Kerry G. v. Stacy C.
| Decision Date | 05 January 2018 |
| Docket Number | No. 117,070,117,070 |
| Parties | KERRY G., Appellee, v. STACY C., Appellant. |
| Court | Kansas Court of Appeals |
Mary A. McDonald, of McDonald Law LLC, of Newton, for appellant.
No appearance by appellee.
Before Arnold–Burger, C.J., Leben and Powell, JJ.
Upon motion of a plaintiff, a district court may extend a protection from abuse (PFA) order for one year. K.S.A. 2016 Supp. 60-3107(e)(1). The issue presented in this case is determining what process is due to a defendant when a plaintiff files a request for the statutorily allowed extension of the PFA order. Here, the district court granted Kerry's request for a one-year extension of a PFA order against Stacy without making any factual findings, and without giving Stacy notice or a hearing. Stacy appeals contending: (1) the district court violated his due process rights by not giving him notice or an opportunity to be heard before extending the PFA order; (2) K.S.A. 2016 Supp. 60-3107(e)(1) is void for vagueness; and (3) the district court abused its discretion in extending the PFA order.
Because we find that the district court violated Stacy's statutory right to notice and an opportunity to be heard before issuing the order extending the PFA order for one year, we reverse the district court's order and vacate it.
Kerry and Stacy were in a dating relationship. After a series of incidents in which Kerry alleged that Stacy engaged in nonconsensual sexual contact with her, she reported him to the police. Police filed charges against Stacy in March 2015. In July 2015, Kerry filed a petition for a PFA order against Stacy. Kerry asserted that Stacy attempted to directly or indirectly contact her after charges were brought against him. These attempts included contacting Kerry's friends, following her to her house at 12:30 in the morning, parking in front of her place of employment, and standing at the back door of her place of employment. The district court granted Kerry a temporary PFA order and scheduled a hearing on the issue.
Following the hearing, the district court entered a final PFA order. The order was to be in effect until October 13, 2016. The order stated that Stacy appealed the order, and the order was upheld on appeal. Kerry G. v. Stacy C. , 53 Kan. App. 2d 218, 386 P.3d 921 (2016).
In August 2016, Kerry filed a motion to extend the final PFA order for one additional year pursuant to K.S.A. 2016 Supp. 60-3107(e)(1). The district court granted the order. The order reflects that the court did not set the matter for a hearing, but that both parties and their attorneys made appearances. The order was served on Stacy on October 28, 2016.
Stacy filed a motion to set aside and dismiss the PFA extension order for failure to comply with Kansas statutes or constitutional due process protections. He averred that he never received notice of the motion to extend the PFA order and that he did not become aware of it until the extension order was served on him. He argued that the order, which showed that both parties and their attorneys were present when the district court ordered the extension, was incorrect because he and his attorney were not present. Stacy argued that this violated his due process rights because he was not given notice or an opportunity to be heard on the issue. He also noted that Kerry did not provide a factual basis for extending the motion. The district court scheduled a hearing for the motion.
Following the hearing, the district court denied Stacy's motion. The court held that Stacy was not entitled to notice of the motion to extend the PFA order, nor was he entitled to a hearing before the PFA order was extended. The court also held that Kerry did not have a duty to allege specific facts that would support her motion to extend. The court added that it routinely granted one-year extensions to PFA orders without notice to the defendant or a hearing. In conclusion, the district magistrate judge stated that it is in
Stacy appealed.
The appeal is not moot.
Before reaching Stacy's substantive arguments, this court must determine whether the issue on appeal is moot. A case is moot when the controversy between the parties has ended and any judgment of the court would be ineffective. State ex rel. Slusher v. City of Leavenworth , 285 Kan. 438, 454, 172 P.3d 1154 (2007). The PFA order expired on October 13, 2017. Therefore, this court cannot grant Stacy the relief that he requests—because the extension period has already expired. Stacy does not address this issue in his brief, and Kerry did not file a brief.
As a general rule, Kansas appellate courts do not decide moot questions or render advisory opinions. Skillett v. Sierra , 30 Kan. App. 2d 1041, 1046, 53 P.3d 1234 (2002). However, there are exceptions to the general rule. 30 Kan. App. 2d at 1046, 53 P.3d 1234. A court will consider a moot issue if it "involve[s] vital rights to the parties." 30 Kan. App. 2d at 1046, 53 P.3d 1234. Another exception arises "if the issue is ‘one capable of repetition and one of public importance.’ " 30 Kan. App. 2d at 1048, 53 P.3d 1234 (quoting Board of Johnson County Comm'rs v. Duffy , 259 Kan. 500, 504, 912 P.2d 716 [1996] ). This court exercises unlimited review over issues of mootness. State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012).
Because Stacy does not address mootness, he does not show how consideration of this appeal is vital to his personal rights. However, we find that the second exception applies here. The district court's order states that the court "routinely grants orders extending Protection from Abuse Orders an additional year, without prior notice of the motion to the Defendant/Respondent and without allowing for request of hearings from Defendant[s]/Respondents against whom Protection from Abuse extensions of an additional year are ordered." This shows that the issue is capable of repetition. And if, as Stacy argues, the procedures used by the district court violate due process or the statute is void for vagueness, then the issue is one of public importance. See Smith v. Martens , 279 Kan. 242, 245, 106 P.3d 28 (2005) (). Accordingly, we will consider Stacy's appeal, even though we cannot grant him the specific relief he requests.
We examine the statutes governing PFA orders in Kansas.
To begin, it is important to outline the statutes as they relate to the facts of this case to fully understand Stacy's arguments. We pause to note that neither Kerry nor the Attorney General filed any briefs in this case, so we do not have the benefit of their positions on Stacy's appeal or the constitutionality of the statute.
An intimate partner or household member may seek a PFA order by filing a verified petition with the court alleging abuse by another intimate partner or household member. K.S.A. 2016 Supp. 60-3104(a). A verified petition is one that is signed attesting to the truthfulness of the allegations contained in the pleading. See K.S.A. 53-601. Once filed, the petition must be personally served on the defendant. K.S.A. 2016 Supp. 60-3104(d). Within 21 days, the court is required to hold a hearing at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence. This is a full evidentiary hearing with notice to the parties, the presentation of witnesses, and the right to cross-examination. K.S.A. 2016 Supp. 60-3106(a). Unless later modified or dismissed by the court, once a PFA order is entered it is in effect for one year. K.S.A. 2016 Supp. 60-3107(e).
The Protection from Abuse Act provides two ways to extend a PFA order. "Upon motion of the plaintiff," a PFA order "may be extended for one additional year." K.S.A. 2016 Supp. 60-3107(e)(1). A court must extend a PFA order for at least an additional two years, and may extend it up to the lifetime of the defendant, if it finds that the defendant has violated a valid PFA order.
Before the court can make such a finding, the plaintiff must file a verified petition with the court. Just like the initial PFA petition, it must be personally served on the defendant and proven by a preponderance of the evidence after an evidentiary hearing. K.S.A. 2016 Supp. 60-3107(e)(2).
With this statutory context in mind we proceed to Stacy's claims of error.
The district court violated Stacy's statutory rights to notice and an opportunity to be heard.
Stacy's first argument is that the district court violated his due process rights under the Fourteenth Amendment to the United States Constitution () by granting the motion to extend the PFA order for an additional year without holding a hearing or providing him with notice of the motion.
Whether a person was afforded due process is an issue of law subject to unlimited review. See State v. Wilkinson , 269 Kan. 603, 608–09, 9 P.3d 1 (2000). "The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." 269 Kan. at 608, 9 P.3d 1.
We find that we need not address the constitutional claim asserted, because Stacy had a statutory right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner that mirrors his constitutional right to due process. Stacy's statutory rights were...
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