T.C. v. Faler ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,187
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
T.C.
on Behalf of Minor Child
H.C.,
Appellee,
v.
GARY FALER,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT G. SCOTT, magistrate judge. Opinion filed July 17,
2020. Affirmed.
J. Steven Schweiker, of Overland Park, for appellant.
Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellee.
Before WARNER, P.J., MALONE and BRUNS, JJ.
PER CURIAM: Gary Faler appeals from the district court's denial of a motion to
vacate a protection from stalking order entered against him in an action brought by T.C.
on behalf of her minor son. Faler also appeals from the district court's granting of an
extension of the protective order for an additional year. Based on our review of the
record, we do not find that the district court erred in denying the motion to vacate or in
extending the original order. In addition, we find that each party should pay his or her
own attorney fees relating to this appeal. Thus, we affirm the district court's decision and
we deny the motion for attorney fees on appeal.
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FACTS
T.C. (Mother) is the mother of H.C., a 13-year-old boy who she adopted in July
2018. Although H.C. is not related biologically to Mother or her late husband, J.C.
(Father), his older half-brother C.C.—who is over 18 years old—is Father's nephew. The
two boys began living with Mother and Father in 2014. They did not adopt C.C. but he
continued to live with them until he left for college in Nebraska.
Gary Faler—who is a 70-year-old realtor—was a long-time friend of the family.
The record reflects that Father was a sixth-grade student in a Sunday School class that
Faler taught. Over the years, Father—who worked for many years as a sheriff's deputy—
was close to Faler. Among other things, Faler was in Mother and Father's wedding, he
babysat their biological children, and they attended the same church. Beginning in 1999,
Mother became part of Faler's real estate team and the two worked together for several
years.
In 2016, Faler began spending time with C.C., provided him with money—
including a debit card—and purchased cigarettes for him when he was underage. Mother
and Father believed that C.C. was using the money to buy marijuana, cigarettes, and
perhaps other substances. In response, they told Faler on several occasions that he should
stay away from C.C. as well as H.C. Evidently, Father terminated his friendship with
Faler in 2017 and told him to stay away from the two boys. However, it appears that
Faler continued to have contact with both C.C. and H.C.
In May 2018, Faler met H.C. outside his house and took him out to eat without the
Mother and Father's permission. Shortly thereafter, in June 2018, Faler met with H.C. and
two of H.C.'s friends in a neighborhood park and took them to eat at a Pie Five restaurant
followed by a trip to Freezing Moos without asking Mother and Father for permission to
do so. Unfortunately, a few weeks later, Father died of cancer in July 2018.
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On August 23, 2018, Mother filed a petition for a protection from stalking order
on behalf of H.C. In her petition, Mother alleged that despite being repeatedly told to stay
away from C.C. and H.C., Faler continued to contact them. In particular, Mother pointed
to the events in May and June 2018. She indicated her fear as a parent that Faler would
negatively influence H.C. the way he had influenced C.C. On the day the petition was
filed, the district court granted a temporary order requiring Faler to stay away from H.C.
Specifically, the temporary order instructed Faler to stay away from H.C.'s middle school
and from the church they all attended. However, on September 13, 2018, the district court
amended the temporary order to remove the requirement that Faler stay away from their
church.
On September 21, 2018, the district court held an evidentiary hearing. Mother
testified consistently with her allegations in the petition. She also indicated that she was
"very scared" and "afraid" for H.C.'s safety based on Faler's past interaction with C.C. as
well as his repeated contacts with H.C. after being told not to do so. In his defense, Faler
testified about his long-time relationship with Mother and Father's family. He admitted
that he defied the directives to stay away from C.C. and H.C. because he was "very good
friends" with both children.
Although Faler admitted to giving C.C. money and cigarettes, he testified that he
was simply trying to help the boys. He also indicated that he had filled a similar role in
Father's life when he was growing up. In addition, Faler testified that after his contacts
with H.C. in May and June 2018, C.C.—who was now an adult—told him that he had
spoken to Mother. As a result, Faler believed that things had been worked out as long as
he stayed away from H.C. in the future. According to Faler, he did just that and stopped
seeing H.C. even before being served with the protection from stalking petition.
After listening to the testimony, the district court granted the petition and entered a
protection from stalking order for a period of one year. Specifically, the district court
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found that Mother—first as a foster parent and later as an adoptive parent—had a legal
right to take steps to provide for the care and safety of H.C. The district court also found
Mother's concerns regarding H.C.'s safety to be reasonable. In particular, the district court
pointed to the evidence that Faler had given C.C. "deadly instruments, i.e. cigarettes"
when he was still a minor. The district court explained that giving cigarettes to children
was not an act of love. Based on Faler's past interactions with both C.C. and H.C., the
district court determined that Mother had shown by a preponderance of the evidence that
she had a reasonable fear for H.C.'s safety if he continued to interact with Faler. The
district court also ordered that Faler attend counseling regarding appropriate interaction
with children.
On September 4, 2019, Mother filed a pro se motion to extend the protection from
stalking order for an additional year. In her motion, she stated that while Faler had not
violated the protection from stalking order, she believed the order was the only thing
preventing him from contacting H.C. and that she still feared for his safety. She reiterated
the evidence regarding Faler's past interactions with C.C. and H.C. She also reiterated
that Faler had defied the directives from her and her late husband to stop spending time
with the boys prior to the filing of the initial petition for a protection from stalking order.
In response, Faler asked the district court to deny the request for extension and
moved to vacate the original protection from stalking order. In support, he asserted that
he had complied with the protection from stalking order and had completed the required
counseling. Faler also argued that an extension of the protection from stalking order
would be unfair because the original order "substantially infringed upon" his right to
attend church services for fear that H.C. might approach him. In addition, he asserted that
the original protection from stalking order should be vacated pursuant to K.S.A. 2019
Supp. 60-260(b)(4)-(b)(6).
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On October 31, 2019, the district court held a hearing on Mother's request for an
extension and on Faler's motion to vacate the original protection from stalking order.
After hearing the argument, the district court extended the protection from stalking order
until September 21, 2020. In doing so, the district court found:
"It's a duty of a parent to watch out for the welfare of . . . their children. If a
parent believes that something dangerous is being provided to or has the potential to be
provided to their children, it's a duty of a parent. It's . . . not only an ethical or a moral
duty; it's . . . a legal duty for a parent to provide a safe situation for the [child]. And it's
the parent's duty to make the determination as to what is safe for their children. The
children may not . . . appreciate that. They may not agree with that, but . . . it's a heavy
burden that a parent must weigh and must fulfill to provide . . . what they deem to be a
safe environment for their child.
"That is what the [c]ourt interpreted this case as being about . . . . [F]ear for
safety, fear for personal safety, cigarettes, . . . if provided, do provide or do have the
potential of being unsafe to an individual's personal safety."
The district court further denied Faler's motion to vacate the original protection
from stalking order on the ground that it was untimely filed. It noted that Faler had a
reasonable time to file the motion but failed to do so for more than a year after the
original order had been entered. Thereafter, Faler filed this appeal and Mother filed a
motion seeking attorney fees on appeal.
ANALYSIS
Motion to Vacate Protection from Abuse Order
On appeal, Faler contends that the district court erred in failing to vacate the
original protection from stalking order as void pursuant to K.S.A. 2019 Supp. 60-
260(b)(4). In particular, he argues that "the [district] court lacked subject matter
jurisdiction and the Protection from Stalking Order is void." Subject matter jurisdiction
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may be raised at any time, whether for the first time on appeal or even on the appellate
court's own motion. In re Care & Treatment of Emerson, 306 Kan. 30, 33, 392 P.3d 82
(2017). The question as to whether subject matter jurisdiction exists is a question of law
over which our review is unlimited. State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332
(2016).
Subject matter jurisdiction is the power of a court to adjudicate a particular type of
action. 304 Kan. at 784. The power to adjudicate protection from stalking actions is
conferred in K.S.A. 2019 Supp. 60-31a03, which provides that "[t]he district courts shall
have jurisdiction over all proceedings under the protection from stalking . . . act."
Likewise, K.S.A. 2019 Supp. 60-31a01(b) provides that the protection from stalking act
"shall be liberally construed to protect victims of stalking . . . and to facilitate access to
judicial protection for victims of stalking . . . whether represented by counsel or
proceeding pro se."
Under K.S.A. 2019 Supp. 60-31a02(d), "stalking" is defined as "intentional
harassment of another person that places the other person in reasonable fear for that
person's safety." Here, Mother alleged in the petition that she sought the protection from
stalking order on behalf of her minor son, H.C., and identified two specific incidents in
which Faler took H.C. in a car without her permission. She also alleged that Faler had
been asked on several occasions to stay away from her minor son.
In addition, Mother alleged in the petition that H.C. needed to be protected
because she was afraid that Faler would continue to have contact with him. Further, she
alleged her belief that Faler was a "[b]ad influence" on her son based on his previous
interactions with her nephew. In particular, Mother alleged that Faler had provided
cigarettes to her nephew and offered to purchase alcohol for him when he was a minor.
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We find that these allegations were sufficient to invoke the subject matter
jurisdiction of the district court as conferred upon district courts in K.S.A. 2019 Supp. 60-
31a03. This is particularly true in light of the requirement to liberally construe the
protection from stalking act in order to facilitate access to the district court. Moreover, to
the extent that Faler argues that there was not sufficient evidence to support the
allegations set forth in the petition, it is important to recognize that a district court is not
deprived of subject matter jurisdiction simply because there is insufficient evidence to
support a legal claim. See State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985).
Accordingly, we conclude that the district court did not err in denying Faler's motion to
vacate the original protection from stalking order.
Extension of Protection from Stalking Order
Next, Faler contends that the district court erred in extending the protection from
stalking order for an additional year. K.S.A. 2019 Supp. 60-31a06(c) provides: "Upon
motion of the plaintiff the court may extend the order for an additional year." (Emphasis
added.) Just like the initial protection from stalking petition, the motion for extension
must be personally served on the defendant and proven by a preponderance of the
evidence after an evidentiary hearing. K.S.A. 2019 Supp. 60-31a06(d). In other words,
the district court—exercising its sound discretion—makes the decision whether to extend
the protective order based on a preponderance of the evidence. See Jordan v. Jordan, 47
Kan. App. 2d 300, 304-06, 274 P.3d 657 (2012) (applying an abuse of discretion standard
of review where a district court extends a protection from abuse order).
So, we must determine whether the district court abused its discretion in extending
the order for an additional year. A district court abuses its discretion when the judicial
action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is
based on an error of fact. See Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 935, 296 P.3d 1106 (2013). The party asserting the district court abused its
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discretion—in this case Faler—bears the burden of showing such abuse of discretion.
Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).
Based on our review of the record, we do not find that the district court abused its
discretion in extending the protection from stalking order for an additional year.
Although we agree that this was a close call in light of the fact that there is no indication
that Faler violated the terms of the initial protective order or attempted to do so, we
cannot say that the district court's action was unreasonable. Likewise, we do not find
anything in the record to suggest that the district court made an error of law or fact in
extending the protection from stalking order for an additional year.
Although Faler argues that it would be unfair to him for Mother to seek further
extensions of the protective order as H.C. grows older, we do not render advisory
opinions. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282
(2016). As such, we take no position on whether the protective order should be extended
in the future. Also, while we understand Faler's concerns regarding his attendance at the
church the parties attend, we note that neither the original protection from abuse order
nor the extended protective order have any restrictions on Faler attending church. So long
as he does not interact with H.C. while he is at the church, the order should not impact
Faler's freedom to worship. Thus, we conclude that the district court did not err by
extending the protection from stalking order to September 21, 2020.
Request for Attorney Fees
Finally, Mother has filed a motion with this court requesting attorney fees on
appeal because "this appeal is frivolous and the District Court had authority to award fees
in this matter." Under Kansas Supreme Court Rule 7.07(b)(1) (2020 Kan. S. Ct. R. 50),
"[a]n appellate court may award attorney fees for services on appeal in a case in which
the district court had authority to award attorney fees." See Hodges v. Johnson, 288 Kan.
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56, 74, 199 P.3d 1251 (2009). Even though no attorney fees were awarded in this case, a
district court has discretion to grant attorney fees under K.S.A. 2019 Supp. 60-31a06(f).
Like the district court, the question of whether to grant attorney fees on appeal is
left to our sound discretion. See Snider v. Am. Family Mut. Ins. Co., 297 Kan. 157, 160,
298 P.3d 1120 (2013). A frivolous appeal is one in which no justiciable question has been
presented and is devoid of merit. McCullough v. Wilson, 308 Kan. 1025, 1037, 426 P.3d
494 (2018) (citing Blank v. Chawla, 234 Kan. 975, 982, 678 P.2d 162 [984]). Although
we do not question the reasonableness of the attorney fees requested nor do we question
the value of the legal services provided by Mother's counsel, we do not find this appeal to
be frivolous. In particular, we find that Faler presented a justiciable question regarding
whether the extension of the protection of stalking order should have been granted absent
any showing that he had violated the terms of the order or any attempt to do so.
Even though we find that it is appropriate to yield to the discretion of the district
court regarding whether to grant an extension of the protective order for an additional
year, we also recognize that Faler presented several valid—albeit unpersuasive—
arguments in his defense that are supported by evidence in the record. In particular, the
record reflects that Faler has completed the required counseling and there is no allegation
that he violated—or attempted to violate—the original stalking order. Moreover, as
indicated above, the record reflects that Faler had a close relationship with Mother and
Father for many years, he attends the same church as their family, and he does not have a
criminal record. Under the circumstances presented in this case, we find that each party
should be responsible for his or her own attorney fees. Thus, Mother's motion for
attorney fees on appeal is denied.
Affirmed.
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