T.N.Y. v. E.Y.

• Decision Date: 25 September 2015
• Docket Number: No. 113,099.,113,099.
• Citation: 51 Kan.App.2d 956,360 P.3d 433
• Parties: T.N.Y., a minor child by and through his natural father and next friend, Z.H., Appellees, v. E.Y., Appellee. (L.D. and R.D.) Appellants.
• Court: Kansas Court of Appeals

51 Kan.App.2d 956

360 P.3d 433

T.N.Y., a minor child by and through his natural father and next friend,Z.H., Appellees,

v. E.Y., Appellee.(L.D. and R.D.) Appellants.

No. 113,099.

Court of Appeals of Kansas.

Sept. 25, 2015.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellants, maternal grandparents, L.D. and R.D.

J. Shane Rockey, of Rockey & Stecklein, Chtd., of Kansas City, for appellee.

Opinion

BRUNS, J.

The maternal grandparents (the Grandparents) of a minor child appeal from a district court order dismissing their motion for grandparent visitation because it was filed in a paternity action rather than in a divorce proceeding. Although the child's mother (the Mother) has participated in this appeal, the child's father (the Father) has chosen not to do so. We find that the district court properly interpreted the plain and unambiguous language of K.S.A. 2014 Supp. 23–3301(a)as limiting the authority of a district court to grant grandparent visitation only in dissolution of marriage proceedings. Nevertheless, we conclude that the statute—as applied—violates the equal protection rights of a child born out of wedlock. Specifically, we find that discriminating on the basis of a child's legitimacy in the context of grandparent visitation serves no important legislative or governmental purpose. Therefore, we conclude that the district court should rule upon the merits of the motion for grandparent visitation.

Facts

On May 22, 2009, the Father petitioned the district court for determination of paternity, custody, parenting time, and support of T.N.Y. The petition alleged that the Mother had left the child to live with her parents shortly after the child's birth in 2008. At the time, T.N.Y.'s mother evidently lived in Minnesota. According to the petition, the Father and the Mother were never married to each other.

The Mother filed an answer admitting the paternity of T.N.Y. but denying that the minor child lived with her parents. Instead, the Mother claimed that she and T.N.Y. lived together in Kansas City, Kansas. On September 10, 2009, the district court entered an order determining paternity and adopting the parties' agreed parenting plan. Thereafter, on October 1, 2009, the district court ordered the Father to pay child support to the Mother on behalf of T.N.Y.

On October 22, 2014, the Grandparents filed a motion in the paternity action seeking visitation of their maternal grandchild. In the motion, the Grandparents asserted that since the child's birth, T.N.Y. and the Mother lived with them until the Mother left the home in December 2008. According to the Grandparents, the child remained with them until December 2010 and the Mother lived with them “off and on” during that time. They also claimed that in late 2010, the Mother took T.N.Y. to live with her and her new husband. The Grandparents asserted that in April 2011, the Mother and T.N.Y. returned to live with them until July 2014, when they left to live with the Mother's new boyfriend in Blue Springs, Missouri. Since that time, the Grandparents claim that the Mother has refused to allow them to see T.N.Y.

The district court held a hearing on November 5, 2014. Although it is alleged that the motion was discussed, there is no transcript of the hearing in the record on appeal. Nevertheless, on December 3, 2014, the district court filed a journal entry denying the Grandparents' motion for visitation. In doing so, the district court appropriately looked to the plain language of K.S.A. 2014 Supp. 23–3301(a)and determined that—on its face—the statute only permits a motion for grandparent visitation in an action involving the dissolution of marriage—not in a paternity action.

On appeal, the Mother submitted a brief on March 27, 2015, in which she requested attorney fees from the Grandparents for the first time. In support of this request, the Mother argued that she was entitled to recover her attorney fees because the Grandparents' brief failed to comply with Supreme Court Rules 6.02(2014 Kan. Ct. R. Annot. 40) and 6.07(a) (2014 Kan. Ct. R. Annot. 50). Moreover, on April 1, 2015, the Grandparents filed a motion to strike the portions of the Mother's brief that requests attorney fees, contending that the Mother was required to make such a request by motion under Supreme Court Rule 7.07(b)(2014 Kan. Ct. R. Annot. 70). On April 22, 2015, the Mother's request for attorney fees was denied for failing to follow Rule 7.07(b)(2).

Analysis

Adequacy of the Appellants' Brief

Initially, the Mother argues on appeal that the Grandparents failed to comply with Supreme Court Rule 6.02governing briefs and asks that we dismiss this appeal under Rule 5.05 (2014 Kan. Ct. R. Annot. 37). Rule 5.05(a) states that “[a]n appellate court may dismiss an appeal due to a substantial failure to comply with these rules ... on motionof a party with at least 14 days' notice to the appellant.” (Emphasis added.) (2014 Kan. Ct. R. Annot. 37). Because the Mother has herself failed to abide by the appropriate rule in making her request, it is denied. We also reject the Mother's argument claiming that this court lacks jurisdiction over this appeal in light of the alleged errors in the Grandparents' brief. See Szoboszlay v. Glessner,233 Kan. 475, 481, 664 P.2d 1327 (1983)(stating that procedural requirements of the rules are not jurisdictional); Newcastle Homes v. Thye,44 Kan.App.2d 774, 794–95, 241 P.3d 988 (2010).

Thus, we turn to the merits of the issues presented on appeal.

The Grandparent Visitation Statute

The Grandparents' first contention on appeal is that the district court erred by finding that it did not have the authority as a matter of law to grant them visitation in a paternity action pursuant to K.S.A. 2014 Supp. 23–3301(a). Interpretation of a statute is a question of law over which appellate courts have unlimited review. Cady v. Schroll,298 Kan. 731, 734, 317 P.3d 90 (2014). Moreover, the most fundamental rule of statutory construction is that the legislature's intent governs if that intent can be ascertained. Cheney v. Poore,301 Kan. 120, 125, 339 P.3d 1220 (2014).

We must attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, we are not to resort to statutory construction nor should we speculate about the legislature's intent. Cady,298 Kan. at 738–39, 317 P.3d 90. Generally, the statutory language is “the primary consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language that they have chosen to use.” Stanley v. Sullivan,300 Kan. 1015, 1017, 336 P.3d 870 (2014). Furthermore, third-party visitation statutes must be strictly construed. See Skov v. Wicker,272 Kan. 240, 249, 32 P.3d 1122 (2001); State ex rel. Secretary of Dept. of S.R.S. v. Davison,31 Kan.App.2d 192, Syl. ¶ 3, 64 P.3d 434 (2002).

At common law, grandparents had no legal right to visitation. See In re Hood,252 Kan. 689, 691, 847 P.2d 1300 (1993); Elrod, Child Custody Practice & Procedure § 7:6 (2015). Over the years, however, “there had been a steady trend toward recognizing grandparent visitation rights if the visitation is found to be in the child's best interests.” Today, “all fifty states recognize grandparent visitation in some circumstances.” Elrod, 2 Kansas Law and Practice, Kansas Family Law § 13.10 (2014).

In 1971, Kansas enacted its first grandparent visitation statute. At the time, such visitation was limited to cases in which either the father or mother of a minor child was deceased. L. 1971, ch. 149, sec. 1; see also Browning v. Tarwater,215 Kan. 501, 503, 524 P.2d 1135 (1974). Thirteen years later, the legislature significantly expanded the scope of grandparent visitation in Kansas by amending K.S.A. 38–129to permit grandparent visitation upon finding that there was a substantial relationship with the child and that it was in the best interests of the minor child. L. 1984, ch. 152, sec. 1.

It is important to recognize that in Troxel v. Granville,530 U.S. 57, 71–72, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court found that the best interests of the child standard alone was insufficient to order grandparent visitation. But the Kansas Supreme Court subsequently found that K.S.A. 38–129complied with the requirements of Troxelbecause it provided sufficient due process protections to parents as long as the burden of proof remained upon the grandparents seeking visitation to show that the visitation was in the child's best interests and that they had a substantial relationship with the child. See Kansas Dept. of SRS v. Paillet,270 Kan. 646, 659–60, 16 P.3d 962 (2001). Thus, district courts continued to have the authority to award grandparent visitation in paternity actions.

From 1984 to 2011, K.S.A. 38–129provided:

“(a) The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established.

“(b) The district court may grant the parents of a deceased person visitation rights, or may enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent's spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.”

Similarly, prior to 2011, K.S.A. 60–1616(b)granted district courts the same authority in dissolution of marriage actions.

The 2011 Kansas Legislature recodified the paternity and dissolution of marriage statutes into the new Family Law Code found in Chapter 23 of the Kansas Statutes Annotated. As part...