State ex rel. Secretary, Department of Social & Rehabilitation Services v. Miller

953 P.2d 245, 24 Kan. App. 2d 822, 1998 Kan. App. LEXIS 19
CourtCourt of Appeals of Kansas
DecidedFebruary 6, 1998
DocketNo. 77,908
StatusPublished
Cited by2 cases

This text of 953 P.2d 245 (State ex rel. Secretary, Department of Social & Rehabilitation Services v. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Secretary, Department of Social & Rehabilitation Services v. Miller, 953 P.2d 245, 24 Kan. App. 2d 822, 1998 Kan. App. LEXIS 19 (kanctapp 1998).

Opinion

Green, J.:

This is an appeal by Chimane D. Reno from a judgment dismissing a paternity suit against the putative father of her [823]*823two children. On appeal, Reno contends the trial court lacked subject matter jurisdiction to enter an order requiring genetic testing of her, her children, and the putative father of the two children. Additionally, Reno contends that the trial court improperly ordered genetic testing of the parties before determining whether the tests were in the best interests of the children. We disagree and affirm.

In the summer of 1996, the Kansas Department of Social and Rehabilitation Sendees (SRS) filed a paternity action against Lonnie E. Miller. The petition joined Reno, the mother, and L.M. and C.M., the minor children, as co-plaintiffs. The petition for paternity alleged that Miller was the father of both L.M. and C.M.

The trial court ordered genetic testing of Miller, Reno, L.M., and C.M. According to the order compelling genetic testing, SRS was the party that moved for the testing and was the only party present for the hearing. Although Miller was not present, he demonstrated his approval of the order by having signed it earlier. When the genetic testing revealed that Miller was not the biological father of L.M. and C.M., the trial court dismissed the paternity action against him.

Reno first argues that because she was not given notice of the action, the trial court lacked subject matter jurisdiction to make any rulings in the case. To address this issue, we must consider K.S.A. 38-1116. K.S.A. 38-1116(a) states that the trial court will have jurisdiction when an action is brought under the Kansas Parentage Act (KPA), K.S.A. 38-1110 etseq. The petition for paternity clearly states that this action was filed under K.S.A. 38-1110 et seq., K.S.A. 39-709, K.S.A. 39-718b, K.S.A. 39-755, and K.S.A. 39-756. Therefore, under K.S.A. 38-1116, if this action was properly brought under the KPA, the trial court had subject matter jurisdiction.

According to the petition, and undisputed by Reno, Reno assigned her support rights to SRS. Under K.S.A. 39-755(a), “[i]n cases where [SRS] is deemed to have an assignment of support rights . . . [SRS] is authorized to bring a civil action in the name of the state of Kansas or of the obligee whose support rights are assigned . . . .” SRS brought such an action and named Reno as a party to the suit.

[824]*824Reno does not contend that SRS lacked authority to bring the suit; rather, Reno argues that under K.S.A. 1996 Supp. 38-1117(a), she was entitled to notice in addition to being joined as a necessary party.

“Interpretation of a statute is a question of law, and our review is unlimited.” In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). Additionally, “[w]hen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995).

K.S.A. 1996 Supp. 38-1117(a) states:

“[T]he child, the mother, each man presumed to be the father under K.S.A. 38-1114 and amendments thereto and each man alleged to be the father shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and shall be afforded the opportunity to be heard.” (Emphasis added.)

K.S.A. 1996 Supp. 38-1117(a) clearly uses the word “or” rather than “and” when setting forth the joinder and notice requirements to the child, the mother, and the fathers. The result is that the plain language of K.S.A. 1996 Supp. 38-1117(a) states that the child, the mother, the presumed fathers, and the alleged fathers shall be made parties to the suit; however, if the aforementioned individuals are not made parties to the suit, then they shall be given notice of the action.

In this case, Reno was joined as a party to the action as a co-plaintiff. Under K.S.A. 1996 Supp. 38-1117(a), the trial court was not required to give Reno notice of the action. Therefore, the trial court had subject matter jurisdiction over this action.

Reno next argues that the trial court erred in not holding an evidentiary hearing to determine whether paternity testing was in the best interests of the children. Reno chiefly relies upon the Kansas cases of In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), and Florida Dept. of HRS v. Breeden, 21 Kan. App. 2d 490, 901 P.2d 1357 (1995), to make her argument.

The Kansas Supreme Court held that in some parentage actions an evidentiary hearing on the best interests of the child must pre[825]*825cede an order for paternity testing. Ross, 245 Kan. at 602. This type of hearing is now commonly referred to as a Ross hearing.

In Ross, R.A.R. was bom during the marriage of Sylvia and Robert Ross. Two years after R.A.R. was bom, Robert and Sylvia divorced. Sylvia was given primary custody of R.A.R., and Robert was granted visitation rights and ordered to pay child support. One year later, Robert was granted joint custody of R.A.R. Two years after Robert was granted joint custody, Sylvia filed a petition, pursuant to the KPA, alleging Charles Austin was the biological father of R.A.R., requesting a guardian ad litem be appointed for R.A.R., and requesting that all parties submit to paternity blood testing.

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Related

In Re the Appeal of Director of Property Valuation
161 P.3d 755 (Supreme Court of Kansas, 2007)
State v. Gunn
26 P.3d 710 (Court of Appeals of Kansas, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
953 P.2d 245, 24 Kan. App. 2d 822, 1998 Kan. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-secretary-department-of-social-rehabilitation-services-v-kanctapp-1998.