In re Biehl

1

NOT DESIGNATED FOR PUBLICATION

Nos. 117,932
118,360

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of

TONY BIEHL,
Appellee,

and

SHEILA KAY VANDELOECHT,
Appellant,

and

ALAN BENNETT,
Intervenor/Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed May 11, 2018.
Appeal dismissed.

Ashley L. Wiechman, of Law Office of Robert D. Wiechman, Jr., of Wichita, for appellant.

Kevin J. Zolotor and Morgan O'Hara Gering, of O'Hara & O'Hara LLC, of Wichita, for appellee
Tony Biehl.

Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, for Alan
Bennett, intervenor/appellee.

Before MALONE, P.J., BUSER and GARDNER, JJ.

2

PER CURIAM: This is an appeal from a paternity action. Sheila Kay Vandeloecht
was dating her boyfriend Alan Bennett at the time she gave birth to her daughter. When
the child was born, Bennett signed a document acknowledging paternity under the belief
that he was her biological father. However, after Bennett obtained genetic testing which
revealed that he was not the child's biological father, Tony Biehl filed a petition to
determine paternity and alleged that he was the child's biological father.

During the paternity action, the parties signed an agreed journal entry of paternity
which named Biehl as the legal father. The journal entry was then approved by the
district court. A few months later, Vandeloecht sought to set aside the journal entry of
paternity, which the district court denied. Subsequently, after the district court denied
Vandeloecht's motion to alter or amend judgment or for new trial, the district court
awarded attorney fees to Bennett and Biehl. Vandeloecht appeals from these orders.
During this appeal, the unresolved matters of child custody, residential custody, parenting
time, and child support have continued to be the subject of district court proceedings.

Upon our review, we hold the district court did not enter a final decision generally
disposing of the entire merits of this paternity case and leaving no further questions or the
possibility of future directions or actions by the district court. See K.S.A. 2017 Supp. 60-
2102(a)(4); Kaelter v. Sokol, 301 Kan. 247, Syl. ¶ 2, 340 P.3d 1210 (2015). Accordingly,
we dismiss the appeal for lack of appellate jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

The child involved in this paternity action was born in the summer of 2014. The
child's mother, Vandeloecht, was not married during the nine months prior to the child's
birth. When the child was born, Vandeloecht and Bennett were involved in a dating
relationship, and Bennett believed that he was the child's biological father.
3

After the child was born, Bennett signed documents which requested that his name
be placed on the child's birth certificate as her father. Genetic testing in October 2014
revealed there was a zero percent probability that Bennett was the child's biological
father. After receiving the test results, Bennett and Vandeloecht ended their relationship.

In June 2015, 11 days before the child turned 1 year old, Biehl filed a petition to
determine paternity claiming to be the child's biological father. Included in his petition
was a proposed parenting plan in which Biehl sought joint legal custody and shared
residential custody of the child. In his petition, Biehl sought the following relief:

"[T]he Petitioner prays that the Court make a finding that Petitioner is the natural and
legal father of the minor child . . . for the parties to be granted joint legal custody of the
minor child; for the parties to be awarded shared residential custody of the minor child;
for the parties to share equally all expenses incurred on behalf of the minor child; [and]
for the parties to share in expenses incurred for unreimbursed medical/dental/health
expenses incurred on behalf of the minor child."

In Vandeloecht's answer, she denied that Biehl was the child's father and requested
court-ordered genetic testing. Vandeloecht also denied that it was in the child's best
interest for Biehl to have custody or any parenting time. She asked the district court to
determine that Biehl was not the child's biological father, but that if he was, that Biehl
"receive no parenting time or custody of the minor child, but that [Biehl] shall pay child
support to [Vandeloecht]."

Shortly thereafter, Bennett filed a motion to intervene in the paternity action. In
Bennett's pleading he acknowledged that he was the presumed father of J.B. "as he
recognized paternity in writing at the time of the minor child's birth, and is listed as the
minor child's father on the birth certificate." Bennett argued the October 2014 genetic test
results, however, served as "clear and convincing evidence to rebut the presumption of
paternity." Bennett asked the district court to terminate his presumption of paternity and
4

determine that Biehl is the biological father of the child. Bennett's motion to intervene
was granted and his answer was filed.

In August 2015, Biehl filed a motion for court-ordered genetic testing, which was
set for a hearing on August 25, 2015. The parties dispute whether a hearing on Biehl's
motion occurred on that date. Although there is no record of the hearing, the minute sheet
from August 25, 2015, relating to Biehl's motion for genetic testing memorialized the
disposition: "[Biehl] withdraws motion and will prepare order establishing paternity."

In September 2015, Bennett filed a notice of genetic testing results and argued that
the results of his October 2014 genetic test established that he was not the biological
father. Bennett stated: "All parties have agreed to the paternity of the minor child, that
[Bennett] is not the child's father thus terminating any presumption of paternity, and a
journal entry setting out the same shall be filed with the Court."

That same month, Biehl filed a motion for parenting time and incorporated a
proposed parenting plan. Biehl again requested joint legal custody and eventual shared
residential custody of the child. At the hearing on the motion, Biehl's counsel
acknowledged that Biehl had a 2004 conviction for abuse of a child, which stemmed
from an inappropriate sexual relationship with a child who was 14 or 15 years old when
Biehl was 21 or 22 years old. Biehl's counsel maintained, however, that he should have
parenting time in this case because he had primary residential custody of another
daughter.

Vandeloecht's counsel responded that Vandeloecht was "admittedly opposed to
Mr. Biehl having any parenting time." Counsel alleged that the child was conceived as a
result of Vandeloecht having nonconsensual sexual intercourse with Biehl. Moreover,
Vandeloecht's counsel argued that it was not in the child's best interest to grant Biehl any
parenting time without first holding an evidentiary hearing.
5

Upon learning that there had not been an adjudication of paternity, the district
court denied Biehl's motion seeking parenting time until there was an adjudication of
paternity. The district court then scheduled an evidentiary hearing on the child's paternity.

On December 14, 2015, a journal entry of paternity memorializing the August 25,
2015 agreement between the parties was filed. The journal entry of paternity was signed
as approved by all parties' counsel and was also signed by the district judge. The journal
entry ordered that Biehl "shall be and for all purposes is hereby determined to be the
natural and legal father of the minor child, born in 2014." The journal entry concluded:
"The Court reserves all related issues as appropriate under this action, including but not
limited to, custody, parenting time, child support, and the minor's tax exemption for
future consideration." After the journal entry of paternity was filed, Bennett's name was
removed from the child's birth certificate.

In April 2016, Vandeloecht filed a motion to set aside the journal entry of
paternity. Two months later, in June 2016, Vandeloecht filed an amended motion.
Following a conference with the district court, a pretrial conference order was filed on
August 22, 2016, which listed 18 issues to be determined at a hearing on Vandeloecht's
amended motion to set aside the journal entry of paternity. In the pretrial conference
order, Vandeloecht and Biehl both contended that the journal entry of paternity should be
set aside. The matter was scheduled for a hearing on December 15, 2016. In the interim,
Bennett filed a motion to revoke his acknowledgement of paternity.

On December 15, 2016, a hearing was held on Vandeloecht's motion to set aside
the journal entry of paternity. The parties stipulated to certain facts; however, Bennett
refused to stipulate that he signed an acknowledgement of paternity, and he only
stipulated that he had signed documents that caused his name to be placed on J.B.'s birth
certificate. For his part, Biehl advised that, contrary to his position stated in the pretrial
conference order, he now contended the journal entry of paternity should not be set aside.
6

At the December 15, 2016 hearing, Vandeloecht argued that the journal entry of
paternity "should be set aside pursuant to K.S.A. 60-260(b)(4), because it is void, or in
the alternative, pursuant to K.S.A. 60-260(b)(6), for at least four independent reasons."
Vandeloecht argued: (1) the district court failed to conduct a hearing and determine
whether it was in the child's best interests to allow Bennett's presumption of paternity be
rebutted; (2) the district court failed to conduct a competing presumption hearing under
K.S.A. 23-2208(c); (3) the child's due process right in her parentage was affected without
giving her notice and an opportunity to be heard because a guardian ad litem was not
appointed to represent her best interests; and (4) parties may not bind a child to an
agreement to paternity in a disputed parentage action absent a judicial finding that the
agreement is in the best interests of the child after a hearing pursuant to In re Marriage of
Ross, 245 Kan. 591, 783 P.2d 331 (1989).

On March 22, 2017, the district court filed an 18-page memorandum and order
denying Vandeloecht's motion to set aside the journal entry of paternity. The district
court also granted Bennett's motion to revoke his acknowledgement of paternity. At the
conclusion of the memorandum and order, the district court set the matter for hearing "to
address the remaining issues of child support, child's income tax exemption, custody and
parenting time." To facilitate the hearing, the district court also ordered Biehl and
Vandeloecht to exchange W-2 forms and tax returns, and to "file their proposed current
Child Support Worksheets to allow the Family Court to address the remaining issues."

On April 17, 2017, Vandeloecht filed a motion to alter or amend the order filed on
March 22, 2017, or set the matter for a new trial. In this motion, she alleged 16 trial
errors. After a hearing, the district court denied Vandeloecht's motion to alter or amend.

Vandeloecht filed her initial notice of appeal on June 19, 2017. After that appeal
was docketed, the district court awarded certain attorney fees to counsel for Biehl and
7

Bennett. Vandeloecht also appealed that order. Both appeals were consolidated for our
review.

Following docketing of the appeal with our court, Vandeloecht filed a motion in
district court to stay proceedings in that court pending the outcome of this appeal.
Vandeloecht argued that the district court "should stay proceedings because of the
possibility of conflicting orders and resulting chaos in this matter." The district court
denied the motion.

Biehl moved to involuntarily dismiss the appeal for lack of appellate jurisdiction.
That motion was opposed by Vandeloecht. In considering the motion for involuntary
dismissal, our motions panel noted there was in the district court a "pending motion for
permanent custody and parenting time orders. . . . And while it appears that a substantive
issue remained before the district court, at this time we are unwilling to definitively rule
that the judgment being appealed is not final." The parties were directed to address the
issue of jurisdiction in their appellate briefing.

At oral arguments on April 17, 2018, our court was advised that this case is set for
a two-day trial on June 20, 2018, to adjudicate the unresolved matters of child custody,
residential custody, parenting time, and child support.

After oral arguments, Bennett, Biehl, and Vandeloecht filed motions with our
court for appellate attorney fees. We will consider the motions.

LACK OF APPELLATE JURISDICTION

Whether jurisdiction exists is a question of law over which our court's scope of
review is unlimited. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015). While all
the parties now ask this court to exercise jurisdiction over Vandeloecht's appeal, parties
8

may not confer subject matter jurisdiction by consent, waiver, or estoppel. Goldman v.
University of Kansas, 52 Kan. App. 2d 222, 225, 365 P.3d 435 (2015). Our court only has
appellate jurisdiction as provided by statute; in the absence of statutory authority, we
have a duty to dismiss the appeal. Jenkins v. Chicago Pacific Corp., 306 Kan. 1305,
1308, 403 P.3d 1213 (2017).

At the outset, no party suggests that this appeal is authorized as an interlocutory
appeal under K.S.A. 2017 Supp. 60-2102(c). Moreover, there is no suggestion that the
district court certified the entry of judgment under K.S.A. 2017 Supp. 60-254(b). In this
regard, a district court that intends to enter final judgment on less than all claims must
expressly certify in the original journal entry that there is no just reason for delay, as well
as expressly determine that the entry of judgment is a final judgment. Goldman, 52 Kan.
App. 2d at 230. Instead, all parties now contend that our court has appellate jurisdiction
to consider and decide this appeal because this is a final decision or the collateral order
doctrine applies.

Relevant to this case, K.S.A. 2017 Supp. 60-2102(a)(4) provides that "the
appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of
right from . . . [a] final decision in any action." (Emphasis added.)

"A 'final decision' generally disposes of the entire merits of a case and leaves no further
questions or possibilities for future directions or actions by the lower court. The term
'final decision' is self-defining and refers to an order that definitely terminates a right or
liability involved in an action or that grants or refuses a remedy as a terminal act in the
case. [Citation omitted.]" Kaelter, 301 Kan. at 249-50.

The jurisdictional issue presented in this appeal is whether the district court's
rulings on paternity constitute a final decision given the remaining undecided matters of
child custody, residential custody, parenting time, and child support. As summarized in
the Factual and Procedural Background, from the filing of this paternity action through
9

the oral arguments relating to this appeal, while the issue of paternity has been finally
determined by the district court, there still remains unresolved important matters of child
custody, residential custody, parenting time, and child support.

Under these circumstances, Kansas law provides: "When a district court bifurcates
an action and delays ruling on some part of the matter before it, the case usually becomes
ripe for appeal only when the district court enters final judgment on all pending issues."
In re Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010). In the context
of a divorce action, for example, our court has held:

"A divorce action combines several claims—potentially for child support, child
custody, parenting time, maintenance, and property division—into a single cause of
action. Unless some of those are left undecided, the divorce decree is a final judgment.
See McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976) (holding that divorce rulings
are final and appealable only when court has both granted divorce and resolved all other
issues in the case, such as child custody and property division)." State v. Hendricks, 52
Kan. App. 2d 737, 739, 372 P.3d 437 (2016).

With specific reference to paternity actions, the subject matter presented on
appeal: "A paternity proceeding determines who a child's legal father is and, therefore,
who will enjoy the rights and responsibilities of legal parenthood." Greer v. Greer, 50
Kan. App. 2d 180, 185, 324 P.3d 310 (2014). However, like a divorce action, a paternity
action combines several other claims. In particular, K.S.A. 2017 Supp. 23-2215(c), (d)
provides:

"(c) Upon adjudging that a party is the parent of a minor child, the court shall
make provision for support and education of the child under article 30 of chapter 23 of
the Kansas Statutes Annotated, and amendments thereto. The court may order the
payment of all or a portion of the necessary medical expenses incident to the child's birth.
The court may order the support and education expenses to be paid by either or both
parents for the minor child.
10

"(d) If both parents are parties to the action, the court shall enter such orders
regarding custody, residency and parenting time as the court considers to be in the best
interest of the child."

In short, K.S.A. 2017 Supp. 23-2215(c), (d) makes clear that under Kansas law, the
determination of a child's legal father is only one of several issues to be addressed in a
paternity cause of action.

Kansas caselaw has discussed the parameters of appellate jurisdiction in relation to
K.S.A. 2017 Supp. 23-2215(c), (d). In circumstances very similar to this case on appeal,
Kansas appellate courts have found no jurisdiction because the judgment in a paternity
action was not a final decision. Kaelter, 301 Kan. at 248-50; State ex rel. Secretary of
SRS v. Chippeaux, No. 98,530, 2008 WL 2510580, at *3 (Kan. App. 2008) (unpublished
opinion).

In Kaelter, our Supreme Court held that a judgment did not constitute a final
decision in an action for paternity, custody, support, and a division of the parties' assets.
301 Kan. at 250. Importantly, the district court's judgment included an order that the legal
father pay a sum representing the minor child's unreimbursed medical expenses. On
reconsideration, however, the district court decided to leave the issue of the appropriate
division of unreimbursed medical expenses unresolved. Similar to the present case, the
journal entry in Kaelter anticipated future proceedings (including discovery) in the
district court regarding the unreimbursed medical expenses. At the time of oral arguments
in Kaelter, this issue still remained undetermined. The legal father appealed to our court
from the district court's rulings in the paternity case. Our court affirmed.

Upon the granting of a petition for review, our Supreme Court dismissed the
appeal. It held the Court of Appeals did not have appellate jurisdiction to review and
affirm the district court. In particular, our court lacked jurisdiction in Kaelter because
11

"the district court did not enter a final decision, having left unresolved the unreimbursed
medical expenses issue." 301 Kan. at 250.

Our court has also considered the propriety of appellate jurisdiction in a paternity
case in Chippeaux. In that case, the Department of Social and Rehabilitation Services
(SRS) brought an action for support of a minor child against Chippeaux, who had signed
an acknowledgement of paternity. After Chippeaux denied paternity, a pretrial order was
prepared which identified various issues of fact and law such as paternity, custody,
parenting time, child support, reimbursement of birth expenses, and cash assistance.

The district court determined that Chippeaux was the legal father and he could not
challenge his acknowledgment of paternity through genetic testing. There remained,
however, a dispute regarding the calculation of child support. In an attempt to facilitate
an immediate appeal to our court, the district court filed an order which stated:

"'There remains a dispute regarding the amount, duration and calculation of the child
support amount . . . and these issues have not been heard by the Court and remain in
dispute. Pursuant to K.S.A. 60-254(b) the court directs the entry of final judgment . . . on
the issues determined by this Court today, specifically that [Chippeaux] is the legal father
of the child. The Court determines that there is no just reason for delay on entry of final
judgment on that issue, and expressly directs that this Order be a final judgment as to that
issue.'" 2008 WL 2510580, at *2.

Our court issued a show cause order pointing out that certification under K.S.A.
60-254(b) "'cannot render a judgment final which is not actually a final judgment.'" 2008
WL 2510580, at *2. In his response, Chippeaux acknowledged there were still issues
before the district court but argued, "[a]ll of these issues are contingent upon whether
Chippeaux is even the father of this child. If Chippeaux is not the father, then none of the
above issues, including child support, are relevant.'" 2008 WL 2510580, at *2.
12

Our court rejected the district court's 60-254(b) finding, stating that 60-254(b) only
applies to claims for relief. Notably, SRS did not plead Chippeaux' paternity as a claim
for relief in that case. The only relief SRS sought was reimbursement for child support.
See 2008 WL 2510580, at *3. Of course, in the present case, there was not even a finding
by the district court of a final judgment under 60-254(b). But Chippeaux is still relevant
for its reiteration of the long-standing principle that "'piecemeal appeals are undesirable.'"
2008 WL 2510580, at *4.

We acknowledge Vandeloecht's argument that our court in In re Adoption of
A.A.T., 42 Kan. App. 2d 1, 6, 210 P.3d 640 (2006), determined that it had jurisdiction in a
Chapter 59 action to set aside an adoption over a district court's ruling that a best interests
of the child hearing was not a prerequisite to a paternity test. The court in In re Adoption
of A.A.T. declined to dismiss the appeal, in relevant part because:

"Ross suggested that the issue of paternity determination is to be treated differently. . . .
[T]he court observed that once a paternity test is conducted, the results cannot be undone,
i.e., the bell cannot be unrung. The opinion certainly intimates that the Supreme Court
would hear an interim appeal on that issue." 42 Kan. App. 2d at 6.

The facts in the present case differ from those in In re Adoption of A.A.T., where
the district court found that a Ross hearing was not required before a genetic test could be
performed. Here, there is no impending genetic testing to be performed and the action
evidencing paternity—the agreed journal entry of paternity—has already taken place.
Like the denial of paternity testing in Chippeaux, the district court's denial of
Vandeloecht's motions to set aside the agreed journal entry of paternity was a refusal to
change the status quo. In other words, there is no bell about to be rung which cannot be
unrung.

13

Vandeloecht also asserts that matters related to child custody and child support
may be modified until the child reaches 18 years of age. See 2 Elrod, Kansas Law and
Practice: Kansas Family Law § 12:32 (2017-2018 ed.) ("Matters relating to child custody
and child support may be modified throughout the child's minority according to the
child's 'best interests.'"). However, what precludes our court's jurisdiction in this case is
that no determination of child custody and child support has been made, not that such a
determination, when made, may be modified during the child's minority.

For his part, Bennett argues that even if the district court's orders were not
reviewable as a final decision under K.S.A. 2017 Supp. 60-2102(a)(4), they may be
reviewable under the collateral order doctrine. The collateral order doctrine is a narrow
exception to the final decision requirement for appellate jurisdiction. Harsch v. Miller,
288 Kan. 280, 290, 200 P.3d 467 (2009). Our Supreme Court has instructed that the
collateral order doctrine is to be used sparingly. In re T.S.W., 294 Kan. 423, 434, 276
P.3d 133 (2012).

An order may be collaterally appealable only if it "(1) conclusively determines the
disputed question, (2) resolves an important issue completely separate from the merits of
the action, and (3) is effectively unreviewable on appeal from a final judgment." 294
Kan. at 434. In this case, the denial of Vandeloecht's motion to set aside the journal entry
of paternity and motion to alter or amend conclusively determined that the journal entry
of paternity would remain the order of the court and Biehl would be named the legal
father of the child.

As to the second factor of the collateral order doctrine, however, the district court's
orders refusing to set aside the journal entry of paternity do not resolve an issue
completely separate from the merits of the action. To demonstrate that the issue is
separate from the merits of the action, it must be shown that the issues to be reviewed
have no bearing on the merits of the cause of action. See Mitchell v. Forsyth, 472 U.S.
14

511, 527-28, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (a claim for immunity for official
conduct is separate from the merits of whether a plaintiff's rights have been violated);
Flanagan v. United States, 465 U.S. 259, 266, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984)
(issue of double jeopardy is immediately appealable because it has no bearing on the
merits of the cause of action, but instead is a distinct and separate issue). In this case, the
order establishing paternity is not separate from or has no bearing on the merits of which
parent will obtain legal custody, residential custody, parenting time, and child support.

Moreover, the third factor of the doctrine does not apply. Bennett argues "[i]f the
parties were required to wait until issues of custody and support were resolved, the
identity of the legal father would be effectively unreviewable, as custody and support
issues remain modifiable until a child reaches the age of majority." However, Bennett
fails to address how the issue of paternity is effectively unreviewable on appeal from a
final judgment on an initial award of custody and support. See Hendricks, 52 Kan. App.
2d at 740 (an order resolving all pending claims is a final and "appealable judgment even
though the court necessarily retains jurisdiction to enter orders of modification related to
any children"). We are persuaded that the collateral order doctrine does not apply to
impart appellate jurisdiction.

In sum, the district court's order was not a final decision, neither party has applied
for an interlocutory appeal, the district court did not certify the entry of judgment under
K.S.A. 2017 Supp. 60-254(b), and the collateral order doctrine does not apply.
Accordingly, we dismiss the appeal for lack of appellate jurisdiction.

Finally, with regard to the district court's award of attorney fees to counsel for
Biehl and Bennett which has been appealed, applying the same reasons as discussed
earlier, we dismiss the appeal for lack of appellate jurisdiction. Additionally, the motions
for appellate attorney fees filed by Bennett, Biehl, and Vandeloecht are considered and
similarly denied for lack of jurisdiction.
15

Appeal dismissed.