Recent Cases

APPELLATE JURISDICTION-Finality of Underlying Case/Order. In the Matter of the Marriage of McAllister, Docket No.122,612 (Unpublished Ct. of App.) 20213439166 (August, 2021-Johnson-Appeal Dismissed). “The right to appeal is statutory in Kansas. Subject to certain exceptions, appellate courts have jurisdiction to entertain an appeal only if the party files the appeal in the manner prescribed by statute. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. A party may invoke this court’s appellate jurisdiction as a matter of right from a final decision in any action. K.S.A. 60-2102(a)(4). A final decision is one that finally decides and disposes of the entire merits of the controversy and reserves no other questions or directions for the future or further action of the court. There is a strong policy against piecemeal appeals in Kansas. In this case, the District Court set aside the Decree of Divorce, at wife’s request, after the District Court entered a default judgment. The District Court granted wife’s motion to set aside the default judgment because it determined it lacked personal jurisdiction over wife. That decision was based on wife’s lack of contacts with Kansas. At the time, she was living in Switzerland. While the District Court set aside the default decree of divorce, the underlying case is still pending. Therefore, the District Court still has at least two options. It can dismiss the case for lack of personal jurisdiction, or it can enter judgment solely on the divorce and distribute any marital property in Kansas if it otherwise has in rem jurisdiction. Without such a final order, the case is not concluded. Because there is no final order which would establish the appellate court’s jurisdiction to hear the appeal, the [appellate court dismissed) it.”

The issue in this case was the jurisdiction of the district court. Grandparents of an unmarried minor child sued KDCF, as the child was in state custody, and the grandparents were bound by an outstanding no-contact order issued in a CINC case. TNY, a paternity case, decided grandparent visitation should be limited only to divorce cases. 51 Kan. App. 2d at 963. The district court in the instant case decided that TNY   therefore did not extend grandparent visitation to other family law contexts (e.g. PFA or CINC cases).

The instant case clarifies that grandparents may file independent actions seeking visitation with their grandchildren, in the county where the child resides, and seek also similar relief in divorce cases. It held K.S.A. 23-3301 (the grandparent visitation statute) is constitutional. They must still prove (a) a substantial relationship with the grandchild and (b) that the relationship is is in the child’s best interests. The only pending cases in which grandparents may pursue visitation are divorce cases. They cannot intervene in paternity, CINC, or PFA cases.

The instant, independent action was properly dismissed, according to the appellate court, because grandparent visitation was not ripe for the parties, because the CINC cases take precedence over orders from other courts, and because the CINC court’s no-contact order governs until either the CINC case closes or the order is modified. K.S.A. 38-2201(a). Even if the district court has ordered grandparent visitation, DCF could not have allowed it, because a CINC no-contact order supersedes all other court orders.

While K.S.A. 23-2215 permits a court to award birth expenses when entering an initial child support award in a paternity order, repeating the lesson set out above, the district court was not asked to do so in the initial petition and did not do so. K.S.A. 23-3005 governing modification of child support orders allows modification retroactive to the first day of the month following the filing of the motion to modify. “The trial court lacked authority to modify retroactively [the father’s] support obligation, except during the limited timeframe in [K.S.A. 23-3005{b)].” Further, mother did not seek relief under K.S.A. 60-260 {b){l), (b)(6), or (c).

UIFSA REGISTRATION-PETITION INCLUSION. Chalmers v. Burrough, 58 Kan. 531,472 P. 3d 586 (August 27, 2021-Sedgwick-Reversed and remanded with directions). Failure to include a copy of the Order establishing or modifying child support with the “registration packet” is not fatal to the registration. One may seek leave to amend to add such Order. In this case, Mr. Chalmers “attempted to register a child support order from Florida in Sedgwick County District Court and moved to modify the amount of the order. Initially, no one realized Mr. Chalmers mistakenly left the order out of the registration materials. The district court imposed a temporary modification order. When it came to light that Mr. Chalmers had failed to include the Florida order with his registration materials, the district court concluded it never had jurisdiction to modify the order, so it voided the registration and modification and dismissed the case. The Court of Appeals affirmed.” The underlying order was $10,000 per month. Burrough was personally served with the petition and attachments and neither responded to nor challenged the petition to register. The modification order, to $1,000 per month, was entered by agreement of the parties. More than 2 months after the modification order was entered, Chalmers’ attorney filed a Motion for Order Allowing Addition to the Record, viz., the underlying Order, to which Burrough’s attorney filed a “motion to dismiss the case and void the judgment due to lack of jurisdiction and lack of subject matter jurisdiction.” The Supreme Court concluded, among other things, that registration itself is not what gives the district court jurisdiction over the out-of-state order. K.S.A. 23-36,601. The district court’s legal conclusion that the failure to properly register the order meant it did not have jurisdiction was reversed. That which is required to establish jurisdiction is otherwise set out in the act.