In re Adoption of C.D.F.

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NOT DESIGNATED FOR PUBLICATION

No. 118,212

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Adoption of
C.D.F.

MEMORANDUM OPINION

Appeal from Shawnee District Court; FRANK J. YEOMAN, JR., judge. Opinion filed June 22, 2018.
Affirmed.

Lisa M. Williams, of Williams Family Law, of Topeka, for appellant/cross-appellee stepfather.

Milfred D. Dale, of Law Offices of Bud Dale, of Topeka, for appellee/cross-appellant natural
father.

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: W.E.R. (Stepfather) appeals the district court's dismissal of his
adoption petition in which he sought to adopt C.D.F. without the consent of the child's
natural father. Finding no material error in the court's decision, we affirm the dismissal.
Additionally, the natural father cross-appeals from the district court's denial of attorney
fees and sanctions against the stepfather, but we likewise affirm those decisions of the
district court.

FACTS

In December 2008, D.O.F. (Father) and K.J.R. (Mother) were married in
Arkansas. While married, the couple had a female child, C.D.F., born in July 2009. The
couple divorced in August 2010 in Crawford County, Arkansas. Mother was granted
residential custody of C.D.F. and Father was granted parenting time. In April 2011,
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Mother married Stepfather. In November 2011, when C.D.F. was two years old, Mother
received permission from the Arkansas court to move to Kansas with the child. A revised
parenting time order was also issued.

In mid-March 2017, when C.D.F. was seven years old, Father met with Mother
and Stepfather in Arkansas during his parenting time with the child. At that time,
Stepfather indicated he wished to adopt C.D.F., but Father informed Stepfather that he
would not consent to the adoption.

On March 28, 2017, Stepfather, represented by attorney Lisa Williams, filed a
petition to adopt C.D.F. in Shawnee County District Court and claimed the consent of
Father was not necessary to proceed with the adoption. Stepfather's petition identified
Father as the natural father, disclosed that Father did not consent to the adoption, and
stated that Father "shall be given notice, if he can be located. If he cannot be located,
counsel will be appointed and notice published in his last known area of residence."

On March 30, 2017, the district court contacted attorney Milfred Dale and
subsequently appointed Dale to represent Father. Dale contacted attorney Williams the
same day to inquire about what she knew of Father's last known whereabouts. Williams
gave Dale the petition, a copy of Father and Mother's divorce decree from Arkansas, and
the address of Father's sister, where Father was believed to be residing after separating
from his current wife.

Dale used the divorce decree as a basis upon which to search the Crawford
County, Arkansas, website, and located Father's attorney in his current Arkansas
domestic case. Dale then contacted the Arkansas attorney and gave that attorney his
contact information with a request to have Father contact him. Dale indicated the process
to locate and then speak to Father took approximately 45 minutes.
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Father, with Dale's assistance, filed his answer to Stepfather's petition, in which he
denied Mother did not know how to locate him and that his consent to the adoption was
not necessary. Father also filed a motion to dismiss the petition for failing to allege any
specific facts upon which the district court could determine his consent was not necessary
for the stepparent adoption. Father attached documents from the Arkansas Child Support
Clearinghouse reflecting his child support payment history, which showed that he was
current on his court-ordered support. Stepfather did not file a response to Father's motion
to dismiss.

At an April 13, 2017 status hearing, the district court allowed Stepfather to file an
amended petition to address the deficiencies outlined in Father's motion to dismiss. In the
amended petition, filed on April 17, 2017, Stepfather alleged that Father was not in
arrears on his child support payments but that he failed to provide his annual tax returns
to Mother so she could determine if an increase in his payments was warranted.
Stepfather also claimed that Father "failed to provide more than incidental contact with
the child in the two (2) years prior to the filing of the Petition." Stepfather also asserted
that the child stayed with the paternal grandparents when she visited Arkansas. The
amended petition contained language from the original petition that suggested Father's
whereabouts were unknown but added language that indicated Father was going through
a divorce and may not be residing in his marital home. Stepfather stated he was in
possession of an address where he believed Father was staying but did not include any
contact information for Father in the amended petition.

On May 1, 2017, Father filed an answer to the amended petition and admitted he
had not previously provided his tax returns to Mother. He denied merely incidental
contacts with C.D.F. and asserted he was with her daily during her visits to Arkansas. In
his answer, Father also provided details regarding his scheduled parenting time.
Separately, Father filed a motion to dismiss the amended petition, in which he claimed he
was in compliance with the parenting time plan, and not in arrears in his child support
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payments. Father again attached his child support payment history, as well as e-mails
from Mother regarding C.D.F.'s visits to Arkansas and Mother's unilateral schedule
changes reducing Father's parenting time. Again, Stepfather did not file a response to
Father's motion to dismiss.

At a second status hearing on May 26, 2017, when asked by the district court if
she intended to file a response to Father's motion to dismiss, Williams stated, "I don't
know that I necessarily need to respond, but I certainly can." The district court set a June
1 deadline for her to file Stepfather's response to Father's motion to dismiss. Also at this
hearing, Williams objected, for the first time, to Dale's appointment to represent Father.
She argued that Dale should be disqualified from representing Father and that all
pleadings filed by Dale were not properly before the court. The district court determined
that there was no basis to disqualify Dale from representing Father.

Stepfather's response to Father's motion to dismiss was filed on the court's
deadline. In his response, Stepfather alleged there was a rebuttable presumption that
Father's consent to the adoption was not necessary because he failed to disclose his tax
returns to Mother pursuant to the couple's divorce decree and because he "admit[ted] that
he . . . ha[d] not independently made contact with the child," and the child slept at the
paternal grandparents' home during her trips to Arkansas. In the response, Stepfather
again suggested that Dale's appointment to represent Father was improper.

A few days later, Father filed a response to Stepfather's allegations that there was a
conflict of interest in Dale's continued representation of Father. Father also made a
request for attorney fees at the court-appointed rate. Stepfather did not file a reply to this
pleading.

The record on appeal reveals that in the two years preceding Stepfather's petition,
C.D.F. visited her Father and his family in Arkansas seven times, for a total of
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approximately 10 weeks. The record also shows that, beginning in October 2010, Father
paid child support at least biweekly through March 2017. The amount increased in
January 2014, and again in July 2016. As of March 2017, Father's child support payments
were $132 every two weeks, and he was never in arrears. Father worked in a factory on
the night shift, from 6 p.m. to 6 a.m., and earned $11 per hour. The record on appeal fails
to contain any Arkansas court orders reflecting that the court ordered more child support
than Father actually paid.

On August 3, 2017, the district court issued a memorandum decision and order,
granting Father's motion to dismiss. The district court found that the undisputed material
facts demonstrated that Father had not failed or refused to assume his duties as a parent
during the two years next preceding Stepfather's filing of the petition. The district court
found Father's "consent should certainly be required for a stepparent adoption to take
place, and there are no grounds on which to revoke his parental rights." The district court
ordered that each party be responsible for their respective attorney fees.

Stepfather filed a timely notice of appeal from the district court's dismissal of his
petition. Father also filed a timely notice of cross-appeal from the district court's order
denying him attorney fees.

ANALYSIS

The granting of Father's motion to dismiss

As an initial matter in his appeal, Stepfather contends that the district court
improperly sustained Father's motion to dismiss without first conducting an evidentiary
hearing. He appears to rely solely on K.S.A. 59-2134(a), which states: "Upon the hearing
of the petition, the court shall consider the assessment and all evidence." Stepfather
argues the district court erroneously interpreted that statute because the court granted
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Father's motion to dismiss based solely on the pleadings. Accordingly, Stepfather asserts
a remand is necessary for an evidentiary hearing.

In response, Father essentially argues that the rules of civil procedure allowed for
him to file his motion to dismiss and for the district court to consider and rule upon the
motion challenging the sufficiency of the petition prior to conducting an evidentiary
hearing. Father's argument is persuasive.

The rules of civil procedure are statutory and govern procedures in all civil actions
and proceedings (other than limited actions) in the district courts of Kansas. K.S.A. 2017
Supp. 60-201(b). Interpretation of a statute is a question of law over which appellate
courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349
P.3d 469 (2015). The most fundamental rule of statutory construction is that the intent of
the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

"There is one form of action, the civil action." K.S.A. 2017 Supp. 60-202. After
the pleadings are closed, a party may move for judgment on the pleadings. K.S.A. 2017
Supp. 60-212(c). Here, Father filed his motion to dismiss Stepfather's petition to adopt
C.D.F. at the same time he filed his answer to Stepfather's petition. Stepfather does not
cite any authority to support his contention that the available tools of civil procedure do
not apply to adoption proceedings in district court. Failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. University of Kan. Hosp.
Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602 (2015).
An issue not briefed by the appellant is deemed waived or abandoned. Superior Boiler
Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

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Further, Stepfather argues that the district court "moved sua sponte to sustain the
Petition to Dismiss." This action, according to Stepfather, denied him due process and
constituted an abuse of discretion. This is a puzzling contention, and Stepfather neither
explains how the district court denied him due process nor how the district court abused
its discretion in ruling on Father's motion to dismiss. A point raised incidentally in a brief
and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).

Thus Stepfather's objection on these procedural grounds lacks merit. We hold the
district court did not err in considering and ruling on Father's motion to dismiss prior to
conducting an evidentiary hearing.

Stepfather's next challenge suggests that the district court committed error by
granting Father's motion to dismiss the amended petition. He contends that the district
court erred in its interpretation of the Kansas Adoption and Relinquishment Act (KARA),
K.S.A. 59-2111 et seq., when it determined Father's consent was necessary to accomplish
the stepparent adoption of C.D.F. Stepfather argues the district court's findings of fact
were based solely on the assertions contained in Father's counsel's arguments. He further
argues that an evidentiary hearing on his amended petition was necessary for the district
court to adequately consider all of the circumstances regarding whether Father failed or
refused to assume his parental duties. In response, Father contends that the district court
appropriately granted his motion to dismiss the amended petition because Stepfather
failed to allege facts upon which relief could be granted under the stepparent adoption
statute.

Whether a district court erred by granting a motion to dismiss for failure to state a
claim is a question of law subject to unlimited review. We must view the well-pleaded
facts in a light most favorable to the plaintiff and assume as true those facts and any
inferences reasonably drawn from them. If those facts and inferences state any claim
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upon which relief can be granted, then dismissal is improper. Cohen v. Battaglia, 296
Kan. 542, 545-46, 293 P.3d 752 (2013); see K.S.A. 2017 Supp. 60-212. We have the duty
of determining whether the facts and inferences support a claim "'not only on the theory
which may be espoused by the plaintiffs, but on any possible theory we can divine.'" 312
Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (quoting Noel
v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244 [1991]); see Grey v. City of
Topeka, No. 117,652, 2018 WL 1352506, at *3 (Kan. App. 2018) (unpublished opinion),
petition for rev. filed April 12, 2018.

Interpretation of a statute is likewise a question of law over which appellate courts
have unlimited review. Neighbor, 301 Kan. at 918. Adoption statutes are strictly
interpreted in favor of maintaining the rights of the natural parents where the statute is
being used to terminate the right of a natural parent without consent. In re Adoption of
Baby Girl P., 291 Kan. 424, 430, 242 P.3d 1168 (2010); In re A.S., 52 Kan. App. 2d 173,
177-78, 364 P.3d 1203 (2015). The party seeking to terminate a parent's rights has the
burden of proving by clear and convincing evidence that termination is appropriate under
K.S.A. 2017 Supp. 59-2136. In re Adoption of Baby Girl P., 291 Kan. at 430.

A petition for adoption requires a statement of "the facts relied upon as eliminating
the necessity for the consent, if the consent of either or both parents is not obtained."
K.S.A. 59-2128(a)(10). As we have noted, the record on appeal reveals that Father
refused to consent to the adoption at an in-person meeting with Stepfather in March 2017,
shortly before Stepfather filed his petition for adoption. However, Stepfather's original
petition alleged only that Father's parental rights would be terminated under K.S.A. 2017
Supp. 59-2136(d) and (h), and it contained no factual statements to support its legal
conclusion.

Pursuant to K.S.A. 2017 Supp. 59-2136(d), consent of the natural father is
required in a stepparent adoption unless "such father has failed or refused to assume the
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duties of a parent for two consecutive years next preceding the filing of the petition for
adoption." In determining whether consent is required, a court may disregard incidental
visitations, contacts, communications, or contributions. Further, if a father has knowingly
failed to provide a substantial portion of the child support as required by judicial decree
for a period of two years next preceding the filing petition for adoption, there is a
rebuttable presumption that the father has failed or refused to assume his duties as a
parent. K.S.A. 2017 Supp. 59-2136(d).

Stepfather's petition neither alleged that Father's contacts with the child were
merely incidental, nor that Father knowingly failed to pay child support pursuant to a
judicial decree. Notably, Stepfather attached to his petition for adoption a letter in which
he described his reasons for wanting to adopt C.D.F. These reasons likewise did not
allege that Father failed to substantially support the child or that Father had only
incidental contacts with the child. In his April 2017 answer, Father denied that
subparagraph (d) could be used to terminate his rights. Father also denied that
subparagraph (h) applied to stepparent adoptions.

With his answer, Father filed a motion to dismiss Stepfather's petition, stating:
"Petitioner's pleading fails to allege any facts upon which the court or Father might
understand any claim that Father's consent to the adoption is unnecessary for a step-
parent adoption of [C.D.F.], his natural daughter." Because K.S.A. 2017 Supp. 59-
2136(d) addresses financial support for, and the nature of a father's contacts with, a child,
Father also stated that he had emotionally and financially supported C.D.F. throughout
her life. In the motion to dismiss, Father provided details to support his claims regarding
his relationship and parenting time with C.D.F., and attached documentation to
demonstrate his history of timely child support payments from October 2010 through
March 2017. Father requested that the district court dismiss the petition "for failure to
appropriately support the petition with any facts upon which Petitioner can support his
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claim that Father's consent to the adoption is unnecessary." Stepfather did not file a
response to Father's motion to dismiss.

At the first status hearing, Stepfather, through attorney Williams, contended that
Father was ordered by the divorce decree to provide his annual tax returns to Mother, but
he had not done so. Without such information, Williams asserted, "[W]e don't know that
[Father] has been providing all of the child support that would be ordered by the Court
had he been doing as was ordered of him." (Emphasis added.) Williams also claimed that
C.D.F. stayed with her paternal grandparents when visiting Father out of state, and Father
had "no other substantive contacts with the child outside the facilitation of his parents."
Dale, Father's attorney, noted that Stepfather did not allege Father had not fulfilled his
parental duties. Dale offered that the child initially stayed with the paternal grandparents
at Mother's request but that Father was regularly with the child when he was not at work.
Since Father's factory work was during a night shift, he was able to spend daytime hours
with his child.

The district judge asked if there was a separate petition setting out the reasons for
termination of parental rights. Williams indicated there was not. The judge stated, "Okay.
So, we have nothing telling me, or anyone, to say why—what the basis would be for
terminating [Father's] parental rights. It just cites a statute." Williams responded that her
understanding of notice pleading involved notification of general issues without alleging
detailed facts: "[S]hould [Father] contest, we would be able to provide more detailed
facts and/or evidence to support a termination of his parental rights." The district judge
disagreed: "There has to be, at least, a generic statement of what the facts would show.
And . . . all I get out of this [petition] is the general statute that would be relied on and
that this guy is a possibly missing father."

Williams requested leave to amend the petition, which was granted. The judge
instructed, "[Y]ou need to have a petition . . . asking to terminate parental rights and say
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why. What facts it is that you are alleging . . . . [A] person is entitled to know what
they're defending." See In re Estate of Wolf, 279 Kan. 718, Syl. ¶ 3, 112 P.3d 94 (2005)
(general pleading statutes in civil procedure code do not override more specific pleading
provisions in probate code). The judge informed the parties that after he received the
amended petition, he would "then know whether I'm going to just schedule a hearing on
the motion to dismiss, or whether we are simply going to go ahead and schedule the case
for trial."

In Stepfather's amended petition, he alleged Father had not provided Mother with
his annual income tax returns as ordered after the couple's divorce:

"The natural father is not now in arrears on his child support obligation, however,
because of his failure to annually inform the mother of his income, this failure to disclose
gives the mother and [Stepfather] reason to believe that the natural father has not been
providing a substantial portion of the child support as required by judicial decree when
financially able to do so."

The amended petition also alleged that C.D.F. stayed with the paternal
grandmother during visits out of state, and that this arrangement was only required by the
divorce decree through the end of 2010. Stepfather claimed Father "failed to provide
more than incidental contact with the child." Finally, the amended petition alleged Father
had not provided cards, gifts, or letters to C.D.F. since she moved to Kansas.

In Father's timely answer to the amended petition, he admitted Stepfather's
allegation that he was current on his court-ordered child support payments but
acknowledged that he had not previously provided Mother with his income tax returns.
He provided additional details and information to deny and refute the characterization of
his contacts with C.D.F. as incidental and asserted his parenting time with the child was
in accordance with the parenting plan agreement. Father attached two e-mails sent from
Mother to the paternal grandmother regarding the parenting time plan. In the e-mail from
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2011, Mother stated: "With [Father] working every other weekend, visitation will now
be as follows: [T]his follows the standard order we have now. No arguments. No
additional time is going to be agreed upon because, well . . . I don't agree." The e-mail
from 2013 reflected that Mother reduced Father's parenting time from 12 weeks to 7
weeks per year.

Father's motion to dismiss Stepfather's amended petition contended that
Stepfather's amended petition "fails to allege sufficient facts upon which the court might
allow for [C.D.F.] to be adopted by [Stepfather] without Father's consent." Father again
attached his child support payment history from October 2010 through March 2017.
Father requested that the district court dismiss Stepfather's amended petition "for failure
to appropriately support [his] petition with any facts upon which [Stepfather] can support
his claim that Father's consent to the adoption is unnecessary." Again, Stepfather did not
file a response to Father's motion to dismiss the amended petition.

At a second status hearing, Williams acknowledged receipt of Father's tax returns.
She also indicated she needed additional time for discovery to gather her client's records
regarding expenses for the child in order to determine whether Father paid anything
additional for the child's care, and to request Father's telephone records to determine the
frequency of his calls with C.D.F. Dale addressed the motion to dismiss and argued that
the child support order from Arkansas was presumptively reasonable and that Father
consistently paid his child support. Williams acknowledged she had not filed a response
to Father's motion to dismiss the amended petition: "I don't know that I necessarily need
to respond, but I certainly can." The district court established a deadline of June 1, 2017,
for Stepfather to file his response. The district judge informed the parties that he would
review the pleadings and further advise the parties if he intended to make a ruling on
those pleadings or needed to schedule yet another hearing. A status conference was
scheduled for August 4, 2017.

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In Stepfather's response to Father's motion to dismiss, he claimed that Father's
answer to the amended petition "listed general defenses . . . that are conclusory, lacking a
short and plain statement of facts showing [Father] is entitled to relief." Stepfather
addressed the issues in the motion to dismiss by quoting K.S.A. 2017 Supp. 59-2136(d)
and suggested that there was a rebuttable presumption that Father had failed or refused to
assume his duties as a parent. Stepfather contended that Father failed in his obligation to
pay child support because he had not disclosed his alleged increase in earnings to Mother
for the purposes of child support modification as required in the couple's divorce decree.
Defining incidental contacts, Stepfather contended that Father admitted to failing to make
independent contact with C.D.F. despite having her contact information and noted that
Father did not have a room for the child at his home.

A few days after Stepfather's response, Father filed a reply in support of his
motion to dismiss. In this reply, Father noted that Stepfather did not deny that Father and
Mother were following child support and parenting agreements made as part of their
previous court case. Father argued that if a responsive pleading does not deny allegations,
those allegations are admitted. Consequently, Stepfather's response to the motion to
dismiss should be interpreted as admitting Father's contentions regarding child support
and his parenting time. Father argued that Stepfather never pled "facts or circumstances
sufficient to prove a prima facie case that [Father's] consent was not necessary to the
step-parent adoption."

On August 3, 2017, the district court issued a memorandum decision and order
granting Father's motion to dismiss the amended petition. The district court determined
that the "critical factors" in the case were child support and the parent-child relationship
between Father and C.D.F. The district court found that Father paid his child support in
accordance with a court order and that Father had regular contact with C.D.F., "within the
bounds that the Court having jurisdiction set for them and within the bounds generally
suitable to parents living in separate states." In the context of all the surrounding
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circumstances, the district court determined that these facts were neither substantially
disputed by Stepfather, nor subject to different findings upon presentation of evidence.
The district court determined that Father's "consent should certainly be required for a
stepparent adoption to take place, and there are no grounds on which to revoke his
parental rights."

On appeal, Stepfather broadly suggests that the facts alleged in the amended
petition, when viewed in the light most favorable to him, are sufficient to require a denial
of Father's motion to dismiss. Stepfather argues that an evidentiary hearing on the
petition would support the presumption that Father failed to assume the duties of a parent.

However, the facts Stepfather included in his amended petition do not trigger the
rebuttable presumption that Father failed or refused to assume his duties as a parent under
K.S.A. 2017 Supp. 59-2136(d). Stepfather acknowledged that Father is not in arrears on
his court-ordered child support payments, and the other allegations do not claim that
Father is out of compliance with the parenting time schedule agreed upon by the natural
parents. Even if the facts as alleged in the amended petition are true, neither they nor any
reasonable inferences drawn from them support Stepfather's contention that Father failed
or refused to assume the duties of a parent, rendering his consent to the stepparent
adoption of C.D.F. unnecessary. At most, the allegations suggest Mother had a
foundation to petition the Arkansas court to order Father to provide her with his tax
returns. See Cohen, 296 Kan. at 545-46.

There is another procedural aspect to this case that we need to recognize. We note
that Stepfather attached documents to his petition and Father attached documents to his
answers and motions to dismiss. If matters outside the pleadings are presented and not
excluded by the court, a motion under K.S.A. 2017 Supp. 60-212(b)(6) or (c) must be
treated as one for summary judgment under K.S.A. 2017 Supp. 60-256, and all parties
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must be given a reasonable opportunity to present all the material that is pertinent to the
motion. K.S.A. 2017 Supp. 60-212(d).

"'The important distinction between the handling of a motion to dismiss on the
one hand and a motion for summary judgment on the other is that in the former the trial
court is limited to a review of the pleadings, while in the latter, the trial court takes into
consideration all of the facts disclosed during the discovery process—affidavits,
depositions, admissions, and answers to interrogatories. Thus, a party opposing a motion
for summary judgment may point to or provide depositions, affidavits, or other
documents to demonstrate that there are genuine issues of material fact, necessitating a
trial.' (Emphasis added.) [Citation omitted.]" Keiswetter v. State, 304 Kan. 362, 367-68,
373 P.3d 803 (2016).

A motion to dismiss, however, is typically filed early in the case when many of the facts
have not yet been discovered and the legal theories may be in flux. ARY Jewelers v.
Krigel, 277 Kan. 27, 38, 82 P.3d 460 (2003).

Our review of the record in this case convinces us that the lack of a factual dispute
as to the key elements and documents in this case requires that Father's motion to dismiss
the amended petition should be treated as a summary judgment motion as required by
K.S.A. 2017 Supp. 60-212(d). Under the law, we must review the district court's denial of
a motion for summary judgment de novo, viewing the facts in the light most favorable to
the party opposing summary judgment. "If 'reasonable minds could differ as to the
conclusions drawn from the evidence'—in other words, if there is a genuine issue about a
material fact—summary judgment should be denied.' [Citation omitted.]" Siruta v. Siruta,
301 Kan. 757, 766, 348 P.3d 549 (2015). An issue of fact is not genuine unless it has
legal controlling force as to the controlling issue. A disputed question of fact which is
immaterial to the issue does not preclude summary judgment. If the disputed fact,
however resolved, could not affect the judgment, it does not present a "genuine issue" for
purposes of summary judgment. Northern Natural Gas Co. v. ONEOK Field Services
16
Co., 296 Kan. 906, 934, 296 P.3d 1106 (2013); Sanchez v. U.S.D. No. 469, 50 Kan. App.
2d 1185, 1192, 339 P.3d 399 (2014). Where the controlling facts are based on written or
documentary evidence from pleadings, admissions, depositions, and stipulations, an
appellate court is in as good a position as the district court to examine and consider the
evidence and to determine what the facts establish as a matter of law. Weber v. Board of
Marshall County Comm'rs, 289 Kan. 1166, 1175-76, 221 P.3d 1094 (2009).

While Stepfather does not argue that the district court should have denied Father's
motion to dismiss due to the need for additional discovery, Stepfather contends that an
evidentiary hearing "would have supported the presumption that [Father] failed to assume
the duties of a parent for the two years prior to the filing of the petition." But the only
evidence purported to be outstanding, i.e., not attached to the pleadings, were Stepfather's
financial records and Father's telephone records. Williams requested time for additional
discovery at the second status hearing in order to gather this information. The district
court has the discretion to deny a motion for summary judgment when discovery is
needed. K.S.A. 2017 Supp. 60-256(f). As a general rule, summary judgment in a pending
case should not be granted until discovery is complete. However, if the facts pertinent to
the material issues are not disputed, summary judgment may be appropriate even when
discovery is unfinished. Northern Natural Gas Co., 296 Kan. at 935.

The record reflects that Williams wanted her client's financial records to calculate
expenses related to C.D.F.'s care dating back to 2010, and to determine if Father had paid
anything additional for her care. Williams also wanted to gather Father's telephone
records to establish the number of times he spoke to C.D.F. on the phone. However,
neither category of evidence would have served to refute the evidence attached to the
pleadings that reflected Father's consistent child support payments, or affect Father's
acknowledgment that he had few telephone calls with C.D.F.

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Additionally, Williams did not believe filing a response to Father's motion to
dismiss the amended petition was necessary. Nevertheless, the district court gave
Stepfather additional time to provide a response to Father's motion. See K.S.A. 2017
Supp. 60-212(d); K.S.A. 2017 Supp. 60-256(c)(1)(B). Stepfather's response provided no
new arguments or evidence but simply reiterated his claims that Father's failure to
provide tax returns equated to a failure to substantially pay child support and his contacts
with the child were incidental. Stepfather did not allege that Father failed to adhere to any
court order regarding the amount of child support to pay or that Father was not in
compliance with the agreed-upon parenting plan.

Although the district court did not refer to Father's motion to dismiss as a motion
for summary judgment, the district court treated it as one. The district court ensured
Stepfather had additional time to respond to Father's motion and provide any information
he felt was pertinent to the motion. Upon review of all of the documents and pleadings,
the district court determined there was no genuine issue of material fact, and that the
presentation of evidence would not result in different findings. See K.S.A. 2017 Supp.
60-256(e)(2).

Whether framed as a motion to dismiss or a motion for summary judgment, the
record on appeal supports the district court's finding that there were no genuine issues of
material fact such that reasonable minds could differ as to the conclusions drawn from the
evidence. Even viewed in the light most favorable to Stepfather, the evidence shows
Father substantially provided support for the child in accordance with the Arkansas
judicial decree and Father was also in compliance with the agreed-upon parenting time
plan. This amply justified the district court's decision to grant Father's motion to dismiss
Stepfather's amended petition. We find no abuse of discretion in the district court's order.



18
Appointment of counsel for Father

As his second issue on appeal, Stepfather contends that the district court
improperly appointed counsel for Father when Stepfather had not yet attempted to locate
and serve process to the natural father. Stepfather argues that he did not request counsel
be appointed to find the natural father because he knew Father's home address and
telephone number. In response, Father argues that the district court's appointment of his
attorney was proper based on the facts of this case. Stepfather also suggests that once
Father was located and served with process, appointed counsel was no longer warranted
under the adoption statutes absent a finding that Father was indigent.

Stepfather's confusing arguments invoke two standards of review. To the extent
Stepfather is questioning the proper interpretation of applicable statutes, the standard of
review is unlimited as statutory interpretation is a question of law. Neighbor, 301 Kan. at
918.

However, to the extent Stepfather contends the district court should have
disqualified Dale from his continuing representation of Father, a different standard
applies. The standard of review for attorney disqualification is a two-part test. An
appellate court determines whether the district court's findings of fact are: (1) supported
by substantial competent evidence and (2) sufficient to support the conclusions of law.
An appellate court's review of conclusions of law is unlimited. Barragree v. Tri-County
Electric Co-op., Inc., 263 Kan. 446, 454-55, 950 P.2d 1351 (1997). "Substantial
competent evidence is '"'evidence which possesses both relevance and substance and
which furnishes a substantial basis of fact from which the issues can be reasonably be
resolved.'"' [Citations omitted.]" Wiles v. American Family Life Assurance Co., 302 Kan.
66, 73, 350 P.3d 1071 (2015).

19
We will first deal with Stepfather's contention that the appointment of counsel for
Father by the district court was invalid ab initio under KARA. A parent has a
fundamental liberty interest protected by the Fourteenth Amendment to the United States
Constitution to make decisions regarding the care, custody, and control of the parent's
child. Before a parent can be deprived of the right to the custody, care, and control of the
child, the parent is entitled to due process of law. In re Adoption of A.A.T., 287 Kan. 590,
600-01, 196 P.3d 1180 (2008); see also In re X.D., 51 Kan. App. 2d 71, 73-74, 340 P.3d
1230 (2014) (right to be legal parent of child is fundamental right).

A petition for adoption under KARA requires a statement of information "if
reasonably ascertainable," as to "whether one or both parents are living and the name,
date of birth, residence and address of those living, so far as known to the petitioner."
(Emphasis added.) K.S.A. 59-2128(a)(9); see also In re Estate of Wolf, 279 Kan. 718,
Syl. ¶ 3. Stepfather's petition stated in relevant part: "The natural father of the child is
[D.O.F.]. The natural father has not consented, but shall be given notice, if he can be
located. If he cannot be located, counsel will be appointed and notice published in his last
known area of residence." (Emphasis added.)

In stepparent adoptions, "the court may appoint an attorney to represent any father
. . . whose whereabouts are unknown." K.S.A. 2017 Supp. 59-2136(c). Two days after
Stepfather filed his petition for adoption, the district court contacted Dale inquiring about
his ability to represent Father, who was identified in Stepfather's pleadings as a father
whose whereabouts were unknown, as appointed counsel. Dale accepted the appointment.
He located Father in approximately 45 minutes, spoke to him on the telephone, and Dale
informed Father he had been appointed to represent him in the stepparent adoption case.
Dale informed the district court he located Father, and filed a limited scope entry of
appearance (limited to the Kansas adoption case) the next day.

20
On appeal, Stepfather notes the discretionary language in K.S.A. 2017 Supp. 59-
2136(c), i.e., the court "may appoint an attorney" for a natural parent who is unknown or
whose whereabouts are unknown. But he does not argue that the district court abused its
discretion in actually appointing counsel to represent Father. A point raised incidentally
in a brief and not argued therein is deemed abandoned. Friedman, 296 Kan. at 645.

Instead of claiming abuse of discretion, Stepfather argues that the "provisions of
K.S.A. 59-2136(c) provide that counsel may be appointed for an unknown or unfound
father to do a specific set of tasks." (Emphasis added.) This is a misstatement of the
statute. Father argues on appeal that none of the statutes or court rules applicable to
appointed attorneys for missing fathers limits the scope or duration of representation. We
agree with Father's interpretation of the statute.

A plain reading of the statute reveals it to be unambiguous. Subparagraph (c)
places no limits on the scope of representation after the appointment. Again, the court
may appoint an attorney to represent any father whose whereabouts are unknown. K.S.A.
2017 Supp. 59-2136(c). The statute does not prescribe a set of tasks, limit the scope of
representation, or require that representation cease upon locating a natural father.

Next, Stepfather contends on appeal that even if Dale's appointment to represent
Father was initially appropriate under subparagraph (c), once Dale located Father, the
appointment could only continue if the district court made a finding that Father was
indigent pursuant to K.S.A. 2017 Supp. 59-2136(h)(1). Williams objected to Dale's
continued representation of Father at the second status hearing and argued that any
pleadings filed by Dale were not properly before the district court.

"A court deciding a motion to disqualify counsel must balance several competing
considerations, including the privacy of the attorney-client relationship, the prerogative of
a party to choose counsel, and the hardships that disqualification imposes on the parties
21
and the entire judicial process." Lansing-Delaware Water District v. Oak Lane Park, Inc.,
248 Kan. 563, 571, 808 P.2d 1369 (1991).

"'"Motions to disqualify 'should be reviewed with extreme caution for they can be
misused as a technique of harassment.'" "Such motions are often simply '"common tools
of the litigation process, . . . used . . . for purely strategic purposes."'" "The right to be
represented by counsel of choice is an important one, subject to override only upon a
showing of compelling circumstances." [Citations omitted.]'" Barragree, 263 Kan. at 455
(citing Lease-America Corp. v. Stewart, 19 Kan. App. 2d 740, 750, 876 P.2d 184 [1994]).

During that status hearing, the district court and the parties engaged in some
discussion about the interplay of subparagraphs (c) and (h) respecting appointed counsel.
In response to the district court's question, Dale indicated that although Father made $11
per hour at his factory job, Father did not claim to be indigent. The district court allowed
Dale to call Father to determine whether he wanted Dale to continue representing him if
Dale were no longer court-appointed. Dale represented to the district court that Father
was willing to retain him. The district court found that there was no basis for excluding
Dale from representing Father.

Stepfather contends that Dale was appointed pursuant to K.S.A. 2017 Supp. 59-
2136(c) and "charged with locating and providing notice only." In support of this
contention, Stepfather cites to a 2016 practitioner's guide to Kansas family law but cites
no other authority and acknowledges there is no caselaw in support of this argument.
However, a more recently published practitioner's guide indicates that an appointed
lawyer's role is to make sure "due diligence has been made to locate the birth father and
to review the adequacy of notice." It also states: "If the father is found, the lawyer may
assert his parental interest." 1 Elrod, Kansas Law and Practice: Kansas Family Law § 6:7
(2017-2018 ed.).

22
Stepfather cites to K.S.A. 2017 Supp. 59-2136(f), regarding notice and proof of
notice, to signal what should be the end to court-appointed representation. Again,
Stepfather cites to no authority in support of this position. However, that statute merely
requires that service on any and all known possible fathers must be served and filed with
the court; it makes no mention of a connection between the service of notice and the
appointment, or continued appointment, of counsel. Failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. University of Kan. Hosp.
Auth., 301 Kan. at 1001.

Contrary to Stepfather's argument, caselaw regarding stepparent adoptions
suggests that a finding of financial need is not required for a father to continue with
representation that was court-appointed pursuant to K.S.A. 2017 Supp. 59-2136(c).
Subparagraph (h) was determined to be inapplicable to stepparent adoption proceedings:

"[T]he termination of parental rights provisions in K.S.A. 2010 Supp. 59-2136(h) simply
do not apply to the question of whether a natural father must consent to the adoption of
his children by a stepfather. The legislature intended for that question to be answered by
the provisions of K.S.A. 2010 Supp. 59-2136(d), unaffected by the provisions governing
the termination of parental rights in other types of adoptions." In re Adoption of J.M.D.,
293 Kan. 153, 163, 260 P.3d 1196 (2011).

The termination of parental rights provisions under subparagraph (h)(1) is also where the
language regarding a father's financial inability to employ an attorney is located. K.S.A.
2017 Supp. 59-2136(h)(1). Consequently, since subparagraph (h) does not apply in
stepparent adoptions, under In re Adoption of J.M.D., the statutes do not require a district
court to assess a found father's financial ability to employ an attorney in order to continue
court-appointed representation initially accomplished pursuant to K.S.A. 2017 Supp. 59-
2136(c). Nevertheless, in this case, the district court did inquire about Father's financial
circumstances. While Dale indicated Father was not indigent, he informed the court of
23
Father's relatively low hourly wage but also that Father was willing to retain him if
necessary. Thus Dale's representation of Father was legitimately ongoing, even if the
appointment or retention issue was not resolved prior to the district court granting
Father's motion to dismiss.

Based on Stepfather's petition, we find there was sufficient competent evidence to
justify the district court's appointment of representation for Father pursuant to K.S.A.
2017 Supp. 59-2136(c). Stepfather has failed to show compelling circumstances to
override Father's choice of representation in this case. While Dale was initially court-
appointed, the privacy of the attorney-client relationship, the prerogative of Father to
choose to continue with Dale as his attorney, and the hardships that Dale's
disqualification would impose on Father as an out-of-state litigant at risk of losing his
parental rights supports the district court's findings that there was no basis to disqualify
Dale from representing Father in this case.

We note that Stepfather has failed to cite to any of the Model Rules of
Professional Conduct that would mandate Dale's removal from the case. He does not
assert that Dale's representation of Father creates a conflict of interest with Dale's other
current clients as prohibited by Rule 1.7 (2018 Kan. S. Ct. R. 302) or 1.8 (2018 Kan. S.
Ct. R. 309). Nor is there any assertion that Dale's representation of Father violates any
duty Dale may owe to former clients implicated by Rule 1.9 (2018 Kan. S. Ct. R. 315).

Finally, even if the initial appointment was in error, it was an error invited by
Stepfather's petition in which he suggested that Father's whereabouts were unknown.
Whether the doctrine of invited error applies presents a question of law, and appellate
courts generally exercise unlimited review over questions of law. State v. Hankins, 304
Kan. 226, 230, 372 P.3d 1124 (2016). Generally, when a party has invited error, the error
cannot be complained of on appeal. See Thoroughbred Assocs. v. Kansas City Royalty
Co., 297 Kan. 1193, 1203, 308 P.3d 1238 (2013).
24
We find no error in the district court's appointment of representation for Father or
in its refusal to disqualify Dale as Father's counsel.

The district court's refusal to award attorney fees

Father has cross-appealed from the district court's decision that each party should
be responsible for their own attorney fees. He argues that the district court abused its
discretion in failing to award him attorney fees. Stepfather contends that the district court
did not abuse its discretion by assessing attorney fees to the respective parties.

The district court's authority to award attorney fees is a question of law over which
appellate review is unlimited. Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305
P.3d 622 (2013); see In re Marriage of Williams, 52 Kan. App. 2d 440, 452, 367 P.3d
1267 (2016). A court may not award attorney fees absent statutory authority or an
agreement by the parties. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162,
298 P.3d 1120 (2013); Rogers v. ALT-A&M JV, 52 Kan. App. 2d 213, 219, 364 P.3d
1206 (2015). Where the district court has authority to grant attorney fees, its decision
whether to award fees is reviewed under the abuse of discretion standard. Wiles, 302 Kan.
at 81; Rinehart, 297 Kan. at 942. A judicial action constitutes an abuse of discretion if:
(1) no reasonable person would take the view adopted by the district court, (2) is based
on an error of law, or (3) is based on an error of fact. Wiles, 302 Kan. at 81. The party
asserting the district court abused its discretion bears the burden of showing such abuse
of discretion. Northern Natural Gas Co., 296 Kan. at 935.

Father requested attorney fees in each pleading filed with the district court. As the
case progressed, Father also requested sanctions in the form of attorney fees "because of
the manner in which [Stepfather's] signed pleadings were made." The district court did
not make any findings regarding Father's requests, but stated in the memorandum
decision and order: "Concerning attorney fees I find no specific authority requiring the
25
assessment of attorney fees so it is the Court's judgment that each party is responsible for
his own attorney fees."

In this case, Father first contends that the district court had the discretion to award
attorney fees pursuant to KARA, specifically K.S.A. 59-2134(c) and K.S.A. 2017 Supp.
59-104(d). "The costs of the adoption proceedings shall be paid by the petitioner or as
assessed by the court." K.S.A. 59-2134(c). Attorney fees are specified as an additional
court cost subject to be taxed or billed against the parties as directed by the court. K.S.A.
2017 Supp. 59-104(d). Father argues that the district court's refusal to award him attorney
fees in this case was unreasonable and an abuse of discretion. Father requests attorney
fees at the court-appointed rate pursuant to these two statutes.

In response, Stepfather suggests that because the district court did not find Father
to be "at least partially indigent," it did not abuse its discretion in assigning the parties to
pay their respective attorney fees. The record on appeal reveals that Dale indicated Father
was not indigent, and the district court did not make a finding that Father was indigent for
the purpose of continuing Dale's appointment as Father's attorney under K.S.A. 2017
Supp. 59-2136(h). However, the matter was not resolved.

Following the second status hearing, restrictions regarding the court-appointed
representation issue were left open to be reviewed. The district court did not conduct any
other hearings or issue any other orders in this case until filing the August 2017
memorandum decision and order granting Father's motion to dismiss. There is nothing in
the record to indicate the district court relieved Dale of his court appointment to represent
Father.

Father cites to the procedural history and undisputed facts of this case in support
of his argument that the district court abused its discretion in not awarding him attorney
fees. Father acknowledges there is substantial overlap with his claim for attorney fees as
26
a sanction under K.S.A. 2017 Supp. 60-211, and we think the better practice is to address
his claim under that statute.

Father also argues that sanctions in the form of attorney fees are appropriate in this
case under K.S.A. 2017 Supp. 60-211. K.S.A. 2017 Supp. 60-211(c) provides that a court
may impose an appropriate sanction, such as attorney fees, on an attorney or party that
violated subparagraph (b). Subparagraph (b) provides:

"By presenting to the court a pleading, written motion or other paper, whether by
signing, filing, submitting or later advocating it, an attorney . . . certifies that to the best
of the person's knowledge, information and belief formed after an inquiry reasonable
under the circumstances:
"(1) It is not being presented . . . for any improper purpose . . . ;
"(2) the claims, defenses and other legal contentions are warranted by existing
law or by a non-frivolous argument . . . ;
"(3) the factual contentions have evidentiary support or . . . will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and
"(4) the denials of factual contentions are warranted on the evidence or . . . are
reasonably based on belief or a lack of information." K.S.A. 2017 Supp. 60-211(b)(1)-
(4).

Father contends that Stepfather and Williams violated all four subsections of
subparagraph (b) and so the district court's refusal to award sanctions in the form of
attorney fees was unreasonable and a further abuse of discretion.

Courts should take the following factors into consideration when determining
whether to sanction a party under K.S.A. 60-211 and what kind of sanction to impose:

"(1) whether the improper conduct was willful or negligent;
"(2) whether it was part of a pattern of activity or an isolated event;
27
"(3) whether it infected the entire pleading or only one particular count or defense;
"(4) whether the person has engaged in similar conduct in other litigation;
"(5) whether it was intended to injure;
"(6) what effect it had on the litigation process in time or expense;
"(7) whether the responsible person is trained in the law;
"(8) what amount, given the financial resources of the responsible person, is needed to
deter that person from repetition in the same case; and
"(9) what amount is needed to deter similar activity by other litigants. [Citation omitted.]"
Wood v. Groh, 269 Kan. 420, 431, 7 P.3d 1163 (2000).

In this case, the district court did not make any findings regarding Father's requests
for attorney fees, whether as a sanction under K.S.A. 2017 Supp. 60-211, or otherwise.
Although Father consistently requested and argued for attorney fees throughout the
course of the case, the district court simply stated that relevant authority did not require it
to grant them.

Although the district court's virtual dismissal of Father's request for attorney fees
as a sanction under K.S.A. 2017 Supp. 60-211 might be inconsistent with its tone and
observations throughout the case, we do not view this as automatically entitling Father to
sanctions in the form of attorney fees. The record on appeal reveals that there was no
request to the district court for specific findings as to the application of K.S.A. 2017
Supp. 60-211 to the proceedings or for findings in light of the Wood factors. "In the
absence of a request by a party to the district court for additional findings, though, we
generally assume that the court made the findings necessary to support its ruling."
Douglas Landscape & Design v. Miles, 51 Kan. App. 2d 779, 787, 355 P.3d 700 (2015).

In the context of this case, although it is a close call, we believe we cannot
substitute our judgment and order attorney fees under K.S.A. 2017 Supp. 60-211 without
the careful first-hand observation of the proceedings and application of the Wood factors
which can only be done at the district court level. Because of this we are disinclined to
28
enter the fray and start making findings of our own. The bottom line is that we cannot
conclude the district court abused its discretion, particularly since Father could have
sought particularized findings from the district court on his sanction issues.

We are sympathetic to the plight of attorney Dale in seeking reasonable
compensation for his representation which was performed, after all, at the behest of the
district court. But since the matter of whether Dale was appointed or retained counsel was
in limbo at the time Stepfather's amended petition was dismissed, we conclude we are not
in a position to second-guess how and how much he should be paid for his services. At
the very least, we think that Dale is entitled to be compensated under the standard terms
for court-appointed counsel in similar cases within the judicial district, at least up to the
time when Father indicated he was willing and able to retain Dale. In our view, this is a
matter which Dale should address directly with the presiding judge in this case or the
chief judge of the judicial district.

Affirmed.