K.F. v. A.F.
| Decision Date | 02 April 2021 |
| Docket Number | 060,123 |
| Court | Kansas Court of Appeals |
| Parties | K.F., Appellee, v. A.F., Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Leavenworth District Court; Thomas Dawson, judge pro tem.
Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellant.
Charles Joseph Osborn, of Osborn Law Office, LLC, of Leavenworth, for appellee.
Before Schroeder, P.J., Malone, J., and McAnany, S.J.
K.F sought a protection from stalking (PFS) order against her husband, A.F. After an evidentiary hearing, the district court entered the requested PFS order and denied A.F.'s later motion to set the order aside. A.F. appeals, arguing that there was insufficient evidence to support granting the order and that the district court erred by denying his motion to set it aside. For the reasons explained below, we hold that the expiration of the PFS order renders this appeal moot, and A.F. has not established that we should consider his arguments despite the appeal being moot. Accordingly, we dismiss.
K.F filed a petition for a PFS order against A.F. during the pendency of their divorce proceedings which began in May 2019. On September 9, 2019, the district court denied relief for failure to establish an essential element of the claim.
On September 13, 2019, K.F. filed a second petition seeking a PFS order against A.F. In her petition, K.F. described text messages purportedly sent to her by A.F. The district court issued an ex parte temporary PFS order and set the matter for an evidentiary hearing on September 30, 2019. The hearing was later rescheduling for October 21, 2019.
At the October 21, 2019 hearing, K.F. testified about various text messages she believed came from A.F. She claimed these messages caused her to fear for her safety. She told the judge that A.F. recently appeared at their son's daycare center to pick up their son on a day that A.F. did not have scheduled parenting time, but he left when he saw K.F. K.F testified that she feared that A.F. might hurt her or try to physically take their son.
After K.F.'s testimony, the district court denied A.F.'s motion to dismiss. A.F. then testified that the daycare incident had been a one-time miscommunication. He had believed it was his responsibility to pick up his son that day, and when he realized he was mistaken, he left. He denied sending the texts that K.F. claimed had caused her to be fearful. He contended that K.F. was seeking the PFS order in an attempt to affect his custody and parenting rights in their pending divorce proceedings.
After hearing the testimony, the court granted the petition and issued a PFS order. The order was effective until October 21, 2020, and "may be extended for additional periods of time upon motion of the plaintiff."
A.F. moved to set aside the PFS order, which the district court denied. This appeal followed.
On appeal, A.F. identifies eight issues, seven of which challenge the evidence supporting the district court's decision to grant the PFS order. But in his August 11, 2020 appellate brief, he recognized that the PFS order could expire before this court resolves his appeal, which could render the appeal moot. Nevertheless, he contends that even if the order expires as anticipated in October 2020 exceptions apply which justify this court considering his arguments on their merits.
K.S.A. 2020 Supp. 60-31a06(b), (c), and (d) mandate that a PFS order "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" unless the plaintiff files a motion to extend it.
K.F. filed her appellate brief on October 21, 2020-the date the PFS order was set to expire. Not surprisingly, as the beneficiary of the PFS order and the only party under the statute permitted to request an extension, she argues that "there is every likelihood that the Protective Order at issue here will have expired well before this Court has an opportunity to consider the matter now before it." If that happens, she argues, the appeal is moot and we should dismiss it.
A.F. has not filed a reply brief asserting that the PFS was extended, and he has not moved to supplement the record with an order extending the original PFS order. Accordingly, we have nothing before us to suggest that the status quo-the October 21, 2020 expiration of the PFS order-has been disturbed.
"A case is moot when the controversy between the parties has ended and any judgment of the court would be ineffective." Kerry G. v. Stacy C., 55 Kan.App.2d 246, 248, 411 P.3d 1227 (2018). Since there is no indication the PFS order was extended, A.F. is no longer subject to its restrictions, regardless of whether this court agrees with him that ...
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