In re Guardianship of Sokol

• Decision Date: 25 July 2008
• Docket Number: No. 98,520.,98,520.
• Citation: 189 P.3d 526
• Parties: In the Matter of the GUARDIANSHIP OF Moshe SOKOL, Appellee.
• Court: Kansas Court of Appeals

189 P.3d 526

In the Matter of the GUARDIANSHIP OF Moshe SOKOL, Appellee.

No. 98,520.

Court of Appeals of Kansas.

July 25, 2008.

Robert Alan Sokol, appellant pro se.

Scott E. Wasserman and Kathryn S. Barker, of Scott Wasserman & Associates, LLC, of Lenexa, for appellee.

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

MALONE, J.

Robert Sokol appeals the district court's dismissal of his guardianship petition due to lack of subject matter jurisdiction. This appeal raises two questions. First, does this court possess jurisdiction over the appeal? Second, did the district court err in dismissing the guardianship petition due to lack of subject matter jurisdiction? We answer yes to both questions, and we remand the case to district court for further proceedings.

Following a divorce in 1995, Robert Sokol and Julie Bergmann engaged in lengthy, acrimonious custody disputes regarding the four children of the marriage. See In re Marriage of Bergmann and Sokol (Sokol I), No. 80,476, 975 P.2d 280, unpublished opinion filed December 24, 1998, slip op. at 2; In re Marriage of Bergman and Sokol (Sokol II), No. 91,975, 2005 WL 697449, unpublished opinion filed March 25, 2005, slip op. at 2. In 1998, Julie, who possessed primary residential custody of the children, received permission of the district court to move to New York with the children. Sokol II, slip op. at 2. In March 2003, the district court modified the custody order, awarding Robert primary residential custody of the three younger children. The oldest of the three minor children returned to Kansas in July 2003, but Julie attempted to block the custody determination in the New York courts. Sokol II, slip op. at 2-3. Robert ultimately obtained custody of the two younger children, one of whom, Moshe Sokol, is the proposed ward in this case.

Moshe was born on September 4, 1988, with spina bifida. He is paralyzed in the lower half of his body and is confined to a wheelchair. Because of his paralysis, Moshe possesses no bladder control, requiring frequent catheterization and the use of diapers. Nevertheless, Moshe successfully attended high school. During an emancipation proceeding in February 2006, the district court concluded that Moshe possessed the intellect and maturity of an average 17-year-old. At the hearing on the emancipation petition, which was ultimately denied, Moshe specifically expressed his desire to attend Mesivta High School in New York.

On August 28, 2006, about a week before Moshe turned 18, Robert filed a petition to be appointed Moshe's guardian in the probate division of the Johnson County District Court. Moshe received notice of the petition, and he subsequently filed an answer through counsel. Robert later amended the petition to allege that Moshe was an impaired adult pursuant to K.S.A. 59-3058. The original petition requested the district court to issue several preliminary orders, including an order that Moshe not be removed from Kansas, which the district court granted.

On August 31, 2006, the district court held a hearing on an order to show cause why the preliminary orders should not be vacated. Robert, Julie, and Moshe appeared personally and were represented by counsel. After hearing statements of counsel, the district court vacated its preliminary orders, noting that Division 12 of the district court possessed continuing jurisdiction over Moshe's custody determination. On the same day, Julie obtained a modification of the custody order, granting her physical custody of Moshe in order to assist him in his move to New York in preparation for school.

On September 3, 2006, with the petition for guardianship pending, Moshe left Kansas to attend school in New York. Subsequently, Moshe filed a motion to dismiss the guardianship petition or, in the alternative, a motion for summary judgment. The motion claimed the district court lacked subject matter jurisdiction over the guardianship proceeding because Moshe resided in New York with the intent to remain there indefinitely.

On October 4, 2006, the district court held a hearing on the motion to dismiss the guardianship petition. By then, Moshe was 18 years old. Moshe did not attend the hearing in person but was represented by counsel. Robert and Julie provided the only testimony at the hearing. After hearing the evidence, the district court dismissed the guardianship petition for lack of subject matter jurisdiction, concluding that Moshe, as an adult, had chosen to reside in New York. The district court's journal entry was filed on November 1, 2006.

On November 16, 2006, Robert filed a motion to alter or amend the judgment. The district court held a hearing and denied the motion in a journal entry filed on February 15, 2007. Robert filed a notice of appeal on April 2, 2007.

After the appeal was filed, this court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction, due to the untimely notice of appeal. Robert responded that this court should retain the appeal because he did not receive a signed copy of the February 15, 2007, journal entry denying his motion to alter or amend the judgment, until March 29, 2007. Julie responded to the show cause order and claimed the appeal was untimely because the final judgment in the guardianship case was entered on November 1, 2006. Julie argued that Robert's postjudgment motion did not toll the time for filing the appeal, because the probate code contains no provision for filing postjudgment motions and because the tolling effect of postjudgment motions contained in the code of civil procedure does not apply to a Chapter 59 judgment.

On June 7, 2007, this court issued an order retaining the appeal on present showing. The order stated: "The unique circumstances doctrine operates with respect to the appellant receiving notice of the February 15, 2007, journal entry." The order further directed the parties to brief the question of whether the tolling principles for filing postjudgment motions set forth in K.S.A. 60-2103(a) apply to postjudgment motions filed in a Chapter 59 proceeding. In response to the order, both parties addressed this issue in their briefs.

Does this court possess jurisdiction over the appeal?

Before considering the district court's decision to dismiss the guardianship petition, this court must address whether it possesses jurisdiction over the appeal. "The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative." In re A.F., 38 Kan.App.2d 742, 743, 172 P.3d 63 (2007). An appellate court possesses jurisdiction to entertain only those appeals that comply with the statutory requirements for jurisdiction. Interpretation of a statute is a question of law over which an appellate court has unlimited review. In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005).

This court has already ruled that Robert's failure to file the notice of appeal within 30 days of the journal entry denying his motion to alter or amend the judgment is excused under the unique circumstances doctrine. We will not revisit that ruling. The only issue addressed in this opinion is whether the tolling principles for filing postjudgment motions provided under the Chapter 60 rules of civil procedure apply to postjudgment motions filed in a Chapter 59 guardianship proceeding.

Pursuant to K.S.A. 2007 Supp. 59-2401a(b)(5), an appeal of the final order of the district court in a guardianship proceeding is governed by Article 21 of Chapter 60 of the Kansas Statutes Annotated. In pertinent part, K.S.A. 60-2103(a) provides:

"When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of judgment. . . . The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250, and amendments thereto; or granting or denying a motion under subsection (b) of K.S.A. 60-252, and amendments thereto, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and amendments thereto."

Moshe acknowledges that K.S.A. 60-2103(a) governs the time limitation for filing an appeal from a final guardianship order, which is 30 days from the entry of judgment. However, Moshe argues that the remaining provisions of K.S.A. 60-2103(a) do not apply to a Chapter 59 proceeding. Moshe claims that postjudgment motions in a Chapter 59 proceeding are governed exclusively by K.S.A. 59-2213. Because this statute does not contain a tolling provision for filing postjudgment motions, as is contained in K.S.A. 60-2103(a), Moshe contends that Robert's motion to alter or amend the district court's November 1, 2006, judgment did not toll the deadline for filing an appeal from the judgment.

Moshe's statutory construction is unpersuasive. If the Kansas Legislature had only intended to apply the 30-day appeal time to guardianship proceedings and no other aspect of the appeal procedures of Chapter 60, the legislature could have simply imposed a 30-day time limitation in K.S.A. 2007 Supp. 59-2401a(b) without referring to Article 21 of Chapter 60. It makes no sense for a Chapter 59 proceeding to incorporate the first sentence of K.S.A. 60-2103(a), but not the remaining provisions of the same statute. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained....