R.W. v. C.M. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,469
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
R.W.,
Appellant,
v.
C.M.,
Appellee.
MEMORANDUM OPINION
Appeal from Osage District Court; SHANNON D. RUSH, magistrate judge. Opinion filed
July 22, 2022. Affirmed.
James G. Chappas, of Topeka, for appellant.
Cooper Overstreet, of The David Law Office LLC, of Lawrence, for appellee.
Before WARNER, P.J., CLINE, J., and RACHEL L. PICKERING, District Judge, assigned.
PICKERING, J.: R.W. appeals from the denial of her petition for a protection from
stalking (PFS) order. The district court found that R.W. failed to meet her burden of proof
and dismissed the petition. On appeal, R.W. first argues that the district court erred by not
issuing temporary orders based on the evidence presented. That issue was rendered moot
by the issuance of the district court's final order. The second issue, namely, whether the
district court could reconsider the denial of temporary orders even if new facts arose does
fall under an exception to the mootness doctrine. In other words, the question of whether
the district court can consider successive requests for temporary protection orders based
on facts arising after the original petition is an issue of public importance capable of
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repetition. The district court erred in finding that it could not entertain a successive
request for temporary protection orders based on new facts. Yet the error was harmless
because the court did issue a final order. R.W. also argues that the district court erred
when it held that it could not sequester witnesses in PFS proceedings. This was an error
because the power to sequester witnesses, including PFS proceedings, falls within the
broad discretion of the district court. But the error was harmless because there is no
indication that any of the witnesses' testimony was impacted by the district court's refusal
to sequester. Finally, R.W. argues that she presented sufficient evidence to support her
case. Many of the facts, however, are controverted, and this court cannot reweigh
evidence. Trolinger v. Trolinger, 30 Kan. App. 2d 192, 197, 42 P.3d 157 (2001). The
record supports the district court's decision.
FACTUAL AND PROCEDURAL HISTORY
This case involves a petition for protection from stalking. Under Kansas law,
"stalking" is defined as "an intentional harassment of another person that places the other
person in reasonable fear for that person's safety." K.S.A. 2020 Supp. 60-31a02(d). For
the purposes of the protection from stalking statutes, "'[h]arassment' means a knowing
and intentional course of conduct directed at a specific person that seriously alarms,
annoys, torments or terrorizes the person, and that serves no legitimate purpose." K.S.A.
2020 Supp. 60-31a02(d)(1). "Course of conduct" is also defined, and it "means conduct
consisting of two or more separate acts over a period of time, however short, evidencing
a continuity of purpose which would cause a reasonable person to suffer substantial
emotional distress." K.S.A. 2020 Supp. 60-31a02(d)(2). The definition of "course of
conduct" does not include constitutionally protected activity. K.S.A. 2020 Supp. 60-
31a02(d)(2).
After a person files a petition for protection from stalking, the district court must
hold an evidentiary hearing within 21 days unless the hearing is continued. K.S.A. 2020
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Supp. 60-31a05(a). The district court may issue temporary relief orders before the
hearing on the petition. K.S.A. 2020 Supp. 60-31a05(b).
R.W. filed a verified petition for protection from stalking against C.M. on May 5,
2020. R.W. alleged that on April 28, 2020, her neighbor—C.M.—entered her property,
taunted her horse, stunned the horse with a flashlight, and threw rocks at the horse. She
also alleged C.M. entered her yard twice on the night of April 29, 2020, and threw things
at her house. She said that police found C.M. on her property and detained him. R.W.
explained that these incidents occurred on a daily basis, despite her installation of
security cameras and "no trespassing" signs and numerous calls to the police. Under the
"Additional Incidents" portion of her petition, R.W. alleged that C.M. once threw a
hatchet at her after she confronted him about stealing her water. And R.W. said that
bullets fired from C.M.'s property hit her horse, one of the neighbor's children, and
another neighbor's outbuilding. R.W. concluded that she was afraid for her safety, as well
as the safety of her pets, because C.M. was armed and dangerous, he threatened her and
abused her pets, and he frequently trespassed onto her property. R.W. asked the court to
enter an ex parte temporary order of protection. The district court denied the request for
ex parte temporary orders the same day, though the court did not issue a written ruling.
The hearing was initially scheduled for June 17, 2020. It is not apparent from the
record why the hearing was not scheduled within 21 days of R.W. filing her petition, but
that is not at issue in this case. Just over a week before the June hearing, R.W. moved for
a continuance. The district court ultimately scheduled the hearing for September 4, 2020.
On June 22, 2020, R.W. moved the district court to reconsider its denial of her
request for a temporary protection order. Her motion stated that since R.W. filed her
petition on May 5, 2020, C.M. had continued his harass, threaten, and assault R.W. and
her horse. She alleged that "[e]very night on the hour and from 10:00 pm until 5:00 am,
[C.M.], ordinarily dressed in black with a flashlight and night vision gear, 'patrols' the
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western property line of [R.W.'s] property screaming that he is to be called 'Sir' and
'Specialist' and that 'No woman is going to tell him what to do.'" During his patrols, R.W.
alleged, C.M. would call out to her horse and shine his flashlight in the horse's stall and
face. This behavior made R.W. fear for her safety and experience difficulty sleeping at
night. She specifically alleged that the weekend before filing the motion "[a] rock was
thrown at the horse, from the defendant's property striking the animal causing a hole in
his leg." Although R.W. called the police, she said one of the people with C.M. said "that
the Sheriff will do nothing to them." R.W. asked the court to issue a temporary protection
order based on this additional evidence.
The district court heard arguments on the motion in August 2020 and denied
R.W.'s motion for reconsideration. The district court reasoned that there was no
procedural scheme or legal precedent by which it could reconsider its initial ruling on
temporary orders based on new facts. Additionally, the court noted that the statutory
intent behind the Protection from Stalking, Sexual Assault, or Human Trafficking Act,
K.S.A. 2020 Supp. 60-31a01 et seq. (Act), was that matters be heard expeditiously, which
is why it provides for a final hearing to be conducted within 21 days.
There was some confusion as to whether the district court would receive evidence
at the August 2020 motions hearing. R.W.'s attorney believed that it was an evidentiary
hearing. Based on this belief, R.W.'s attorney orally moved at the beginning of the
hearing to sequester any witnesses that were planning to offer testimony. The district
court and C.M.'s attorney both thought the purpose of the hearing was to hear arguments
on the motion for reconsideration and another unrelated motion, not to present evidence.
In any event, the district court denied R.W.'s request for sequestration. The court
reasoned that because the case was a civil matter, the sequestration rules would not apply
like they would in a criminal case. In its written order following the hearing, the district
court reasoned that "there is no legal precedent to justify that requested relief in the type
of cause of action filed by [R.W.]."
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Shortly before the bench trial, R.W. filed a written motion for sequestration of
testifying witnesses and an order precluding recording of trial proceedings by anyone in
the gallery. R.W. asserted that sequestration would "go a long way to ensure the efficient
presentation of truthful facts to the Court" and that "[t]he probable alternative, in this
case, will be a tedious, hillbilly free-for-all." R.W. acknowledged that Kansas law does
not specifically authorize witness sequestration in civil trials, but also noted that it does
not prohibit sequestration either.
The bench trial began on September 4, 2020, and was continued for a second day
on October 2, 2020. Before the trial began, R.W. renewed her motion for sequestration.
The district court held that there was no authority for a sequestration order and that the
court did not generally order sequestration of witnesses in protective order proceedings.
R.W. filed another motion for sequestration a few days after the first day of trial. She
noted that one of the witnesses called was asked whether she had the opportunity to listen
to the trial testimony that had been elicited up to that point and the witness replied
affirmatively. R.W. "submit[ted] the clear intent and meaning of said inquiry being that
the witness was going to be asked to provide answers to questions based upon what she
had heard during the course of the hearing." R.W. asked the court to grant her motion to
avoid similar situations in the future. The court denied the motion when trial resumed for
the second day.
R.W. testified first. She said that she had lived at her home in Carbondale since
1997. R.W.'s neighbors included Emily and Ryan Roberts to the north and Ron and
Patricia Cox to the southwest. At the times relevant to this proceeding, R.W. said, she
lived alone.
R.W. bought a horse named Pie in 2004, who she housed in a barn adjacent to a
fence on the west side of her property. Pie had a corral next to his barn and another corral
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to the south of the barn. The southern pasture is between R.W.'s house and C.M.'s
property.
C.M. moved into the property to the west of R.W. in late summer or early fall of
2017. R.W. thought she had an amicable relationship with C.M. when he moved into the
neighborhood, though she did mention an incident in 2017 where C.M. was shooting a
gun on his property. R.W. said that C.M.'s bullets went toward the Cox's house where
their children were playing outside. Another bullet ricocheted and nicked Pie's ear. She
thought the ricochet towards Pie was accidental. Although R.W. said the Cox children
were the ones that C.M. shot at in that incident, the testimony later in the case focused on
the Roberts children. C.M.'s attorney asked neighbor Emily Roberts whether she "had a
conversation with [R.W.] concerning [her] kids being shot at or by as [R.W.]'s now
testified." Roberts replied that she had a conversation with R.W. about the allegation and
that it did not occur. When R.W. testified again on the second day of trial, she said she
read on social media in a post by Emily Roberts about the Roberts children being shot.
R.W. did not mention the Cox children.
R.W. testified that her relationship with C.M. changed about a year after he moved
to the neighborhood. She explained that he became more demanding and accused her of
stealing his land. After C.M. learned that R.W. had previously worked for Kansas Legal
Services, R.W. said C.M. asked her to prepare legal documents regarding visitation with
his child. R.W. further testified that C.M. used her water, took pollen from her pine tree,
and sat on her deck to use her internet.
According to R.W., C.M. said he was former military and had been diagnosed
with post-traumatic stress disorder and paranoid schizophrenia. R.W. said that C.M.
reported being on medications and that without the medications he would see and hear
things. For example, C.M. reportedly told R.W. that he could sometimes hear a woman or
children screaming in the woods. He also suggested that he thought his home's previous
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owners had been buried in the new concrete under his basement stairs. R.W. also said
C.M. asked her to call the sheriff's department one night because he thought North
Korean people were trying to dig through the gravel under his garage door. On other
occasions, C.M. asked R.W. to watch him enter his house if it was dark out.
R.W. testified that in mid-2019, about 14 or 15 months before the trial, C.M.
started patrolling their property line. He performed hourly patrols every night beginning
around 9 p.m. and ending around 5 a.m. or 6 a.m. During these patrols, he would use
floodlights or flashlights and walk up and down the property line. C.M. would typically
wear black or camouflage. Others often accompanied C.M. on his patrols. Usually C.M.
was accompanied by his friend Shane Henderson. Sometimes R.W. could hear C.M.
saying things like, "'You will refer to me as specialist, or mister, or sir.'" She could also
hear C.M. whistle and call Pie's name. C.M. would shine floodlights and flashlights on
Pie and in Pie's face. R.W. also observed lasers being pointed at Pie's face.
R.W. began noticing that Pie had bloody cuts on him when she would go out to
feed him in the morning. She could also hear Pie running and making scared snorting
noises at night, and he would be lathered in the morning. R.W. thought Pie's injuries
could have been caused by rocks being thrown at him and by Pie becoming so scared by
C.M. and his dogs that he would run out of control. In response to Pie's injuries, R.W.
installed two trail cameras, no trespassing signs, spotlights, and motion sensitive lights.
R.W. testified that there had been a lot of "patrolling and noise" on April 28, 2020.
When she heard Pie snorting and running in the middle of the night, she checked the
cameras and saw a projectile from the west and slightly southwest hit Pie. She submitted
a photo into evidence that she took the morning after this incident which showed a
quarter-sized gash on Pie's flank. When she returned to the stand on the second day of the
trial, R.W. said she had also observed C.M. shining a flashlight on Pie's stall that night
and that Pie appeared to be uncomfortable.
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The following night, on April 29, 2020, R.W. was in her first-floor bedroom with
the window open. She could hear men talking outside when something—she thought it
was likely mud—hit her window and stuck to the screen. R.W. heard C.M. laugh and this
was followed by other objects that sounded like pebbles or gravel being thrown at R.W.'s
house. She admitted that she did not personally observe C.M. throwing anything. R.W.
called the sheriff's department and someone from the sheriff's department spoke to C.M.,
but he was not arrested. R.W. stipulated that C.M. had never been arrested in relation to
any of the complaints she made.
R.W. also testified that she was 66 years old and suffered from kidney issues. She
had stage four kidney failure and was on the kidney transplant list. She said that the stress
and lack of sleep caused by C.M. exacerbated her kidney failure.
Dan Scott, an acquaintance of R.W. for 10-15 years, testified next. Scott
performed a variety of carpentry work for R.W. over the years, including work on Pie's
corral. R.W. asked Scott to extend the stable to provide protection from projectiles and
aggressive dogs. Scott also installed R.W.'s cameras.
In the year or so before the trial, Scott cared for Pie during times that R.W. was in
the hospital. He said he "definitely" noticed a deterioration in Pie's health after C.M.
moved into the neighborhood. Scott testified that since C.M. moved in he had observed
"bloody nicks, pretty good size holes on his legs . . . a lot around his head." Sometimes he
saw Pie with swollen eyes. He observed injuries to Pie every month of 2020 up to the
time of trial.
Although Scott never saw C.M. injure Pie, he suspected C.M. was to blame. Scott
said he spent "many nights out in the barn trying to . . . catch them in the act" of hurting
Pie. He could see and hear that the projectiles were coming from the west of R.W.'s
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property. He could also see C.M. shining flashlights on the horse during his nightly
patrols. Scott testified that C.M. would bring his dog, which was barking and acting
aggressive, within 10 to 15 feet of Pie and linger for five or so minutes. Despite watching
C.M., Scott did not observe C.M. or anyone else throw anything at Pie.
R.W.'s neighbor Emily Roberts testified and claimed that R.W. told her the
allegations in the petition were perjury. Roberts also testified that R.W. did not live alone
as she claimed. Roberts lived close enough to R.W. to see her driveway and saw R.W.'s
husband routinely coming and going to the house. Roberts also believed another woman
moved in around July 2020 and spent almost all of her time at R.W.'s residence. Roberts
also denied that C.M. ever shot a gun at her children. Roberts' testimony concluded with
her saying that she installed cameras and a fence on her property to protect her family
from R.W., who Roberts claimed had trespassed on her property, harassed her, and
threated to "have Judges and Lawyers coming after" Roberts.
Eric Wood, C.M.'s neighbor to the north, provided testimony related to the
allegation in R.W.'s petition that C.M. had shot a neighbor's outbuilding. He explained
that he had an outbuilding that was hit by gunfire, but it was before C.M. moved in. Like
Roberts, Wood could see R.W.'s property from his front yard. He saw additional vehicles
parked at R.W.'s residence late at night and early in the morning and had witnessed cars
coming and going from her house in such a way that he assumed someone else was living
with R.W.
Shane Henderson, who described himself as a long-time family acquaintance of
C.M.'s, also testified. He would spend a significant amount of time with C.M., usually
visiting C.M. multiple times a week, typically from afternoon to early morning with
occasional overnight stays.
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Henderson's testimony differed greatly from R.W.'s. He testified that R.W. did not
live alone and that he had seen R.W.'s husband and another woman at R.W.'s property.
Henderson said that C.M. was not harassing R.W. and it was actually R.W. who was
engaging in the harassing activity. He accused R.W. and others associated with her (he
did not specify who) of provoking quarrels and provided several examples. Henderson
said that these people used flashlights to blind drivers on the road, they "slandered quite a
bit online through social media" and made "aggressive" posts on Facebook, and they
"encouraged action to be taken through town members." Additionally, he said that
"they've come over across the property line trying to . . . instigate a fight" and that they
had called law enforcement or the fire department on occasions Henderson thought were
unnecessary. Henderson had been present when law enforcement visited the R.W. and
C.M. properties, and C.M. was never arrested.
Henderson helped C.M. erect tarps on his property as a makeshift fence.
According to Henderson, they did this because R.W. had set up cameras monitoring
C.M.'s property, and C.M. wanted some privacy. Henderson explained that they used
shooting blinds as tarps because that was what C.M. had available.
Henderson's account of C.M.'s nightly activities also differed from R.W.'s. He said
that C.M. had two German Shepherds that he was "constantly taking to the restroom and
getting exercise." Henderson usually accompanied C.M. on the walks. He said the timing
of the walks "depend[ed] [on] when the dogs have to use the restroom." Henderson did
not go out on the walks on an hourly basis.
On the walks, Henderson said the dogs seldom barked. They would traverse the
entire property, but C.M. tried to avoid walking the dogs by Pie's stable. He denied that
either he or C.M. ever harassed Pie. Occasionally C.M. would bring a flashlight while
walking his dog to look out for copperhead snakes but not to harass Pie. Henderson and
C.M. would sometimes talk on these walks but only at a conversational tone.
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R.W. returned to the stand after Henderson testified. She testified again that she
lived alone. In explaining why there were sometimes other cars in her driveway, R.W.
said that her husband would park his car in her driveway even though she objected and
they were undergoing a divorce. In response to the testimony that a woman was living at
her house, R.W. testified that it could have been someone she hired to help sell some of
her personal property, though that woman had only visited the house three or four times.
R.W. also denied ever trespassing on the Roberts' property. She also explained that
her belief one of the Roberts children was hit by a stray bullet was because she read on
social media something about one of the children being injured. Regarding her allegation
that bullets hit Wood's outbuilding, R.W. said it was her "understanding from talking [to]
a couple of other neighbors" that Wood put up a fence in response to bullets hitting his
chicken coop.
C.M. did not testify.
The district court ruled from the bench after the hearing and denied R.W.'s request
for a protection order, finding that R.W. did not meet her burden of proof. With regard to
the April 28, 2020 allegations, the district court noted that R.W. never saw C.M. throw
anything at Pie or direct anyone else to throw something. The testimony that Pie was
injured was "simply just not enough." There was not direct testimony or evidence that the
projectiles came from C.M. Finally, the court said most of the other evidence that the
court heard, including C.M. walking his dogs along the property line and using shooting
blinds as a fence, was "constitutionally protected activity." The court found that even if
these activities caused R.W. fear, the acts were not directed toward R.W. with the intent
to cause her fear.
R.W. appealed.
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ANALYSIS
1. Are the district court's rulings on temporary orders in this case rendered moot by
the court's final order?
R.W.'s first two arguments pertain to the district court's ruling on temporary
protection orders. The statute governing temporary protection orders is K.S.A. 2020
Supp. 60-31a05. It provides:
"(a) Within 21 days of the filing of a petition under the protection from stalking,
sexual assault or human trafficking act a hearing shall be held at which the plaintiff must
prove the allegation of stalking, sexual assault or human trafficking by a preponderance
of the evidence and the defendant shall have an opportunity to present evidence on the
defendant's behalf. Upon the filing of the petition, the court shall set the case for hearing.
At the hearing, the court shall advise the parties of the right to be represented by counsel.
"(b) Prior to the hearing on the petition and upon a finding of good cause shown,
the court on motion of a party may enter such temporary relief orders in accordance with
K.S.A. 60-31a06, and amendments thereto, or any combination thereof, as it deems
necessary to protect the victim from being stalked, sexually assaulted or trafficked.
Temporary orders may be granted ex parte on presentation of a verified petition by the
victim supporting a prima facie case of stalking, sexual assault or human trafficking.
"(c) If a hearing under subsection (a) is continued, the court may make or extend
such temporary orders under subsection (b) as it deems necessary." K.S.A. 2020 Supp.
60-31a05.
R.W. first argues that the district court erred in not granting an ex parte temporary
protection order based on the facts alleged in her verified petition. Second, she argues
that the district court erred when it held that the Act did not authorize it to entertain
successive requests for temporary protection orders based on conduct that occurred after
the filing of the original petition. C.M. asserts that any issues regarding R.W.'s requests
for a temporary protection order were rendered moot by the district court's final order.
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This court exercises unlimited review over the issue of whether an issue is moot.
In re A.E.S., 48 Kan. App. 2d 761, 764, 298 P.3d 386 (2013).
"A case is moot when a justiciable controversy no longer exists. 'A justiciable
controversy has definite and concrete issues between the parties and "adverse legal
interests that are immediate, real, and amenable to conclusive relief."' [Citations
omitted.]" 48 Kan. App. 2d at 764. Kansas courts generally do not decide moot questions
or render advisory opinions. 48 Kan. App. 2d at 764.
Under K.S.A. 2020 Supp. 60-31a05(b), the district court can issue temporary relief
orders "[p]rior to the hearing on the petition." Once the district court conducts the hearing
on the petition, any temporary orders are no longer effective. Because the district court
has conducted a hearing on the petition and entered a final order, any issues pertaining to
the district court's failure to issue temporary orders are now moot.
The inquiry does not end here. The mootness doctrine is not jurisdictional, so it is
subject to exceptions. Under one of these exceptions, an appellate court will review a
moot issue if it is capable of repetition and raises concerns of public importance. "Public
importance means 'something more than that the individual members of the public are
interested in the decision of the appeal from motives of curiosity or because it may bear
upon their individual rights or serve as a guide for their future conduct as individuals.'
[Citations omitted.]" In re A.E.S., 48 Kan. App. 2d at 766.
This court examined this exception in In re A.E.S., a case in which a parent, M.S.,
appealed from a temporary custody order in a child in need of care proceeding. The
district court entered orders of adjudication and disposition while the appeal was pending.
This court held that M.S.'s appeal of the temporary custody order was rendered moot by
the district court's adjudication and disposition orders. 48 Kan. App. 2d at 764. It
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declined to consider M.S.'s arguments on the sufficiency of the evidence under an
exception to the mootness doctrine because the order of disposition concluded the
evidentiary issues. "Any further consideration of such issues," the court stated, "would be
case specific and would not implicate any exception to the mootness doctrine. Such
consideration would simply result in an advisory opinion which we decline to render." 48
Kan. App. 2d at 766. The court did, however, agree to consider M.S.'s constitutional
challenge to the statute governing the temporary orders procedure because "the
constitutionality of the temporary order statute is a matter of public importance." 48 Kan.
App. 2d at 767.
R.W.'s first argument, that the district court erred in not granting an ex parte
temporary protection order based on the facts alleged in her verified petition, is moot for
the same reasons that M.S.'s challenge to the sufficiency of the evidence was moot in In
re A.E.S. The question of whether the facts in R.W.'s petition established a prima facie
case of stalking would require consideration of the specific facts of the case. The question
would not involve matters of public importance—only matters affecting the parties in this
case.
R.W.'s second argument, however, does fall under an exception to the mootness
doctrine. The district court held that there was "no legal precedent to justify the issuance
of a Temporary Order of Protection once an initial request has been denied." R.W. asserts
that the district court can entertain successive requests for temporary protection orders
based on facts arising after the filing of the original petition.
Resolution of this issue requires interpreting K.S.A. 2020 Supp. 60-31a05. Such a
statutory analysis can be completed without reference to the specific facts of the case,
unlike the factual analysis that would be necessary to resolve R.W.'s first argument on
temporary orders. Further, this issue is one that is capable of repetition, yet evading
review. Smith v. Martens, 279 Kan. 242, Syl. ¶ 2, 106 P.3d 28 (2005) (court electing to
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entertain a constitutional issue in a PFS case because, although moot, was an issue of
public importance capable of repetition).
With certain exceptions, a party cannot appeal a district court's decision on
temporary orders. See K.S.A. 2020 Supp. 38-2273(a) (allowing parties in a child in need
of care case to appeal a district court's temporary custody order). Usually, the party must
wait until the final order to file an appeal. See K.S.A. 2020 Supp. 60-2102 (establishing
appellate jurisdiction in civil cases). Even if the plaintiff could appeal the denial of
temporary orders, by the time the case reached this court the district court likely would
have already conducted the final hearing. See K.S.A. 2020 Supp. 60-31a05(a) (providing
that district court must conduct hearing on petition for protection from stalking within 21
days of filing unless a continuance is granted). In cases dealing with stalking, which by
definition requires a "course of conduct," it is reasonable to expect that in some cases the
conduct will continue even after the petition is filed. See K.S.A. 2020 Supp. 60-31a02(d)
(defining "stalking"). As such, this is not an unusual or peculiar situation unique to the
facts of this case. For these reasons, consideration of R.W.'s second argument on
temporary orders falls under an exception to the mootness doctrine.
2. Did the district court err when it held that it could not reconsider granting
temporary protection from stalking orders based on new facts?
R.W. asked the district court to reconsider its decision not to issue temporary
orders based on facts that developed after she filed her petition. These facts were set forth
in a verified motion. In her motion, R.W. asked the district court to grant the temporary
orders ex parte based upon the additional facts in the motion. Alternatively, she asked the
district court for an evidentiary hearing on the issue of temporary orders if it did not issue
the temporary orders ex parte.
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Resolution of this issue requires interpretation of K.S.A. 2020 Supp. 60-31a05(b).
Statutory interpretation presents a question of law over which appellate courts have
unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. 309 Kan. at 149-150. An appellate
court must first attempt to ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings. When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. Where there is no ambiguity, the court need not resort to
statutory construction. Only if the statute's language or text is unclear or ambiguous does
the court use canons of construction or legislative history to construe the Legislature's
intent. 309 Kan. at 149-50. When construing statutes to determine legislative intent,
appellate courts must consider various provisions of an act in pari materia with a view of
reconciling and bringing the provisions into workable harmony if possible. The courts
must construe statutes to avoid unreasonable or absurd results and presume the
Legislature does not intend to enact meaningless legislation. Friends of Bethany Place,
Inc. v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013).
Whether a district court is permitted to entertain successive requests for temporary
orders based on new facts in protection from stalking proceedings is an issue that does
not appear to have been directly addressed by Kansas appellate courts. As stated above,
the operative language of the statute is:
"(b) Prior to the hearing on the petition and upon a finding of good cause shown,
the court on motion of a party may enter such temporary relief orders in accordance with
K.S.A. 60-31a06, and amendments thereto, or any combination thereof, as it deems
necessary to protect the victim from being stalked, sexually assaulted or trafficked.
16
Temporary orders may be granted ex parte on presentation of a verified petition by the
victim supporting a prima facie case of stalking, sexual assault or human trafficking."
K.S.A. 2020 Supp. 60-31a05.
An interpretation of K.S.A. 2020 Supp. 60-31a05(b) begins with a determination
as to how broadly the Protection from Stalking Act is to be construed. When the
Legislature dictates that an act is to be liberally construed, the language of the law is
broadly interpreted for the purpose of upholding and promoting its object and its
provisions "should not receive a strained and technical interpretation for the purpose of
defeating its manifest purposes." Kansas Wheat Growers Ass'n v. Schulte, 113 Kan. 672,
684, 216 P.311 (1923). Conversely, when a statute is to be strictly construed, the court
applies a narrow reading of the statute. For example, in In re Adoption of C.L., 308 Kan.
1268, 1279, 427 P.3d 951 (2018), the Kansas Supreme Court stated that Kansas
adoption statutes are "strictly construed in favor of maintaining the natural parents' rights
when it is claimed consent to adoption is not required by reason of a parent's failure to
fulfill statutory parental obligations."
Kansas law has dictated that the Protection from Stalking Act is "to be liberally
construed to protect victims of stalking and to facilitate access to judicial protection for
those victims." Dester v. Dester, 50 Kan. App. 2d 914, Syl. ¶ 1, 335 P.3d 119 (2014)
(citing K.S.A. 60-31a01 et seq.). The language of the statute should thereby receive a
board interpretation in favor of protecting victims of stalking and facilitating victims'
access to judicial protection.
Under the Act, temporary orders are deemed so important that the district court is
authorized to issue them ex parte when warranted by the circumstances. K.S.A. 2020
Supp. 60-31a05(b). K.S.A. 2020 Supp. 60-31a05(b), moreover, specifically states that the
court on a party's motion may enter such temporary relief orders "as it deems necessary
17
to protect the victim from being stalked, sexually assaulted or trafficked." (Emphasis
added). K.S.A. 2020 Supp. 60-31a05(b).
Under K.S.A. 2020 Supp. 60-31a05(b), ex parte temporary orders are authorized
upon presentation of a verified petition. Thus, if a party wants the district court to issue
ex parte temporary orders based on new facts, the facts would need to be added to an
amended verified petition. The statute does not permit temporary orders to be granted ex
parte based on new facts pled in a motion—it is specific that temporary orders can only
be granted ex parte if the petition establishes a prima facie case of stalking.
Consistent with the construction of the Protection from Stalking Act, the statute
does not limit the district court in granting temporary orders ex parte. Nor does it limit
the district court to granting temporary orders based solely on the facts in a verified
petition. Rather, the statute authorizes the district court to grant temporary orders "on
motion of a party" any time "[p]rior to the hearing on the petition and upon a finding of
good cause shown." K.S.A. 2020 Supp. 60-31a05(b). Additionally, both parties agree that
the district court has the discretion to issue temporary orders based on facts arising after
the petition is filed.
As shown in this case, situations may conceivably arise where the court should
exercise its discretion and consider a party's successive request for temporary orders
when "it is necessary to protect the victim from being stalked, sexually assaulted or
trafficked." K.S.A. 2020 Supp. 60-31a05(b). Problematically, if the court was not able to
consider a party's successive request, it is possible the moving party would be
unprotected and unable to receive judicial protection until the court conducts a hearing on
the PFS request. Not surprisingly, K.S.A. 2020 Supp. 60-31a05 does not specifically
forbid successive requests for temporary orders. Compare with K.S.A. 2020 Supp. 60-
1507(c)(statute generally limits successive motions).
18
Here, the district court said it did "not believe procedurally that there is a . . .
scheme for a reconsideration with new facts on [a] request for a reconsideration of the
denial of Temporary Orders." The district court unduly limited its discretionary powers
under K.S.A. 2020 Supp. 60-31a05(b). This interpretation is inconsistent with the
construction and purpose of the Protection from Stalking Act, which is to protect victims
of stalking and to facilitate access to judicial protection for those victims.
Further, when the district court denied R.W.'s request for reconsideration, it did so
in part because "[p]art of the . . . statutory intent is that these matters be heard
expeditiously," which is why the plaintiff has a right to a final hearing within 21 days of
filing the petition. It is true, as the district court said, that matters should be heard
expeditiously. In this case, R.W. had the right to a final hearing within 21 days of filing
her petition, or May 26, 2020. K.S.A. 2020 Supp. 60-31a05. There is nothing in the
record that indicates why the district court did not conduct the hearing by that date, but
on June 9, 2020, R.W. moved for a continuance of the trial so that she could conduct
discovery. It was not until June 22, 2020, that R.W. asked the court to reconsider its
denial of the temporary orders. The court could have considered these matters in
exercising its discretion and deciding whether R.W. had shown good cause for granting
temporary orders.
To summarize, the district court should have broadly construed K.S.A. 2020 Supp.
60-31a05 and found that it could have considered a successive request for temporary
orders. While the court did not hear a successive request, the court did later conduct a
hearing on the PFS request. Thus, although the district court erred by failing to recognize
that it had the discretion to grant R.W.'s request at all, this error does not require reversal.
The court's error was harmless as a later hearing was conducted.
19
3. Did the district court err in denying R.W.'s requests to sequester the witnesses?
R.W. next argues that the district court erred when it held that it could not
sequester witnesses in civil trials. Here, it should be noted that the district court did not
hold that sequestration is prohibited in all civil trials. The court suggested that it did
sequester witnesses in some instances when children or a domestic relationship is
involved. The district court's ruling focused on its authority to sequester witnesses in
protection order proceedings. Thus, the focus of this inquiry should be on sequestration
of witnesses in protection order proceedings.
Interpretation of the Kansas Code of Civil Procedure in determining whether
Kansas law permits sequestration of witnesses in protection order proceedings is a
question of law subject to unlimited review. White v. Shipman, 54 Kan. App. 2d 84, 88-
89, 396 P.3d 1250 (2017) (interpreting Kansas Code of Civil Procedure in determining
whether discovery rules are applicable to K.S.A. 60-1501 proceedings).
Nothing in Kansas law authorizes or prohibits sequestration of witnesses in a civil
trial. The Kansas Code of Civil Procedure provides that "[w]hen no provision in this
article refers specifically to a matter over which the court has jurisdiction, the court must
proceed in a just and equitable manner that protects the rights and interests of all affected
parties." K.S.A. 2020 Supp. 60-265(c). Additionally, the Kansas Supreme Court has
emphasized that "district courts of this state have broad discretion and powers,
independent of the statutory code, to take actions to see that justice is done in a particular
case even though there is no specific provision granting such authority in the code of civil
procedure." Daniels v. Chaffee, 230 Kan. 32, 38, 630 P.2d 1090 (1981). Accordingly, the
matter of whether to sequester witnesses in civil trials, including PFS proceedings, falls
within the district court's broad discretion.
20
The next question is whether the district court abused its discretion in denying
R.W.'s repeated requests for sequestration. C.M. asserts that, by "reasoning . . . that
Kansas law did not provide for the sequestration of witnesses in a civil matter, and that
the courtroom was an open courtroom . . . the Court utilized its discretion to deny
Plaintiff's request."
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). Although the abuse of
discretion standard is highly deferential, "even under the deferential abuse of discretion
standard of review, an appellate court has unlimited review of legal conclusions upon
which a district court's discretionary decision is based. A district court by definition
abuses its discretion when it makes an error of law." State v. Ernesti, 291 Kan. 54, Syl.
¶ 10, 239 P.3d 40 (2010); see also State v. Schaefer, 305 Kan. 581, 587, 385 P.3d 918(2016) ("[T]he district court's decision must have been based on a correct understanding
of the law to receive the full deference of that review standard."). In this sense, the abuse
of discretion standard of review includes a component of unlimited review.
In this case, the district court made an error of law and thus abused its discretion
when it held that Kansas law does not permit witness sequestration in protection order
cases. The power to sequester witnesses falls within the broad discretion of the district
court. It is also "an abuse of discretion to refuse to exercise discretion or fail to appreciate
the existence of the discretion to be exercised in the first place." State v. Horton, 292
Kan. 437, 440, 254 P.3d 1264 (2011).
Just because a district court abuses its discretion does not mean it commits
reversible error. An error will be deemed harmless where it does not "affect any party's
substantial rights." K.S.A. 2020 Supp. 60-261. This requires the party benefiting from the
error to persuade the court that there is no reasonable probability that the error affected
21
the trial's outcome in light of the entire record. State v. McCullough, 293 Kan. 970, 983,
270 P.3d 1142 (2012). C.M. successfully does that here.
Analysis of this issue is made somewhat difficult because R.W. does not specify
which witnesses heard which testimony. From the record, it can be ascertained that
Roberts heard R.W.'s testimony. However, whether other witnesses were present on the
first day of trial is unknown. The second day of trial was conducted on Zoom, and the
Zoom witnesses did not hear each other testify. Henderson was in the courtroom on the
second day of trial, but it is not clear from the record whether he was in the courtroom
during any Zoom testimony.
The sequestration of witnesses is a centuries-old practice. "Its aim is to exercise a
restraint on witnesses tailoring their testimony to that of earlier witnesses and aids in
detecting testimony that is less than candid." State v. Heath, 264 Kan. 557, 589, 957 P.2d
449 (1998) (citing Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d
592 [1976]). As C.M. notes in his brief, the record here gives no indication that Roberts'
testimony was tailored to R.W.'s or that sequestering her would have resulted in more
candid testimony. Roberts' testimony spans only 18 pages, and many of those pages were
objections and arguments from counsel. Much of the testimony dealt with matters not
covered by R.W.'s testimony. Accordingly, the district court's error does not require
reversal.
4. Did the district court err by dismissing R.W.'s petition after finding that she failed
to meet her burden of proof?
R.W.'s final argument is that the district court erred in finding that she did not
present sufficient evidence to justify issuing a protection from stalking order.
22
The Act requires a plaintiff to prove his or her allegation of stalking by a
preponderance of the evidence. K.S.A. 2020 Supp. 60-31a05(a). "Stalking" and related
terms "harassment" and "course of conduct" are defined in K.S.A. 2020 Supp. 60-
31a02(d). Taken together,
"a valid stalking claim (not involving the use of an aerial drone) would require proof of:
• At least two separate acts;
• Directed at a specific person;
• Intentionally done;
• Showing a continuity of purpose that would cause a reasonable person to suffer
substantial emotional distress;
• Placing the person in reasonable fear for his or her safety;
• Through conduct that seriously alarmed, annoyed, tormented, or terrorized the
person; and
• That served no legitimate purpose and was not constitutionally protected." C.M. v.
McKee, 54 Kan. App. 2d 318, 322, 398 P.3d 228 (2017) (citing K.S.A. 2016 Supp.
60-31a05[a]).
R.W. asks this court to employ unlimited review of the district court's decision.
C.M. says the proper review is for sufficiency of the evidence. However, it is significant
that the district court made a negative finding—that R.W. failed to sustain her burden of
proof. When the district court makes a negative finding, appellate review is as follows:
"The effect of a negative finding by a trial court is that the party upon whom the
burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of
undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice,
the finding of the trial judge cannot be disturbed." Cresto v. Cresto, 302 Kan. 820, Syl.
¶ 7, 358 P.3d 831 (2015).
23
"We do not reweigh the evidence or make our own credibility determinations, and we
generally view the evidence in the light most favorable to the party who prevailed in the
district court." Kerry G. v. Stacy C., 53 Kan. App. 2d 218, 221-22, 386 P.3d 921 (2016).
In her brief, R.W. cites the relevant statutes, recites the allegations in her petition,
summarizes her testimony, and reviews the district court's decision. R.W. then states,
without analysis, that "[h]er proof, as alleged and required in order for the Court to grant
a Permanent Order of Protection, by a preponderance of the evidence was satisfied and
largely uncontroverted. The District court erred in denying her petition."
R.W.'s failure to apply the correct standard of review and analyze the issue under
that standard of review makes it difficult to review her argument. R.W. does not specify
what evidence was uncontested or why her evidence satisfied each element of stalking as
defined in K.S.A. 2020 Supp. 60-31a02. And she provides no explanation as to why the
district court's disregard of any uncontroverted evidence was arbitrary or based on some
extrinsic consideration.
A review of the record, however, shows that there was little undisputed evidence.
R.W. contended that she lived alone, whereas Roberts, Wood, and Henderson all
observed multiple people who appeared to be living with her. R.W. said one of the
Roberts children was hit by a stray bullet, but Roberts said that was not the case.
Similarly, R.W. alleged that C.M. shot Wood's outbuilding, but Wood denied it. Roberts
testified that R.W. told her all of the allegations in the petition were perjured.
There was also a great discrepancy in the descriptions of C.M.'s nightly walks.
R.W. testified that C.M., often accompanied by Henderson, conducted hourly patrols
during which he would shine flashlights and lasers in Pie's face. Scott also testified that
he saw C.M. shining lights on Pie. Both also said they saw projectiles going toward Pie
from the direction of C.M.'s property. Scott added that C.M. would stop by Pie's stable
24
and let his dog bark aggressively for several minutes. But, according to Henderson, C.M.
was just walking his dogs around his property and C.M. tried to avoid going near Pie.
Henderson denied that C.M. ever used lights or his dogs to harass Pie.
This court has previously noted:
"[I]t is very difficult for this court to make a factual determination in a case of this nature.
We understand that people's lives and well-being are concerned and that the trial court is
the best judge as to whether there has been abuse sufficient to require an order of the type
entered in this case. The trial court is the sole arbitrator as to the credibility of the
witnesses and must determine which witness it believes." Trolinger, 30 Kan. App. 2d at
197.
In this case, the district court considered the facts and the credibility of witnesses. This
court "cannot nullify a trial judge's disbelief of evidence nor can it determine the
persuasiveness of evidence which the trial judge may have believed." Cresto, 302 Kan.
820, Syl. ¶ 7. Additionally, "the trial court is presumed on appeal to have found all facts
necessary to support its judgment." Wentland v. Uhlarik, 37 Kan. App. 2d 734, 741, 159
P.3d 1035 (2007). Accordingly, the district court's decisions as to the controverted
evidence should not be disturbed.
Some of the evidence was uncontroverted. The evidence regarding Pie's injuries
provided by R.W. and Scott was concerning, and no one denied that Pie had injuries.
R.W. submitted a photo into evidence, depicting a gash in Pie's flank, which she said she
took after observing a projectile coming from the direction of C.M.'s property on the
night of April 28, 2020. R.W. also testified that on the night of April 29, 2020, she heard
things hitting her house after hearing C.M. outside. The district court, however, was not
compelled to accept R.W.'s conclusion that C.M. threw the items on both occasions or
that he did so with the intent of placing R.W. in reasonable fear for her safety. It was
25
within the district court's sole discretion to determine the weight to afford R.W.'s
evidence. Trolinger, 30 Kan. App. 2d at 197.
The district court found that R.W. did not meet her burden of proof. The district
court's negative finding should not be disturbed because the court did not arbitrarily
disregard undisputed evidence. Nor is there any indication that the court relied on some
extrinsic consideration such as bias, passion, or prejudice to reach its decision. Based on
the evidence presented and this court's standard of review, this court finds that the district
court did not err in dismissing R.W.'s petition.
Affirmed.
26