.S., the fact that Larson either requested or consented to being listed as E.G.S.'s father on a school enrollment form, and the fact that Larson continually referred to himself as E.G.S.'s father and E.G.S. called him Dad.
The undisputed facts as found by the district court show that Larson continually and openly asserted his paternity of E.G.S. Thus, the district court's finding that Larson notoriously recognized his paternity of E.G.S. is supported by substantial competent evidence. See, e.g., Meyer v. Rogers, 173 Kan. 124, 128–29, 244 P.2d 1169(1952) (evidence supported district court's finding that alleged father had generally and notoriously recognized his paternity of child where he referred to child as my baby on several occasions in the presence of others, gave child a gift, and directed child's mother to seek help from his family for child's needs); Diver v. Fourth National Bank, 132 Kan. 36, 41–42, 294 Pac. 924 (1931) (sufficient evidence of alleged father's open and due recognition of paternity of child where alleged father freely admitted relationship on occasions it was raised and made no attempt to conceal the relationship).
As the parties recognize, this case differs from a typical presumptive paternity case in that neither Sonnier nor Larson have ever seriously contended and do not now contend that Larson is E.G.S .'s biological father. But the statutory presumptions of paternity under K.S.A. 38–1114 apply regardless of whether there is an allegation that the presumed father is the biological father of the child. First, there is nothing in the plain statutory language to suggest that the presumptions require a colorable allegation of biological paternity. Second, our Supreme Court has indicated that a person may make a claim that he or she is a presumptive parent under K.S.A. 38–1114 without claiming to be a biological or adoptive parent:
Obviously, except for subsection (5) [of K.S.A. 38–1114(a) ], the parental relationship for a father can be legally established under the KPA without the father actually being a biological or adoptive parent. That is important because K.S.A. 38–1113 states that a mother ‘may be established ... under this act [KPA]’ and K.S.A. 38–1126, dealing with the determination of the mother and child relationship, specifically incorporates the provisions of the KPA applicable to the father and child relationship, insofar as practicable. A harmonious reading of all of the KPA provisions indicates that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, can be an ‘interested party’ who is authorized to bring an action to establish the existence of a mother and child relationship. Frazier v. Goudschaal, 296 Kan. 730, 746–47, 295 P.3d 542 (2013).
The district court's finding that Larson notoriously acknowledged his paternity of E.G.S. is supported by substantial competent evidence and, in the absence of any requirement that there be a colorable allegation of biological paternity, is sufficient to support the district court's conclusion that Larson is the presumed father of E.G.S. under K.S.A. 38–1114(a)(4). Thus, the district court did not err in so concluding.
Affirmed.