Kerry G. v. Stacy C.

No. 117,070
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KERRY G.,
Appellee,
v.
STACY C.,
Appellant.
SYLLABUS BY THE COURT
1.
A court will consider a moot issue if the issue is one capable of repetition and one
of public importance.
2.
A motion filed under K.S.A. 2016 Supp. 60-3107(e)(1) to extend a protection from
abuse (PFA) order for one year must set forth with particularity the grounds for seeking
the order.
3.
A motion filed under K.S.A. 2016 Supp. 60-3107(e)(1) to extend a PFA order for
one year must be served on the defendant. Once served, the defendant has seven days to
respond.
4.
K.S.A. 2016 Supp. 60-3107(e)(1) does not require that the court conduct an
evidentiary hearing to determine if the PFA order should be extended for one year. But
either party may request oral argument on the motion.
1
5.
Any decision by the court to extend a PFA order for one year under K.S.A. 2016
Supp. 60-3107(e)(1) must be based on good cause shown and be reasonably necessary for
the protection of the plaintiff.
6.
K.S.A. 2016 Supp. 60-3107(e)(1) is not void for vagueness.
7.
A court's failure to exercise its discretionary authority is an abuse of discretion.
Appeal from Harvey District Court; STEPHEN A. HILGERS, magistrate judge. Opinion filed
January 5, 2018. Reversed and vacated.
Mary A. McDonald, of McDonald Law LLC, of Newton, for appellant.
No appearance by appellee.
Before ARNOLD-BURGER, C.J., LEBEN and POWELL, JJ.
ARNOLD-BURGER, C.J.: Upon motion of a plaintiff, a district court may extend a
protection from abuse (PFA) order for one year. K.S.A. 2016 Supp. 60-3107(e)(1). The
issue presented in this case is determining what process is due to a defendant when a
plaintiff files a request for the statutorily allowed extension of the PFA order. Here, the
district court granted Kerry's request for a one-year extension of a PFA order against
Stacy without making any factual findings, and without giving Stacy notice or a hearing.
Stacy appeals contending: (1) the district court violated his due process rights by not
giving him notice or an opportunity to be heard before extending the PFA order; (2)
K.S.A. 2016 Supp. 60-3107(e)(1) is void for vagueness; and (3) the district court abused
its discretion in extending the PFA order.
2
Because we find that the district court violated Stacy's statutory right to notice and
an opportunity to be heard before issuing the order extending the PFA order for one year,
we reverse the district court's order and vacate it.
FACTUAL AND PROCEDURAL HISTORY
Kerry and Stacy were in a dating relationship. After a series of incidents in which
Kerry alleged that Stacy engaged in nonconsensual sexual contact with her, she reported
him to the police. Police filed charges against Stacy in March 2015. In July 2015, Kerry
filed a petition for a PFA order against Stacy. Kerry asserted that Stacy attempted to
directly or indirectly contact her after charges were brought against him. These attempts
included contacting Kerry's friends, following her to her house at 12:30 in the morning,
parking in front of her place of employment, and standing at the back door of her place of
employment. The district court granted Kerry a temporary PFA order and scheduled a
hearing on the issue.
Following the hearing, the district court entered a final PFA order. The order was
to be in effect until October 13, 2016. The order stated that "[t]his Final order of
Protection from Abuse may be extended for additional periods of time upon motion of the
plaintiff. Violation of this order could result in the order being extended for up to the
lifetime of the defendant." Stacy appealed the order, and the order was upheld on appeal.
Kerry G. v. Stacy C., 53 Kan. App. 2d 218, 386 P.3d 921 (2016).
In August 2016, Kerry filed a motion to extend the final PFA order for one
additional year pursuant to K.S.A. 2016 Supp. 60-3107(e)(1). The district court granted
the order. The order reflects that the court did not set the matter for a hearing, but that
both parties and their attorneys made appearances. The order was served on Stacy on
October 28, 2016.
3
Stacy filed a motion to set aside and dismiss the PFA extension order for failure to
comply with Kansas statutes or constitutional due process protections. He averred that he
never received notice of the motion to extend the PFA order and that he did not become
aware of it until the extension order was served on him. He argued that the order, which
showed that both parties and their attorneys were present when the district court ordered
the extension, was incorrect because he and his attorney were not present. Stacy argued
that this violated his due process rights because he was not given notice or an opportunity
to be heard on the issue. He also noted that Kerry did not provide a factual basis for
extending the motion. The district court scheduled a hearing for the motion.
Following the hearing, the district court denied Stacy's motion. The court held that
Stacy was not entitled to notice of the motion to extend the PFA order, nor was he
entitled to a hearing before the PFA order was extended. The court also held that Kerry
did not have a duty to allege specific facts that would support her motion to extend. The
court added that it routinely granted one-year extensions to PFA orders without notice to
the defendant or a hearing. In conclusion, the district magistrate judge stated that it is in
"the discretion of the Court to issue the extension for one year. No hearing, no notice,
nothing. They can just do it."
Stacy appealed.
ANALYSIS
The appeal is not moot.
Before reaching Stacy's substantive arguments, this court must determine whether
the issue on appeal is moot. A case is moot when the controversy between the parties has
ended and any judgment of the court would be ineffective. State ex rel. Slusher v. City of
Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007). The PFA order expired on
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October 13, 2017. Therefore, this court cannot grant Stacy the relief that he requests—
because the extension period has already expired. Stacy does not address this issue in his
brief, and Kerry did not file a brief.
As a general rule, Kansas appellate courts do not decide moot questions or render
advisory opinions. Skillett v. Sierra, 30 Kan. App. 2d 1041, 1046, 53 P.3d 1234 (2002).
However, there are exceptions to the general rule. 30 Kan. App. 2d at 1046. A court will
consider a moot issue if it "involve[s] vital rights to the parties." 30 Kan. App. 2d at
1046. Another exception arises "if the issue is 'one capable of repetition and one of public
importance.'" 30 Kan. App. 2d at 1048 (quoting Board of Johnson County Comm'rs v.
Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]). This court exercises unlimited review
over issues of mootness. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).
Because Stacy does not address mootness, he does not show how consideration of
this appeal is vital to his personal rights. However, we find that the second exception
applies here. The district court's order states that the court "routinely grants orders
extending Protection from Abuse Orders an additional year, without prior notice of the
motion to the Defendant/Respondent and without allowing for request of hearings from
Defendant[s]/Respondents against whom Protection from Abuse extensions of an
additional year are ordered." This shows that the issue is capable of repetition. And if, as
Stacy argues, the procedures used by the district court violate due process or the statute is
void for vagueness, then the issue is one of public importance. See Smith v. Martens, 279
Kan. 242, 245, 106 P.3d 28 (2005) (agreeing to consider an appeal of an expired
protection from stalking order to address the constitutionality of the Protection from
Stalking Act because "[t]he constitutionality of the Act, on its face, [was] a matter of
public importance capable of repetition"). Accordingly, we will consider Stacy's appeal,
even though we cannot grant him the specific relief he requests.
5
We examine the statutes governing PFA orders in Kansas.
To begin, it is important to outline the statutes as they relate to the facts of this
case to fully understand Stacy's arguments. We pause to note that neither Kerry nor the
Attorney General filed any briefs in this case, so we do not have the benefit of their
positions on Stacy's appeal or the constitutionality of the statute.
An intimate partner or household member may seek a PFA order by filing a
verified petition with the court alleging abuse by another intimate partner or household
member. K.S.A. 2016 Supp. 60-3104(a). A verified petition is one that is signed attesting
to the truthfulness of the allegations contained in the pleading. See K.S.A. 53-601. Once
filed, the petition must be personally served on the defendant. K.S.A. 2016 Supp. 60-
3104(d). Within 21 days, the court is required to hold a hearing at which the plaintiff
must prove the allegation of abuse by a preponderance of the evidence. This is a full
evidentiary hearing with notice to the parties, the presentation of witnesses, and the right
to cross-examination. K.S.A. 2016 Supp. 60-3106(a). Unless later modified or dismissed
by the court, once a PFA order is entered it is in effect for one year. K.S.A. 2016 Supp.
60-3107(e).
The Protection from Abuse Act provides two ways to extend a PFA order. "Upon
motion of the plaintiff," a PFA order "may be extended for one additional year." K.S.A.
2016 Supp. 60-3107(e)(1). A court must extend a PFA order for at least an additional two
years, and may extend it up to the lifetime of the defendant, if it finds that the defendant
has violated a valid PFA order. Before the court can make such a finding, the plaintiff
must file a verified petition with the court. Just like the initial PFA petition, it must be
personally served on the defendant and proven by a preponderance of the evidence after
an evidentiary hearing. K.S.A. 2016 Supp. 60-3107(e)(2).
With this statutory context in mind we proceed to Stacy's claims of error.
6
The district court violated Stacy's statutory rights to notice and an opportunity to be
heard.
Stacy's first argument is that the district court violated his due process rights under
the Fourteenth Amendment to the United States Constitution (no state shall "deprive any
person of life, liberty, or property, without due process of law") by granting the motion to
extend the PFA order for an additional year without holding a hearing or providing him
with notice of the motion.
Whether a person was afforded due process is an issue of law subject to unlimited
review. See State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1 (2000). "The basic
elements of procedural due process are notice and an opportunity to be heard at a
meaningful time and in a meaningful manner." 269 Kan. at 608.
We find that we need not address the constitutional claim asserted, because Stacy
had a statutory right to notice and an opportunity to be heard at a meaningful time and in
a meaningful manner that mirrors his constitutional right to due process. Stacy's statutory
rights were clearly violated. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650,
Syl. ¶ 3, 367 P.3d 282 (2016) ("Appellate courts generally avoid making unnecessary
constitutional decisions. . . . [W]here there is a valid alternative ground for relief, an
appellate court need not reach a constitutional challenge.").
Our review of Stacy's statutory rights involves statutory interpretation.
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). The
most fundamental rule of statutory construction is that the intent of the legislature
governs if that intent can be ascertained. State ex rel. Schmidt, 303 Kan. at 659. An
appellate court must first attempt to ascertain legislative intent through the statutory
7
language enacted, giving common words their ordinary meanings. Ullery v. Othick, 304
Kan. 405, 409, 372 P.3d 1135 (2016).
First, even though a one-year extension of a PFA order does not require a verified
petition, as is the case for the initial petition or any request to extend a PFA order for two
years or more, it does require the filing of a motion. K.S.A. 2016 Supp. 60-3107(e)(1).
All proceedings under the Protection from Abuse Act are subject to the provisions of
"chapter 60 of the Kansas Statutes Annotated." K.S.A. 60-3109. According to the code of
civil procedure, "[a] request for a court order must be made by motion" and "a written
motion, except one that may be heard ex parte," must be served on the defendant. K.S.A.
2016 Supp. 60-207(b); K.S.A. 2016 Supp. 60-205(a)(1)(D). The statute at issue here,
K.S.A. 2016 Supp. 60-3107(e)(1), does not explicitly provide for an ex parte hearing on
the motion. Generally, when ex parte hearings are allowed under our Kansas statutes, and
in particular under the Protection from Abuse Act, the statute clearly so states and
requires some sort of verified petition or pleading as a condition precedent. See K.S.A.
60-3105(a) (emergency order for relief may be granted ex parte after filing of a verified
petition); K.S.A. 2016 Supp. 60-3106(b) (temporary orders may be granted ex parte after
filing of a verified petition); see also K.S.A. 2016 Supp. 60-31a05(b) (ex parte temporary
orders after filing verified petition); K.S.A. 2016 Supp. 59-3073(a)(7) (ex parte
appointment of temporary guardian following filing of verified petition). Accordingly,
notice is required.
As to service of the motion, because personal service is not required as it is
elsewhere in the statute, service of the motion can be by any method set out in the statute,
including mailing it to the defendant's last known address. K.S.A. 2016 Supp. 60-
205(b)(2)(C). If the defendant is represented by an attorney, service must be made on the
attorney. K.S.A. 2016 Supp. 60-205(b)(1). In this case, there is no dispute that Stacy was
not served with the motion, nor was his attorney.
8
Second, all motions filed with a court must set forth "with particularity the
grounds for seeking the order." K.S.A. 2016 Supp. 60-207(b)(1)(B); see also Supreme
Court Rule 133(a) (2017 Kan. S. Ct. R. 198) (motions must state the reasons for the
motion). This also incorporates the basic constitutional due process requirement of
notice. In this case, the motion filed by Kerry stated only: "Plaintiff asks the court to
extend the protection from abuse order entered on 10/13/15. . . . Plaintiff requests an
extension of the protection from abuse order for an additional year under K.S.A. 60-
3107(e)(1)." No further reasons were given. It was filed on August 29, 2016. It was
granted by the district magistrate judge on October 11, 2016. Although the journal entry
states that both parties and their respective attorneys were present, there is no dispute that
there were no appearances, at least by the defendant and his attorney. The final order was
served on Stacy on October 28, 2016. Even if Stacy had been served with the motion
prior to October 11, 2016, its contents were woefully inadequate to put him on notice as
to why Kerry believed an extension of the PFA order was necessary.
Next, once a motion is filed under K.S.A. 2016 Supp. 60-3107(e)(1), a defendant
has a right, although not a duty, to file a response. See K.S.A. 2016 Supp. 60-206(c)(2).
Although no specific time frame is set out in the statute, there are some general
provisions that guide a party filing a response to a motion. If the motion includes a
hearing date, the motion must be served on the defendant at least seven days prior to the
hearing. K.S.A. 2016 Supp. 60-206(c). Any response to the motion must be served on the
plaintiff at least one day prior to the hearing. K.S.A. 2016 Supp. 60-206(c)(2). Extensions
of time may be granted in the discretion of the judge. K.S.A. 2016 Supp. 60-206(b). In
addition, Supreme Court Rule 133(b) provides that an adverse party may file a
memorandum in opposition to a motion stating the reasons it should be denied. The
response must be filed not later than seven days after service of the motion. Supreme
Court Rule 133(b). So in this case, had Stacy been properly served, he would have had an
opportunity to respond to Kerry's motion. He could also request an extension of time if
seven days was not sufficient. K.S.A. 2016 Supp. 60-206(b).
9
Finally, K.S.A. 2016 Supp. 60-3107(e)(1) does not require that the court conduct
an evidentiary hearing to determine if the PFA order should be extended for one year.
The Protection from Abuse Act explicitly requires such a hearing before the initial entry
of the order. K.S.A. 2016 Supp. 60-3106(a). It also requires an evidentiary hearing prior
to extending an order for two years or more. K.S.A. 2016 Supp. 60-3107(e)(2). But even
though an evidentiary hearing is not statutorily required in response to a motion to extend
the PFA order for only one year, Supreme Court Rule 133(c)(1) (2017 Kan. S. Ct. R.
198) provides: "A party may request oral argument—either in the motion or in a
response filed by the adverse party." The rule goes on to state that if no party requests
oral argument, the court has the option of setting the matter for a hearing or ruling on the
motion immediately and communicating the ruling to the parties. Supreme Court Rule
133(c)(2). Even if a party requests oral argument, a court is not required to grant the
request and may simply state "in the ruling or by separate communication that oral
argument would not aid the court materially." Supreme Court Rule 133(c)(1) (2017 Kan.
S. Ct. R. 198). In this case, neither party requested oral argument, so had Stacy been
properly served with the motion the court would have been free to rule on the motion and
simply communicate the decision to the parties. Of course, we do not know if Stacy
would have requested oral argument had he been properly advised of the motion.
In sum, Stacy had a statutory right to receive a copy of the motion Kerry filed
requesting a one-year extension of the PFA order. He had a right to respond and to
request oral argument on the motion prior to a judge ruling on it. Failure of Kerry to serve
a copy of the order on Stacy and failure of the court to make sure Stacy had been served
violated Stacy's statutory rights. Such a violation was not harmless because it subjected
Stacy to an order that limited his movement and subjected him to potential criminal and
civil penalties—all without notice of the allegations against him and an opportunity to
present his disagreement to the district court. Accordingly, the order extending the PFA
order for one year is vacated.
10
K.S.A. 2016 Supp. 60-3107(e)(1) is not unconstitutionally vague.
Stacy also argues that K.S.A. 2016 Supp. 60-3107(e)(1) is unconstitutionally
vague.
Stacy is raising this issue for the first time on appeal. Generally, this court will not
consider a constitutional issue raised for the first time on appeal. In re A.E.S., 48 Kan.
App. 2d 761, 767, 298 P.3d 386 (2013). But, there are several exceptions. One of these is
that "the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case." State v. Kirtdoll, 281 Kan. 1138,
1149, 136 P.3d 417 (2006). Stacy argues that this exception applies to his case. Because
Stacy's PFA order is already expired, it is unclear how resolution of this issue would be
finally determinative of his case. However, this court can also hear cases when
"consideration of the theory is necessary to serve the ends of justice or to prevent denial
of fundamental rights." 281 Kan. at 1149. Consideration of Stacy's claim is appropriate
under this exception to determine if K.S.A. 2016 Supp. 60-3107(e)(1) is unconstitutional,
and thus denies fundamental rights.
When the constitutionality of a statute is challenged, this court exercises unlimited
review. Glaze v. J.K. Williams, LLC, 53 Kan. App. 2d 712, 719, 390 P.3d 116 (2017).
The appellate courts presume statutes are constitutional and must resolve all doubts in
favor of a statute's validity. Courts must interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the legislature's
apparent intent. Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).
This court makes two inquiries when determining whether a statute is void for
vagueness: "(1) whether the statute gives fair warning to those persons potentially
subject to it, and (2) whether the statute adequately guards against arbitrary and
discriminatory enforcement." Gullian v. Watts, 249 Kan. 606, 618, 822 P.2d 582 (1991).
11
For the first inquiry, this court must ask whether the statute "convey[s] sufficient
definite warning and fair notice as to the prohibited conduct in light of common
understanding and practice." City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621
(2003). Stacy argues that K.S.A. 2016 Supp. 60-3107(e)(1) fails to give notice to
defendants as to what conduct would result in an extension of the protective order. But,
this provision must be read in context of the Protection from Abuse Act. K.S.A. 60-3101
et seq. When looking at the Act as a whole, it is clear that a defendant is only subject to a
PFA order if the defendant abuses an intimate partner or household member. K.S.A. 60-
3102(a)-(b); K.S.A. 2016 Supp. 60-3106(a). Once the district court finds abuse by a
preponderance of the evidence, the defendant is subject to a PFA order for up to two
years—one year may be assigned by the district court and another requested by the
plaintiff. In Stacy's case, he could have avoided the application of K.S.A. 2016 Supp. 60-
3107(e)(1) if he had avoided the abuse that led to Kerry seeking the PFA order in the first
place.
K.S.A. 2016 Supp. 60-3107(e)(1) gives fair warning to the persons potentially
subject to it. Anyone subject to a PFA order may also be subject to an extension of that
order under K.S.A. 2016 Supp. 60-3107(e). Thus, the first part of the vagueness inquiry
suggests that the statute is constitutional.
Stacy also argues that the statute does not adequately guard against arbitrary and
discriminatory enforcement "[b]ecause no clear rules explain how and when the court
should grant an extension under K.S.A. 60-3107(e)(1) . . . ." Stacy makes a good point—
nothing in the statute dictates when the district court should or should not grant an
extension. The lack of statutory guidance is a problem not only for defendants, but also
for plaintiffs. If a district court exercises its discretion to deny a plaintiff's motion to
extend a PFA order without making any factual findings, the plaintiff would have a hard
time proving that the district court abused its discretion.
12
Although it would be preferable if the statute had clearer language, its absence
does not automatically result in a finding that the statute is void for vagueness. As
indicated, "[i]f there is any reasonable way to construe the statute as constitutionally
valid, that should be done." Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67,
74, 697 P.2d 1310 (1985). We have no problem doing so here. We are aided by the
legislative statement of purpose regarding the Protection from Abuse Act:
"This act shall be liberally construed to promote the protection of victims of domestic
violence from bodily injury or threats of bodily injury and to facilitate access to judicial
protection for the victims, whether represented by counsel or proceeding pro se." K.S.A.
60-3101(b).
The statute requires the judge to perform a discretionary act: "Upon motion of the
plaintiff, such period may be extended for one additional year." (Emphasis added.)
K.S.A. 2016 Supp. 60-3107(e)(1). "May" means that a judge is "permitted," but not
required, to take some action. Black's Law Dictionary 1127 (10th ed. 2014). "Judicial
discretion" is defined as "[t]he exercise of judgment by a judge or court based on what is
fair under the circumstances and guided by the rules and principles of law." Black's Law
Dictionary 565 (10th ed. 2014). We have long-standing caselaw in Kansas related to a
judge's use of his or her discretion. A judge abuses his or her discretion when making an
order that is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3)
based on an error of fact. Jordan v. Jordan, 47 Kan. App. 2d 300, 306, 274 P.3d 657
(2012). Accordingly, a judge's decision to extend the PFA order must be based on the law
and the facts of the case, and it may not be arbitrary, fanciful, or unreasonable. If this
standard is violated, the judge's action will not withstand appellate review.
Accordingly, we interpret K.S.A. 2016 Supp. 60-3107(e)(1) to include a
requirement that any such discretionary decision by the court to extend a PFA order for
one year must be based on good cause shown and be reasonably necessary for the
13
protection of the plaintiff. We find that the statute is constitutional when a judge's
discretion is limited and construed in this way. We also find that such a reading is
consistent with the legislative intent "to promote the protection of victims of domestic
violence from bodily injury or threats of bodily injury." K.S.A. 60-3101(b).
The district court abused its discretion in extending the PFA order by not exercising any
discretion.
Alternatively, Stacy argues that the district court abused its discretion in extending
the PFA order.
As stated, a district court has discretion to extend a PFA order under K.S.A. 2016
Supp. 60-3107(e)(1). "A judicial action constitutes an abuse of discretion if the action
(1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based
on an error of fact." Jordan, 47 Kan. App. 2d at 306.
But in this case the magistrate judge indicated that he routinely grants plaintiffs'
motions for a one-year extension with "[n]o hearing, no notice, nothing. [I] can just do
it." He treated the statute as if it compelled such a result, rather than simply allowed such
a result. "A tribunal's failure to exercise its discretionary authority is an abuse of
discretion." Kansas Dept. of Revenue v. Powell, 290 Kan. 564, Syl. ¶ 5, 232 P.3d 856
(2010). The plain language of the statute does not state that the judge shall extend the
PFA order upon a motion made; it states he or she may extend it. Our Supreme Court has
made clear that "a tribunal abuses its discretion by applying a blanket rule without
consideration of other factors in an individual case." 290 Kan. at 570. Accordingly, we
find the district magistrate judge abused his discretion here by completely failing to
exercise it and consider the individual facts of the case.
14
Had we not already found that Stacy's statutory rights to notice and an opportunity
to be heard were violated, we would typically remand the case to the district magistrate
judge to properly exercise his discretion. But because the time period for the extension
has already expired, such an order would serve no purpose.
We reverse the district court's decision extending the PFA order filed against Stacy
and vacate the order.
Reversed and vacated.
15