Skov v. Wicker
| Decision Date | 19 October 2001 |
| Docket Number | No. 916, No. 917., No. 85 |
| Citation | 32 P.3d 1122,272 Kan. 240 |
| Parties | MELINDA SKOV, RAYMOND TANKERSLEY, and NORMA TANKERSLEY, Appellants/Cross-appellees, v. VANCE WICKER and MONA WICKER, Appellees/Cross-appellants. MONA BOYDSTON WICKER, Appellee/Cross-appellant, v. SEAN BOYDSTON (Melinda Skov, Raymond Tankersley, and Norma Tankersley), Appellants/Cross-appellees. |
| Court | Kansas Supreme Court |
Thomas D. Arnhold, of Hutchinson, was on the brief for appellants/cross-appellees.
Nancy J. Andervich, of Kansas Legal Services, of Hutchinson, argued the cause and was on the brief for appellees/cross-appellants.
The opinion of the court was delivered by
This is a grandparent visitation matter. It is the consolidated appeal of rulings in two cases that are adverse to Melinda Skov, Norma Tankersley, and Raymond Tankersley. They filed a post-decree motion pursuant to K.S.A. 2000 Supp. 60-1616(b) in the divorce action of Skov's daughter, Mona Wicker, from Sean Boydston seeking court-ordered visitation rights to the children, H.B. and T.B., Case No. 85,917. Their motion was overruled. Skov and the Tankersleys also filed suit pursuant to K.S.A. 38-129(a) against Mona and her current husband, Vance Wicker, seeking court-ordered visitation rights to the child, V.W., Case No. 85,916. The district court dismissed their petition. The Wickers cross-appeal.
Skov is the grandmother of the children. Norma Tankersley is Skov's mother and the great-grandmother of the children. Raymond Tankersley was married to Norma Tankersley and was the step great-grandfather of the children. The court was advised in July 2001 of Mr. Tankersley's death.
The district court overruled the Skov/Tankersley post-decree motion and dismissed their petition on the grounds that K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129(a) are unconstitutional. Skov and the Tankersleys appeal from the rulings. Mona Wicker cross-appeals from the district court's ruling that great-grandparents are grandparents within the meanings of the statutes. The appellants' motion in the divorce action and their separate petition were dismissed with no evidence having been adduced. The following facts are taken from the pleadings and court records in the district court cases.
Case No. 85,917. Mona Wicker was granted a divorce from Sean Boydston in May 1991. Joint custody, with Mona Wicker having residential custody and Sean Boydston having reasonable rights of visitation, was ordered. There were many subsequent filings and proceedings having to do with child support payments and child custody. In March 1999, the district court ordered the parties to attend mediation to resolve their custody or visitation issues, which resulted in an agreement that Mona Wicker would retain residential custody. In November 1999, the court ordered Boydston to resume paying child support and providing health insurance.
In April 2000, Skov and the Tankersleys filed their motion pursuant to K.S.A. 2000 Supp. 60-1616(b) seeking an order for visitation rights. Movants stated:
Mona Wicker opposed the motion for visitation rights.
They sought "regular and specific visitation rights with their granddaughter and great-granddaughter, [V.W.]."
The Wickers filed a motion to dismiss the petition.
Counsel argued the motions to the district court. At the hearing, the district court expressed agreement with the Wickers. The district court later filed an order of dismissal in each case. In essence, the orders state:
1. The term "grandparent" in the statutes includes great-grandparents.
2. Raymond Tankersley, who is the step great-grandparent of the children, is not a grandparent within the meaning of the statutes.
3. Absent a finding of unfitness, under Troxel v. Granville, 530 U.S. 57, 147 L. Ed.2d 49, 120 S. Ct. 2054 (2000), a parent has the right to decide with whom his or her child has contact.
4. In view of Troxel, the Kansas statutes regarding grandparent visitation, K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129, are unconstitutional.
The first issue raised on appeal is whether K.S.A. 38-129(a) is unconstitutional. Mona Wicker concedes that this court's decision in Kansas Dept. of S.R.S. v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001), controls and that the district court erred in ruling that K.S.A. 38-129(a) is unconstitutional under Troxel. Thus, Case No. 85,916 must be remanded for further proceedings in accordance with Paillet.
Mona Wicker does not concede that K.S.A. 2000 Supp. 60-1616(b) is constitutional. Her position on the constitutionality of 60-1616(b) is that the district court correctly concluded that it is unconstitutional on its face. She argues that the complete lack of limitations on the district court's authority to grant visitation rights and the lack of any deference to the wishes of the parents could not pass the due process standard established in Troxel and applied by this court in Paillet. She further argues that the statute cannot be construed so that it satisfies the due process requirements set out in Troxel.
The appellants' arguments do not take Paillet into account. This court issued its opinion in Paillet after appellants' brief was filed; they did not file a reply brief or a cross-appellees' brief.
In deciding Paillet, this court did not find K.S.A. 38-129 unconstitutional on its face. The court, however, found that the statute had been unconstitutionally applied. 270 Kan. at 660. The court stated:
270 Kan. at 660.
Mona Wicker contends that K.S.A. 2000 Supp. 60-1616(b), on its face, does not satisfy the due process requirements set out in Troxel. The statute, which is part of the divorce and maintenance provisions of article 16 of the civil procedure chapter, provides in its entirety: "Grandparents and stepparents may be granted visitation rights." K.S.A. 2000 Supp. 60-1616(b). The statute places no limitations on the district court's discretion to grant visitation rights to grandparents.
The question of the constitutionality of K.S.A. 2000 Supp. 60-1616(b) requires an interpretation of the statute. The court's review of a question of law is unlimited. We presume that a statute is constitutional and resolve doubts in favor of its validity. "This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if this can be done within the apparent intent of the legislature in passing the statute." State v. Martinez, 268 Kan. 21, Syl. ¶ 2, 988 P.2d 735 (1999).
First, Mona Wicker argues that the apparent intent of the legislature will not permit a constitutional construction of K.S.A. 60-1616(b). She contends that the legislature intended for there to be no limitations on grandparent visitation that can be ordered in a divorce action and that the intention can be ascertained from comparison of the legislature's enacting the current forms of 60-1616(b) and 38-129(a). She would have the court compare L. 1982, ch. 152, § 15 with L. 1982, ch. 182, § 149. Her basic contention is that the two statutory provisions were enacted in the same legislative session, from which we reasonably can infer that the legislature intended them to serve different purposes and intended that 38-129 should be conditional and 60-1616(b) should not. Examination of the session laws does not bear out her argument.
Chapter 152 of the 1982 Session Laws is an act concerning domestic relations and divorce. In that act, the legislature repealed the grandparents' visitation rights provision from K.S.A. 1981 Supp. 60-1610. L. 1982, ch. 152, § 9. The repealed subsection provided a means for the parents of a noncustodial parent who did not or could not exercise his or her visitation rights to petition for visitation rights on their own account. The subsection was repealed when joint custody was instituted in the same enactment. L. 1982, ch. 152, § 9. A new visitation section was created that included the current provision for grandparent and stepparent visitation. L. 1982, ch. 152, § 15.
Subsection (a) of K.S.A. 38-129 was enacted in 1971. The legislature made no substantive changes to it in 1982. With the insubstantial word changes made in 1982, it provided:
"If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the district court upon a finding that such visitation rights would be in the best interests of the minor child." L. 1971, ch. 149, § 1.
In 1982, the legislature added new subsection (b) to ...
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