Stewart v. Stewart

• Decision Date: 16 January 2015
• Docket Number: No. 110058.,110058.
• Parties: Brandy Kara L. STEWART, Appellee, v. Timothy A. STEWART, Appellant.
• Court: Kansas Court of Appeals

342 P.3d 1 (Table)

Brandy Kara L. STEWART, Appellee

v.Timothy A. STEWART, Appellant.

No. 110058.

Court of Appeals of Kansas.

Jan. 16, 2015.

Jennifer A. Wagle and Stephen M. Turley, of Cleary, Soderberg, Wagle & West, of Wichita, for appellant.

Carey Hipp, of Sherman, Hoffman & Hipp, LC, of Ellsworth, for appellee.

Before SCHROEDER, P.J., McANANY, J., and LARSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

This case involves the validity of certain provisions relating to child and spousal support in a protection from abuse (PFA) order issued in May 2013 in favor of Brandy Kara L. Stewart and against her husband, Timothy A. Stewart, pursuant to the PFA Act, K.S.A. 60–3101 et seq. The court's orders for temporary child custody, maintenance, and child support were entered pursuant to K.S.A.2013 Supp. 60–3107(a)(4) and (6). The controlling issue is whether the district court had personal jurisdiction over Tim so as to allow it to enter a personal judgment against him for these items of support.

The Stewarts met in Missouri and married in 2004. During their marriage they resided in Missouri, Arizona, Tennessee, and Texas. The family resided together in Texas from 2009 until late October 2012 when, while Tim was away on business and without his knowledge, Kara took the children to Kansas where her parents reside. Texas was the children's home state at the time. Tim has never lived in or had any connection to the State of Kansas except for two brief family visits.

On October 29, 2012, Kara sought a PFA order from the Ellsworth County District Court. That same day, the district court issued an ex parte temporary PFA order against Tim, which included provisions granting Kara sole custody of her three sons, two of whom are Tim's biological children. The court also ordered Tim to pay maintenance and child support. Meanwhile, on that same day, Tim commenced a divorce action against Kara in the District Court of Guadalupe County, Texas.

On November 21, 2012, Tim filed with the Ellis County District Court a special appearance and a motion to dismiss the Kansas petition for lack of jurisdiction. Two days later, on November 23, 2012, Kara had Tim served with process in the Kansas case when he appeared in court in San Antonio, Texas, in the divorce case.

Tim then filed an answer in the Kansas case, subject to his objections to the court exercising personal jurisdiction over him. Shortly thereafter, he filed a counterclaim seeking temporary custody of the children. In it, he asserted: “If this case is not dismissed for lack of jurisdiction, K.S.A. 60–3107(a)(4) allows the court to award temporary custody and residency and establish temporary parenting time with regard to minor children.” He concluded:

“WHEREFORE, Respondent prays that the court dismiss this case for lack of jurisdiction but in the alternative grant Respondent custody of the minor children and that Respondent be granted all other and further relief in the premises as may be legal, equitable and just.”

On December 11, 2012, when it became apparent that there were cases pending in both Kansas and Texas, the Kansas and Texas judges conferred by telephone, and the Texas judge stated she would decline jurisdiction over the Texas case and the Kansas judge agreed to resolve the PFA issues in Kansas. On December 13, 2012, the Texas court formally declined jurisdiction to make a child custody determination, finding that Texas was an inconvenient forum.

The final hearing in the PFA action was scheduled for Thursday, March 14, 2013. Tim came to Kansas to attend the hearing and arrived early so he could visit with the children. This was his first visitation with the children since they left Texas in October 2012. On Tuesday, March 12, 2013, 2 days before the final hearing, Kara arranged for Tim to be personally served in Kansas while he exercised court-sanctioned supervised parenting time with the children.

Following the March 14, 2013, hearing, the court took the matter under advisement and issued its decision on May 13, 2013, finding that Kara was entitled to a final PFA order. The court entered orders with respect to child custody, residential placement of the children, and supervised parenting time. Tim was ordered to complete the Batterers Intervention Program. The court adopted Kara's recommendations for child support and spousal maintenance and made them the order of the court. The court also ordered Tim to pay part of Kara's attorney fees.

This appeal followed.

Mootness

After the parties' appellate briefs were submitted it became apparent that the PFA order which is the subject of this appeal had expired by its own terms on May 13, 2014. We issued an order requiring the parties to show cause why the matter is not now moot. Tim filed a response to the show cause order. Kara did not. One of Tim's arguments was as follows:

“If the District Court had jurisdiction to enter the support orders in this matter, then [Kara] may execute on the judgments, and Timothy could be found in indirect contempt of court for non-payment of support. See K.S.A. 60–701 et seq., K.S.A. 23–3101 et seq.; Cyr v. Cyr, 249 Kan. 94, Syl. ¶ 6, 815 P.2d 97 (1991). The potential for execution of the judgments and a finding of contempt are potential adverse consequences for Timothy. Therefore, this appeal is not moot.”

Given this response, we agreed to proceed with oral argument on the appeal.

We have unlimited review over whether an issue is moot under court policy. State v. Montgomery, 295 Kan. 837, 841, 286 P.3d 866 (2012). The mootness doctrine was described as follows in Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005) :

“ ‘The general rule is that an appellate 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 before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’ “ (Quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 [1996].)

The ultimate test is that there must be some “real, immediate, adverse legal interest before this court which is amenable to conclusive relief.” In re A.E.S., 48 Kan.App.2d 761, 766, 298 P.3d 386 (2013). If there is not, then the appeal is moot.

The principles underlying the mootness doctrine have been applied by our courts to dismiss appeals as moot in various contexts. Most significant to our case, they have been applied to dismiss as moot the following:

• An expired PFA order where appellant husband did not allege he suffered any collateral consequence as result of entry of the order. Rice v. Rice, No. 101,372, 2010 WL 922966 (Kan.App.2010) (unpublished opinion).

• An expired PFA order because appellant's contention that the PFA order would continue to affect his right to possess firearms under federal and state law was contrary to state and federal firearm possession statutes, which apply only while a PFA order is in effect. Skillett v. Sierra, 30 Kan.App.2d 1041, 1046–47, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002).

An expired order issued under the Protection From Stalking Act (PFS Act), K.S.A.2003 Supp. 60–31a01 et seq., at least as to appellant's challenge to the constitutionality of the PFS Act as applied, evidentiary issues, and the trial court's issuance of an injunction. Smith, 279 Kan. at 245.

But, to the contrary, our court retained an appeal from an expired stalking order when the appellant argued that “ ‘the historical existence of the stalking order could adversely affect his re-credentialing for his license [to practice medicine in the State of Kansas] this September, 2004.’ ... [This court did so] even though any ruling ... regarding the stalking order [would] be unenforceable due to the lapse of time.” Piazza v. Piazza, No. 90,593, 2004 WL 1443899, at *1 (Kan.App.2004) (unpublished opinion).

Here, the real, immediate, and adverse legal interest before this court which is amenable to conclusive relief is the existence of a personal money final judgment for child support and spousal maintenance against Tim which may be executed upon as any other money judgment. Such proceedings, brought by private litigants holding personal money judgments for support or maintenance or by the Secretary of the Kansas Department for Children and Families pursuant to the State's IV–D public assistance program, are daily fare for judges handling domestic matters in our district courts or in courts where Kansas judgments have been registered. Hence, we conclude the issue is not moot, and we will consider the issue of personal jurisdiction.

Review Standards

We have unlimited review of jurisdictional issues and statutory interpretations made by the district court. McNabb v. McNabb, 31 Kan.App.2d 398, 403, 65 P.3d 1068 (2003). Kara bears the burden of establishing personal jurisdiction over Tim. See Merriman v. Crompton Corp., 282 Kan. 433, 439, 146 P.3d 162 (2006).

Personal Jurisdiction Generally

Personal jurisdiction is the court's power over the defendant's person and is required before the court can enter a judgment. In re Marriage of Solas, 28 Kan.App.2d 553, 555, 19 P.3d 184 (2001). Personal jurisdiction over a defendant is acquired by issuance and service of process in the method prescribed by statute or by the defendant's voluntary appearance. Carrington v. Unseld, 22 Kan.App.2d 815, 818–19, 923 P.2d 1052 (1996).

We apply a progressive, two-step inquiry in determining whether the district court had personal jurisdiction over Tim. First, we must determine if Kansas statutes or caselaw provide a basis for the exercise of jurisdiction over Tim. Second, if statutory and other requirements have been met, we must determine if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth...