DocketNumber： No. 93,450
Citation Numbers： 34 Kan. App. 2d 413, 119 P.3d 684, 2005 Kan. App. LEXIS 910
Judges： Buser, Green, Malone
Filed Date： 9/16/2005
Status： Precedential
Modified Date： 10/18/2024
William David Kimbrell (David) appeals the trial court’s decision regarding parenting time with his 16-year-old son Evan Kimbrell. The issue in this case is whether the trial court can condition a noncustodial parent’s right to parenting time with his or her minor child upon the desires of the child. We determine that this cannot be done. K.S.A. 2004 Supp. 60-1616(a) makes it clear that a parent has a right to reasonable parenting time with his or her minor child “unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.” Conditioning parenting time on the wishes of a minor child improperly gives the child the authority to determine a noncustodial parent’s rights to parenting time and visitation and can have the effect of completely denying the noncustodial parent’s rights to parenting time.
Under the facts of this case, we determine that in the absence of a finding that parenting time “would seriously endanger the child’s physical, mental, moral or emotional health,” the trial court must set a reasonable and specific schedule for David’s parenting time with Evan. Accordingly, we reverse in part and remand to the trial court with directions to either determine an appropriate and reasonable parenting time and visitation schedule or make tire required statutory finding that the exercise of parenting time in this case would seriously endanger tire child’s physical, mental, moral, or emotional health.
The parties, David Kimbrell and Janet Bouley, formerly known as Janet Kimbrell, divorced in April 1996, after nearly 16 years of marriage. The parties had three children together, Anna Kimbrell (date of birth 04/18/81), Dylan Kimbrell (date of birth 09/05/86), and Evan (date of birth 10/09/88). At present, Evan is the only minor child involved in this case.
At the time of their divorce, David and Janet entered into a mediated agreement, where they agreed to joint custody of their
In July 2001, David moved to modify the 1996 divorce decree and for an emergency change of placement for Dylan and Evan. In his motion, David asked that he be given residential custody of Dylan and Evan, that the trial court order strict supervision of Janet’s contact with the boys, and that the trial court order a psychological evaluation of Janet, Dylan, and Evan to determine whether Janet was alienating the children from him. David maintained that Janet had “commenced a program and concerted effort to alienate the three children” from him and that she had interfered with his visitations and the parenting time and visitation schedule. At David’s request, these motions were dismissed in March 2002.
For summer 2001, the parties agreed to a split parenting arrangement where the children would essentially spend alternating weeks with each parent. In addition, the parties agreed to participate in psychological evaluations and testing. The agreed parenting plan was to continue until psychological evaluations and reports were completed.
Upon agreement by the parties, the trial court appointed Susan Vorhees, Ph.D., to conduct evaluation and testing of the parties and their minor children. Although David later moved for a protective order to prohibit the dissemination of Dr. Vorhees’ proposed report, the trial court ordered that Dr. Vorhees’ evaluation be provided to the court. Dr. Vorhees’ report, which was filed in December 2002, indicated that David was alienated from his children due to his own behavior. According to Dr. Vorhees, “[David] is alienated from them by his own inability to accept that they and their mother are independent individuals, that they need and want a relationship with both parents, and that he cannot be in control of either of these relationships.” Dr. Vorhees indicated that David’s alienation from the children could be resolved by David faying to accept his children for who they are and by fastening to his children.
In February 2002, Judge Buchele made additional recommendations, including that Dylan and Evan be with David on Wednesdays after school until 8 p.m. and on alternating Saturday and Sunday afternoons. Judge Buchele again made recommendations in March 2002. Judge Buchele recommended that David spend a week during spring break with Evan and that the parties participate in family counseling with Michael Lubbers, Ph.D. At that time, Dylan and Evan were seeing Dale Bamum, Ph.D., and Janet and David were each working with a mental health professional. David objected to both the February 2002 and March 2002 recommendations.
On June 12, 2002, Judge Buchele submitted his report and recommendations and also responded to David’s objections. In his report, Judge Buchele addressed David’s allegations that Janet had alienated Dylan and Evan. Judge Buchele’s opinion was that Dylan’s and Evan’s alienation from David was caused by David’s own conduct. Nevertheless, Judge Buchele was encouraged by the fact that David had spoken with Dr. Bamum and had agreed to work on a new approach to communicating with Evan.
In his report, Judge Buchele recommended modification of the existing parenting plan. Judge Buchele expanded David’s parenting time with Evan, setting forth specific times that Evan would spend with David. Judge Buchele’s recommendations assumed there would be some change in the status quo. Judge Buchele recommended that David’s parenting time with Dylan be “as they may agree.”
After David and Janet separately filed objections to Judge Buchele’s recommendations, Judge Buchele issued a supplemental re
In November 2002, upon David’s motion, the trial court appointed Dr. Richard Gardner, M.D., to conduct a parental alienation syndrome (PAS) evaluation of the family. The trial court terminated its order for counseling with Dr. Lubbers but ordered Dylan and Evan to continue therapy with Dr. Barnum. Moreover, the trial court ordered that the contact between Evan and David continue under the current arrangement and that the contact between Dylan and David be as Dylan desired.
Dr. Gardner completed the PAS evaluation and filed a written report in January 2003. Dr. Gardner found no evidence that the children were suffering from PAS or that Janet was a PAS alienator. Instead, Dr. Gardner indicated that the primary source of the children’s alienation from David was David’s own psychiatric problems, especially his obsessive-compulsive personality disorder and paranoid trends. Dr. Gardner recommended that Janet continue to have primary parenting time with Dylan and Evan, that Janet have primary legal custody, and that the court rescind the order requiring Dylan and Evan to participate in therapy. Dr. Gardner indicated that the family could be helped with appropriate treatment given to David, Dylan, and Evan, but that such treatment should be on a voluntary basis.
In September 2003, David moved for the appointment of another case manager, for an order for the parties and children to participate in therapy, and for an order enforcing the joint decision making required under the parties’ joint custody agreement. Attached to David’s motion were letters from Nancy Hughes, Ph.D., LSCSW, who had conducted an adoption home study with David and his wife, and from John Spiridigliozzi, Ph.D., a licensed psychologist who had been working with David for approximately 3
In November 2003, the trial court appointed William F. Ebert, III, as special master, whose duties included recommending therapy for the parties and their children as well as preparing findings of fact and conclusions of law for the trial court to review if the parties could not agree on child-rearing decisions or therapy.
After meeting with die parties, reviewing the court file, which included the reports issued by the various professionals, reviewing email communication, contacting individuals identified by the parties, and discussing the case with the parties’ attorneys, the special master issued his written report in January 2004. In an order issued in February 2004, the trial court adopted the following proposed conclusions of law of the special master:
“1. If David Kimbrell genuinely desires to re-establish meaningful relationships with his children, it will be necessary for him to participate in individual therapy with a therapist who is knowledgeable about parental alienation syndrome and knowledgeable about parents who are emotionally abusive, especially those with significant psychiatric problems.
“2. If the individual therapy process with David is successful (i.e. if David can be helped to . . . appreciate . . . how he has contributed to the damaged relationships with his children and helped to understand how to modify his expectations and behavior accordingly) then the door should be opened to including Evan and/or Dylan in the therapy process, if they choose to participate (as per Dr. Gardner’s recommendations, §6, Pages 117, 118, Gardner Report).”
David moved for reconsideration of the trial court’s decision or, alternatively, to modify its previous orders. In his motion, David requested specific orders relating to the following: parenting time and visitation, exchanging information regarding the children, counseling, and terminating tire special master’s appointment. In his motion, David argued that there could not be a therapy precondition to his contact with his children. In addition, David argued that the special master’s report was unreliable because it was factually flawed, placed undue reliance on questionable expert opinions, and did not comport with due process.
“l.Based upon the case history, recommendations filed with the court, and the lack of any success with court-ordered therapy, the court will not order any of the parties in this case to participate in therapy. However, the court concurs with the special master s recommendation that Respondent participate in therapy to attempt to gain some insight into his relationship with his biological children and that any of his children participate in that therapy as they would like.
“2. Dylan, DOB 09/05/86, is now eighteen. His parenting time is no longer under the jurisdiction of this court.
“3. Evan, DOB 10/09/88, is almost sixteen. His parenting time with his father, given his maturity and the history of this case, should be as is mutually requested.”
In addition, the trial court directed David and Janet to meet on a quarterly basis with their attorneys and the special master “to exchange information about the general health, welfare, and education of the minor child.” The trial court stated that Janet had the right to make the necessary day-to-day decisions for Evan. The trial court noted that David’s contact with Evan was not contingent upon David participating in therapy but was “contingent upon the contact being mutually requested.”
Standard of Review
In reviewing the trial court’s decision, we bear in mind that the judgment of the trial court regarding parenting time and visitation will not be disturbed absent an affirmative showing of abuse of discretion. See Skillet v. Sierra, 30 Kan. App. 2d 1041, 1048-49, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002); In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991). “Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). However, “if a constitutional or statutory right has been violated, tire trial [court’s] use of discretion is limited. Under these circumstances there is a greater need for articulation by the trial [court] of the reasons for [its] ‘discretionary’
Moreover, the arguments raised by David require this court to review the factual findings and legal conclusions in the trial court’s September 2004 memorandum decision. The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
Due Process
David first argues that the trial court’s decision infringes upon his parental rights without any showing that he is an unfit parent or that he presents any threat or danger to his child. David maintains that the trial court’s decision results in a denial of due process.
It is well established that parents have fundamental rights in the custody and control of their children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See, e.g. Troxel v. Granville, 530 U.S. 57, 65-66, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). In In re Cooper, 230 Kan. 57, 64, 631 P.2d 632 (1981), our Supreme Court stated: “Virtually all jurisdictions including Kansas recognize the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” Moreover, in In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000), our Supreme Court recognized that “ ‘ “[bjasic parental rights are fundamental rights protected by the Fourteenth Amendment to the Constitution of the United States. The right to be the legal parent of a child is one of these rights, which cannot be abrogated except for compelling reasons. [Citations omitted.]” ’ ”
Noting that a parent has a right to provide a home and direct the children’s upbringing and education, this court in Spradling v.
“The Fourteenth Amendment to the United States Constitution provides: ‘No State shall . . . deprive any person of life, liberty, or property, without due process of law.’ A parent’s right to establish a home and direct the upbringing and education of children has long been recognized as a fundamental right protected by the Fourteenth Amendment. [Citations omitted.]”
See also Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997) (“[W]e have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specifically protected by the Due Process Clause includes the right[ ] ... to direct the education and upbringing of one’s children.”).
It is unclear whether parents have a specific due process right under the United States Constitution regarding parenting time and visitation with their children. See Rutkin, 3 Family Law and Practice, Child Custody and Visitation §32.09[2], p. 32-268 (MB July 2005) (“Some commentators contend that the noncustodial parent’s right to visit[ation] is a constitutionally protected right. Others find the right to visitation to be among the natural rights of a fit parent.”). Nevertheless, Kansas law as codified in K.S.A. 2004 Supp. 60-1610(a)(2)-(5) and K.S.A. 2004 Supp. 60-1616(a) and (c) malees it clear that parents have a right to parenting time and visitation with their children, absent exceptional circumstances, such as a threat to the children’s welfare. This is in line with other jurisdictions which recognize that noncustodial parents have a natural right to visitation with their children. See Maxwell v. LeBlanc, 434 So. 2d 375, 376 (La. 1983) (right of visitation for noncustodial parent is natural right); Kulla v. McNulty, 472 N.W.2d 175, 182 (Minn. App. 1991) (“ ‘[Visitation is to be regarded as a parental right essential to the continuance and maintenance of a child-to-parent relationship between the child and noncustodial parentf.]’ ”); Young v. Young, 212 App. Div. 2d 114-122, 628 N.Y.S.2d 957 (1995) (visitation is joint right of noncustodial parent and child); Pettry v. Pettry, 20 Ohio App. 3d 350, 352, 486 N.E.2d 213 (1984) (noncustodial parent’s visitation right is natural right and should only be denied under extraordinary circumstances).
Under K.S.A. 2004 Supp. 60-1616(a), “[a] parent is entided to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.”
In interpreting K.S.A. 2004 Supp. 60~1616(a), we note that an appellate court’s review of statutory interpretation, which is a question of law, is unlimited. The appellate court is not bound by the trial court’s interpretation of a statute. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). Moreover, the following principles are helpful in our interpretation of K.S.A. 2004 Supp. 60-1616(a):
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
The clear intent of K.S.A. 2004 Supp. 60-1616(a) is to create a rebuttable presumption that a parent is entitled to reasonable parenting time and visitation. This presumption may be rebutted if, after a hearing, the trial court finds “that the exercise of parenting time would seriously endanger tire child’s physical, mental, moral or emotional health.” K.S.A. 2004 Supp. 60-1616(a); see In re Marriage of Kiister, 245 Kan. 199, 201, 777 P.2d 272 (1989). Without such a finding, however, K.S.A. 2004 Supp. 60-1616(a) indicates that a trial court must enter an order for reasonable parenting time.
In this case, there was no finding by the trial court that the exercise of parenting time by David would seriously endanger Evan’s physical, mental, moral, or emotional health. Absent this finding by the trial court, David was entitled to reasonable parenting time with Evan under K.S.A. 2004 Supp. 60-1616(a). In fact, the trial court’s September 2004 decision indicated that David should be allowed to have parenting time with Evan. The trial court, however, made David’s parenting time contingent upon Evan’s desires or requests. Our inquiry now turns to whether the
Trial Court's Order Relating to Parenting Time
David maintains that the trial court erred in giving dispositive effect to Evan’s preference relating to parenting time and visitation. David argues that a court order that places the determination of parenting time with the minor child is improper and is a complete abrogation of judicial authority. David contends that a trial court may either deny parenting time completely in certain exceptional circumstances subject to very high standards or set specific times when a parent may exercise his or her parenting time.
In researching David’s argument, we find no Kansas cases that have addressed the issue of whether a trial court may condition parenting time on the desires or requests of a minor child. David cites to several cases from other jurisdictions which indicate that a court should not give minor children the authority to determine a noncustodial parent’s parenting time and visitation.
In Kreitz v. Kreitz, 750 S.W.2d 681, 686 (Mo. App. 1988), the Missouri Court of Appeals held that it was improper for the trial court in a divorce decree to award the father visitation rights and temporary custody “as arranged to by the minor children.” In remanding the case to the trial court, tíre appellate court noted that the order entered by the trial court did not set forth certain and reasonable rights of visitation. The court further stated that in the absence of finding the father to be an unfit parent, “the trial court should encourage a continued relationship between the divorced parent and child by ensuring that the parent has a right to reasonable access to the child. [Citation omitted.]” 750 S.W.2d at 686. Similarly, in Jordan v. Jordan, 288 App. Div. 2d 709, 709-10, 732 N.Y.S.2d 478 (2001), the court determined that visitation should not have been based upon the children’s wishes, in the absence of evidence that significant emotional harm would result to the children from visitation.
In Morgan v. Morgan, 20 N.C. App. 641, 642, 202 S.E.2d 356 (1974), the North Carolina Court of Appeals held that it was im
The holdings from Kreitz, Jordan, and Morgan indicate that a trial court’s orders regarding parenting time and visitation should not be conditioned upon a minor child’s desires to see (or not see) the noncustodial parent. We find these cases to be persuasive. The dissent cites to Jabri v. Jabri, 193 App. Div. 2d 782, 783-84, 598 N.Y.S.2d 535 (1993), where the appellate court upheld a ruling conditioning visitation on the wishes of a 16-year-old child where psychiatric testimony indicated that compulsory visitation would not be in the child’s best interests. Nevertheless, Jabri is distinguishable because there was no mention within that case that the court’s order of visitation was constrained by a statute similar to K.S.A. 2004 Supp. 60-1616(a). More important, in that case, there was evidence to support a possible “endangerment” and a finding that visitation would not be in the child’s best interest.
Here, the parenting time and visitation order must comply with K.S.A. 2004 Supp. 60-1616(a). The order entered in this case gives the minor child the authority to determine the noncustodial parent’s parenting time and can have the effect of denying the noncustodial parent his or her right to parenting time. See Nancy E.M. v. Kenneth D.M., 316 Pa. Super. 351, 353, 357, 462 A.2d 1386 (1983) (ordering visitation at desire of 17-year-old child is tantamount to denying a parent’s visitation rights). Without a finding that “the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health” under K.S.A. 2004 Supp. 60-1616(a), such orders are improper.
In his brief, David has informed us that he has not had any parental contact with Evan since late 2002. If this is in fact the case, David has been effectively denied any parenting time with Evan. With no statutory finding that David’s parenting time would
We wish to make clear that the above analysis does not preclude the trial court from considering a child’s desires when setting a parenting time and visitation schedule. In fact, K.S.A. 2004 Supp. 60-1610(a)(3)(B) states that “[i]n determining the issue of child custody, residency, and parenting time, the court shall consider all of the relevant factors, including but not limited to: . . . (iii) the desires of the child as to the child’s custody or residency.” Under our applicable statutes, a child’s desires is only one of the factors to be considered when determining the issue of parenting time and visitation. Noting that a court may consider a child’s wishes concerning visitation but that such wishes are not controlling even in jurisdictions that afford great weight to an older child’s preference, Professor Linda Henry Elrod, in Rutkin, 3 Family Law and Practice, Child Custody and Visitation §32.09[3][c], pp. 32-278 to 32-279 (MB July 2005), cautioned:
“As with awarding custody, the court may consider the child’s wishes as to visitation. The court must balance its parens patriae role with its recognition of the importance of respecting the child’s wishes. The weight to be given the child’s preference depends upon the child’s age and maturity. Even in jurisdictions that give great weight to the preferences of older children, the children’s wishes are not controlling.
“Courts are reluctant to put too much weight on the child’s desires as to visitation because the child’s immature emotions or the custodial parent’s disparaging comments about the other parent may form the basis for the child’s feelings.”
Here, the trial court should consider Evan’s wishes when setting a parenting time schedule. Nevertheless, this cannot be the exclusive factor. In pointing out that children are more interested in their momentary desires than the long-range needs for developing a healthy relationship with both parents, the Mississippi Court of Appeals stated:
*426 “ ‘While there is nothing wrong with the children being heard regarding their wishes, our law proceeds on the assumption that they are nevertheless children and, thus, more interested in the desire of tire moment tiran in considering the long range needs for tire development of a healthy relationship with both parents where that is possible.’ [Citation omitted.]” Ellis v. Ellis, 840 So. 2d 806, 813 (Miss. App. 2003).
Consequently, in the absence of a finding under K.S.A. 2004 Supp. 60-1616(a) that “the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health,” the trial court should have set forth certain and reasonable times for David’s parenting time with Evan. See Rutldn, 3 Family Law and Practice, Child Custody and Visitation § 32.09[5], p. 32-294 (MB July 2005) (“The visitation schedule should be detailed, taking into consideration the needs and desires of both parents and child.”). The trial court should not have conditioned David’s parenting time with Evan upon Evan’s desires or requests to see his father.
Nevertheless, despite the clear statutory language of K.S.A. 2004 Supp. 60-1616(a) entitling a parent to reasonable parenting time, the dissent says that the trial court’s parenting time order, conditioning the parenting time on tire child’s wishes, will suffice. The dissent argues for an unstated statutory purpose. In essence, the dissent would have us rewrite the plain language of K.S.A. 2004 Supp. 60-1616(a) to validate the parenting time order issued in this case. Nevertheless, our course must be directed by Kansas law.
To illustrate tire lack of logic behind the dissent’s argument, we will examine it in the form of a categorical syllogism:
Major Premise: All noncustodial parents, possessing an obsessive and compulsive personality disorder, may have their reasonable parenting time conditioned on the wishes of their children.
Minor Premise: Appellant is a noncustodial parents who has an obsessive and compulsive personality disorder.
Conclusion: Therefore, appellant may have his or her reasonable parenting time conditioned on the wishes of his or her children. Although this syllogism is logically correct, the rule established by it is logically inconsistent with K.S.A. 2004 Supp. 60-1616(a).
Major Premise: If noncustodial parents are entitled to reasonable parenting time, their exercise of parenting time will not seriously endanger their children’s physical, mental, moral, or emotional health.
Minor Premise: The noncustodial parent is entitled to reasonable parenting time.
Conclusion: Therefore, the noncustodial parent’s exercise of parenting time will not seriously endanger his or her children’s physical, mental, moral, or emotional health.
Step Two
Major Premise: If noncustodial parents are entitled to reasonable parenting time, their parenting time should not be conditioned on the wishes of their children.
Minor Premise: The noncustodial parent is entitled to reasonable parenting time.
Conclusion: Therefore, the noncustodial parent’s parenting time should not be conditioned on the wishes of his or her children.
We know that both of these major premises in our last two syllogisms are legally sound because they are based on K.S.A. 2004 Supp. 60-1616(a) and on the persuasive holdings in Kreitz, Jordan, Morgan, and Nancy E.M. The conclusions in these syllogisms conflict with the conclusion from the first syllogism. How do we have these logically sound syllogisms resulting in conflicting conclusions? The flaw lies in the major premise of the first syllogism. The major premise of the first syllogism is overbroad, is unsupported by statute, and rejects the clear statutoiy language of K.S.A. 2004 Supp. 60-1616(a).
K.S.A. 2004 Supp. 60-1616(a) preserves and promotes the comprehensive purpose of allowing reasonable parenting time to a noncustodial parent unless the court finds, after a hearing, that reasonable parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. Here, die trial court made no such factual finding that visitation would seriously endan
The dissent’s argument presents a narrow question in this case: What did our legislature mean when it used the phrase “entitled to reasonable parenting time” in enacting K.S.A. 2004 Supp. 60-1616(a)? As a verb, “entitled” means “[t]o furnish with a right.” Webster’s II New College Dictionary 376 (2001). The word “entitled” follows the noun “parent” in K.S.A. 2004 Supp. 60-1616(a). Clearly, the legislature intended to furnish the right of reasonable parenting time to a parent. The dissent is not concerned that K.S.A. 2004 Supp. 60-1616(a) does not contain the words “which may be conditioned on the child’s wishes” after the statutory phrase “[a] parent is entitled to reasonable parenting time . . . .”
Although the clear statutory language of K.S.A. 2004 Supp. 60-1616(a) confers reasonable parenting time to a parent, the dissent would supplant a parent’s statutory right to reasonable parenting time with that of the child’s wishes. As we stated previously, the trial court may consider a child’s wishes when setting a parenting time schedule. Nevertheless, this must not be the exclusive or controlling factor. Otherwise, the result advocated by the dissent would stymie the clear statutory mandate of K.S.A. 2004 Supp. 60-1616(a). For example, if children are given the option of determining what reasonable parenting time is, the statutory mandate under K.S.A. 2004 Supp. 60-1616(a) becomes meaningless. See In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002) (It is presumed that the legislature does not intend to enact useless or meaningless legislation.).
The dissent’s support for this unstated statutory purpose distorts the basic canons of statutory inteipretation. As noted previously, “[t]he legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. . . . [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Furthermore, in interpreting statutes, “ordinary words are to be given their ordinary meaning, and a statute should not be so read as to
K.S.A. 2004 Supp. 60-1616(a) allows only one statutory exception to requiring a trial court to award reasonable parenting time: when the trial court finds, after a hearing, that reasonable parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. K.S.A. 2004 Supp. 60-1616(a) expressly makes a finding of endangerment a condition precedent to restricting the reasonable parenting time of a noncustodial parent. As stated previously, the trial court made no such factual finding in this case. In fact, the trial court’s parenting time order allowing visitation between David and Evan implicitly indicates that the parenting time between them would not seriously endanger Evan’s “physical, mental, moral or emotional health.” The statutory exception to granting reasonable parenting time under K.S.A. 2004 Supp. 60-1616(a) was never fulfilled. Moreover, the presumption under K.S.A. 2004 Supp. 60-1616(a) that David was entitled to reasonable parenting time with Evan went unrebutted. As a result, the trial court had no statutory authority to restrict David’s reasonable parenting time with Evan in the way that it did.
Finally, the dissent concludes by stating that “[t]he district court’s parenting time order was not arbitrary, fanciful, or unreasonable.” Assuming arguendo that the trial court had the statutory authority under K.S.A. 2004 Supp. 60-1616(a) to restrict David’s parenting time as it did, the trial court abused its discretion in entering its order. Neither the trial court nor the dissent points to any evidence in the record to show that Evan and David would have engaged in any type of reasonable parenting time on their own. Moreover, in his brief, David states that he has not had any parental contact with Evan since late 2002. Thus, the trial court’s parenting time order, if it was not based on evidence that David and Evan would exercise reasonable parenting time on their own, was completely hollow.
As a result, the parenting time order was not reasonable based on the existing facts of this case. The result advocated by the dissent is not warranted under Kansas law. Based on the trial court’s failure to comply with K.S.A. 2004 Supp. 60-1616(a), we determine that the trial court abused its discretion in its order of parenting time and visitation. See Unwitting Victim v. C.S., 273 Kan. 937, 944, 47 P.3d 392 (2002) (“ ‘An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.’ ”). Accordingly, we reverse the trial court’s order and remand the case with directions to either set an appropriate and reasonable parenting time and visitation schedule or make the required statutory finding that the exercise of David’s parenting time would seriously endanger Evan’s physical, mental, moral, or emotional health.
Therapy Precondition to David’s Parenting Time
Next, David argues that the trial court erred by effectively imposing a therapy precondition to his contact with Evan. Nevertheless, in its September 2004 memorandum decision, the trial court made clear that it was not imposing a therapy precondition to Da
Special Masters Report
Finally, David raises the following additional arguments on appeal: (1) The trial court erred in relying on the special master’s report that was factually flawed; and (2) the trial court erred in relying on the special master’s report that placed excessive reliance on questionable expert opinions. Because we have reversed the trial court’s order and have remanded the case for the trial court to set an appropriate and reasonable schedule for parenting time and visitation, it is unnecessary to address these additional arguments.
Affirmed in part, reversed in part, and remanded with directions.