In re Marriage of Riggs and Hem
| Decision Date | 17 February 2006 |
| Docket Number | No. 93,734.,93,734. |
| Citation | 129 P.3d 601 |
| Parties | In the Matter of the MARRIAGE OF Julianne RIGGS (Previously Hem), Appellant, and Lars HEM, Appellant, Charlie Riggs, Intervenor/Appellee. |
| Court | Kansas Court of Appeals |
Christopher T. Wilson, of Hill, Beam-Ward, Kruse, & Wilson, LLC, of Overland Park, for appellant Julianne Hem.
Scott E. Wasserman and Trina A. Nudson, of Lenexa, for appellant Lars Hem.
David K. Martin, of Payne & Jones, Chartered, of Overland Park, for appellee/intervenor Charlie Riggs.
Before GREEN, P.J., McANANY, J., and BRAZIL, S.J.
This appeal presents the situation of a child caught between three warring former marriage partners. The ultimate issue here is whether the district court erred in ordering stepparent visitation with B., now 8 years of age. Finding the district court's decision error free in every respect, we affirm.
Julianne (Julie) Riggs and Lars Hem, the natural parents of B., were married on January 19, 1996. B. was born on November 22, 1997. Within weeks following B.'s birth, Julie filed for divorce from Lars. She then began living with Charlie Riggs in January 1998, when B. was about 2 months old. Julie's divorce from Lars was effective the following summer on June 4, 1998.
From the outset Julie told B. that Charlie was her father, and B. called Charlie "daddy." Lars had only sporadic contact with B. for the first 6 ½ years of her life. At various times, Julie asked Lars about giving up his parental rights so Charlie could adopt B., but Lars never agreed to do so.
On October 26, 1998, K. was born to Julie and Charlie. K. and B. developed a close sibling relationship. Julie and Charlie were finally married on October 5, 2002. The following year, on August 27, 2003, Julie obtained a decree, with Lars' consent, to change B.'s name from Hem to Riggs, the name of her new husband.
Julie's second marriage was also short-lived. On April 1, 2004, Julie filed for divorce. It was at this time that she told B. for the first time that Charlie was not her father.
On May 11, 2004, Charlie filed a motion to intervene in the original divorce action between Julie and Lars in order to assert a claim for stepparent visitation with B. Three days later, Julie obtained a decree changing B.'s name from Riggs back to Hem.
On June 28, 2004, the district court granted Charlie's motion for temporary stepparenting time, to begin 2 days later. B., who was obviously confused and angry upon learning the person she had always known as her father was not her father, expressed the desire not to see Charlie any further, and Charlie's last visit with her was on September 22, 2004.
Julie's divorce from Charlie was granted on September 29, 2004. Two days later Lars moved to suspend Charlie's visitation time with B. Julie filed a parallel motion. At the hearing on these motions, Dr. Christine Hillila testified to the strong, loving relationship between B. and Charlie that developed over the years. B.'s guardian ad litem, attorney Frank Gilman; her therapist, Dr. LeCluyse; and Dr. Schmidt, appointed by the court to conduct an evaluation, all agreed that it was in B.'s best interest that she have continued contact with Charlie. The district court denied the motions to terminate stepparent visitation and this appeal followed.
Julie and Lars argue that the court erred in granting Charlie visitation since he is no longer B.'s stepparent, that relationship having ended when Julie divorced him. They reach this conclusion by examining K.S.A. 60-1616(b), which provides that "[g]randparents and stepparents may be granted visitation rights," but makes no reference to former stepparents. In further support of their position, they contend that since K.S.A. 59-2112, which relates to stepparent adoptions, refers to adoption by the spouse of a parent, when one is no longer the spouse of a parent one is no longer a stepparent. They also cite other statutes that refer to a former spouse or former parent, and reason from this that the absence of the word "former" in referring to stepparents means Charlie is not covered by the statute providing for stepparent visitation.
We exercise unlimited review in questions of law, such as the interpretation of statutes. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). In doing so, we construe statutes to avoid unreasonable results, and presume that the legislature did not intend to enact meaningless legislation. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). We examine the various provisions of an enactment in order to bring them into workable harmony if possible. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003).
K.S.A. 59-2112, the stepparent adoption statute which Julie and Lars rely upon, does not apply. It obviously refers to a stepparent adoption in the context of a current intact family. K.S.A. 60-1616 typically comes into play during the process, or the aftermath, of the breakup of a family. Further, K.S.A. 60-1616 contains no language that limits its application only to temporary visitation orders pending the granting of the divorce. It clearly applies to orders for visitation when or after a divorce has been granted. Its intent is obvious: to give stepparents and grandparents visitation rights under the appropriate circumstances, including while the divorce action is pending or thereafter. It does not limit the time when a motion may be brought. It specifically provides that "[t]he court may modify an order granting or denying parenting time or visitation rights whenever modification would serve the best interests of the child." K.S.A. 60-1616(c). Its purpose would be utterly frustrated if it applied only to temporary orders pending entry of the final decree of divorce.
Aside from instances of temporary orders for stepparent visitation pending a divorce, Lars and Julie suggest that the stepparent visitation statute was intended also to apply in situations such as when the parents of a child are divorced; one of the parents remarries, thereby bringing a stepparent into the equation; that parent leaves the country for an extended period, such as being deployed for military service in Iraq; and the stepparent must file a motion for visitation during the parent's absence to maintain contact with the stepchild. While this is one rather out-of-the-mainstream scenario in which the statute could be invoked, if the legislature intended its application to be so narrowly restricted, it certainly could have done so. A commonsense reading of the statute indicates otherwise.
Finally, Julie and Lars raise the familiar "floodgate" argument, citing the statistic of over 10,000 divorces in Kansas in 2002. While they cite no statistics on remarriage after a divorce, they suggest that those 10,000 Kansas divorces have the prospect of creating some lesser, but nonetheless impressive, number of stepparents. They argue that if K.S.A. 60-1616(b) includes former stepparents, "it will create a substantial policy dilemma for the state of Kansas." We doubt it. The statute does not mandate visitation for every stepparent. It simply allows them to seek visitation which the court may or may not grant as circumstances warrant. Doubtless, not every stepparent has enjoyed the close, natural-parent-like relationship from the child's birth that Charlie enjoyed with B. A commonsense reading of the statute supports its application under circumstances such as Charlie's. Charlie is a stepparent within the contemplation of K.S.A. 60-1616(b).
The Constitutionality of K.S.A. 60-1616(b)
Julie and Lars contend that the district court erred in finding K.S.A. 60-1616(b) was constitutional as ultimately construed. They argue that while the district court found K.S.A. 60-1616(b) was unconstitutional standing on its own, it erred when it construed the statute together with K.S.A. 38-129(a) to find it constitutional.
Julie and Lars contend that 60-1616(b), on its face, does not satisfy the due process requirements set out in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court examined a Washington visitation statute which allowed any person to petition for visitation rights at any time, and allowed state courts to grant visitation rights whenever it was in the best interest of the child, without any regard to the reasonable wishes of a fit custodial parent. The Troxel court found the statute was an unconstitutional infringement on a custodial parent's fundamental right to make decisions concerning the care, custody, and control of her children. The statute contradicted the traditional presumption that a fit parent will act in the best interests of his or her child, and failed to accord special weight to a fit parent's decision.
Unlike the Washington statute, K.S.A. 60-1616(b) provides visitation rights only to grandparents and stepparents. However, on its face it places no limitations on the district court's discretion to grant visitation rights to grandparents or stepparents. In Skov v. Wicker, 272 Kan. 240, 32 P.3d 1122 (2001), our Supreme Court resolved the constitutionality of K.S.A. 60-1616(b) in the context of grandparent visitation by reading 60-1616(b) together with K.S.A. 38-129(a). K.S.A. 38-129(a) deals with grandparent visitation in general terms. The court found 60-1616(b) was constitutionally infirm because it is overly broad, but that K.S.A. 38-129(a) clarifies the limits of a court's discretion in awarding visitation. When these two statutes are read together, the limitations of K.S.A. 38-129(a) are sufficient to constitutionally limit the breadth of K.S.A. 60-1616(b).
Neither K.S.A. 38-129(a) nor Skov deal with stepparent visitation rights. The district court applied K.S.A. 38-129(a) and the rationale of Skov to the stepparent provisions of K.S.A. 60-1616(b). The question for today is...
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In re C.T.G.
...such as stepparents, to seek custody or visitation with children with whom they have a close bond. See In re Marriage of Riggs, 35 Kan.App.2d 61, 64, 129 P.3d 601, 604 (2006)(relying on Kan. Stat. Ann. § 60-1616(b), which provides that grandparents and stepparents may be granted rights). As......