K.E.S. v. H.M.M.

1
NOT DESIGNATED FOR PUBLICATION

No. 118,282

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

R.M.S., by and through K.E.S., next friend, and
K.E.S., individually,
Appellants,

v.

H.M.M.,
Appellee.


MEMORANDUM OPINION

Appeal from Greeley and Logan District Courts; RICKLIN R. PIERCE, judge. Opinion filed
May 11, 2018. Appeal dismissed.

Zachary D. Schultz, of Schultz Law Office, P.A., of Garden City, for appellants.

Etta L. Walker, of Sharon Springs, for appellee.

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

PER CURIAM: K.E.S. (Father) appeals the district court's order granting H.M.M.'s
(Mother) motion to change venue in this parentage action from Greeley County to Logan
County in order to take up postjudgment motions. Father argues we have jurisdiction to
hear this appeal because an order changing venue is a final decision. But because the
order changing venue did not determine the merits of the parties' disputed claims, it is not
a final decision and thus we lack jurisdiction to hear the motion and dismiss his appeal.


2
FACTS

In August 2014, Father filed a parentage action in Greeley County District Court
to establish parentage of R.M.S., a child born in 2011. About a year later, the district
court determined that Greeley County was a proper venue, that Father was the natural
father, and that Mother was the natural mother of R.M.S. The district court designated
Mother as R.M.S.'s residential custodian and established the terms for parenting time,
visitation, healthcare costs, and child support.

In 2016, both parties moved out of Greeley County. Father moved to Garden City,
Kansas, in Finney County, and Mother, with R.M.S., moved to Monument, Kansas, in
Logan County. In January 2017, Father filed a motion requesting the district court
determine his right to claim R.M.S. as a dependent for tax purposes. Following Father's
motion, Mother filed a motion disputing Father's claims and moved the district court to
modify the parenting plan and child support. Father subsequently filed his own motion to
modify the parenting plan and child support.

In February 2017, before the competing motions were heard, Mother filed a
motion to change venue to the Logan County District Court. She argued that Logan
County was a more convenient forum under K.S.A. 60-609(a). Mother also asserted that
the district court had an inherent power to change venue to Logan County. Father filed a
motion objecting to Mother's motion to change of venue. In August 2017, the district
court granted Mother's motion to change venue, and the Logan County District Court
accepted venue of the parentage action.

Father timely filed a notice of appeal. We then ordered the parties to show cause
why this appeal is a final decision under K.S.A. 2017 Supp. 60-2102(a)(4) and should not
be dismissed for lack of jurisdiction. Upon receiving the parties' responses, we retained
the appeal for further decision.
3
ANALYSIS

On appeal, Father asserts that this court has appellate jurisdiction under K.S.A.
2017 Supp. 60-2102(a)(4) because the Greeley County District Court's order changing
venue to Logan County is a "final order." Alternatively, Father argues this court may
exercise jurisdiction over his appeal under the collateral order doctrine.

Kansas courts have historically held that a party does not have a right to seek an
immediate appeal of an order changing venue. Instead, the courts have stated that "[t]he
trial must go on, and not until after final judgment has been rendered does an appeal lie."
Jones v. Insurance Co., 83 Kan. 682, 687, 112 P. 826, aff'd on rehearing 85 Kan. 235,
166 P. 484 (1911).

"An appellate court exercises unlimited review over jurisdictional issues and has a
duty to question jurisdiction on its own initiative. When the record discloses a lack of
jurisdiction, the appellate court must dismiss the appeal. [Citation omitted.]" Kaelter v.
Sokol, 301 Kan. 247, 247, 340 P.3d 1210 (2015). It is also a "'longstanding rule' that
appellate jurisdiction in civil cases is defined by statute, and the right to appeal is neither
[a] vested nor a constitutional right." Wiechman v. Huddleston, 304 Kan. 80, 86, 370 P.3d
1194 (2016) (citing Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan.
107, 111, 260 P.3d 387 [2011]).

The language in K.S.A. 2017 Supp. 60-2102(a)(4) states that an appeal can be
taken to this court when there is "[a] final decision in any action, except in an action
where a direct appeal to the supreme court is required by law. In any appeal or cross
appeal from a final decision, any act or ruling from the beginning of the proceedings shall
be reviewable."

4
"A 'final decision' generally disposes of the entire merits of a case and leaves no further
questions or possibilities for future directions or actions by the lower court. The term
'final decision' is self-defining and refers to an order that definitely terminates a right or
liability involved in an action or that grants or refuses a remedy as a terminal act in the
case. [Citation omitted.]" Kaelter, 301 Kan. at 249-50.

It is quite plain from the record that the district court's order changing venue is not
a final decision on the pending motions. Though the order granting the venue change
ended the matters in the Greeley County District Court, the order did not reach the merits
of the parties' disputed postjudgment claims, i.e., Father's alleged right to claim R.M.S. as
a dependent for tax purposes and the parties' modifications to the parenting plan and child
support. See Kaelter, 301 Kan. at 249-50. Thus, the order granting the venue change is
not a final order under K.S.A. 2017 Supp. 60-2102(a)(4).

Father argues, however, that this court has permitted appeals solely on the issue of
venue changes in postjudgment proceedings while custody and support matters were
pending in the district court. But the two decisions Father cites—In re Marriage of Yount
& Hulse, 34 Kan. App. 2d 660, 112 P.3d 1175 (2005), and Soebbing v. Lesser, No.
109,879, 2014 WL 1096936 (Kan. App. 2014) (unpublished opinion)—do not support his
assertion.

The district court in In re Marriage of Yount & Hulse did not have any matters
pending for the district court's determination when Hulse appealed the order denying the
motion to change venue. In relevant part, the Cowley County District Court entered the
divorce decree and property settlement in 1999. Hulse requested the district court change
the venue to Shawnee County years later. Yount objected to the motion to change venue
and also requested a modification to the parenting time and the exchange location of their
child for visitations. The district court denied the motion to change venue and, in sum,
ordered the parties to enter mediation to resolve the parenting time issue and to share
transportation responsibilities. Thus, when Hulse appealed the order denying the venue
5
change, the district court had resolved Yount's additional concerns raised in the response
to the motion. 34 Kan. App. 2d at 661-63.

In Soebbing, no matters were pending in the district court when the panel reviewed
the district court's order denying the venue change. Thus, the panel did not permit an
appeal of an order denying a venue change as a final decision, despite ongoing custody
and support issues. Rather, the Soebbing panel held that the district court may deny a
venue change in a postjudgment proceeding on ripeness grounds if the district court has
no other matters pending in the case when the motion for the venue change is filed. 2014
WL 1096936, at *1-3.

Accordingly, Father's assertion that this court has allowed parties to appeal an
order changing venue while matters were pending below is without merit. Because the
district court's order granting a venue change did not additionally determine the merits of
the parties' disputed matters, the order is not a final decision under K.S.A. 2017 Supp. 60-
2102(a)(4).

Father alternatively argues that we may exercise jurisdiction under the collateral
order doctrine. "The collateral order doctrine provides a narrow exception to the final
order requirement for appellate jurisdiction. It allows appellate courts to reach not only
judgments that terminate an action, but also a small class of collateral rulings that,
although they do not end the litigation, are appropriately deemed final." In re T.S.W., 294
Kan. 423, Syl. ¶ 9, 276 P.3d 133 (2012). But appellate courts sparingly apply this
exception and will only find an order collaterally appealable if it "(1) conclusively
determines the disputed question, (2) resolves an important issue completely separate
from the merits of the action, and (3) is effectively unreviewable on appeal from a final
judgment." 294 Kan. at 434 (citing Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
612, 244 P.3d 642 [2010]).

6
But even if we assume, for purposes of discussion, that the district court's order in
Greeley County granting a venue change meets the first two factors, the order clearly
does not meet the third factor, i.e., that the order would effectively be unreviewable
following a final judgment. Here, Father timely filed his objection to Mother's motion, so
his challenge to the order was preserved below under K.S.A. 60-610. All his motions, as
well as those of Mother, can be fully litigated in Logan County. If he is dissatisfied with
the district court's rulings there, he can certainly file an appeal of those decisions as well
as the order changing venue to Logan County.

Kansas appellate courts review an order changing venue under an abuse of
discretion standard. See Matson v. Kansas Dept. of Corrections, 301 Kan. 654, 656, 346
P.3d 327 (2015); In re Marriage of Yount & Hulse, 34 Kan. App. 2d at 663.

"'Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would take the view adopted by the trial court; (2) based on
an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3)
based on an error of fact, i.e., substantial competent evidence does not support a factual
finding on which a prerequisite conclusion of law or the exercise of discretion is based.'
[Citations omitted.]" Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017).

A party asserting an abuse of discretion bears the burden to show such abuse. 305 Kan. at
868. If an appellate court finds the district court abused its discretion in denying or
granting a venue change, the error is reversible unless the party benefitting from the error
can show it was harmless. Matson, 301 Kan. at 659 (citing Kansas City Mall Assocs. v.
Unified Gov't of Wyandotte County/KCK, 294 Kan. 1, 8, 272 P.3d 600 [2012]).

Thus, Father's claim that the district court's order changing venue is effectively
unreviewable after final judgment does not have merit. Father will have the opportunity
to challenge the district court's decision changing venue as an abuse of discretion
following a final decision on the merits of the parties' postjudgment motions.
7
Requiring Father to wait to appeal the order until after final judgment does not
give Father an insurmountable burden or add to his burden of proving that the district
court erred. Rather, an appellate court reviewing the district court's order changing venue
after final judgment may reverse the decision if Father meets his burden to show an abuse
of discretion and Mother, as the party who benefitted from the error, does not prove it
harmless. See Matson, 301 Kan. at 659.

In summary, we conclude that we cannot exercise appellate jurisdiction over the
district court's change of venue order under the collateral order doctrine. And because the
order changing venue is not a final decision, the appeal must be dismissed for lack of
jurisdiction.

In light of our finding of no jurisdiction, we need not address the additional
contentions Father raised in his appeal, and we decline to do so.

Appeal dismissed.