M.V. v. T.R.

422 P.3d 1178

In the Matter of the PATERNITY OF M.V., BY AND THROUGH HER NATURAL MOTHER and Guardian K.V., Appellant,

v.T.R. and K.R., Appellees.

No. 118,189

Court of Appeals of Kansas.

Opinion filed June 1, 2018.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

K.R., appellee pro se.

Before Schroeder, P.J., Malone, J., and Stutzman, S.J.

Malone, J.:

K.V. (Mother) appeals the district court's decision in this paternity action granting grandparent visitation time to K.R. (Grandmother). Mother claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. Mother also claims the district court erred in not assessing attorney fees against Grandmother as required by statute. We agree with Mother that the district court violated her due process rights by ordering grandparent visitation time on a schedule different from what Mother had offered without finding that Mother's visitation plan was unreasonable. Thus, we reverse the district court's grandparent visitation order and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 2009, K.V. filed a petition in district court for an order finding T.R. (Father) to be the father of M.V., born in 2009, and for orders establishing joint custody and child support for M.V. Father acknowledged paternity and the parties initially agreed to orders establishing joint custody, parenting time, and child support. But over the years, many disputes arose between Mother and Father over parenting time and child support, and the parties often were back in court to resolve their differences.

On January 27, 2017, paternal Grandmother filed a motion in the paternity action requesting an order for grandparent visitation time. To support her motion, Grandmother alleged that she had established a relationship with M.V. and that it was in M.V.'s best interests to continue that relationship. Grandmother proposed that she have visitation with M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on Sunday, as well as other times. Mother filed a response to the motion and asserted that the Kansas Parentage Act does not allow for grandparent visitation in a paternity case. Mother also requested that Grandmother reimburse her for attorney fees.

On March 15, 2017, the district court held a hearing on Grandmother's motion, although a transcript of the hearing is unavailable due to technical errors. According to the journal entry, the district court found that a substantial relationship existed between Grandmother and M.V. and that visitation rights would be in M.V.'s best interests. The district court also cited In re T.N.Y. , 51 Kan. App. 2d 956, 360 P.3d 433 (2015), for the proposition that grandparents may assert visitation rights in a paternity action, and not just in divorce cases. The district court granted Grandmother's request for visitation with M.V. on the second weekend of each month from 5:30 p.m. on Friday to 5:30 p.m. on Sunday. The district court also ordered that exchanges for the visits should take place at the same location in Haven, Kansas, used by the parents for Father's parenting time. Finally, the district court denied Mother's request for reimbursement of attorney fees.

On March 31, 2017, Mother filed a motion for reconsideration with the district court. Mother also filed a proposed visitation plan allowing Grandmother to have visitation with M.V. on the second Saturday of each month from noon until 5 p.m., rather than the entire weekend under the original order. Mother's proposed visitation plan also specified that Grandmother would pick up M.V. for visitation at Mother's house, rather than at the location in Haven, Kansas. The motion also requested the district court to award reasonable attorney fees to Mother under K.S.A. 2017 Supp. 23-3304.

The district court held a hearing on Mother's motion for reconsideration on May 19, 2017. At the hearing, Mother acknowledged that Grandmother should have visitation with M.V. In fact, Mother personally addressed the court and stated: "I'm okay with [M.V.] seeing her grandparents. She needs to see her grandparents, all of them." But Mother requested the district court to modify the visitation schedule to exclude overnight visits. To support her request, Mother raised two primary concerns: (1) Grandmother had an unknown man living at her residence, and (2) Grandmother sometimes took M.V. to the jail to see Father who was facing child sex abuse charges, and these visits violated a court order and were against Mother's wishes. Mother asked the district court to adopt her proposed visitation plan as being reasonable.

Grandmother addressed the court and explained that her ex-boyfriend had suffered a stroke and stayed with her for a while, but he was no longer living at her residence. Grandmother acknowledged that she took M.V. to see Father in jail sometimes because she thought it might relieve some of M.V.'s anxieties. Finally, Grandmother complained to the court that Mother was not allowing M.V. to talk with her on the phone.

On May 19, 2017, the same day as the hearing, the district court filed a memorandum opinion and journal entry denying Mother's request to modify the visitation order. The district court reaffirmed the original grandparent visitation schedule for overnight visitation one weekend each month and also granted Grandmother an additional 15-minute phone call with M.V. each week. The district court found that the original grandparent visitation schedule was reasonable because Father was not currently able to exercise visitation with M.V. while he was incarcerated. The district court noted that Grandmother's ex-boyfriend was no longer living at her residence, but the court did not address Mother's concern about Grandmother taking M.V. to see Father in jail. The district court did not mention Mother's proposed visitation plan in making its ruling, and the court made no finding that Mother's visitation plan was unreasonable. Finally, the district court denied Mother's request for attorney fees, finding that Grandmother is not better off financially than Mother and it was Mother who had brought the case back to court for a hearing. Mother timely appealed the district court's decision.

On appeal, Mother claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. She also claims the district court erred in not assessing attorney fees against Grandmother because the statute requires the court to assess such costs against the grandparent absent specific findings. We will address each claim in turn.

GRANDPARENT VISITATION ORDER

Mother first claims the district court violated her constitutional due process rights by adopting Grandmother's visitation plan without finding that Mother's visitation plan was unreasonable. Specifically, Mother asserts that the district court violated her due process right under the Fourteenth Amendment to the United States Constitution to raise her child as she sees fit. She asserts that the constitutional right of a parent to raise his or her child is a fundamental right to which the court must give great deference. Mother also contends there is no indication that the district court presumed she was a fit parent who was acting in her child's best interests. She asks that her case be remanded for the district court to consider her proposed visitation plan and to give special weight to her wishes.

Conversely, Grandmother argues that the district court correctly found that the original visitation order was reasonable given that Father cannot exercise parenting time because of his incarceration. Grandmother also contends that there is no indication that Mother ever presented a proposed visitation plan to the court. Accordingly, Grandmother asks this court to uphold the district court's decision.

Whether a right to due process has been violated is a question of law over which an appellate court exercises unlimited review. In re K.E. , 294 Kan. 17, 22, 272 P.3d 28 (2012). Generally, a constitutional issue may not be raised for the first time on appeal unless: (1) the claim asserted involves only questions of law and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right but for the wrong reason. State v. Dukes , 290 Kan. 485, 488, 231 P.3d 558 (2010). Under Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34), the appellant must invoke one of these exceptions and explain why an issue not raised in district court should be addressed on appeal. State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

Mother asserted her constitutional due process claim at the hearing on May 19, 2017, but she only argued the constitutional considerations in passing. In any event, to the extent that Mother is asserting her constitutional claim for the first time on appeal, she invokes exceptions (1) and (2) in her brief. We agree with Mother that this issue involves only a question of law which is determinative of the case and consideration of the claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Thus, Mother's constitutional claim is properly before this court.

The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The United States Supreme Court has stated that "perhaps the oldest of the fundamental liberty interests" is a fit parent's right to the care, custody, and control of his or her children. Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000).

At common law, grandparents...