In re Marriage of C.E.P. and M.D.P.

1

NOT DESIGNATED FOR PUBLICATION

No. 113,411

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE MARRIAGE OF
C.E.P.,
Appellant,

and

M.D.P.,
Appellee.

D.P.S.,
Intervenor/Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opinion filed March 4,
2016. Vacated and remanded with directions.

Jonathan M. Snyder, of Cook & Associates, L.L.C., of Topeka, for appellant.

Allison H. Maxwell and James R. McEntire, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe,
L.L.C., of Topeka, for appellee M.D.P. and intervenor/appellee D.P.S.

Before PIERRON, P.J., BRUNS and GARDNER, JJ.

Per Curiam: This appeals arises from a dispute between C.E.P., the mother
(Mother) of K.P. (Minor Child), and D.P.S., K.P.'s paternal grandmother (Grandmother),
over grandparent visitation. Specifically, Mother contends that the district court erred in
awarding visitation to Grandmother by not giving her proposed visitation schedule any
special weight. Mother also contends that the district court was statutorily required to
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assess costs and reasonable attorney fees against Grandmother unless it found that justice
and equity required otherwise. For the reasons set forth in this opinion, we vacate the
district court's journal entry entered on February 3, 2015, and remand the issue of
grandparent visitation—including the question of costs and attorney fees—to the district
court.

FACTS

In May 2009, Mother gave birth to the Minor Child, and 4 or 5 months later, the
father, M.D.P. (Father), became involved in the Minor Child's life. Mother and Father
eventually married in 2010. At the time of their marriage, Father was stationed in the
state of Washington as an active member of the United States Navy, and Mother was a
college student in Topeka.

After the wedding, Mother and the Minor Child remained in Topeka, where
Mother attended school and worked as a waitress in the evenings. Both the maternal and
paternal grandparents watched the Minor Child while Mother worked and attended
school.

In May 2010, Father was deployed to Afghanistan, and upon his return in
December 2010, Mother moved with the Minor Child to Washington to live with him.
Sometime in the fall of 2011, Father learned that he would be deployed again. Because
Father was going to be deployed and Mother was having difficulties transferring her
college credits to a college in Washington, Mother returned to Kansas with the Minor
Child in approximately December 2011 to finish her education.

From January to March 2012, Mother and the Minor Child lived with
Grandmother and her husband. During this time, Grandmother and her husband—who is
the Minor Child's step grandfather—watched the Minor Child anywhere from 3 to 5
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nights per week while Mother worked. Even after Mother moved out, Grandmother
continued to frequently watch the child, which involved some overnight visits.

In December 2012, Mother and the Minor Child once again traveled to
Washington when Father returned from his deployment. After about 2 weeks, Mother
returned to Kansas while the Minor Child remained with Father. When Mother left
Washington, she and Father agreed that the Minor Child would remain with him for 3
weeks. At the end of 3 weeks, however, Father refused to allow the Minor Child to return
to Kansas.

On March 5, 2013, Mother filed a petition for divorce in Shawnee County District
Court. Shortly thereafter, the district court ordered Father to return the Minor Child to
Kansas. Moreover, the district court ordered: "During the pendency of this matter, the
parties' minor child shall remain in the care, custody, and control of [Mother] with
[Father] to have reasonable parenting time." The district court also entered an agreed
order for conciliation to help Mother and Father agree on legal custody, residency,
parenting time, and child support. Three days after the Minor Child returned to Kansas,
Father filed a motion for grandparent visitation in the divorce proceeding. In his motion,
Father alleged that Mother was denying unsupervised contact between the Minor Child
and Grandmother.

On April 11, 2013, Mother filed a motion to strike Father's motion, alleging that
he did not have standing to request grandparent visitation. Eleven days later, however,
Grandmother and her husband filed a motion for intervention to assert grandparent
visitation rights. Grandmother alleged that "the child would benefit from a continuation
of the grandparent contact." In response, Mother argued that an order compelling
grandparent visitation was not in the Minor Child's best interests.

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A judge pro tem conducted an initial hearing on the motion for intervention to
assert grandparent visitation on May 9, 2013. During the hearing, Mother argued that
although the Grandmother had a statutory right to seek visitation, her husband did not
have standing to do so. Mother also argued that the district court should not order
conciliation on the issue of grandparent visitation prior to an evidentiary hearing.
Although the judge pro tem ordered conciliation, she did not address Mother's objection
to whether Grandmother's husband had standing to pursue grandparent visitation.

On August 21, 2013, the district court judge granted only the Grandmother's
motion to intervene. On October 24, 2013, the district court entered a decree of divorce
and granted the Mother and Father's agreed parenting plan. In the parenting plan, Mother
and Father agreed to joint legal custody of the Minor Child, with residency to Mother and
parenting time to Father. Specifically, Father was to have time with the Minor Child in
June and July each summer; approximately 10 days in the spring; approximately 10 days
during Christmas; up to 30 days when Father exercised military leave in Topeka; and
other holidays based on the Shawnee County Family Law Guidelines.

The parties briefed the issue of grandparent visitation and, prior to the hearing, a
conciliator issued a report to the district court recommending visitation with
Grandmother every other Tuesday from 3:30 p.m. through the night until he is returned to
preschool the following morning and every other Saturday at noon through the next day
at 4:00 p.m. The conciliator also recommended that Grandmother have visitation with the
Minor Child on any holiday set aside for Father if he was unable to exercise his parenting
time. In Mother's memorandum in opposition to the motion for grandparent visitation,
she agreed that a substantial relationship existed between the Minor Child and
Grandmother but proposed that Grandmother have visitation on the first Saturday of the
month from 3:00 p.m. through Sunday at 3:00 p.m.; the third Wednesday of the month
following preschool or school through 8:00 p.m.; during school and extracurricular
activities; and at other times as agreed upon by the parties.
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On April 2, 2014, the district court held an evidentiary hearing, during which
seven individuals testified, including the conciliator, Grandmother, and Mother. At the
time of the hearing, the Minor Child was almost 5 years old. Initially, the conciliator
testified that she performed only one conciliation between the Mother and Grandmother
and her husband for the purpose of grandparent visitation. She stated that Mother did not
show for the second joint session, claiming that she was sick. The conciliator testified
that she never rescheduled the second meeting because she did not think the parties were
going to agree on visitation. When asked to explain the basis for her recommended
schedule she stated,

"I think, in my mind, there is no doubt that this little guy has a very close bond
with his grandparents, and with his grandmother, and also with his step-grandfather. And
I think because of his age, his young age, I think that he really needs that consistency and
that continuity of having time with his father' family because his dad is gone. And I think
if both parents were in the same town, and having worked with both of them, I would've
recommended that [Father] . . . have—I probably would've recommended an equal time
parenting plan. I mean, I think that both of these parents have a very close bond with this
child. And I think it is just important for that bond to be preserved with his side of the
family, with [Father's] side of the family, too. And so it seemed to me that this would be a
way for—to preserve that relationship, and in [K.P.'s] best interest, I think."

The conciliator stated that at the beginning of conciliation the Grandmother
requested frequent overnight visitation and Mother offered one overnight stay per month.
On cross-examination, the conciliator stated that she did not list Mother's proposal in the
recommendation she submitted to the district court because Mother was "really reticent"
about offering any more visitation than what Grandmother was receiving at the time of
conciliation—"Saturdays from 4 until 9, and then Sundays from 11 until 4" as well as one
monthly overnight stay.

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The conciliator also testified that she did not give any deference to the Mother
when making her recommendation but focused on what she believed was in the best
interests of the child. When asked by the district court why she recommended an
overnight stay every week, the conciliator explained "because the father is gone, and I
think that . . . if, you know, dad was here, he would be having, at a minimum, every other
weekend, and I think that it's–the dad's been very involved with [K.P.] and [Mother]."

Next, Grandmother testified that after Mother obtained full-time employment in
May 2013, she initially allowed them to see the Minor Child on Saturday evenings from 4
p.m. to 9 p.m. and either Tuesday or Wednesday evenings from 4 p.m. to 8 p.m.
Moreover, Grandmother testified that she asked Mother for more time with the Minor
Child because she was used to having him more often. According to Grandmother,
Mother told her she wanted her side of the family to watch the Minor Child as well. A
few months before the evidentiary hearing, however, Mother evidently told Grandmother
that instead of watching the Minor Child during the week, they could watch him all day
on Monday because she did not have daycare for the Minor Child that day. Grandmother
testified that she was not happy with this arrangement because she worked full time on
Mondays, and was, therefore, only able to see the Minor Child on Saturday nights.

Mother testified that when she graduated from college in May 2013, she obtained
a full-time job that did not require her to work during the evenings. Mother further
testified that throughout the proceedings she believed it was important for the Minor
Child to maintain contact with both sides of the family, so she allowed Grandmother to
have what she considered to be a substantial amount of visitation in several ways,
including inviting Grandmother and her husband to sporting events, allowing them to
visit the Minor Child at daycare, and inviting them to social events.

When Mother was asked about any issues she had with the schedule proposed by
the conciliator and Grandmother, she stated,
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"My issue with that is several things. [Minor Child] has a very busy schedule as
we've talked about with sports, which really limits my ability to be able to spend one-on-
one time with him, as well as my work schedule. You know, he's not a little one anymore,
and that 8 to 5 schedule really hampers my time with him down to three to four hours
during the week. Also during this time, I am making sure that [Father] has quality time
with his son, which also takes away from my one-on-one time with [Minor Child]. So
there's so many busy schedules that are fit into one that I feel like that would hamper our
schedule, as well as we've talked this whole time about consistency and what would be
best for [Minor Child]. With that schedule, with him starting kindergarten, I don't think
that that would—I think that would be confusing to him and would hamper him if one
day a week he's waking up and getting ready for school, and getting on the school bus,
and going to school, and coming home to that house, and then another day he's doing
something different."

Mother also testified that the schedule she proposed would be the "bare minimum"
and that she intended to invite them to sporting events as well as contact them to see if
they wanted to watch Minor Child when she had to work late. Mother asserted that her
proposed schedule provided sufficient time to allow the Grandparents to maintain a
substantial relationship with the Minor Child.

More than 10 months later—on February 3, 2015—the district court entered an
order on grandparent visitation. The reason for this delay is unclear from the record on
appeal. Regardless, the district court entered an order granting visitation to Grandmother
and adopting the visitation schedule recommended by the conciliator. In the order, the
district court noted that Grandmother's husband had no legal rights under the grandparent
visitation statute. In addition, the district court made the following findings:

"9. [Grandmother and her husband] have a substantial relationship with the child
and have provided substantial support to . . . the child.

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"10. That the child has enjoyed and benefitted from the regular contact with
[Grandmother and her husband].

"11. That the child would benefit from a continuation of contact with his paternal
grandmother.

. . . .

"16. Visitation with [Grandmother] would be in the child's best interest and a
substantial relationship between the child and the grandmother has been established."

"17. Delegated parenting time would be in the child's best interests.

"18. The minor child is involved in various sports and other activities after school
and on weekends.

"19. Considering the facts of this case, the recommendations made by the Court
appointed neutral conciliator, the substantial relationship between [Grandmother] and the
child, and the inability of the Respondent to exercise normal visitation due to his military
commitment, the Petitioner's limited proposed visitation is not reasonable and should not
be and is not adopted by this court.

"20. Considering the best interests of the minor child, facts of this case, the
recommendations made by the Court appointed neutral conciliator, the past relationship
between [Grandmother] and the child, and the inability of the Respondent to exercise
normal visitation due to his military commitment, [Grandmother] should be and hereby is
awarded grandparent visitation as follows . . . ."






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ANALYSIS

Special Weight Given to Parental Determinations

On appeal, Mother first contends that the district court failed to consider the
presumption that a fit parent will act in his or her child's best interests. To that end,
Mother correctly points out that neither the transcript from the evidentiary hearing on the
grandparent visitation motion nor the order granting visitation mention this presumption.
Moreover, Mother points out that it is impossible to determine the weight, if any, given to
her proposed grandparent visitation plan. In response, Grandmother contends that it may
be inferred from the record that the district court did apply the presumption that a fit
parent will act in the best interest of the child.

It is important to note that Mother agrees that Grandmother and the Minor Child
have a substantial relationship. In addition, Mother agrees that some amount of
grandparent visitation is in her son's best interests. In fact, the record indicates that
Mother facilitated contact between the Minor Child and Grandmother—albeit not at the
rate Grandmother would prefer. Thus, the primary issue on appeal is whether the district
court gave at least some "special weight" to Mother's determination or decision regarding
the Grandmother's visitation time.

As the parties recognize, the Fourteenth Amendment to the United States
Constitution provides that no state shall "deprive any person of life, liberty, or property,
without due process of law." The United States Supreme Court has explained that the
Fourteenth Amendment provides certain fundamental rights and liberty interests.
Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, 138 L. Ed. 2d 772
(1997). In particular, the United States Supreme Court has recognized that "perhaps the
oldest of the fundamental liberty interests" is a fit parent's right to the care, custody, and
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control of his or her children. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147
L. Ed. 2d 49 (2000).

At common law, grandparents had no legal right to override a parent's wish to
deny contact with a child. In re Hood, 252 Kan. 689, 691-94, 847 P.2d 1300 (1993);
Elrod, Child Custody Practice & Procedure § 7:6 (2015). From the 1960s to 2000, states
enacted statutory visitation rights for grandparents if it was in the child's best interests. 2
Elrod, Kansas Law and Practice, Kansas Family Law § 13:10 (2015-2016 ed.). The
Kansas grandparent visitation statute has been amended several times since it was first
enacted in 1971. See L. 1971, ch. 149, sec. 1; In re T.N.Y., 51 Kan. App. 2d 956, 960-62,
360 P.3d 433 (2015) (outlining the history of Kansas' grandparent visitation statute and
finding that limitation on grandparent visitation to only divorce proceedings violates the
equal protection rights of children whose parents never married).

The grandparent visitation statute currently provides:

"(a) In an action under article 27 of chapter 23 of the Kansas Statutes Annotated,
and amendments thereto, grandparents and stepparents may be granted visitation rights.

"(b) The district court may grant the grandparents of an unmarried minor child
reasonable visitation rights to the child during the child's minority upon a finding that the
visitation rights would be in the child's best interests and when a substantial relationship
between the child and the grandparent has been established.

"(c) The district court may grant the parents of a deceased person visitation
rights, or may enforce visitation rights previously granted, pursuant to this section, even
if the surviving parent has remarried and the surviving parent's spouse has adopted the
child. Visitation rights may be granted pursuant to this subsection without regard to
whether the adoption of the child occurred before or after the effective date of this act."
K.S.A. 2015 Supp. 23-3301.

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In Troxel, the United States Supreme Court reaffirmed the fundamental right of
parents to raise their children free of state interference. In doing so, the Supreme Court
acknowledged that although the "nationwide enactment of nonparental visitation statutes"
was likely due to changing family demographics, it emphasized that parents still retained
their fundamental right to make decisions regarding the care, custody, and control of their
children. 530 U.S. at 64-65. In finding the State of Washington's grandparent visitation
statute unconstitutional, the Supreme Court concluded that it is improper to disregard
decisions made by a fit parent concerning visitation based solely on a determination of
the child's best interests. 530 U.S. at 67.

In reaching this conclusion, the Supreme Court explained that

"'our constitutional system long ago rejected any notion that a child is the mere creature
of the State and, on the contrary, asserted that parents generally have the right, coupled
with the high duty, to recognize and prepare [their children] for additional obligations. . .
. The law's concept of the family rests on a presumption that parents possess what a child
lacks in maturity, experience, and capacity for judgment required for making life's
difficult decisions. More important, historically it has recognized that natural bonds of
affection lead parents to act in the best interests of their children.'" 530 U.S. at 68
(quoting Parham v. J. R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 [1979]).

Accordingly, the United States Supreme Court held that when a "fit parent's
decision [regarding grandparent visitation] becomes subject to judicial review, the court
must accord at least some special weight to the parent's own determination." (Emphasis
added.) 530 U.S. at 70. The Supreme Court was further troubled that the district court
gave no weight to the fact that the mother had agreed to some amount of visitation even
before the grandparents initiated proceedings. 530 U.S. at 71-72. Thus, the Supreme
Court ultimately summarized that "this case involves nothing more than a simple
disagreement between the [district court] and [the mother] concerning her children's best
interests" and found that the district court's decision violated the mother's fundamental
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right to make decisions concerning the care, custody, and control of her children. 530
U.S. at 72.

Less than one year after Troxel, the Kansas Supreme Court considered a
constitutional challenge to Kansas' grandparent visitation statute. Kansas Dept. of SRS v.
Paillet, 270 Kan. 646, 16 P.3d 962 (2001). In Paillet, the father died in a car accident
shortly after his child was born, and the paternal grandparents petitioned for visitation.
The district court granted visitation, finding that it was in the child's best interests and
that a substantial relationship had been established between the child and the
grandparents. 270 Kan. at 647-48. Although the Court of Appeals found that there was
insufficient evidence of a substantial relationship, it nonetheless affirmed, concluding that
the mother had unclean hands because she continually and unreasonably denied visitation
with the child. 270 Kan. at 649-50.

While the case was pending on appeal, the United States Supreme Court released
its decision in Troxel, and our Supreme Court permitted the mother to raise a due process
argument similar to the one raised in Troxel. Initially, the Kansas Supreme Court agreed
with the Court of Appeals that there was no evidence of a substantial relationship but
disagreed that it could—in effect—create an exception through equitable principles for
which the statute did not provide. 270 Kan. at 654. In regard to mother's constitutional
claims, the Kansas Supreme Court summarized Troxel as follows:

"The [United States] Supreme Court identified a combination of factors that
demonstrated the unconstitutionality of the trial court's application of the statute. First, by
presuming the grandparents' request should be granted in the absence of proof that it
would not be in the children's best interest, it 'directly contravened the traditional
presumption that a fit parent will act in the best interest of his or her child.' [Citation
omitted.] The Supreme Court observed that a fit parent's decision must be accorded 'at
least some special weight.' [Citation omitted.] Second, the trial court failed to give any
weight to [the mother's] not opposing visitation. [Citation omitted.] The Supreme Court
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believed it significant that 'many other States expressly provide by statute that courts may
not award visitation unless a parent has denied (or unreasonably denied) visitation to the
concerned third party. [Citations omitted.]' Third, the reasons given by the trial court for
awarding visitation to the [grandparents] were insubstantial." 270 Kan. at 655-56.

Although our Supreme Court upheld the then-existing grandparent visitation
statute on its face—noting that the statute was not nearly as broad as the statute addressed
in Troxel—it found that the application of the statute to the facts of the case violated the
mother's due process rights. 270 Kan. at 657-60. More specifically, it found that "[t]he
trial court made no presumption, as required by Troxel, that a fit parent will act in the
best interests of his or her child." 270 Kan. at 658.

Since Troxel and Paillet, our Supreme Court—as well as several panels of this
court—have reiterated that a district court must presume that a fit parent is acting in the
child's best interests and must give special weight to the parent's proposed visitation
schedule. See Skov v. Wicker, 272 Kan. 240, 248, 32 P.3d 1122 (2001); In re Creach, 37
Kan. App. 2d 613, 620, 155 P.3d 719 (2007); State ex rel. Secretary of Dept. of S.R.S. v.
Davison, 31 Kan. App. 2d 192, Syl. ¶ 3, 64 P.3d 434 (2002); DeGraeve v. Holm, 30 Kan.
App. 2d 865, 868, 50 P.3d 509 (2002). Moreover, panels of this court have also held that
third-party visitation statutes must be strictly construed because they are a creature of
statute and in derogation of parents' constitutional right to direct the upbringing of their
children. In re T.A., 30 Kan. App. 2d 30, 34-35, 38 P.3d 140 (2001); Davison, 31 Kan.
App. 2d 192, Syl. ¶ 3. This does not mean, however, that the presumption automatically
compels a district court to adopt a fit parent's proposed visitation schedule; "otherwise the
parent could arbitrarily deny grandparent visitation without the grandparents having any
recourse." In re T.A., 30 Kan. App. 2d at 34.

Although unpublished opinions are not binding precedent, they may be cited if the
opinion has persuasive value with respect to a material issue not addressed in a published
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opinion and would assist the court in disposition of the issue. Kansas Supreme Court
Rule 7.04(g)(2) (2015 Kan. Ct. R. Annot. 64). Here, Mother cites a case that is very
similar to the current one. In In re Marriage of Thomas, No. 90,807, 2004 WL 48890
(Kan. App. 2004) (unpublished opinion), a mother needed help from the father's parents
to watch her child so she could attend school during the day and waitress in the evenings.
The father was an active member of the military and was stationed in California. After
the mother and father divorced, the paternal grandparents petitioned for visitation because
they were unhappy with mother's visitation schedule. The mother did not dispute that
there was a substantial relationship between the child and the grandparents, but she
wished to permit less visitation because she was no longer in school, she no longer
needed to work two jobs, and the child was older. 2004 WL 48890 at *1.

In Thomas, the district court adopted the grandparents' proposed visitation
schedule, which required the child to spend every other weekend from Friday evening
until noon on Sunday with them. A panel of this court reversed, reasoning that

"[b]y adopting the grandparents' plan over hers, the court violated her
fundamental right to the custody, care, and control of her son. [Citation omitted.]
Moreover, there was nothing in the district court's findings or the record on review to
overcome the fundamental presumption that a fit parent will act in the best interests of his
or her child." 2004 WL 48890, at *2.

Returning to the present case, it is impossible for us to tell whether the district
court gave at least some special weight to Mother's proposed grandparent visitation
schedule. In fact, based on comments made by the district judge at the conclusion of the
evidentiary hearing, one could conclude that the district judge evaluated the conflicting
proposed schedules on equal grounds. Specifically, the district judge stated, "As I
indicated, the issue here is trying to determine what parenting time schedule we are going
to adopt, maybe mom's and maybe [the conciliator's] that's been adopted by
[Grandmother], or maybe something in between." However, one could argue that when
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the district court found Mother's proposed grandparent visitation schedule unreasonable,
it was attempting to consider the presumption and apply the special weight requirement.
Regardless, we cannot discern from the record on appeal whether the district court
considered the presumption or special weight requirement. In addition, it is impossible to
determine from the record on appeal what weight—if any—the district court considered
the fact that Mother had facilitated visitation with Grandmother even before the motion to
intervene was filed. See Troxel, 530 U.S. at 71; Paillet, 270 Kan. at 656.

Under these circumstances, we conclude that it is appropriate to vacate the order
of grandparent visitation entered on February 3, 2015, and to remand this matter to the
district court with instructions to apply the Troxel presumption and to give at least some
special weight to Mother's determination of what is in her son's best interest. See In re
Creach, 37 Kan. App. 2d at 621; Davison, 31 Kan. App. 2d at 201. In so ruling, we do
not take a position regarding the ultimate amount of visitation Grandmother should
receive. Rather, we leave these issues to the district court's discretion upon application of
the appropriate legal principles. See In re Marriage of Kimbrell, 34 Kan. App. 2d 413,
419, 119 P.3d 684 (2005). Finally, in light of this decision, we find that it is unnecessary
to reach the other arguments presented by the parties with the exception of the issue of
attorney fees.

Attorney Fees

Mother also contends that the district court erred by not awarding her costs and
reasonable attorney fees. When a party seeks grandparent visitation under K.S.A. 2015
Supp. 23-3301 et seq., "[c]osts and reasonable attorney fees shall be awarded to the
respondent . . . unless the court determines that justice and equity otherwise require."
K.S.A. 2015 Supp. 23-3304. In other words, as a panel of this court has recognized,
"'[t]he legislature clearly intended that [grandparents] pay the costs and the attorney fees
unless the trial court specifically finds that justice and equity require otherwise.'" In re
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T.N.Y., 51 Kan. App. 2d at 969 (quoting In re Cathey, 38 Kan. App. 2d 368, 377, 165
P.3d 310 [2007] [Green, J., concurring]).

Here, the record reveals that Mother never requested attorney fees after
Grandmother intervened in this matter. We note, however, that when responding to
Father's motion for grandparent visitation, Mother requested attorney fees in her prayer
for relief. Notwithstanding, Grandmother maintains that Mother may not raise the issue
for the first time on appeal.

A review of the record reveals that the district court was clearly aware of the
statute mandating attorney fees because its order quotes K.S.A. [2012 Supp.] 23-3304 in
its entirety under the section titled, "Relevant Statutes." But the order lacks any findings
or conclusions of law regarding this issue. Accordingly, we find that it is appropriate to
remand this issue to the district court for determination based on the evidence presented
by the parties. See Spradling v. Harris, 13 Kan. App. 2d 595, 602-03, 778 P.2d 365
(1989). Finally, we note that Mother submitted a request for appellate attorney fees after
oral argument and we will rule on this request in a separate order.

We, therefore, conclude that the grandparent visitation order should be vacated
and that this matter be remanded to the district court for further consideration along with
the issue of attorney fees and costs.

Vacated and remanded with instructions.