Baker v. McCormick
| Decision Date | 29 July 2016 |
| Docket Number | No. 114,756,114,756 |
| Citation | 52 Kan.App.2d 899,380 P.3d 706 |
| Parties | Linus L. Baker and Austin Banks, (Terri Baker, Rick Banks, and Brenda Banks), Appellants, v. Ryan McCormick, Appellee. |
| Court | Kansas Court of Appeals |
Linus L. Baker, Terri Baker, Austin Banks, Rick Banks, and Brenda Banks, appellants pro se.
No appearance by appellee.
Before Malone, C.J., Leben, J., and Johnson, S.J.
The Kansas Protection from Abuse Act allows individuals to request court orders to protect victims of domestic violence. These proceedings—called “PFA” (Protection from Abuse) cases by judges and lawyers—must be heard quickly: a Kansas court can issue temporary orders for a limited time period but must hear the case within 21 days of filing unless the court approves a delay. Sadly, but also importantly, PFA cases are heard every day in the courts of Kansas.
The case now before us presents two legal questions that are specific to PFA cases. First, the Protection from Abuse Act allows either a parent or “an adult residing with a minor child” to seek protection orders on behalf of that child. K.S.A. 2015 Supp. 60–3104(b)
. In our case, a grandparent filed an action on behalf of two children while the children and their mother were living with the grandparent—but the mother disagreed with the filing and then moved out, taking the children with her. We must decide whether “an adult residing with a minor child” at the time of the filing can continue the action even if the child moves out of the adult's home before the hearing is held. Second, after the mother and children moved out—but before the PFA hearing—the grandparent brought a motion asking the court to order grandparent-visitation rights. Nothing in the Protection from Abuse Act talks about grandparent visitation; we must decide whether such rights may be awarded in a PFA case.
We approach these questions with two important contextual guides. First, the Protection from Abuse Act tells us that its provisions “shall be liberally construed to promote the protection of victims of domestic violence ... and to facilitate access to judicial protection for the victims.” K.S.A. 60–3101(b)
. Second, each PFA case comes to the court with its own unique factual setting. We will summarize the factual setting of this case in the next section of our opinion.
The people whose rights are at the center of these proceedings are Charlie Banks, a 3–year–old girl at the time the PFA case was filed, and Sylas McCormick, then a 10–month–old boy. They are the children of Maggie McCormick and the grandchildren of Maggie's parents, Linus and Terri Baker. Also important to this story are the fathers of the two children, Austin Banks and Ryan McCormick, and the paternal grandparents of Charlie, Rick and Brenda Banks.
The PFA action now before us on appeal was filed on September 24, 2015, by Linus Baker and Austin Banks, as plaintiffs, against Ryan McCormick, the defendant. Linus and Austin filed a joint petition on behalf of Charlie and Sylas, alleging that Ryan had physically and verbally abused Maggie and had placed the children in fear of imminent bodily injury; as a result, Linus and Austin asked that orders of protection be entered against Ryan and to protect Charlie and Sylas.
Within days of the filing of the action, Maggie and her children moved out of her parents' home and went to live with Maggie's sister. In addition, before a hearing was held, Linus and Terri Baker filed a motion asking that the court provide specific times for them, as grandparents, to visit with Charlie and Sylas. Rick and Brenda Banks filed a similar motion for visitation with Charlie.
The court held an evidentiary hearing on the petition on November 5, 2015. (The hearing took place more than 21 days after filing, apparently to allow additional time for the sheriff's office in Wyandotte County to locate and serve Ryan McCormick with the petition and notice of the hearing.) Ryan McCormick filed a written answer but did not attend the hearing; Linus Baker presented his own testimony along with testimony from Terri Baker, Maggie, and Austin.
The evidence demonstrated that Ryan had committed significant acts of abuse against Maggie, often with one or both children present. Photos admitted into evidence showed Maggie bloodied and bruised. One set of events took place on August 20, 2015, when Maggie tried to keep Ryan from driving while intoxicated. He pushed Maggie to the ground, causing a nosebleed. Ryan later pushed Maggie hard into a mirror, leaving the mirror broken and Maggie bleeding. (Austin testified that Charlie had told him about the mirror incident.) Ryan then threatened to kill himself while holding a knife to his stomach; Maggie said Charlie had heard these confrontations from another room. Maggie and her parents testified to many other incidents of abuse. On one occasion, Ryan pushed Maggie to the ground while she was holding Sylas, who bumped his head.
The evidence also showed that Maggie had left and then returned to Ryan more than once. After the August 20, 2015, incident, Maggie filed a petition for divorce and a PFA action, but she dismissed both in mid-September. It was after she dismissed those actions that Linus Baker and Austin Banks filed the PFA case now before us.
At the time this PFA case was filed, Maggie and her children were living with her parents. Maggie testified that she had moved out of her parents' house and gone to live with her sister on October 7, 2015; she said she had moved out because she had been mad at her parents for interfering in the situation by filing the PFA case. Terri testified that Maggie and the children had initially moved in with Linus and Terri after a December 2014 domestic-violence incident but that Maggie had moved back to live with Ryan in May 2015. She moved back to her parents' home after the violence on August 20, 2015, and stayed until October 7.
The district court separately considered the claims of plaintiff Linus Baker, of plaintiff Austin Banks, and of the grandparents for visitation. The court also noted that Maggie was not a plaintiff in the action, having dismissed her own PFA case against Ryan.
As to Linus, the court apparently misunderstood part of the evidence about when Maggie and the children had lived with her parents. The court said that Maggie had disputed whether she lived with her parents at the time the petition was filed and cited testimony from Terri that Maggie had moved out in May 2015, well before Linus filed the PFA case in September. Based on that understanding of the testimony, the court said that Linus was not authorized to bring an action on behalf of the children because they did not reside with him as of the time the action was filed.
We can understand how the trial judge made this error. We have the benefit of a transcript; he heard the testimony once orally. At trial, Maggie said that one item in her written statement from September 2015—that Sylas lived with Linus and Terri—wasn't correct. But she was apparently indicating only that this was no longer true as of the November 5 hearing date. Maggie went on to agree in response to Linus' questions that she was residing with her parents in September 2015 because of Ryan's abuse, that she was residing there at the time Linus filed the PFA action, and that she moved out on October 7 because her parents had interfered in her affairs by filing the case. And while Terri did say that Maggie had moved out in May 2015 and returned to Ryan, she also said that the reconciliation “lasted maybe two months” before Maggie “came back for about two weeks” and then moved to her sister's house. The evidence is clear that Maggie, Charlie, and Sylas were living with Linus and Terri Baker when the PFA action was filed but that they moved out on October 7, before the hearing held November 5, 2015. We will discuss the legal effect of that move in the next section of our opinion.
As to Austin, the court ruled that he had not met his burden to prove that Ryan had abused Charlie, Austin's daughter. The court noted that Maggie had not sought a protection order. Based on the lack of evidence of abuse against Charlie, the court declined to enter any orders of protection.
As to the grandparent-visitation issue, the court determined that such a request was not appropriate within a PFA case, especially since the child's mother, Maggie, was not a party. The court noted that parents have a fundamental constitutional right to make decisions regarding the care and custody of their children.
Linus, Austin, and all the grandparents have appealed these decisions to our court. They have filed an appellate brief; Ryan, who filed an answer but did not attend the district court hearing, did not file an appellate brief.
Our court must address three issues in this appeal. We noted two legal issues involving the Protection from Abuse Act at the beginning of the opinion: First, while an adult residing with a child can bring a PFA petition, can the PFA claim continue if the child no longer resides with that adult when the claim is heard? Second, can grandparents bring a claim for grandparent-visitation rights in a PFA proceeding? The third issue on appeal presents no novel legal issue: Austin and Linus simply argue that the district court got it wrong when it held that they had failed to prove that Ryan had abused Charlie. We will look at each of these issues in that order.
Before we do that, we would note that the joint appellate brief filed by Linus and Austin mentions only Sylas in its discussion of the first issue (whether Linus could bring a PFA action on Sylas' behalf). Elsewhere, however, the brief notes that Linus and Austin jointly filed the petition and jointly sought a protection order for Charlie as well. We have treated both children the same in our discussion of the first issue because the petition, filed jointly by Linus and Austin, sought relief on behalf of...
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...pending marriage dissolution actions. 51 Kan. App. 2d at 968, 360 P.3d 433.The following year our court took up Baker v. McCormick , 52 Kan. App. 2d 899, 380 P.3d 706 (2016). There, the grandparents sought visitation in a Protection from Abuse (PFA) case. The court found that the holding in......
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