State ex rel. Secretary of Social and Rehabilitation Services v. Clear

• Decision Date: 22 June 1990
• Docket Number: No. 64461,64461
• Citation: 14 Kan.App.2d 510,794 P.2d 327
• Parties: STATE of Kansas ex rel. SECRETARY OF SOCIAL AND REHABILITATION SERVICES, Appellant, v. Barbara J. CLEAR (now Barbara Finnigan), Appellee.
• Court: Kansas Court of Appeals

Page 327

794 P.2d 327

14 Kan.App.2d 510

STATE of Kansas ex rel. SECRETARY OF SOCIAL AND REHABILITATION SERVICES, Appellant, v. Barbara J. CLEAR (now Barbara Finnigan), Appellee.

No. 64461.

Court of Appeals of Kansas.

June 22, 1990.

Review Granted Sept. 20, 1990.

Syllabus by the Court

A parent may not unilaterally terminate his or her obligation to pay child support by voluntarily relinquishing parental rights. To sever parental rights under K.S.A. 38-125 et seq., voluntary relinquishment of parental rights and Kansas Department of Social Rehabilitation Services' acceptance of surrender of the child are required.

David N. Sutton, of Dept. of Social and Rehabilitation Services, for appellant.

Charles D. Vincent, of Barkis and Vincent, Paola, and Carol R. Gilham, Lawrence, for appellee.

Before BRAZIL, P.J., LARSON, J., and DAVID S. KNUDSON, District Judge, assigned.

DAVID S. KNUDSON, District Judge, Assigned:

The Department of Social and Rehabilitation Services of the State of Kansas (SRS) appeals the district court's finding that Barbara J. Clear (Finnigan) relinquished parental rights to her minor children pursuant to K.S.A. 38-125 et seq., and, as a result, her obligation to pay child support terminated as a matter of law.

SRS states the issue on appeal to be whether a voluntary relinquishment of parental rights pursuant to K.S.A. 38-125 et seq. relieves that parent of the obligation to pay child support. The record on appeal persuades us the more fundamental issue is whether there was a relinquishment within the statutory scheme.

We are mindful of the general rule that an appellate court will not consider on appeal an issue not raised in the trial court. State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982). But there are exceptions to this rule. First, the issue before us is one of law and thus subject to unlimited appellate review. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 [14 Kan.App.2d 511] P.2d 1299, rev. denied 243 Kan. 778 (1988). Second, the issue before us is determinative of the case, and we must consider it to prevent a denial of fundamental rights. These reasons are within recognized exceptions to the general rule. Johnson v. Kansas Neurological Institute, 240 Kan. 123, 126, 727 P.2d 912 (1986).

We have also considered, after having raised this issue sua sponte, whether counsel for all litigants should be afforded further opportunity to brief the issue and present arguments and authorities to the appellate court. Ordinarily that is the preferred course of action. State v. Puckett, 230 Kan. at 601, 640 P.2d 1198. However, we note this is a question of law implicitly raised and actually addressed by the litigants in their respective briefs. We do not believe under the circumstances of this litigation that further briefing would promote fairness or cast illumination upon the issue.

SRS contends that, while a termination of parental rights initiated by the State relieves that parent of future child support obligations, a voluntary relinquishment of parental rights pursuant to K.S.A. 38-125 et seq. does not terminate that parent's obligation to pay child support. Clear contends, and the trial court so held, that her voluntary relinquishment of parental rights to the four children terminated her obligation to pay child support. We conclude that, as a matter of law, there was no relinquishment pursuant to K.S.A. 38-125. We therefore reverse the trial court's decision.

K.S.A. 38-125 provides:

"Any parent or parents or person in loco parentis of a child may relinquish and surrender such child to the department, and if the department shall accept said child in writing, the department shall thereupon stand in loco parentis to such child and shall have and possess over such child all the rights of a natural parent or legal guardian, including the power to place such child for adoption and give consent thereto. Minority of a parent shall not invalidate such parent's relinquishment and surrender of said child." (Emphasis added.)

K.S.A. 38-126 provides:

"All relinquishments and surrender to the department under this act shall be in writing and executed by: (a) Both parents of the child; (b) one parent, if the other parent is deceased; (c) the mother, if the father's consent is found unnecessary under K.S.A. 38-1129; or (d) a person in loco parentis." (Emphasis added.)

K.S.A. 38-127 provides:

"The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child of children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other person in loco parentis of such children of the consequences of the act of relinquishment."

K.S.A. 38-128 provides:

"In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child." (Emphasis added.)

We discern this legislation to require not only relinquishment but also surrender. The term surrender has been defined as a "contractual act [that]...