Sowers v. Tsamolias, 76459

• Decision Date: 20 December 1996
• Docket Number: No. 76459,76459
• Citation: 929 P.2d 188,23 Kan.App.2d 270
• Parties: Barbara V. SOWERS and James W. Sowers, Appellants, v. Peter TSAMOLIAS and Toula Tsamolias, Appellees.
• Court: Kansas Court of Appeals

Page 188

929 P.2d 188

23 Kan.App.2d 270

Barbara V. SOWERS and James W. Sowers, Appellants, v. Peter TSAMOLIAS and Toula Tsamolias, Appellees.

No. 76459.

Court of Appeals of Kansas.

Dec. 20, 1996.

Review Granted March 19, 1997.

Syllabus by the Court

1. The fundamental rule of statutory construction, to which every other rule is subordinate, is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute.

2. In determining legislative intent, courts are not limited to a mere consideration of the language used but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. A statute must be interpreted in the context in which it was enacted and in light of the legislature's intent at that time.

3. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.

4. Visitation rights between grandparents and grandchildren and between adopted, unwed, minor children and others is purely a province of statute.

5. The effects of adoption pursuant to K.S.A. 59-2118 include the creation of a new legal status of parent and child. Except in situations where the birth parent is the spouse of the adopting parent, the relation to natural or birth parents ceases. Not only does the adopted child have new parents, but the effect is that the child has new grandparents as well.

6. Under K.S.A. 38-129, the legislature did not intend to provide natural or birth grandparents visitation rights to grandchildren after a termination of parental rights and subsequent adoption of the grandchildren.

7. Refusal to recognize equitable theories concerning domestic relations is based upon a reluctance to interfere with legislative decisions. Application of the doctrine of equitable estoppel to confer visitation rights under K.S.A. 38-129 would eviscerate the legislatively pronounced social policy considerations of the statute.

Patrick E. Henderson, of Duncan-Senecal Law Offices, Chtd., Atchison, for appellants.

John W. Fresh and Larry R. Mears, of Larry R. Mears, Chartered, Atchison, for appellees.

Before ELLIOTT, P.J., and KNUDSON, J., and RICHARD M. SMITH, District Judge, Assigned.

RICHARD M. SMITH, District Judge, Assigned.

Appellants, Barbara V. Sowers and James W. Sowers appeal from the district court's dismissal of their petition for visitation with an unmarried minor, A.E. We affirm.

The essential facts are not in dispute. A.E. is the adopted child of the appellees, Peter and Toula Tsamolias. Prior to adoption, A.E. was the subject of a child in need of care action. Upon stipulation by the birth mother, Tina E., and the child's putative fathers, A.E. was adjudicated a child "in need of care." Subsequently, the parental rights of Tina E. and the putative fathers were terminated pursuant to K.S.A. 38-1581 et seq.

During the course of the child in need of care proceedings, the Tsamoliases were A.E.'s foster parents. The Sowers are the parents of Tina E. Pursuant to an order of the district court, the Sowers were granted visitation with A.E. while in foster care.

In August 1995, the court, after a hearing, entered a dispositional order authorizing SRS to initiate adoption proceedings for A.E. Barbara Sowers had attended every previous hearing and was present at the dispositional hearing. At the dispositional hearing, Barbara stated that she did not want to give up her rights as a grandparent as the result of anyDadoption. She asked the court whether she would lose her status as a grandparent if the adoption was completed. The court told Barbara that her right to visitation would depend upon the decision of any adoptive parents.

The Sowers did not seek adoption of A.E., nor did they object to the adoption of A.E. by the Tsamoliases. The adoption was final on January 25, 1996.

In February 1996, the Sowers filed a motion in the district court requesting grandparent visitation rights to A.E. The Sowers suggested that they had a positive relationship with A.E. prior to and during the child in need of care proceeding. They also maintained the relationship between A.E. and his sister, B.E., who was in their custody. The Sowers argued that continuing their relationship with A.E. was in his best interests and should be permitted under K.S.A. 38-129. The motion for visitation also alleged that the Sowers relied on assurances by the Tsamoliases that they would be allowed to continue their relationship with A.E. and should be allowed visitation rights under a theory of equitable estoppel.

The Tsamoliases filed an answer to the Sowers' petition and moved to dismiss the proceeding for failure to state a claim on which relief could be granted. The Tsamoliases further argued the Sowers lacked standing to seek visitation because the Sowers were no longer A.E.'s grandparents.

A hearing was held on a motion to dismiss the petition on March 11, 1996. The court granted the motion to dismiss the petition for visitation, ruling that it had no jurisdiction to grant the Sowers' request. The Sowers appeal this order of dismissal.

The Sowers essentially raise two primary issues on appeal: (1) The trial court erred by dismissing their petition to establish visitation without a consideration of its merits; and (2) the Tsamoliases should be equitably estopped from denying visitation.

Whether the court erred by dismissing the Sowers' petition for visitation is controlled by the legislative intent of K.S.A. 38-129 and K.S.A. 59-2113. Although the well-pleaded facts of the Sowers' petition are assumed to be true, Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992), interpretation of the intent of the visitation and adoption statutes is a question of law and our review is plenary. In re Estate of Hinderliter, 20 Kan.App.2d 29, 30, 882 P.2d 1001, rev. denied 256 Kan. 995 (1994).

The applicable rules of statutory construction have been frequently stated: "It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained." In re J.A.C., 22 Kan.App.2d 96, Syl. p 4, 911 P.2d 825 (1996).

"In determining legislative intent, courts are not limited to a mere consideration of the language used, but may look to the historical background of the enactment the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested." Galindo v. City of Coffeyville, 256 Kan. 455, Syl. p 4, 885 P.2d 1246 (1994).

"A statute must be interpreted in the context in which it was enacted and in light of the legislature's intent at that time." State Bd. of Nursing v. Ruebke, 259 Kan. 599, Syl. p 12, 913 P.2d 142 (1996).

SB21 [5-7] "In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. When the provisions of two or more acts affect the same issue and subject matter, the same rule applies." United Steelworkers of America v. Kansas Comm'n on Civil Rights, 253 Kan. 327, Syl. p 1, 855 P.2d 905 (1993).

"When a statute is plain and unambiguous, the court must give effect to the intent of the legislature as expressed rather than determine what the law should or should not be." Tompkins v. Bise, 259 Kan. 39, Syl. p 1, 910 P.2d 185 (1996).

Visitation rights between grandparents and grandchildren and between adopted persons and others is purely a province of statute. Grandparents have no natural or common-law rights to grandchildren. Browning v. Tarwater, 215 Kan. 501, 504, 524 P.2d 1135 (1974); In re Johnson, 210 Kan. 828, 831-32, 504 P.2d 217 (1972); In re Bullen, 28 Kan. *781,*783(1882) The understanding that adoption is a concept foreign to the common law is ancient. In re Estate of Robbins, 241 Kan. 620, 623, 738 P.2d 458 (1987); Gray v. Holmes, 57 Kan. 217, 221, 45 P. 596 (1896). Therefore, the law of adoption is dependent on state statutory law. 241 Kan. at 623, 738 P.2d 458; In re Estate of Riemann, 124 Kan. 539, 541, 262 P. 16 (1927).

K.S.A. 59-2118 specifies the effect adoption has upon the rights of the birth and adoptive parents. It provides:

"(a) Any person adopted as provided in K.S.A. 59-2111 through 59-2143, and amendments thereto, shall assume the surname of the petitioner or petitioners for adoption, except that the court in its discretion may permit a different surname when requested by the petitioner or petitioners. When requested by the petitioner or petitioners, the court, in its discretion, may change the given name or names of the person adopted.

"(b) When adopted, a person shall be entitled to the same personal and property rights as a birth child of the adoptive parent. The adoptive parent shall be entitled to exercise all the rights of a birth parent and be subject to all the liabilities of that relationship. Upon adoption, all the rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent. An adoption shall not terminate the right of the child to inherit from or through the birth parent." (Emphasis supplied.)

The prior statute, K.S.A. 59-2103 (Ensley 1983) (effective July 1, 1939) contained operative language identical to the pertinent portion of K.S.A. 59-2118(b). Pursuant to this statutory language, the effects of adoption include the creation of a new legal status of parent and child upon the...