Skillett v. Sierra, 88,063.

• Decision Date: 13 September 2002
• Docket Number: No. 88,063.,88,063.
• Citation: 53 P.3d 1234,30 Kan. App.2d 1041
• Parties: JILL SKILLETT, Appellee, v. RUBEN SIERRA, Appellant, and B.S., a Minor Child, by and through Her Mother and Next Friend, JILL SKILLETT, and JILL SKILLETT, individually, Appellees, v. RUBEN SIERRA, Appellant.
• Court: Kansas Court of Appeals

30 Kan. App.2d 1041

53 P.3d 1234

JILL SKILLETT, Appellee, v. RUBEN SIERRA, Appellant, and B.S., a Minor Child, by and through Her Mother and Next Friend, JILL SKILLETT, and JILL SKILLETT, individually, Appellees, v. RUBEN SIERRA, Appellant.

No. 88,063.

Court of Appeals of Kansas.

Opinion filed September 13, 2002.

Ronald W. Nelson, of Rose, Nelson & Booth, of Overland Park, for the appellant.

Donald R. Whitney, of Law Offices of Donald R. Whitney, Chartered, of Overland Park, for the appellees.

Before JOHNSON, P.J., LEWIS, J., and TOM MALONE, District Judge, assigned.

LEWIS, J.:

This is a domestic action which is complicated procedurally and contains issues appealed by both parties.

Ruben Sierra and Jill Skillett resided together and were the natural parents of B.S. Skillett had two other daughters from a previous marriage, J.S. and L.S.

In September 2000, Skillett filed a petition under the Protection From Abuse (PFA) Act, K.S.A. 60-3101 et seq., against Sierra. The basis of this action was Skillett's allegation that Sierra had engaged in sexual conduct with her daughters from a previous marriage who were under the age of 16 and neither of whom was his spouse. After a hearing before the district magistrate judge, which resulted in a judgment in favor of Skillett, Sierra appealed to the district court.

In December 2000, Skillett filed a petition for a determination of parentage. That action alleged that Sierra was the father of B.S., and it sought that determination along with orders for custody and child support. We turn first to the facts of the PFA action. It appears the parties lived together for several years but never married. They often fought, separated, and reunited. However, from the period of July 1998 until August 1999, Sierra was at Skillett's house on a daily basis, and he watched the children in the evenings because Skillett often worked or had appointments during those hours.

In the PFA action, Skillett testified as to a number of sexual advances that Sierra had made to her daughters. On one occasion in 1995, according to Skillett, Sierra held J.S. by her legs and had her head in the bathtub under water, telling her to hold her breath. He also told her to do a handstand against the wall and that she would be in trouble if she got down. Skillett was upset when she found out this was happening. Sierra told Skillett he was just playing.

In 1998, Sierra was apparently intoxicated and demanded oral sex from Skillett. When Skillett refused to accommodate him, he threatened to go to J.S. "because she'll do anything I ask her to do." Skillett indicated that in order to protect J.S., she agreed to Sierra's demands. The next morning, Sierra told her he did not mean what he said. In May 1999, however, Skillett came home late. She went by J.S.'s bedroom and saw J.S. in bed, lying on her back with her knees propped up. She was not clothed from the waist down. Sierra was crouched over J.S. with his face between her legs holding a washcloth. Skillett confronted Sierra over his conduct, and he stated that he was only cleaning up J.S. because she smelled bad and had poor hygiene.

On another occasion, Skillett told Sierra that she had gone into the bathroom and opened the shower door and that J.S. became very embarrassed. A few minutes later, Sierra left and when he came back, he told Skillett that he went into the bathroom and opened the shower door and J.S. was not embarrassed.

In August 2000, J.S. told Skillett that she did not care if she lived. Skillett asked J.S.'s stepmother to talk with her. J.S. told her stepmother that Sierra had been sexually abusing her for a long time and that the abuse began when she was 8 or 9 years old. According to Skillett, Sierra would bring a washcloth and tell J.S. she needed to be cleaned. He then kissed J.S. "down there." According to J.S., she did not tell her mother because she was afraid her mother would hate her and also because she was afraid of Sierra. This was the end of the relationship between Skillett and Sierra, and the PFA action was filed soon thereafter.

At the hearing, J.S. testified, consistent with Skillett's testimony and the stepmother's testimony, that Sierra washed her with a washcloth and then licked her vaginal area.

L.S. also testified that on one occasion, Sierra took both J.S. and L.S. into the bedroom by themselves and closed the door. After they had bathed, Sierra took both of them into the bedrooms to check their private areas. She also testified that on one occasion, B.S. told her that Sierra licked her bottom.

At the trial, there was also testimony by a counselor who had interviewed the girls. The counselor testified that in her opinion, J.S. had been sexually abused by Sierra but she was unable to reach an opinion as to whether Sierra had sexually assaulted L.S.

Sierra testified at the hearing and admitted he did supervise the girls' bathing procedures but insisted that all he was doing was trying to be certain they were clean and their hygiene was attended to.

Based upon all the evidence, the trial court found that Sierra was guilty of a lewd touching of both J.S. and L.S. It believed the evidence to be insufficient as to whether Sierra had abused B.S. In any event, the trial court restrained Sierra from contacting Skillett, J.S., L.S., or B.S. It granted Skillett sole custody of B.S. and denied Sierra visitation with B.S. until he had submitted a plan for counseling, which would be approved by the trial court. This PFA order expired, by its own terms, on October 4, 2001.

After the PFA order had been filed, the parties filed a joint motion to consolidate the PFA action and the paternity case. The trial court granted the motion and, after the consolidation, Sierra appealed the PFA order. His appeal was dismissed as interlocutory as a result of the consolidation order.

After Sierra's appeal on the PFA case had been dismissed, the trial court proceeded to a hearing on the paternity, child support, and child custody issues. Sierra admitted he was B.S.'s father. The parties and the trial court all agreed that the child support and custody issues had been bifurcated.

Both of these parties had high incomes. Sierra had income in 2000 of $156,402 as a result of his employment by a grain company. This company closed in early 2001, and at the time of closing, Sierra had earned $93,520. He then moved to Florida and was employed at a salary of $5,000 per month.

Skillett was unemployed at the time of trial. However, she had earned $137,458 per year in 1998 and 1999; $123,661 in 2000; and $179,066 from January through September 2001.

Both parties submitted child support worksheets. Skillett based her calculations on wages of $120,000 for herself and $150,000 for Sierra and asked for $964 per month in child support. Sierra's worksheet supported amounts from $289 to $442 a month. He submitted three worksheets. The trial court, in the paternity action, determined that Sierra was B.S.'s father, that Skillett was unemployed with no income, and that Sierra was earning $5,000 per month. The net child support obligation was $408, but the trial court deducted $121 for income tax consideration. The trial court then proceeded to add $313 for "overall financial conditions" and set Sierra's child support at $600 per month. The trial court indicated the $313 adjustment was made to increase Sierra's child support payments because Skillett "cannot immediately reduce her expenses from the level she had been able to maintain while she was working."

The trial court also awarded judgment to Skillett and against Sierra in the amount of $25,000 as reimbursement for the expenses of support and education of the child from the date of birth to the date of the order.

The custody and parenting plan orders from the PFA case were incorporated into the paternity case. This appeal is from the trial court's decisions in both cases.

JURISDICTION

Our first question is whether we have jurisdiction to hear this appeal. Neither party raises the issue of jurisdiction, but we have the duty to raise it on our own initiative when it appears to be an issue. Hughs v. Valley State Bank, 26 Kan. App.2d 631, 633-34, 994 P.2d 1079 (1999),rev. denied 269 Kan. 932 (2000).

We have no question that the trial court's orders regarding child support and restitution are final orders. However, the custody and visitation hearing was bifurcated, and we have no record of a custody and visitation hearing. The question then is whether the court's orders of custody and visitation were final or interlocutory in nature.

At oral argument, the parties both urged us to conclude these were final orders and that this court has jurisdiction. We have examined the record in this case and reach that conclusion. Although there are factors which indicate the appeal is interlocutory, we are reminded that no visitation order is ever final, that the trial court always retains jurisdiction to modify those orders, and that the order in this case can be considered as final; thus, we do have jurisdiction.

PROTECTION FROM ABUSE ACTION

In the PFA action, the trial court entered an order which prohibited Sierra from having any contact with B.S. On appeal, Sierra argues the trial court had no authority to do this because it did not find he sexually abused B.S. Skillett counters by arguing the issue is moot because the PFA order expired on October 4, 2001. We agree with Skillett's argument and conclude the PFA order is moot, and the appeal from it should be dismissed as moot.

The general rule in regard to the mootness doctrine is as follows:

"The general rule is that this court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought

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