D.G. v. M.G. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,342
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
D.G.,
Appellee,
v.
M.G.,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; WILLIAM E. PRAY, judge pro tem. Opinion filed
December 17, 2021. Affirmed.
Helen H. White and Antony V. Jones, of Stange Law Firm, P.C., of Overland Park, for appellant.
Chadler E. Colgan, of Colgan Law Firm, LLC, of Kansas City, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: D.G. obtained a protection from stalking order against her former
husband, M.G. M.G. appeals, arguing the evidence was insufficient to grant the order.
The order expired while this appeal was pending, and we ordered M.G. to show cause
why the case is not moot. M.G. acknowledges that the order is no longer in effect, but he
argues that collateral consequences of the expired order render the case a real controversy
we may decide on appeal. We agree and reach the merits of his claim. Because the
evidence was sufficient to enter the order, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
D.G. and M.G. divorced in March 2020. In April 2020, D.G. filed petitions for
protection from abuse (PFA) and protection from stalking, sexual assault, or human
trafficking (PFS) based on various incidents with M.G. The district court entered a
temporary PFS order and continued that order until it could hold a full hearing (delayed
by the ongoing COVID-19 pandemic).
The district court considered the PFA and PFS petitions at an evidentiary hearing
on August 17, 2020. At the hearing, D.G. testified, and M.G., appearing pro se, made
arguments and answered questions from the court. The district court denied D.G.'s PFA
petition, finding that the cited incident was too remote in time. The evidence presented
focused mostly on allegations related to the PFS petition.
D.G. testified that issues between her and M.G. escalated after their divorce. She
told M.G. to only contact her about their son, but in March 2020 M.G. began making
unwanted communications through phone calls and text messages to D.G. multiple times
a day. Specifically, on March 14, M.G. sent 18 text messages and called 8 times while
D.G. napped with their son. She also presented evidence about a second specific
incident—a series of insulting and vulgar text messages M.G. sent on April 19. At the
hearing, M.G. admitted he sent these messages.
D.G. also referenced multiple other undated text messages that caused her concern
about M.G.'s mental state. She testified that these messages, given the parties' history,
placed her in fear for her safety and imminent bodily harm and caused significant
anxiety. D.G. also worried that M.G. would show up unannounced and take their son
away from her.
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In response to D.G.'s testimony, M.G. stated that the March 14 calls were an
accident. He claimed that D.G. filed the petitions in retaliation for her military command
finding out about incidents of adultery and fraternization, and that she was using the
pandemic to prevent M.G. from seeing their son. After hearing this testimony and
reviewing the evidence presented, the district court entered a PFS order for one year. That
order expired on August 17, 2021.
DISCUSSION
M.G.'s primary argument on appeal is that the evidence was insufficient to support
the PFS order against him. But the timing of this appeal and the expiration of the PFS
order have created a preliminary issue regarding the reviewability of M.G.'s claim. In
particular, because the PFS order expired while this appeal was pending, we ordered
M.G. to show cause why the case is not moot. M.G. does not dispute that the order
expired, but he argues that the collateral consequences of the order—to his reputation,
employment prospects, and security clearance—allow us to decide the case. D.G. also
seeks attorney fees and costs on appeal, arguing that M.G.'s appeal is frivolous and seeks
only to harass or delay.
We agree with M.G. that the collateral consequences of the PFS order—in
particular, the effect of that order on his security clearance—mean that the case before us
is not moot. But we also find that there was sufficient evidence presented to support the
PFS order. Finally, although M.G. has not prevailed in his appeal, it was not frivolous;
we therefore deny D.G.'s request for attorney fees.
1. The collateral consequences of the expired PFS order allow us to decide this appeal.
Unlike the legislative and executive branches, Kansas courts do not have the
constitutional authority to issue advisory opinions. State ex rel. Morrison v. Sebelius, 285
Kan. 875, 898, 179 P.3d 366 (2008). Instead, courts are called on to decide concrete
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questions that will have an actual impact on the parties before us—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.'" State v.
Roat, 311 Kan. 581, 590, 466 P.3d 439 (2020).
As a corollary to this principle, even if a court case began with an active dispute,
courts will generally not continue to hear the case if the issues presented become "moot."
311 Kan. at 584. A case is moot when "'the actual controversy'" in the case has ended,
and any judgment that could be entered "'would be ineffectual for any purpose'" and
"'would not impact any of the parties' rights.'" 311 Kan. at 584.
But mootness is prudential, not jurisdictional, and there are judicially created
exceptions to this doctrine that allow for continued appellate review even when a
controversy appears to have ended. 311 Kan. at 590. One exception applies when an
otherwise moot judgment still affects the "vital rights" of a party. 311 Kan. at 596. The
party invoking this exception must point to specific adverse collateral consequences of an
expired order or sentence. See State v. Montgomery, 295 Kan. 837, 841-42, 286 P.3d 866(2012). These consequences need not have already happened, for "[a] case is not moot
where it may have adverse legal consequences in the future." 295 Kan. 837, Syl. ¶ 4.
Still, collateral consequences cannot be too speculative. Litigants "must give substance to
their arguments when asserting that protection of collateral rights necessitates resolution
of their underlying appellate issues." Roat, 311 Kan. at 601.
We generally require specificity when parties invoke the vital rights exception in
the protective order context. C.M. v. McKee, 54 Kan. App. 2d 318, 320-21, 398 P.3d 228(2017). For example, asserting a potential harm to recredentialing for a professional
license is enough to overcome the mootness bar for an expired order. Piazza v. Piazza,
No. 90,593, 2004 WL 1443899, at *1 (Kan. App. 2004) (unpublished opinion). But
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broadly asserting that an expired order will adversely affect a person's rights in the future
is not enough. Allen v. Allen, No. 104,893, 2011 WL 6382881, at *2 (Kan. App. 2011)
(unpublished opinion).
Without squarely addressing the issue, panels of this court have differed on
whether and when adverse reputational or employment consequences are sufficient to
provide for continued review of otherwise moot questions. See Hunsaker on behalf of
C.H. v. Harden, No. 120,699, 2019 WL 5089846, at *3-4 (Kan. App. 2019) (unpublished
opinion) (collecting cases). One panel held that the stigma of being publicly labeled a
"stalker" because of a PFS order is too speculative without a related adverse impact on
the person's legal rights. C.M., 54 Kan. App. 2d at 321. Another panel similarly found the
appellant's assertion of "'undue prejudice in his personal and employment life'" was
insufficient. Hunsaker, 2019 WL 5089846, at *4.
At least one panel came to a different conclusion, finding that an appeal of an
expired PFS order was not moot because "[a] finding that a person is a stalker or involved
in stalking behavior can have long-term consequences for that person," especially in
future protective order or criminal cases. Kaster v. Riley, No. 117,008, 2018 WL 672106,
at *4 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1595 (2018). But other
panels have characterized this reasoning—that the stigma of being the subject of a
protective order is itself a sufficient collateral consequence—as a minority view.
Hunsaker, 2019 WL 5089846, at *3.
Other states have determined that reputational harm from an expired protective
order is enough to overcome mootness. In his response to our show-cause order, M.G.
pointed to Hamilton ex rel. Lethem v. Lethem, 119 Haw. 1, 193 P.3d 839 (2008), in which
the Hawaii Supreme Court held that reputational harm from an expired domestic violence
restraining order was a sufficient collateral consequence to warrant continued review. 119
Haw. at 9-10. Hamilton relied on a Connecticut Supreme Court decision that came to the
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same conclusion, "recognizing reputation harm and other potential legal disabilities as
collateral consequences of otherwise moot court orders." Putman v. Kennedy, 279 Conn.
162, 170-71, 900 A.2d 1256 (2006). Some other states have agreed that collateral
consequences like reputational harm or social stigma are enough to hear an appeal from
an expired order. See, e.g., Chretien v. Chretien, 2017 ME 192, 170 A.3d 260, 262-63
(2017) (collecting cases); Martin v. Martin, 545 S.W.3d 162, 166-67 (Tex. App. 2017)
("'effects of a protective order carry significant collateral legal repercussions and a social
stigma'").
We need not determine whether M.G.'s claims of harm to his reputation and
employment prospects are enough, however, because he stated a separate concrete,
nonspeculative harm in losing his security clearance. In his response to the show cause
order, M.G. stated that he already lost his security clearance as a direct result of the PFS
order. This is a sufficient collateral consequence that meets the vital rights exception to
the mootness rule, and a decision in his favor could rectify that harm. Thus, we can reach
the merits even though the order at issue expired.
2. The evidence was sufficient to support the PFS order.
In a challenge to the sufficiency of the evidence supporting a PFS order, appellate
courts review the district court's factual findings for substantial competent evidence, then
whether those findings are sufficient to support the district court's conclusions of law.
Wentland v. Uhlarik, 37 Kan. App. 2d 734, 736, 159 P.3d 1035 (2007). We view the
evidence in the light most favorable to the prevailing party below and will not reweigh
the evidence or pass on witness credibility. 37 Kan. App. 2d at 736. Review of the district
court's conclusions of law is de novo. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d
214 (2004). "On appeal, we generally conclude that the district court has found whatever
facts would support its judgment if those facts are supported by substantial evidence."
C.M., 54 Kan. App. 2d at 324.
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The district court entered the PFS order under the Protection from Stalking Act,
which "shall be liberally construed to protect victims of stalking." K.S.A. 2020 Supp. 60-
31a01(b). In a PFS action, the plaintiff must prove stalking by a preponderance of the
evidence. K.S.A. 2020 Supp. 60-31a05(a). He or she must provide evidence of
harassment, which requires a "course of conduct"—that is, "conduct consisting of two or
more separate acts over a period of time, however short, evidencing a continuity of
purpose which would cause a reasonable person to suffer substantial emotional distress."
K.S.A. 2020 Supp. 60-31a02(d), (d)(1), (d)(2).
M.G. asserts that there was only evidence of one act—not two or more as the
statute requires—and thus there was insufficient evidence of stalking. He admits to the
March 14 calls and text messages but claims there was no evidence of any other incident.
M.G. ignores evidence of other incidents in the record. Besides the March 14
incident, D.G. testified about an incident on April 19 in which M.G. sent a string of
harassing and offensive text messages. D.G. admitted a screenshot of these messages into
evidence at the hearing. When reviewing the screenshot at the hearing, M.G. admitted
that "these are my messages." D.G. also testified about other undated incidents of M.G.
sending alarming or harassing text messages. And she specifically testified that M.G.'s
messages made her fear for her safety. There was substantial evidence below of at least
two incidents of stalking—the March 14 incident (which M.G. concedes on appeal), and
the April 19 incident (which M.G. admitted to at the hearing below).
M.G. also argues that the district court inadequately explained its findings when
issuing the order. But a district court does not have to identify all incidents supporting a
PFS order when substantial evidence supports the court's findings. C.M., 54 Kan. App. 2d
at 324. Substantial evidence from the hearing supported a finding of at least two incidents
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of stalking—March 14 and April 19. Because of that evidence, any lack of specificity in
the district court's ruling is not a ground for error on appeal.
M.G. presented a different explanation for the text messages, but we cannot
reassess the district court's credibility determination on this point. Viewing the evidence
in the light most favorable to D.G., substantial competent evidence supports a finding of
at least two acts of stalking, and sufficient evidence supports the district court's entry of
the PFS order.
3. D.G. is not entitled to attorney fees.
After the parties submitted their briefs in this case and the matter was set on a
docket, D.G. moved for appellate attorney fees, asserting that M.G.'s appeal is frivolous.
Supreme Court Rule 7.07(b)(1) (2021 Kan. S. Ct. R. 51) allows this court to award
attorney fees when the district court could do so, and Supreme Court Rule 7.07(c) (2021
Kan. S. Ct. R. 51) allows an award of attorney fees for a frivolous appeal. The district
court could award attorney fees under K.S.A. 2020 Supp. 60-31a06(f), so D.G.'s motion
depends on whether M.G.'s appeal is frivolous.
A frivolous appeal fails to present a justiciable question and "'is readily recognized
as devoid of merit in that there is little prospect that it can ever succeed.'" McCullough v.
Wilson, 308 Kan. 1025, 1037, 426 P.3d 494 (2018). Although M.G.'s arguments are
unpersuasive and unsupported by the record, his appeal is not frivolous. He appeals as of
right from the entry of a PFS order against him and makes the valid—but unsuccessful—
argument that there was insufficient evidence to support the order. This appeal still
presents a justiciable question, and although M.G.'s argument is not persuasive, it does
not reach the level of a frivolous appeal warranting attorney fees.
Affirmed.
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