Fisher v. Davis

1

NOT DESIGNATED FOR PUBLICATION

No. 116,291

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TYSON FISHER,
Appellant,
and
I.D., a Minor Child, by and Through His Next Friend,

v.

HILLARY DAVIS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed May 5, 2017.
Reversed and remanded with directions.

Michaela Shelton, of Shelton Law Office, P.A., of Overland Park, for appellant.

Joseph W. Booth, of Lenexa, and Richard Michael Latimer, of Overland Park, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ.

Per Curiam: K.S.A. 2016 Supp. 60-260(b) allows a party to request relief from a
final judgment. A home paternity test showed that Tyson Fisher was I.D.'s father so
Fisher went to court and agreed to a journal entry of paternity. Several days after the
determination of paternity, Fisher conducted a second home paternity test that showed
that he was not I.D.'s father. Fisher filed a timely K.S.A. 2016 Supp. 60-260 motion
requesting that the district court set aside the journal entry of paternity and order genetic
testing. The district court denied Fisher's motion, holding that he was "not entitled to a
second bite at the apple." The district court's holding constituted an abuse of discretion.
2

Fisher also argues that he appealed the underlying journal entry of paternity. But, his
notice of appeal is not timely or sufficient as to the journal entry of paternity so this court
is without jurisdiction to address it. Finally, Davis' appellate counsel made a request for
attorney fees. Because Davis' arguments on appeal were not persuasive, her request is
denied.

FACTUAL AND PROCEDURAL HISTORY

Hillary Davis gave birth to I.D. on December 4, 2013. There was no voluntary
acknowledgment of paternity (VAP) form, as provided under K.S.A. 2016 Supp. 23-
2204, signed at the time of the birth, and no father was listed on the birth certificate. On
September 28, 2015, Fisher petitioned the district court for a determination of paternity in
which he claimed, by court affidavit, to be I.D.'s natural father. At a status conference on
November 24, 2015, at which both parties appeared pro se, Fisher explained that about a
year after I.D.'s birth, a home paternity test showed that Fisher was I.D.'s father. Fisher
initiated the paternity action after the DNA test to make his relationship with I.D. "more
legal." Fisher and Davis both swore under oath at the proceeding that Fisher was I.D.'s
natural father. The district judge told Fisher and Davis to prepare a journal entry,
parenting plan, and proposed child support agreement before the disposition hearing.

The district court held the disposition hearing on January 25, 2016. Both parties
appeared pro se. Fisher again testified that he was I.D.'s natural biological father. Davis
agreed that Fisher was the father, despite Fisher's name not appearing on I.D.'s birth
certificate. Other than the statements of the parties, no paternity test results were admitted
into evidence. The court granted Fisher's petition, naming him father of I.D. based upon
his sworn statement. The court approved the parties' child support agreement and
parenting plan, finding that the agreements were in the best interests of the child. The
court ordered that a new birth certificate be issued showing Fisher as I.D.'s father.
Finally, the court granted Davis and Fisher joint legal custody. I.D. would live full time
3

with Davis, but Fisher would visit I.D. three times a week for 2 hours each visit. The
court noted that Fisher's time would "likely need to increase" as I.D. grew up and
integration progressed. These findings were enshrined in a journal entry of paternity filed
the same day as the hearing.

Fisher filed a motion to set aside the journal entry of paternity 31 days later, on
February 25, 2016. Fisher argued that he had agreed to the journal entry of paternity
based on the results of the home paternity test conducted by GTLDNA Genetic Testing
Laboratories. However, Fisher obtained a second home paternity test from Identigene and
the results showed that he was not I.D.'s biological father. Fisher argued that, pursuant to
K.S.A. 2016 Supp. 60-260, he was "entitled to have the Journal Entry of Paternity set
aside based upon mistake, and the probability that [Fisher] is not the biological father of
[I.D.]" Fisher requested that the court order an expert DNA analysis.

The district court heard the motion on June 6, 2016. Following the parties'
arguments, the court denied Fisher's motion. The court noted that Fisher could have
requested a second paternity test before the journal entry of paternity was final. The
journal entry denying Fisher's motion stated the court's findings:

"1. The Court denies Petitioner's Motion for Relief, treating Petitioner's Motion as a
motion for relief under K.S.A. 60-260.
"2. The Court further finds that Petitioner had every opportunity to object to paternity
prior to the entry of the Journal Entry of Paternity on January [25], 2016, and therefore
is not entitled to a second bite at the apple.
"3. The Journal Entry of January [25], 2016 is affirmed as it stands."

Fisher appealed "from the Journal Entry filed on July 6, 2016," which is the
journal entry denying his motion to set aside the judgement.


4

ANALYSIS

The district court erred by denying Fisher's motion to set aside the journal entry of
paternity.

Fisher argues that the district court erred by denying his K.S.A. 2016 Supp.
60-260 motion to set aside the journal entry of paternity. A district court's ruling on a
motion for relief from judgment filed pursuant to K.S.A. 2016 Supp. 60-260(b) is
reviewed for abuse of discretion. In re Marriage of Leedy, 279 Kan. 311, 314, 109 P.3d
1130 (2005). A judicial action constitutes an abuse of discretion if (1) no reasonable
person would take the view adopted by the trial court; (2) it is based on an error of law;
or (3) it is based on an error of fact. Wiles v. American Family Life Assurance Co., 302
Kan. 66, 74, 350 P.3d 1071 (2015). Fisher argues that the district court abused its
discretion by making an error of law and by taking a view that no reasonable person
would adopt. We agree for the reasons that follow.

The District Court Made an Error of Law.

Fisher's first argument is that the district court made an error of law by denying his
motion and failing to order further genetic testing. Fisher argues that "the trial court was
mistaken about its own authority" because it "believed it could not reconsider its prior
findings on the grounds that once a judgment is final, it must remain final."

The district court's reasoning for denying Fisher's motion to set aside, as
memorialized in the journal entry, was that Fisher "had every opportunity to object to
paternity prior to the entry of the Journal Entry of Paternity on January 26, 2016, and
therefore is not entitled to a second bite at the apple." When orally ruling on the motion,
the district judge further explained:

5

"The question that's being presented right now is not a question of equitable
relief. It's not a question of any principle of equity or what some person thinks [is] right
or wrong. It is a legal determination.

"We have a journal entry. We have a motion under [K.S.A. 60-260] for relief of
journal entry. I have gone through that, and the request for relief under [K.S.A. 60-260] is
denied . . . .

"The Supreme Court gave us a case, In [re] Adoption of [A.A.T., 287 Kan. 590,
196 P.3d 1180 (2008), cert. denied 556 U.S. 1184 (2009)], where a father was convinced
by fraud from the mother that he was not the dad and believed that, and someone else
adopted the child. And he came back and he realized that he had been deceived, there had
been fraud, and he asked the court [to] set aside that adoption, and the court said no. The
court said we have to have finality in judgments. The court said that every litigant when
they're pro se or represented has a duty to protect their legal interests.

"This request could have been made before the final journal entry. Because of
that, because we have to have finality of judgments, because this is in effect a request for
the second bite of the apple, the request is denied."

The district court is correct that K.S.A. 2016 Supp. 60-260(b)(2) permits relief
from a final judgment if there is "newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under [K.S.A.
2016 Supp. 60-259(b)]." Had Fisher exercised reasonable diligence, he would have
completed the second home test before going to court and requesting a journal entry of
paternity. However, he did not. So, the district court was faced with conflicting home
paternity tests—neither of which were admitted into evidence. Accordingly, the district
court could either grant a request for independent genetic testing or deny his request and
lock Fisher into parenting obligations for a child that might not be his. The district court
chose to deny the request because of the importance of the finality of judgments.

6

But the court did not consider K.S.A. 2016 Supp. 60-260(b)(6) which permits
relief from a final judgment for "any . . . reason that justifies relief." "When determining
whether to grant relief under 60-260(b)(6)," a court must "balance the need for finality in
litigation against the need for substantial justice under all the circumstances." Vogeler v.
Owen, 243 Kan. 682, 687-88, 763 P.2d 600 (1988). The district court made an error of
law when it held that finality of judgments precluded it from granting Fisher relief. While
a district court should "'[give] due regard to the sound interest underlying the finality of
judgments, the district court, nevertheless, has power to grant relief from a judgment
whenever, under all the surrounding circumstances, such action is appropriate in the
furtherance of justice.'" Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 (1983) (quoting
7 Moore's Federal Practice, ¶ 60.27[1], p. 342 [2d ed. 1982]); see also Wilson v. Wilson,
16 Kan. App. 2d 651, 655, 827 P.2d 788 (1992) ("K.S.A. 60-260[b] is the proper vehicle
for modification of a final judgment of a trial court.").

In hanging its hat on the importance of finality, the district court relied on In re
Adoption of A.A.T. in its ruling, but its reliance on the case is misplaced. In that case,
disturbing a final judgment would not have served the interests of justice. There, N.T.
told M.P. that she was pregnant with his child while they were both living in New York.
N.T. then moved to Kansas and falsely informed M.P. that she got an abortion. In fact,
N.T. gave birth to a child, A.A.T., and gave the child up for adoption. The parties
remained in contact by phone, and "M.P. continued to question N.T. about the pregnancy,
doubting her veracity." 287 Kan. at 593. N.T. lied about who the biological father was
during the adoption process, so M.P. never became aware of the adoption proceedings
and his parental rights were terminated. Several months later, N.T. told M.P. the truth.
M.P. retained counsel in Kansas and filed a motion to set aside the adoption pursuant to
K.S.A. 60-260(b). The district court denied M.P.'s motion, finding that M.P. suspected
that N.T. was lying to him so he "'should have taken action to determine whether [N.T.]
had had an abortion or was still pregnant . . . and . . . gave birth to his child.'" 287 Kan. at
596. M.P. appealed, and his appeal was transferred to the Kansas Supreme Court.
7

The Kansas Supreme Court affirmed the district court. 287 Kan. at 592. One of
M.P.'s arguments was that the adoption was void under K.S.A. 60-260(b)(4) because he
was not provided with notice of the adoption proceeding in violation of his
constitutionally protected due process liberty interest in raising the child. The court
reviewed caselaw on how a putative father can establish a liberty interest that affords him
the right to notice of proceedings to adopt his newborn child. Generally, a father has such
a right if he: "(1) diligently took affirmative action that manifested a full commitment to
parenting responsibilities and (2) did so during the pregnancy and within a short time
after he discovered or reasonably should have discovered that the biological mother was
pregnant with his child." 287 Kan. at 609. The court also noted that, while fathers may
have due process interests in their children, "the finalization of an adoption gives rise to a
legal relationship between the adoptive parents and the child, creating liberty interests."
287 Kan. at 612. The court stated that M.P.'s "position create[d] a tension with the rights
of the adoptive family and the State because voiding the adoption would be in derogation
of the matured rights of the State and the adoptive family." 287 Kan. at 626. Ultimately,
the court held that "[t]he interests of the State and the adoptive family justify a conclusion
that M.P.'s opportunity to demonstrate his commitment to parenting passed without
developing into a liberty interest." 287 Kan. at 626.

Fisher's situation is clearly distinguishable from In re Adoption of A.A.T. There,
the fact that the adoption had been finalized was important because it bestowed due
process rights upon the adoptive parents that clashed with the rights that M.P. was
claiming. When the In re Adoption of A.A.T. court balanced the need for finality of
judgments against the interests of justice, the balance tipped towards honoring the final
judgment because failure to do so would extinguish adoptive parents' rights.

We find that the district court made an error of law when it wholly failed to
balance the need for finality of judgments against the interests of justice.

8

The District Court's Decision Was Not Reasonable.

Even if we assume the district court did balance the need for finality of judgments
against the interests of justice, its conclusion was not reasonable.

Davis contends that the district court's decision was reasonable because biology is
not important to determining paternity. She relies on Guth v. Wagner, No. 103,398, 2010
WL 2978091 (Kan. App. 2010) (unpublished opinion), in support of her argument. But
we disagree with such a characterization of Guth. Genetics was not the deciding factor in
that case.

Guth involved a dispute between Travis Guth and Travis Conrad, both of whom
claimed to be T.R.C.'s father. Conrad was in a long-term relationship with T.R.C.'s
mother when she gave birth. Conrad's name was on the birth certificate, and he held
himself out as T.R.C.'s father. Approximately a year later, the mother and Guth
performed a home paternity test with a kit they purchased at Walgreens which showed
that Guth was the father. Guth petitioned the district court requesting that it determine
T.R.C.'s paternity. The district court ordered a DNA test. But, after holding a hearing
pursuant to In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1989), often
termed a Ross hearing, the court concluded that it was in T.R.C.'s best interests not to
reveal the results of the court-ordered DNA test and that it was error to order one before
conducting the Ross hearing. The Court of Appeals affirmed the district court. Guth, 2010
WL 2978091, at *1.

A Ross hearing is a hearing at which a district court determines if it is in the best
interests of a child to order a blood test to determine whether a presumed father is also a
biological father. Ross hearings are required when the district court is faced with the
possibility of shifting paternity from a presumed father to a man purporting to be a
biological father. In re Marriage of Ross, 245 Kan. at 602. However, the "best-interests-
9

of-the-child determination is not a condition precedent to the district court ordering a
blood test for a man claiming to be the child's biological father where no legally
presumed father exists, i.e., where there is no possibility of shifting paternity from a
presumed father to a biological father." In re Adoption of A.A.T., 42 Kan. App. 2d. 1, Syl.
¶ 5, 210 P.3d 640 (2006), aff'd 287 Kan. 590, 196 P.3d 1180 (2008). In Fisher's situation,
there is no possibility that paternity could be shifted from the presumed father to a
biological father because Fisher is the only purported father. Furthermore, one of the
policies behind the Ross decision was that "a child born during a marriage should not be
bastardized." Ross, 245 Kan. at 601. Here, I.D. was not born during a marriage so
granting Fisher's request for a paternity test will not delegitimize I.D.

Another reason genetics was not as important in Guth as it is in the present
situation is that in Guth the presumed father, Conrad, was in a long-term intimate
relationship with the child's mother. Conrad's name was on the child's birth certificate and
Conrad had always held himself out to be the child's father. Conrad's relationship with the
child was not based on biology alone. Granting Guth's request for paternity testing would
have disrupted the preexisting relationship between Conrad and T.R.C. Unlike Conrad,
Fisher does not have an extensive relationship with I.D. Fisher only became involved in
I.D.'s life when I.D. was 1 year old and Fisher received the results from the first home
paternity test. Fisher's interaction with I.D. was limited to three nights a week. The
accurate determination of paternity is the foundation upon which Fisher's obligation
towards I.D. arises. Granting Fisher's request would not disrupt a preexisting relationship
between I.D. and another man acting as I.D.'s father.

Davis' argument that genetics are not important is also contrary to Kansas caselaw.
See Ross, 245 Kan. at 597 (recognizing that "every child has an interest not only in
obtaining support, but also in inheritance rights, family bonds, and accurate identification
of his parentage [emphasis added]"); State ex rel. Secretary of SRS v. Kimbrel, 43 Kan.
App. 2d 790, 793, 231 P.3d 576 (2010) (noting that the Kansas Parentage Act definition
10

of "parent and child relationship" "shows a legislative intent to recognize biological
lineage as the foundation for the parent-child relationship"); In re D.B.S., 20 Kan. App.
2d 438, 457, 888 P.2d 875, aff'd 258 Kan. 396, 903 P.2d 1345 (1995) (stating that a child
has a "basic interest in simply knowing who his or her biological father is"). While
genetics are generally relevant in parentage proceedings, they are especially relevant in
Fisher's case because his only basis for going to court and requesting the journal entry of
paternity was his belief, based on the home paternity test, that he was I.D.'s biological
father. Thus, Davis' argument that genetics are irrelevant is unpersuasive.

Alternatively, Davis argues that granting Fisher's motion to set aside the journal
entry of paternity would violate I.D.'s constitutional rights. She relies on Frazier v.
Goudschaal, 296 Kan. 730, 754, 295 P.3d 542 (2013), for the proposition that "[d]enying
the children an opportunity to have two parents, the same as children of a traditional
marriage, impinges upon the children's constitutional rights." However, Davis' reliance
on Frazier is misplaced and the case does not support her argument.

Frazier dealt with the enforceability of a coparenting agreement made between
Kelly Goudschaal and Marci Frazier. Goudschaal and Frazier initiated a same-sex
relationship in 1995. The couple "jointly decided to have two children via artificial
insemination." 296 Kan. at 732. Goudschaal gave birth to both children but signed a
coparenting agreement with Frazier in which the parties agreed "'to jointly and equally
share parental responsibility.'" 296 Kan. at 733. The parties' relationship deteriorated, and
by January 2008 Goudschaal moved out of the home, though the parties continued to
share parenting responsibilities. By July 2008, Goudschaal began limiting Frazier's
contact with the children and informed Frazier that she intended to move to Texas.
Frazier filed a petition to enforce the coparenting agreement. The district court granted
Frazier joint custody and reasonable parenting time and ordered her to pay child support.
Goudschaal appealed.

11

Goudschaal's "overarching complaint . . . [was] that the district court violated
Goudschaal's constitutionally protected parental rights when it awarded joint custody and
parenting time to a nonparent, i.e., Frazier." 296 Kan. at 736. One of Goudschaal's
arguments was that enforcement of the coparenting agreement was contrary to public
policy because it would violate her fundamental due process right to make decisions
regarding the care, custody, and control of her children. The Kansas Supreme Court
recognized the rights of parents, but said:

"If a parent has a constitutional right to make the decisions regarding the care, custody,
and control of his or her children, free of government interference, then that parent should
have the right to enter into a coparenting agreement to share custody with another without
having the government interfere by nullifying that agreement, so long as it is in the best
interests of the children." 296 Kan. at 753.

The court then found that it was in the best interests of the children to enforce the
coparenting agreement. 296 Kan. at 755. One of the reasons for enforcing the coparenting
agreement was that without the coparenting agreement, the children would be left with
only one parent because K.S.A. 38-1114(f) (now codified at K.S.A. 2016 Supp. 23-
2208[f]) stated that semen donors are not legally treated as birth fathers. 296 Kan. at 754.
It was then that the court made the statement upon which Davis relies: "Denying the
children an opportunity to have two parents, the same as children of a traditional
marriage, impinges upon the children's constitutional rights." 296 Kan. at 754.

By holding that the Kansas Parentage Act permits both parents to be of the same
sex, the court ensured that children of same sex couples are afforded the same
opportunity to have two parents as children born to married couples (which at that time in
Kansas would only be heterosexual couples). Here, the issues have nothing to do with
Fisher and Davis' marital status. Ordering a genetic test would not deny I.D. the
"opportunity to have two parents." Frazier, 296 Kan. at 754. I.D. has always had the
opportunity to have two parents—nothing in the law prevented Davis from bringing a
12

paternity action against any man who may be I.D.'s father. In Frazier, the fact that the
mothers used a sperm donor meant that there could be no biological father, thus leaving
the children with only one person who was legally considered a biological parent. 296
Kan. at 754.

Davis also makes the argument that Fisher has no evidence that the district court
abused its discretion because home paternity tests are inadmissible as evidence in court.
Davis is correct that a home paternity test would likely not meet the standards of
admissibility to prove that a man is or is not a child's father. See Guth, 2010 WL
2978091, at *8. However, Fisher was not relying on the second paternity test to argue that
he was not I.D.'s father. Fisher was relying on the second paternity test as a basis for the
court to grant his request to relieve him from the journal entry of paternity until expert
genetic testing could be conducted. The expert genetic testing could then "determine once
and for all whether or not [Fisher] was in fact the biological father."

Clearly, Fisher signed an affidavit acknowledging paternity and that was the basis
for clear and convincing evidence that Fisher was the father. But just a few weeks after
the judgment was entered Fisher obtained information that put his acknowledgment in
question. If evidence proves a man who has executed an acknowledgment of paternity is
not the biological father of the child, "the court may find the presumption of paternity is
rebutted, end the father-child relationship, and deny a petition for child support."
Kimbrel, 43 Kan. App. 2d at 798-99. Fisher brought the appropriate action before the
court to reopen the case so that he could ask the court to order genetic testing to clear up
any question as to his parenthood. This was not an action brought several years after his
paternity was determined and a longstanding relationship had developed with the child.
Moreover, it is important to note, that this was not an action to revoke a VAP, as our
Supreme Court recently addressed in State ex rel. Secretary of DCF v. Smith, 306 Kan.
___, ___ P.3d ___ (No. 114,306, filed April 7, 2017). This was an action brought within a
few weeks of the final order simply to grant relief from that order and reopen the case.
13

There is no indication that his motion was filed for any other reason than to clearly
determine if he was the biological father of I.D.

The district judge seemed to recognize the inequity of dismissing Fisher's motion
to set aside the journal entry of paternity. Before ruling on Fisher's motion, the district
judge questioned Davis' attorney. The judge asked: "[W]hat about general principles of
equity of having a person potentially being obligated for support for an entire life of a
child who may not be the father?" Davis' attorney responded that if Fisher was the father,
he was obligated to support the child, and if Fisher was not the father, then he had "no
obligation to support the child." The judge responded that "if the decree stands, then
[Fisher] has an obligation to support even if he's not the father." Davis' attorney
answered, "Well, I don't know exactly how to respond to that. If he's not the father, he
doesn't have the obligation to support the child. Period." Despite this exchange, the
district court concluded that Fisher was not "entitled to a second bite at the apple." This
conclusion was also an abuse of discretion because it was unreasonable.

Conclusion

Insofar as the district court held that it could not entertain Fisher's claim due to
finality of judgments, the district court made a legal error because K.S.A. 2016 Supp. 60-
260 provides a way to amend final judgments. K.S.A. 2016 Supp. 60-260(b)(6) "may
afford relief under appropriate circumstances where the scales of justice tilt in favor of
the movant." Vogeler, 243 Kan. at 687. The district court should have balanced the need
for finality of judgments with the need for justice under the unique circumstances
presented by the two conflicting home paternity tests.

In this case, the scales of justice tilt in favor of Fisher. This is not a case like In re
Adoption of A.A.T., where the rights of the adoptive parents tipped the balance against
disrupting a final judgment. This is not a case like Guth, where the dedication of the
14

presumed father, Conrad, tipped the balance against disrupting a final judgment. This is
not a case, like Guth or Frazier, where the biological component of parenthood is
overshadowed by other considerations. Biology is the basis upon which Fisher initiated
his paternity action, and when Fisher testified that he was I.D.'s father he did so because
he was relying on a home paternity test that told him that he was I.D.'s father. In this
case, when balancing the need for finality in litigation against the need for substantial
justice, the interests of justice prevail.

Fisher did not appeal the January 25, 2016, journal entry of paternity.

Fisher argues that he appealed the rulings from both the January 25, 2016, journal
entry of paternity and the July 6, 2016, journal entry denying his motion to set aside.
Whether jurisdiction exists for us to consider this an appeal of the entire paternity action
is a question of law over which this court exercises unlimited review. Fuller v. State, 303
Kan. 478, 492, 363 P.3d 373 (2015).

Generally, an appeal must be taken within 30 days after an entry of judgment.
K.S.A. 2016 Supp. 60-2103(a). The notice of appeal here was not filed until July 18,
2016, well in excess of 30 days after the January journal entry of paternity. The 30-day
limit is tolled if a party makes certain timely posttrial motions. K.S.A. 2016 Supp. 60-
2103(a). A K.S.A. 2016 Supp. 60-259 motion to alter or amend will toll the time limit,
but a K.S.A. 2016 Supp. 60-260 motion for relief from judgment will not. K.S.A. 2016
Supp. 60-2103(a). Moreover, a motion to alter or amend must be filed within 28 days
after the entry of judgement. K.S.A. 2016 Supp. 60-259(f). Accordingly, for Fisher to
have filed a timely appeal of the January 25, 2016, journal entry of paternity, this court
must construe his motion as a motion to alter or amend the judgment under K.S.A. 2016
Supp. 60-259 and find that such motion was timely even though it was filed in excess of
28 days after the entry of judgment. That is exactly what Fisher asks us to do. We decline
to do so and summarize our rationale as follows.
15

First, Fisher acknowledges that he "labeled and argued his motion at the hearing
under the provisions of K.S.A. 60-260." He never argued the application of K.S.A. 2016
Supp. 60-259 to the district court.

Second, although "the content of the motion, not the heading, determines the type
of motion . . . ." Bank of America v. Inda, 48 Kan. App. 2d 658, 662, 303 P.3d 696
(2013), the content of Fisher's motion could not be construed as a motion under K.S.A.
2016 Supp. 60-259. The substance of Fisher's argument is that the conflicting home
paternity tests call into question the validity of Fisher's basis for testifying that he was
I.D.'s father, and that the court should set aside its order of paternity and order a genetic
test to clear up the confusion. This argument does not fit into any of the six reasons that
would justify granting a new trial under K.S.A. 2016 Supp. 60-259. In support, we
examine the six statutory reasons for granting a new trial.

To begin, K.S.A. 2016 Supp. 60-259(a)(1)(A) allows a new trial if there is
"[a]buse of discretion by the court, misconduct by the jury or an opposing party, accident
or surprise that ordinary prudence could not have guarded against, or because the party
was not afforded a reasonable opportunity to present its evidence and be heard on the
merits of the case." There are no allegations that the district court abused its discretion
when it accepted Fisher's testimony that he was I.D.'s father. There are also no allegations
of misconduct, or that Fisher was not provided with an opportunity to present evidence at
the disposition hearing. While the results of the second home paternity test may have
been a surprise to Fisher, they were not a surprise that ordinary prudence could not have
guarded against. Fisher could have conducted a second home test before acknowledging
paternity. Alternatively, Fisher could have asked the court to order an official genetic test
under K.S.A. 2016 Supp. 23-2212.

16

Next, K.S.A. 2016 Supp. 60-259(a)(1)(B) allows a new trial if there are erroneous
rulings or instructions by the court. Fisher did not argue that the court's ruling was
erroneous. Fisher's argument is that he was the one who made the error.

In addition, K.S.A. 2016 Supp. 60-259(a)(1)(C) is inapplicable because Fisher did
not argue that the verdict was given under the influence of passion or prejudice.
Similarly, K.S.A. 2016 Supp. 60-259(a)(1)(D) is inapplicable because Fisher did not
argue that the verdict was contrary to the evidence presented at the disposition hearing.
And, K.S.A. 2016 Supp. 60-259(a)(1)(F) is inapplicable because Fisher does not allege
corruption.

And finally, K.S.A. 2016 Supp. 60-259(a)(1)(E) permits a new trial when there is
"newly discovered evidence that is material for the moving party which it could not, with
reasonable diligence, have discovered and produced at the trial . . . ." Fisher does argue
that his motion should have been construed as a motion to set aside based on newly
discovered evidence. But, Fisher failed to provide this court or the district court with a
reason that he could not have conducted another paternity test before agreeing to the
journal entry of paternity. Because Fisher cannot explain his failure to exercise
reasonable diligence, K.S.A. 2016 Supp. 60-259(a)(1)(E) could not support his claim for
relief.

Third, even we accept Fisher's argument that he made a timely K.S.A. 2016 Supp.
60-259 motion because he was not properly served with the judgment, Fisher's notice of
appeal was insufficient. K.S.A. 2016 Supp. 60-2103(b) states that a notice of appeal
"shall designate the judgment or part thereof appealed from . . . ." Fisher's notice of
appeal was terse and specific. It stated: "NOTICE is given that Plaintiff, Tyson Fisher,
appeals from the Journal Entry filed on July 6, 2016 (doc. 18), to the Court of Appeals of
the State of Kansas." (Emphasis added.) While this notice is clearly sufficient to appeal
17

the July 6, 2016, journal entry, it is not sufficient to appeal the journal entry of paternity
entered on January 25, 2016.

The notice of appeal does not include any catch-all language that would include
court orders leading up to the July 6, 2016, journal entry. Davis also alerts us that even
the docketing statement is "devoid of any indication that the Journal Entry of Paternity
was under appeal, even in the non-binding sections." Fisher claims that because the July
6 order specifically identified and referenced the January 25, 2016, order the notice of
appeal was sufficient. We are not persuaded.

Fisher is referring to the comment in the July 6, 2016, journal entry that states
"[t]he Court further finds that the Petitioner had every opportunity to object to paternity
prior to the entry of the Journal Entry of Paternity on January 25, 2016, and therefore is
not entitled to a second bite at the apple." Fisher is trying to widen the scope of his appeal
to include the January 25, 2016, paternity ruling that was finalized months before the July
6, 2016, journal entry. This is analogous to the situation in Gates v. Goodyear, 37 Kan.
App. 2d 623, 155 P.3d 1196 (2007).

Gates involved a dispute between a landlord and his tenants. In August 2005, the
district court found that the landlord's actions constituted conversion, that the conversion
justified punitive damages, and that there were no lien rights. These holdings were
memorialized in a journal entry dated August 19, 2005. In a November hearing, the
district court settled issues related to punitive damages and issued a journal entry on
November 29, 2005. On appeal, Gates attempted to appeal the conversion and lien
findings, as well as the punitive damages. This court held that it was without jurisdiction
to address the first two issues that the landlord raised because his notice of appeal did not
make reference to the August rulings. 37 Kan. App. 2d at 629. The court ruled:

18

"[The landlord] clearly omitted any designation of the August findings, conclusions, or
judgments in his notice of appeal and designated with specificity only the November 19
judgment. No catch-all language was utilized in this notice, and there was no reasonable
manner that [the landlord] could have believed the November proceedings included any
reiteration or finalization of the August findings and conclusions. If we were to hold that
the notice of appeal is sufficient under these circumstances, we would adjudicate out of
existence the statutory mandate that a notice of appeal 'shall designate' the judgment
appealed from." 37 Kan. App. 2d at 629.

Like in Gates, Fisher's notice of appeal only references one order despite Fisher's
attempt to raise issues that were finalized in a prior order. See also In re N.U., 52 Kan.
App. 2d 561, 567, 369 P.3d 984 (2016) (notice of appeal insufficient because Father did
not indicate he was appealing from a prior order).

In sum, Fisher wants to appeal the January 25, 2016, journal entry of paternity.
But, his notice of appeal did not designate the journal entry of paternity as a judgment
from which Fisher was appealing. Furthermore, in order for Fisher's notice of appeal to
be timely as to the journal entry of paternity, this court would have to construe his K.S.A.
2016 Supp. 60-260 motion as a K.S.A. 2016 Supp. 60-259 motion, which would be
inappropriate as the issue Fisher raised in the motion was properly brought under K.S.A.
2016 Supp. 60-260.

Finally, even if Fisher had properly appealed the journal entry of paternity, he
would not be entitled to relief. While Fisher's brief contains many arguments that this
court has jurisdiction to review the journal entry of paternity, it is devoid of arguments
that the journal entry of paternity constituted an abuse of discretion. The brief is focused
on whether the district court abused its discretion in denying Fisher's motion to set aside
the journal entry of paternity. An issue not briefed is deemed waived or abandoned.
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

19

Attorney fees are not appropriate in this case.

Davis filed a motion and affidavit for appellate attorney's fees in the amount of
$7,185 under Supreme Court Rule 7.07 (2017 Kan. S. Ct. R. 50). This court "may award
attorney fees for services on appeal in a case in which the district court had authority to
award attorney fees." Supreme Court Rule 7.07(b)(1) (2017 Kan. S. Ct. R. 51). Moreover,
K.S.A. 2016 Supp. 23-2216(a) gives the district court the authority to award costs and
attorney fees "to either party as justice and equity may require" in actions brought under
the Kansas Parentage Act.

Fisher argues that, while K.S.A. 2016 Supp. 23-2216 permits the district court to
award attorney fees for the underlying paternity action, it does not authorize an award of
appellate attorney fees. But Supreme Court Rule 7.07(b) does, and we have found that to
be sufficient. See In re Marriage of Sinks, No. 114,609, 2016 WL 3961479, at *11 (Kan.
App. 2011) (unpublished opinion) (considering a request for attorney fees despite the fact
that the statute authorizing the district court to award attorney fees does not mention
appellate attorney fees).

This court is generally hesitant to award appellate attorney fees to a party that does
not fully prevail on appeal. See In re Marriage of Knoll, 52 Kan. App. 2d 930, 942, 381
P.3d 490 (2016) ("We note, however, that Dean has prevailed on all the relevant issues in
this appeal. As a result, we see no reason to saddle Dean with Melissa's attorney fees.");
In re Marriage of Clark, No. 109,422, 2013 WL 6063227, at *6 (Kan. App. 2013)
(unpublished opinion) (denying appellant's motion for attorney fees despite the fact that
she was partially successful on appeal); Wolfert Landscaping Co. v. LRM Industries, Inc.,
No. 106,989, 2012 WL 5392143, at *6 (Kan. App. 2012) (unpublished opinion) ("LRM
has only received part of the relief it requested on appeal and, under these circumstances,
we find that it would be appropriate for each party to pay its own attorney fees."). Given
20

that Davis did not prevail on appeal, equity and justice do not require that Fisher pay
Davis' appellate attorney fees.

Conclusion

In sum, we find that Frazier only appealed the district court's denial of his motion
for relief from judgment under K.S.A. 2016 Supp. 60-260. Furthermore, we find that the
district court abused its discretion when it denied his motion based upon the overarching
principle of the finality of judgments. This was an error of law. K.S.A. 2016 Supp. 60-
260(b)(6) permits relief from a final judgment for "any . . . reason that justifies relief."
The court was required to determine whether the unique circumstances presented by the
two conflicting home paternity tests justified relief from the judgment and an order for
genetic testing. If the district court, in its somewhat confusing statements from the bench,
intended to find that justice did not require relief from judgment, that decision was also
an abuse of discretion because it was clearly unreasonable. Accordingly, we reverse the
district court's denial of Frazier's motion for relief from judgment and remand the case to
the district court to order genetic testing. Finally, because Davis did not prevail on
appeal, we deny Davis' request for appellate attorney fees.

Reversed and remanded with directions.