Dester v. Dester ( 2014 )

No. 111,115
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MELISSA ANNE DESTER,
Appellee,
v.
CHAD MICHAEL DESTER,
Appellant.
SYLLABUS BY THE COURT
1.
The Protection from Stalking Act, K.S.A. 60-31a01 et seq., provides that it is to be
liberally construed to protect victims of stalking and to facilitate access to judicial
protection for those victims, whether they are represented by counsel or proceeding pro
se.
2.
To determine whether a statute applies retroactively or prospectively, the general
rule is that a statute operates prospectively unless (1) the statutory language clearly
indicates the legislature intended the statute to operate retrospectively or (2) the change is
procedural or remedial in nature, not substantive.
3.
Procedural laws deal with the manner and order of conducting suits—in other
words, the mode of proceeding to enforce legal rights. Substantive laws establish the
rights and duties of parties. There is no vested right in any particular remedy or method
of procedure.
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4.
The 2012 amendments to the Protection from Stalking Act deal with the remedies
portion of the Act, which sets forth the type of relief a victim of stalking may obtain from
the court and the procedure for doing so, and are procedural or remedial in nature.
5.
Amendments which are procedural or remedial may not be applied retrospectively
if they would prejudicially affect a party's substantive or vested rights.
6.
"Vested rights" is a term used to describe rights that cannot be taken away by
retroactive legislation. Retroactive legislation affecting vested rights would constitute the
taking of property without due process.
7.
Reviewing "vested rights" cases requires a look beyond the labels to the
ingredients that shaped the courts' conclusions. Important factors are: (1) the nature of the
rights at stake (e.g., procedural, substantive, remedial); (2) how the rights were affected
(e.g., were the rights partially or completely abolished by the legislation; was any
substitute remedy provided); and (3) the nature and strength of the public interest
furthered by the legislation.
8.
There can be no vested right in an existing law which precludes its change or
repeal as applied to pending litigation.
9.
Because no one has a vested right in stalking or harassing anyone, the 2012
amendment to the Protection from Stalking Act that allows extensions of final protection
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from stalking orders beyond two years is procedural and remedial in nature, does not
impact any vested rights, and therefore is to be applied retroactively to existing orders.
Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Opinion filed September19,
2014. Affirmed.
Dan M. McCulley, of Konza Law, L.L.C., of Manhattan, for appellant.
No appearances by appellee.
Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.
POWELL, J.: In this appeal, we are called upon to answer the question of whether
the 2012 amendment to the Protection from Stalking Act (Act), K.S.A. 60-31a01 et seq.,
that allows more than one extension to existing protection from stalking (PFS) orders,
applies retroactively to orders current at the time of the amendment. See L. 2012, ch. 138,
sec. 7. In the present case, Chad Dester appeals the district court's second extension of a
final PFS order in favor of Melissa Dester. Chad claims the district court did not have
jurisdiction to enter a second extension as the PFS statute in effect at the time Melissa
filed her PFS petition did not allow for a second extension. Melissa did not file an
appellate brief.
Because we find: (1) The provisions of the Act are to be liberally construed to
protect victims of stalking; (2) the relevant amendments to the Act extend the remedies in
the event stalking is proven; (3) the 2012 amendments to the Act have retroactive
application to pending PFS actions; and (4) the retroactive application of these
amendments does not violate Chad's due process rights as he does not have a vested right
which is implicated by the retroactive effect of the amendments, we affirm the district
court.
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FACTUAL AND PROCEDURAL HISTORY
Melissa and Chad divorced after 6 years of marriage. On November 3, 2011,
nearly a month after she had filed for divorce, Melissa filed a petition in the Dickinson
County District Court seeking a PFS order for the parties' minor daughter and herself
against Chad. The petition alleged two specific incidents of stalking: first, Chad had
called Melissa's cell phone 58 times between 11:07 p.m. on November 1, 2011, to 5:01
a.m. on November 2, 2011; and second, Chad had called Melissa's cell and work phone
26 times around noon the following day. Melissa also alleged that Chad had kicked her
car while she and their daughter were driving away and he had pulled a gun on her on
more than one occasion. After granting a temporary order, the district court conducted an
evidentiary hearing on November 15, 2011, and then issued a final PFS order.
On November 1, 2012, Melissa filed a motion to extend the PFS order for an
additional year pursuant to K.S.A. 2012 Supp. 60-31a06(c). The district court conducted
a hearing on the motion and extended the November 15, 2011, final PFS order for
another year, or until November 15, 2013.
On November 5, 2013, Melissa filed a second motion to extend the PFS order for
an additional year pursuant to K.S.A. 2013 Supp. 60-31a06(c). The district court again
conducted a hearing, and, as had occurred at the two prior hearings, Melissa appeared pro
se while Chad appeared with counsel. Chad's counsel argued the district court lacked
jurisdiction to extend the final PFS order for another year because the 2011 version of
K.S.A. 60-31a06(b) was applicable, which limited Melissa to one extension of the final
order, not the 2012 amendment which allowed for additional extensions. The court
disagreed with counsel and extended the November 15, 2011, final PFS order for another
year, or until November 15, 2014.
Chad timely appeals.
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DID THE DISTRICT COURT HAVE AUTHORITY
TO EXTEND THE PFS ORDER FOR ANOTHER YEAR?
Chad argues the district court did not have jurisdiction to grant a second extension
of the final PFS order. He claims the 2011 version of K.S.A. 60-31a06, in effect at the
time Melissa filed her PFS petition, limited the judge's authority to extend a final PFS
order for up to one additional year, not two. In 2012, the legislature revised the language
regarding extensions of final PFS orders, replacing the language "for one additional year"
with "an additional year." K.S.A. 2012 Supp. 60-31a06(c). Chad claims this amendment
does not apply retroactively to the final PFS order entered on November 15, 2011,
because it affects his substantive rights of freedom of speech and freedom of movement.
Thus, the question on appeal is whether an intervening statutory amendment to the Act
applies to a second extension of a final PFS order that was entered prior to the
amendment. Chad does not challenge the sufficiency of the evidence to support the
second extension of the final PFS order.
Standard of Review
Interpretation of a statute is a question of law over which appellate courts exercise
unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
"The most fundamental rule of statutory construction is that the intent of the legislature
governs if that intent can be ascertained." Bergstrom v. Spears Manufacturing Co., 289
Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 918, 296 P.3d 1106 (2013).
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Analysis
The Act provides that it is to be liberally construed to protect victims of stalking
and to facilitate access to judicial protection for those victims, whether they are
represented by counsel or proceeding pro se. K.S.A. 60-31a01(b); see also Wentland v.
Uhlarik, 37 Kan. App. 2d 734, 736, 159 P.3d 1035 (2007) (stalking act construed
liberally to protect victims). The district court granted a final PFS order on November 15,
2011. At that time, the Act read in pertinent part:
"(b) A protection from stalking order shall remain in effect until modified or
dismissed by the court and shall be for a fixed period of time not to exceed one year,
except that, on motion of the plaintiff, such period may be extended for one additional
year. Before the expiration of an order for protection from stalking, a victim, or a parent
on behalf of the victim, may request an extension of the protection from stalking order for
up to one additional year on showing of continuing threat of stalking." (Emphasis added.)
K.S.A. 2011 Supp. 60-31a06(b).
In 2012, the legislature, inter alia, revised subsection (b) and inserted subsections
(c) and (d). K.S.A. 2012 Supp. 60-31a06 read in pertinent part:
"(b) A protection from stalking order shall remain in effect until modified or
dismissed by the court and shall be for a fixed period of time not to exceed one year
except as provided in subsection (c) and (d).
"(c) Upon motion of the plaintiff the court may extend the order for an additional
year.
"(d) Upon verified motion of the plaintiff and after the defendant has been
personally served with a copy of the motion and has had an opportunity to present
evidence and cross-examine witnesses at a hearing on the motion, if the court determines
by a preponderance of the evidence that the defendant has violated a valid protection
order or (A) has previously violated a valid protection order, or (B) has been convicted of
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a person felony or any conspiracy, criminal solicitation or attempt thereof, under the laws
of Kansas or the laws of any other jurisdiction which are substantially similar to such
person felony, committed against the plaintiff or any member of the plaintiff's household,
the court shall extend a protective order for not less than two additional years and up to a
period of time not to exceed the lifetime of the defendant. No service fee shall be
required for a motion filed pursuant to this subsection." (Emphasis added.)
Chad argues the revised statute does not apply to the final PFS order because of
the presumption that statutory amendments only apply prospectively. He also argues that
even if the amendments to the Act do have retroactive effect, they could not in this
particular case as they affect his vested and substantial rights to free speech and freedom
of movement.
To determine whether a statute applies retroactively or prospectively, the general
rule is that a statute operates prospectively unless (1) the statutory language clearly
indicates the legislature intended the statute to operate retrospectively or (2) the change is
procedural or remedial in nature, not substantive. See Jones v. Garrett, 192 Kan. 109,
115, 386 P.2d 194 (1963). Unfortunately, the legislature did not expressly indicate
whether the 2012 amendments to the Act were retroactive. Thus, we must determine
whether the 2012 changes to K.S.A. 60-31a06 are procedural or substantive.
Procedural laws deal with "'the manner and order of conducting suits—in other
words, the mode of proceeding to enforce legal rights.' [Citation omitted.] Substantive
laws establish the 'rights and duties of parties.' [Citation omitted.]" Rios v. Board of
Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994). "There is no
vested right in any particular remedy or method of procedure." Garrett, 192 Kan. 109,
Syl. ¶ 6.
When evaluating the 2012 amendments to the Act, it appears the revisions do not
create a new right or eliminate an existing right but, instead, proscribe a method of
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enforcing a previously existing right, i.e., the right not to be stalked. Cf. Halley v.
Barnabe, 271 Kan. 652, 664, 24 P.3d 140 (2001) (revised statute authorizing derivative
actions by members is procedural as members have no right to protection from claims for
breach of limited liability company operating agreement). Since the amendments at issue
deal with the remedies portion of the Act, the part which sets out the type of relief a
victim of stalking may obtain from the court and the procedure for doing so, we think the
amendments are procedural or remedial in nature.
However, even if the amendments are procedural or remedial, they may not be
applied retrospectively if they would prejudicially affect a party's substantive or vested
rights. Kelly v. VinZant, 287 Kan. 509, 521, 197 P.3d 803 (2008). "'Vested rights' is a
term that is used to describe rights that cannot be taken away by retroactive legislation.
[Citation omitted.] Retroactive legislation affecting vested rights would constitute the
taking of property without due process. [Citation omitted.]" Gardner v. Gardner, 22 Kan.
App. 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996). However, as our
Supreme Court has observed: "The determination of whether a statute affects a 'vested
right' is rarely straightforward." Owen Lumber Co. v. Chartrand, 276 Kan. 218, 221, 73
P.3d 753 (2003).
"'Reviewing "vested rights" cases requires a look beyond the labels to the ingredients
which shaped the courts' conclusions. Important factors are: (1) the nature of the rights at
stake (e.g., procedural, substantive, remedial), (2) how the rights were affected (e.g., were
the rights partially or completely abolished by the legislation; was any substitute remedy
provided), and (3) the nature and strength of the public interest furthered by the
legislation.'" 276 Kan. at 222 (quoting Resolution Trust Corp. v. Fleischer, 257 Kan. 360,
369, 892 P.2d 497 [1995]).
Significantly, Chad does not make the argument that the restrictions to his speech
and freedom of movement contained in the original final PFS order violate his substantial
rights. See Smith v. Martens, 279 Kan. 242, 256, 106 P.3d 28 (2005) (stalking act
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"sufficiently tailored [to] not substantially infringe upon speech protected by the First
Amendment"). Instead, the gravamen of Chad's argument is that he somehow has a
vested right in not having a stalking order imposed upon him for another year. However,
our Supreme Court has rejected this argument by stating: "There can be no vested right in
an existing law which precludes its change or repeal as applied to pending litigation."
Board of Greenwood County Comm'rs v. Nadel, 228 Kan. 469, 473, 618 P.2d 778 (1980);
see also Southwestern Bell Tel. Co. v. Kansas Corporation Comm'n, 29 Kan. App. 2d
414, 423, 29 P.3d 424 (2001) ("[A] mere expectancy of future benefit, . . . founded on
anticipated continuance of existing laws, does not constitute a vested right.").
When applying the factors set forth in Owen Lumber, 276 Kan. at 222, Chad
simply does not have a vested right in stalking or harassing anyone, nor does he have a
vested right in not having a PFS order entered against him for an additional year. The
limited restrictions on Chad's freedom of speech and movement are narrowly tailored
under the Act and are not unlawful. Also, the amendments, which simply allow a
protective order to be continued beyond the original 2-year limitation, are minimally
restrictive when compared to the public interest at stake—the need to protect victims of
stalking. Such a conclusion comports with the purpose of the Act, which "shall be
liberally construed to protect victims of stalking and to facilitate access to judicial
protection for stalking victims." K.S.A. 60-31a01(b).
Accordingly, we conclude the revised statute is remedial and procedural,
implicates no vested rights, and therefore applies retroactively to PFS orders in existence
at the time the amendments were adopted. See In re Tax Appeal of American Restaurant
Operations, 264 Kan. 518, 540, 957 P.2d 473 (1998) (citing Rios, 256 Kan. at 191)
(general rule is that all actions subject to new procedure whether they accrued before or
after change in the law and whether or not suit had been instituted).
Affirmed.
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