Schwarz v. Schwarz
| Decision Date | 18 March 2022 |
| Docket Number | 123,444 |
| Citation | 62 Kan.App.2d 103,506 P.3d 950 |
| Parties | Jennifer K. SCHWARZ, Appellee, v. Julie A. SCHWARZ, Appellant. |
| Court | Kansas Court of Appeals |
Ronald W. Nelson, of Ronald W. Nelson, PA, of Overland Park, for appellant.
Stephanie Goodenow, of Goodenow Law, LLC, of Lenexa, and Dennis Stanchik, guardian ad litem, of Olathe, for appellee.
Before Cline, P.J., Green, J., and Patrick D. McAnany, S.J.
In this appeal the mother (Mother) of two minor boys challenges the district court's order giving her sons’ paternal grandmother (Grandmother) visitation rights under K.S.A. 2018 Supp. 23-3301. We first address the issue of jurisdiction and determine that the district court had jurisdiction to consider Grandmother's petition, and this court has jurisdiction to consider Mother's appeal. Next, we determine that the district court did not err in granting Grandmother visitation with her grandchildren. Finally, we decline to assess Mother's attorney fees and costs on appeal against Grandmother.
Mother and the boys’ father (Father) were in the midst of a divorce action when Father suddenly died. Father's death obviously ended both the marriage and the pending divorce action. Thereafter, Mother began limiting contact between her sons and Grandmother. As a result, Grandmother filed this action in November 2018 for grandparent visitation rights under K.S.A. 2018 Supp. 23-3301. This statute allows a district court to grant visitation rights to grandparents upon finding "that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established." K.S.A. 2018 Supp. 23-3301(b). Grandmother contended that visitation was justified because of the strong bond she had formed with her grandsons before Father's death and it would be in her grandsons’ best interest to continue that relationship.
Following the hearing on Grandmother's petition, the district court noted that " K.S.A. 23-3301(c) applies because the children's father is deceased and Petitioner is the children's paternal grandmother." The court granted visitation to Grandmother, and Mother appeals, arguing that the district court violated her constitutional due process rights by infringing on her fundamental right as a parent to make decisions regarding the care, custody, and control of her children.
Before reaching the merits of Mother's appeal, we must address the issue of jurisdiction. If the district court lacked the jurisdiction to enter the order for grandparent visitation, we do not have jurisdiction to address Mother's claims and must reverse the district court's order. See In re Care & Treatment of Emerson , 306 Kan. 30, 39, 392 P.3d 82 (2017). Whether jurisdiction exists is a question of law over which our review is unlimited. 306 Kan. at 34, 392 P.3d 82.
Although Mother failed to raise the issue of jurisdiction before the district court, that did not invest the district court with subject matter jurisdiction. Goldman v. University of Kansas , 52 Kan. App. 2d 222, 225, 365 P.3d 435 (2015). On appeal, we have an independent duty to question subject matter jurisdiction. Wiechman v. Huddleston , 304 Kan. 80, 84-85, 370 P.3d 1194 (2016). Subject matter jurisdiction may be raised at any time, including for the first time on appeal on our own motion. Emerson , 306 Kan. at 33, 392 P.3d 82. In considering the jurisdiction question we must interpret the relevant statutes, which is an issue of law over which we have unlimited review. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019).
We recently issued a show cause order directing the parties to address the issue of subject matter jurisdiction, specifically directing the parties’ attention to contrary conclusions reached by this court about the correct interpretation of the grandparent visitation statute. The parties responded, and the matter is now ripe for our consideration.
The statute in question, K.S.A. 2018 Supp. 23-3301, provides as follows:
Article 27 of chapter 23 of our Kansas statutes, which is referred to in K.S.A. 2018 Supp. 23-3301, is the chapter of our revised Kansas Family Law Code entitled "Dissolution Of Marriage." Here, Mother and Father had been involved in a pending divorce action when Father died. Father's death in August 2018 ended the marriage and the divorce action. "A divorce action is purely personal and ends on the death of either spouse."
Wear v. Mizell , 263 Kan. 175, 180, 946 P.2d 1363 (1997). It was after Father's death that Grandmother initiated this action in November 2018 for grandparent visitation under K.S.A. 2018 Supp. 23-3301. The district court granted relief under K.S.A. 2018 Supp. 23-3301(c).
The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016). When interpreting a statute, we must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Nauheim , 309 Kan. at 149, 432 P.3d 647. When a statute is plain and unambiguous, we do not speculate about the legislative intent behind that clear language. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). But if the statute's language is unclear or ambiguous, we turn to the process of statutory construction and review the statute's legislative history to determine legislative intent. Nauheim , 309 Kan. at 150, 432 P.3d 647.
The conflicting analyses of different panels of our court on the issue of subject matter jurisdiction in a grandparent visitation case indicate an ambiguity in the statute that requires us to resort to statutory construction and the statute's legislative history in order to determine the legislature's intent in enacting this statute.
In T.N.Y. ex rel. Z.H. , 51 Kan. App. 2d 956, 962-63, 360 P.3d 433 (2015), a panel of our court considered a motion by grandparents seeking visitation with their grandchild in a pending paternity action. Grandparent visitation is not a right at common law. The right exists only to the extent it is created by statute. Thus, the court examined the history of the statutes addressing grandparent visitation over the years. The court concluded that subsection (a) of the current version of the visitation statute, K.S.A. 2014 Supp. 23-3301, clearly limited motions for grandparent visitation to pending dissolution of marriage actions.
The court found that the current version of K.S.A. 2014 Supp. 23-3301 was the result of recodification of prior statutes, which the legislature intended to reorganize and combine without making any substantive changes in the law. In spite of the clear legislative intent to the contrary, the T.N.Y. court declared that the enactment of K.S.A. 2014 Supp. 23-3301 in its current form did, in fact, affect a substantive change in the law by stripping away the authority of district courts "to grant grandparent visitation in paternity actions—a power that they held for more than 40 years in Kansas—while continuing to grant district courts the authority to allow grandparent visitation in dissolution of marriage actions." 51 Kan. App. 2d at 964, 360 P.3d 433. Thus, in response to the grandparents’ claim that limiting grandparent visitation to marriage dissolution actions unconstitutionally treated children of unmarried parents differently than children of married parents in violation of equal protection, the court struck the offending language in subsection (a) of K.S.A. 2014 Supp. 23-3301 which limited requests for grandparent visitation to pending marriage dissolution actions. 51 Kan. App. 2d at 968, 360 P.3d 433.
The following year our court took up Baker v. McCormick , 52 Kan. App. 2d 899, 380 P.3d 706 (2016). There, the grandparents sought visitation in a Protection from Abuse (PFA) case. The court found that the holding in T.N.Y. did not extend to PFA actions.
We need not dwell on the holding in Baker because of the unique circumstances of PFA actions. PFA actions do not lend themselves to dealing with issues of grandparent visitation. The Protection From Abuse Act, K.S.A. 60-3101 et seq., makes no mention of grandparent visitation and provides only for temporary custody orders, usually for a period up to one year with the option of a one-year extension. K.S.A. 2020 Supp. 60-3107. The rigid time schedule for PFA actions is incompatible with the time needed to hear and resolve a request for grandparent visitation.
More recently, in Frost v. Kansas Department for Children and Families , 59 Kan. App. 2d 404, 413, 483 P.3d 1058, rev. denied 313 Kan. 1040 (2021), the court considered K.S.A. 2019 Supp. 23-3301 in the context of an action for grandparent visitation independent of a pending child in need of care (CINC) case. The district court, relying on T.N.Y. , dismissed the action for lack of subject matter jurisdiction. On review,...
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