Frazier v. Goudschaal

Decision Date22 February 2013
Docket NumberNo. 103,487.,103,487.
Citation295 P.3d 542,296 Kan. 730
PartiesMarci FRAZIER, Appellee, v. Kelly GOUDSCHAAL, Appellant.
CourtKansas Supreme Court


Syllabus by the Court

1. Subject matter jurisdiction refers to the power of a court to hear and decide a particular type of action. Jurisdiction over subject matter is the power to decide the general question involved and not the exercise of that power.

2. The existence of jurisdiction and standing are both questions of law over which an appellate court's scope of review is unlimited.

3. In this state, a district court has the authority to make an equitable division of property that nonmarried cohabitants accumulated while living together, but only to the extent that such property was jointly accumulated by the parties or acquired by either with the intent that both should have an interest therein.

4. The jurisdiction of equity to grant specific performance of contracts, or to reform or cancel them in a proper case, is well settled.

5. A court may exercise its jurisdiction over a contractual dispute in order to evaluate the contract's legality. Contracts are presumed legal, and the burden rests on the party challenging the contract to prove it is illegal.

6. Under the Kansas Parentage Act (KPA), any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. K.S.A. 38–1126. A woman claiming to be a presumptive mother of a child is an interested party under the KPA.

7. The public policy in Kansas requires our courts to act in the best interests of the child when determining the legal obligations to be imposed and the rights to be conferred in a mother and child relationship. After a family unit fails to function, the interests of the children involved become a matter for the State's intrusion in order to avoid jeopardizing the children if a parent's claim for the children is based solely or predominantly on selfish motives.

8. The interpretation and legal effect of written instruments are matters of law, subject to unlimited appellate review without regard to the trial court's determination.

9. Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts that are lawful and that contravene none of its rules shall be enforced and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless it is injurious to the interests of the public or in contravention of some established interest of society. Illegality from the standpoint of public policy depends upon the facts and circumstances of a particular case, and it is the duty of courts to sustain the legality of contracts where possible. There is no presumption that a contract is illegal, and the burden of showing the wrong is upon the party who seeks to deny his or her contractual obligation. The presumption is in favor of innocence, and the taint of wrong is a matter of defense.

10. A parent may knowingly, intelligently, and voluntarily waive his or her rights under the Kansas parental preference doctrine.

11. A coparenting agreement is not automatically rendered unenforceable as violating public policy merely because it contains the biological mother's agreement to share the custody of her children with another, so long as the intent and effect of the arrangement will promote the welfare and best interests of the children.

12. Denying a child conceived by artificial insemination the opportunity to have two parents through a coparenting agreement does not comport with the constitutional mandate to provide substantive legal equality for all children regardless of the marital status of their parents.

13. Under the specific facts of this case, the coparenting agreement between the biological mother and her same-sex partner contained no element of immorality or illegality and did not violate public policy, but rather the contract was for the advantage and welfare of the children, rendering it enforceable by the district court to the extent it is in the best interests of the children.

T. Bradley Manson, of Manson & Karbank, of Overland Park, argued the cause, and Elizabeth Rogers Rebein and Kelli M. Broers, of the same firm, were with him on the briefs for appellant.

Dennis J. Stanchik, of Olathe, argued the cause and was on the brief for appellee.

Stephen Douglas Bonney, chief counsel and legal director, of ACLU of Kansas & Western Missouri, of Kansas City, Missouri, Rose A. Saxe, of Lesbian Gay Bisexual Transgender & AIDS Projects, of ACLU Foundation, of New York, New York, and Catherine Sakimura, of National Center for Lesbian Rights, of San Francisco, California, were on the brief for amici curiae American Civil Liberties Union, American Civil Liberties Union of Kansas and Western Missouri, and the National Center for Lesbian Rights.

Linda Henry Elrod, director, was on the brief for amicus curiae Washburn University School of Law Children and Family Law Center.

Stephanie Goodenow, of Law Office of Stephanie Goodenow, LLC, of Olathe, was on the brief for amicus curiae National Association of Social Workers.

The opinion of the court was delivered by JOHNSON, J.:

Kelly Goudschaal and Marci Frazier were committed to a long-time, same-sex relationship, during which they jointly decided to have two children via artificial insemination. In conjunction with the birth of each child, the couple executed a coparenting agreement that, among other provisions, addressed the contingency of a separation. A few months after the couple separated, Goudschaal notified Frazier that she was taking the children to Texas, prompting Frazier to file this action, seeking inter alia to enforce the coparenting agreement. The district court's final order divided all of the women's property, awarded the couple joint legal custody of the two children, designated Goudschaal as the residential custodian, established unsupervised parenting time for Frazier, and ordered Frazier to pay child support. Goudschaal appeals, questioning the district court's division of her individually owned property and challenging the district court's jurisdiction and authority to award joint custody and parenting time to an unrelated third person. We find that the district court had the legal authority to enter its orders, but we remand for further factual findings.

Factual and Procedural History
The Parties' Relationship

The relationship of Frazier and Goudschaal began in 1995. At some point, the couple decided to start a family, utilizing assisted reproductive technologies (ART) in the form of artificial insemination. Originally, the plan was for both women to become pregnant, so that they could share a child from each partner. But when Frazier was unable to conceive, they mutually agreed that Goudschaal would bear both children. In 2002, Goudschaal gave birth to their first daughter; their second daughter was born in 2004.

Before the birth of their first daughter, Frazier and Goudschaal signed a coparenting agreement. In 2004, the couple executed another coparenting agreement that made provisions for the second child. That agreement identified Frazier as a de facto parent and specified that her “relationship with the children should be protected and promoted”; that the parties intended “to jointly and equally share parental responsibility”; that each of the parties “shall pay the same percent of [child] support as her net income compares to [their] combined net incomes”; “that all major decisions affecting [the] children ... shall be made jointly by both parties; and that in the event of a separation “the person who has actual physical custody w[ould] take all steps necessary to maximize the other's visitation” with the children. In addition, both a consent for medical authorization and a durable power of attorney for health care decisions were executed. Further, each woman executed a last will and testament that named the other as the children's guardian.

Goudschaal, Frazier, and the two children lived together as a family unit. The adults jointly purchased a home, jointly owned personal property, and shared bank accounts. Although Frazier was primarily responsible for handling the couple's financial transactions, both parties contributed to the payment of bills and to the educational accounts for the children. For their part, the children used their legal surname of “Goudschaal–Frazier,” and, notwithstanding the absence of a biological connection, both children called Frazier Mother or “Mom.” The teachers and daycare providers with whom the family interacted treated both Frazier and Goudschaal as the girls' coequal parents.

At some point, the adults' relationship began to unravel, and by September 2007, Frazier and Goudschaal were staying in separate bedrooms. In January 2008, Goudschaal moved out of their home. For nearly half a year thereafter, the women continued to share parenting responsibilities and maintained equal parenting time with the girls. In July, however, Goudschaal began to decrease Frazier's contact with the girls, allowing her visitation only 1 day each week and every other weekend. Finally, in October 2008, Goudschaal informed Frazier that she had accepted a new job in Texas and intended to move there with both girls within a week. Frazier responded by seeking relief in the Johnson County District Court.

Proceedings in the District Court

Frazier first filed a petition to enforce the 2004 coparenting agreement. She also filed a separate petition for equitable partition of the couple's real and personal property. The first petition was later dismissed, and the petition for partition was amended to include the request to enforce the coparenting agreement. Goudschaal responded with a motion to dismiss, claiming that the district court lacked subject matter jurisdiction to address Frazier's requests for child custody or parenting time and arguing that the court...

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