In re M.G.

• Docket Number: 126,253
• Decision Date: 15 December 2023
• Parties: In the Matter of M.G. and D.N.
• Court: Kansas Court of Appeals

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In the Matter of M.G. and D.N.

No. 126,253

Court of Appeals of Kansas

December 15, 2023

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM SEDGWICK DISTRICT COURT; CAROL BACON AND JAMES BEASLEY, JUDGES PRO TEM. SUBMITTED WITHOUT ORAL ARGUMENT.

Julia A. Leth-Perez, of O'Hara &O'Hara LLC, of Wichita, for appellant.

No appearance by appellee.

Before HILL, P.J., MALONE and ISHERWOOD, JJ.

MEMORANDUM OPINION

PER CURIAM

M.G. appeals the district court's one-year extension of a protection from abuse (PFA) order. She claims the district court erred by interpreting the word "shall" in K.S.A. 2022 Supp. 60-3107(e)(2) as being directory rather than mandatory. She argues that under a correct interpretation of the statute, the district court had to extend her PFA order for at least two years rather than one.

Under Kansas Supreme Court precedent, "shall" is mandatory when (1) legislative context and history conveys it as such, (2) the statute substantively affects a party's rights, (3) consequences exist for noncompliance, and (4) the subject matter of the statutory provision is serious. These factors support a finding that the word "shall" in K.S.A. 2022 Supp. 60-3107(e)(2) is mandatory rather than directory. Thus, we reverse the district

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court's one-year extension order and remand with directions for the district court to extend M.G.'s PFA order consistent with the statute's language.

FACTS

In early August 2021, M.G. petitioned for a PFA order against D.N., alleging he abused her. At that time, the parties were in a dating relationship. They also were residing in the same residence and had children in common, though D.N.'s paternity of the children had not been established. The district court issued a temporary order, and on August 26, 2021, it issued a final PFA order by consent effective until August 26, 2022.

In December 2021, M.G. alleged in an affidavit of contempt that D.N. had violated the PFA order by communicating with her and sending her gifts. On January 13, 2022, the district court held a hearing on the matter in which only M.G. appeared. Because D.N. failed to appear at the hearing, the district court entered default judgment against him and found he violated the PFA order "by sending text messages &flowers" to M.G. Likewise, it extended the PFA order for another year, this time set to expire on January 13, 2023.

On January 11, 2023, M.G. filed a verified motion to extend the final PFA order. She noted that D.N. had violated the order several times and that she had reported these violations to the Wichita Police Department. Based on these violations, M.G. asserted that under K.S.A. 2022 Supp. 60-3107(e)(2) the district court had to extend the PFA order for at least two more years and could extend the order up to D.N.'s lifetime. M.G. requested the district court to "extend the protective order in this case to the lifetime of Defendant under K.S.A. 2022 Supp. 60-3107(e)(2)." D.N. was personally served with the motion the next day.

On January 19, 2023, the district court held a hearing on M.G.'s motion, presided over by the Honorable Carol Bacon, pro tem judge of the 18th judicial district. At the

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beginning of the hearing, the district court acknowledged M.G.'s request to extend the PFA order for D.N.'s lifetime. M.G. and D.N. both testified about the alleged violations of the order, and D.N. also called his sister as a witness. After hearing the evidence, the district court made no findings or ruling from the bench. Instead, the judge announced the court was taking the case under advisement and would notify the parties of the ruling.

The case was continued on the district court's PFA docket three times with notations that the court's decision was "under advisement." Then, on March 9, 2023, the district court filed a written order extending the PFA order for one additional year, effective until January 13, 2024. The order, signed by a different judge, states that the extension was based on "the findings of Judge Carol Bacon at the hearing held on January 19[,] 2023." Neither party filed any motion for reconsideration or modification. The next day, M.G. filed a notice of appeal from the district court's order.

DID THE DISTRICT COURT ERR IN INTERPRETING K.S.A. 2022 SUPP. 60-3107?

On appeal, M.G. claims the district court erred by extending her final PFA order for only one year. More specifically, she argues that the district court erred by interpreting the word "shall" in K.S.A. 2022 Supp. 60-3107(e)(2) as being directory rather than mandatory. She argues that under a correct interpretation of the statute, the district court had to extend her final PFA order for at least two years rather than one. M.G. asks that we remand the case for the district court to extend her final PFA order consistent with the language in the statute. D.N. has failed to file a brief on appeal.

Resolution of M.G.'s claim requires this court to interpret and apply K.S.A. 2022 Supp. 60-3107. Appellate courts exercise plenary review of statutory meaning. Hanson v. Kansas Corp. Comm'n, 313 Kan. 752, 762, 490 P.3d 1216 (2021).

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The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. John Doe v. M.J., 315 Kan. 310, 320, 508 P.3d 368 (2022). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 315 Kan. at 320. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Schmidt v. Trademark, Inc., 315 Kan. 196, 200, 506 P.3d 267 (2022). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. Chalmers v. Burrough, 314 Kan. 1, 8, 494 P.3d 128 (2021).

To resolve the issue at hand, we must examine the word "shall" in K.S.A. 2022 Supp. 60-3107(e)(2). K.S.A. 2022 Supp. 60-3107(e) states the following:

"(e) Subject to the provisions of subsections (b), (c) and (d), a protective order or approved consent agreement shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year, except as provided in subsection (e)(1) and

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