In re Marriage of Pierce

NOT DESIGNATED FOR PUBLICATION
No. 121,850
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
REGINA PIERCE,
Appellee,
and
MATTHEW PIERCE,
Appellee,
(CHRISTOPHER ROGERS and KAREN ROGERS),
Appellants.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed August 14, 2020.
Appeal dismissed.
Linus L. Baker, of Stilwell, for appellants.
No appearance by appellees.
Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Regina Pierce's parents, Christopher Rogers and Karen Rogers (the
Grandparents), timely appeal the district court's denial of their motion to enforce a
coparenting agreement entered into between Regina and the Grandparents in 2018. The
Grandparents filed the motion in the divorce proceedings in the district court between
Matthew Pierce and Regina. Their divorce was granted in 2011. The district court found
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the Grandparents did not have standing to bring the motion in the divorce proceedings
and denied the motion. Upon review, we agree with the district court and find the
Grandparents lack standing to bring this action in the divorce proceedings. Therefore, we
dismiss the appeal.
FACTS
Matthew and Regina divorced in 2011. The district court granted Regina sole legal
custody and primary residential custody of their two children. Matthew was granted
limited rights for supervised visitation. In August 2018, Regina and the children moved
in with the Grandparents. In October 2018, Regina entered into a coparenting agreement
with the Grandparents. In pertinent part, the agreement stated:
"By this agreement the parties shall have joint legal custody of the Children with
residential custody of the Children to be at [the Grandparents' home]. Regina is sharing
her rights and obligations as a parent with the [Grandparents] and by this agreement
Regina is not abdicating her duties and responsibilities as a parent; she is sharing those
rights, responsibilities, and duties with the [Grandparents] individually and jointly."
The agreement further stated:
"The parties agree to cooperate with each other to enforce this agreement and
particularly in regards to Matthew Pierce attempting to interject himself back into the
lives of the Children against their wishes. If necessary, the parties agree to have this
agreement made an order of the Court in the divorce proceeding involving the Children
which would be to their benefit.
"Regina and the [Grandparents] are of sound mind and under no undue restraint
or duress. They have read the agreement and understand it as a free and voluntary act.
The parties agree that this co-parenting arrangement may not be terminated or otherwise
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revoked by either party unless the divorce court or any other court with jurisdiction
makes a judicial finding that the [Grandparents] are unfit co-parents."
Shortly after the agreement was signed, the Grandparents filed a motion to enforce
the coparenting agreement in the divorce court. Attached to the motion was a copy of the
coparenting agreement and a document titled, "Waiver of Notice," which was signed by
Regina. In pertinent part, the waiver stated:
"I am aware of the motion made or to be made by [the Grandparents] in this matter in
which a co-parenting agreement which bears my signature, which is attached, is
requested to be made an order of the Court. I agree to this motion and further consent that
the [Grandparents]' motion to have the co-parenting agreement made an order of the
Court may be set for immediate hearing without further notice to me."
Regina did not appear at the motion hearing. Matthew also did not appear at the
motion hearing and did not submit any filings in response to the motion. At the outset of
the hearing, the district court indicated it was concerned whether the Grandparents had
standing to intervene in the divorce case and whether the appropriate procedures had
been followed for them to do so, including whether proper notice had been given to both
Regina and Matthew. The Grandparents generally testified about why the district court
should grant their motion. Their testimony detailed why they thought the motion should
be granted in the best interests of the children so they could be there to help them in
conjunction with Regina.
The district court denied the motion, finding the Grandparents did not have
standing to enforce the coparenting agreement in a divorce action. The district court
further held it could not enforce the agreement because it lacked sufficient evidence to
show Regina and Matthew knowingly and voluntarily waived any of their parental rights
because neither appeared at the hearing. The district court found the Grandparents had
not properly moved to intervene in the divorce case and, even if they had made an
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appropriate motion, they lacked standing to do so. Specifically, the district court held the
Grandparents could not gain standing based on K.S.A. 2019 Supp. 23-3301(a)
(grandparent visitation rights) in order to enforce the coparenting agreement because they
were seeking more than visitation rights under the agreement.
The Grandparents timely filed a motion for reconsideration and request for
additional findings. They argued the district court erred in finding a motion to intervene
was required, claiming they were only asserting a right under K.S.A. 2019 Supp. 23-
3301. They further asserted the district court should have addressed its concerns with a
potential lack of notice to Regina and Matthew by holding the proceedings in abeyance
until proper notice was given, freely granting leave to amend the motion, or entering an
order requiring notice to be given to both Regina and Matthew. Finally, they claimed the
district court "never reached the issue of whether the Rogers were co-parents." The
district court denied the motion to reconsider.
ANALYSIS
The Grandparents present three basic issues for us to resolve:
"1. Does a district court with jurisdiction over Regina and her children in a
divorce proceeding have subject matter [jurisdiction] to enforce a contract between
Regina and her parents?
"2. Does a district court, with jurisdiction over the subject minor children in a
divorce proceeding, also have subject matter jurisdiction to enforce a contract between
the parent of those children and her parents concerning the care and custody of those
same children?
"3. When a parent enters into a co-parenting agreement and subsequently files a
waiver of notice of hearing on the motion to enforce that agreement, is there sufficient
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evidence from the contract itself and the waiver of notice to find that the parent has
knowingly exercised her parental preference?"
As explained below, we agree with the district court that it did not have
jurisdiction to address the Grandparents' motion based on their lack of standing. Because
the Grandparents lacked standing, we decline to address the merits of their other claims.
The district court did not have jurisdiction to enforce the coparenting agreement in the
divorce proceeding.
The Grandparents generally argue the district court erred in determining it lacked
subject matter jurisdiction to enforce the coparenting agreement. The Grandparents'
argument on this issue centers on (1) whether the district court erroneously interpreted,
applied, or imposed various procedural requirements for the Grandparents to intervene in
the divorce case and (2) whether the nature of the coparenting agreement itself was
within the scope of the district court's authority over the custody of the children in the
divorce case. Thus, this issue presents questions of statutory interpretation and
jurisdiction. Interpretation of a statute is a question of law subject to unlimited review.
Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). Whether
jurisdiction exists is also a question of law subject to unlimited review. In re Care &
Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017).
A court's power to decide an issue
"only arises when the question is presented in an actual case or controversy between
parties. Standing is a requirement for a case or controversy. Standing is also a component
of subject matter jurisdiction. As a jurisdictional matter, standing requires the court to
decide whether a party has alleged a sufficient personal stake in the outcome of the
controversy to invoke jurisdiction and to justify the court exercising its remedial powers
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on the party's behalf. [Citations omitted.]" Kansas Bldg. Industry Workers Comp. Fund v.
State, 302 Kan. 656, 678, 359 P.3d 33 (2015).
Before the court can decide an issue, "it must first determine whether it has subject matter
jurisdiction based on [the party's] standing." 302 Kan. at 678. If the district court lacks
jurisdiction, "'the appellate court likewise does not acquire jurisdiction over the subject
matter of the appeal.'" In re Care & Treatment of Emerson, 306 Kan. at 39. When the
record discloses a lack of subject matter jurisdiction, the appellate court must dismiss the
appeal. Wiechman v. Huddleston, 304 Kan. 80, 85, 370 P.3d 1194 (2016).
In support of their argument, the Grandparents primarily rely on three Kansas
appellate cases: In re Adoption of T.M.M.H., 307 Kan. 902, 416 P.3d 999 (2018); Frazier
v. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013); and In re Marriage of Nelson, 34
Kan. App. 2d 879, 125 P.3d 1081 (2006). The Grandparents' reliance on these cases is
misplaced as they are factually and procedurally distinguishable.
In Nelson, the district court approved the parents' agreed to parenting plan placing
the children in the custody of their paternal aunt. The mother subsequently filed a motion
for change in custody, which the aunt opposed. The Grandparents claim: "Nelson
recognized that a third-party sister could intervene in a divorce action based upon a child
custody agreement." This assertion is not accurate. Nelson addressed whether the mother
waived the parental preference doctrine in favor of the paternal aunt. 34 Kan. App. 2d at
883-85. The aunt's standing was not explicitly at issue in Nelson. It may have been
implicitly recognized the aunt had standing to intervene, but Nelson is distinguishable
because the district court approved an agreed parenting agreement between both parents.
See K.S.A. 2019 Supp. 23-3202. Here, the agreement at issue—the coparenting
agreement—is exclusively between Regina and the Grandparents. This agreement is
separate and apart from the district court's custody order, which does not mention the
Grandparents. Nelson is highly distinguishable and not persuasive.
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Frazier is also factually and procedurally distinguishable. Frazier and her long-
term same-sex partner, Goudschaal, entered into coparenting agreements prior to the birth
of two children. Goudschaal was the biological mother of both children; however, the
coparenting agreements
"identified Frazier as a de facto parent and specified that her 'relationship with the
children should be protected and promoted'; that the parties intended 'to jointly and
equally share parental responsibility'; that each of the parties 'shall pay the same percent
of [child] support as her net income compares to [their] combined net incomes'; 'that all
major decisions affecting [the] children . . . shall be made jointly by both parties'; and that
in the event of a separation 'the person who has actual physical custody w[ould] take all
steps necessary to maximize the other's visitation' with the children." 296 Kan. at 733.
The Frazier court held Frazier had standing to assert her claims regarding custody,
visitation, and child support under the Kansas Parentage Act (KPA), K.S.A. 23-2201 et
seq. Under the KPA, Frazier was considered an interested party based on her assertion of
a mother-child relationship. 296 Kan. at 745-47; see K.S.A. 23-2220 ("Any interested
party may bring an action to determine the existence or nonexistence of a mother and
child relationship."). Importantly, the Grandparents have not claimed the KPA gives them
standing.
Frazier is distinguishable because it arose based on a contract between the parties
to the coparenting agreement—specifically, a dispute as to whether the coparenting
agreement was legally enforceable. Here, there is no dispute between Regina and the
Grandparents as to the enforceability of the contract or the application of any of its
provisions. The Grandparents did not seek to enforce the contract in a separate action
against Regina; rather, they sought to have the agreement blessed and enforced by the
district court in the divorce proceedings between Matthew and Regina when the
Grandparents were never parties to the original proceedings.
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In In re Adoption of T.M.M.H., 307 Kan. at 908, our Supreme Court held a "two-
prong standing test . . . applies when a statute provides the basis for asserting a right to
seek a judicial remedy. Under this test, courts analyze standing as a matter of (1) statute
and (2) common law. . . . [B]oth prongs must be established." The In re Adoption of
T.M.M.H. court held the fact a grandmother had grandparent visitation rights did not give
her statutory standing as an interested party to contest the stepparent adoption of her
grandchild under K.S.A. 59-2111 et seq., the Kansas Adoption and Relinquishment Act.
307 Kan. at 909. The standing issue in Frazier was highly specific to the mother-child
relationship under the KPA. See 296 Kan. at 745-47. Accordingly, Frazier cannot be read
as broadly conferring standing upon any party to a coparenting agreement to seek
enforcement of the agreement in any court with jurisdiction over the custody of the
children who are the subject of the agreement. Clearly, Frazier asserted both a common
law basis—determining the enforceability and consequences of the contract—and a
statutory basis—determining the existence of a mother-child relationship under the
KPA—for seeking a judicial remedy. See 296 Kan. at 745-46.
The Grandparents generally asserted a common law basis for standing—enforcing
the contract. The Grandparents also asserted a statutory basis for standing under K.S.A.
2019 Supp. 23-3301 (grandparent visitation). Under K.S.A. 2019 Supp. 23-3301(a), a
district court may grant grandparents and stepparents visitation rights in a divorce
proceeding. The problem with the Grandparents' argument is they were seeking more
than just visitation rights through enforcement of the coparenting agreement. The
Grandparents even acknowledge they were seeking more than visitation rights. But the
Grandparents argue there is no explicit statutory limit on what visitation rights include.
Essentially, they regard visitation as a minimum threshold, not a limit. Specifically, the
Grandparents assert: "At its common sense core 'visitation rights' means having physical
custody of the children for some period of time." The Grandparents' argument is
unsupported and unsound.
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Without any citation to pertinent authority, the Grandparents argue the district
court could have enforced the coparenting custody arrangement under a statutory order
regarding visitation. Failure to support a point with pertinent authority or show "'"why it
is sound despite a lack of supporting authority is akin to failing to brief an issue."'" In re
Adoption of T.M.M.H., 307 Kan. at 912. Under K.S.A. 2019 Supp. 23-2711(a)(5), the
district court granting the divorce decree may also enter "an order allocating parental
decision-making and entering a parenting plan as authorized by article 32 of chapter 23 of
the Kansas Statutes Annotated, and amendments thereto." Under K.S.A. 2019 Supp. 23-
3201, a court entering a custody order "shall determine legal custody, residency and
parenting time of a child in accordance with the best interests of the child." The
Grandparents, under these facts, are not claiming to be parents.
In contrast, K.S.A. 2019 Supp. 23-3301(a) only provides for the divorce court to
grant "visitation rights" to grandparents. To conclude "visitation rights" as used in K.S.A.
2019 Supp. 23-3301(a) is synonymous with "legal custody, residency and parenting time"
as used in K.S.A. 2019 Supp. 23-3201 would render the distinctions in the statutory
language meaningless. When interpreting statutes, we must "'"avoid unreasonable results
and should presume that the legislature does not intend to enact useless or meaningless
legislation."'" In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). Kansas
caselaw necessarily recognizes legal custody as entailing greater rights than visitation.
See, generally, Davis v. Heath, 35 Kan. App. 2d 86, 93, 128 P.3d 434 (2006).
Here, the Grandparents essentially argue:
• The district court has general authority in a divorce proceeding to enter a
custody order;
• The coparenting agreement has bearing on the custody of the children;
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• The district court has authority to grant visitation to grandparents in a divorce
proceeding;
• Visitation is similar to custody;
• Therefore, the Grandparents could seek to enforce the coparenting agreement
in the divorce case.
The Grandparents' reasoning is flawed because they are attempting to use
grandparent visitation—a limited statutory remedy they could seek irrespective of the
wishes of Regina or Matthew—to enforce a legal right arising solely under contract. See
Frazier, 296 Kan. at 751 (biological parent may contract to share custody of children
with another person "so long as the intent, and effect, of the arrangement was to promote
the welfare and best interests of the children"); Davis, 35 Kan. App. 2d at 92-93 (court
may grant grandparent visitation even when two fit parents do not want grandparent to
have visitation rights).
Because the Grandparents' statutory basis for standing fails, the Grandparents
failed to satisfy both prongs of the two-prong test for standing. The district court
correctly found the Grandparents lacked standing in the divorce case and denied their
motion. Therefore, we dismiss the appeal for lack of subject matter jurisdiction. See In re
Care & Treatment of Emerson, 306 Kan. at 39. With dismissal of this action, we decline
to address the Grandparents' other claims of error.
Appeal dismissed.
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