Kerschen v. Uwadia

1

NOT DESIGNATED FOR PUBLICATION

No. 119,629

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRIE A. KERSCHEN, on Behalf of Z.U.,
Appellee,

v.

KINGSLEY UDUZEI UWADIA,
Appellant.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; CLARK V. OWENS II, judge pro tem. Opinion filed August
23, 2019. Appeal dismissed.

Jennifer A. Wagle, of Wagle & Turley, LLC, of Wichita, for appellant.

Richard K. Thompson and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P.,
of Wichita, for appellee.

Before ATCHESON, P.J., HILL and BUSER, JJ.

PER CURIAM: This is an appeal of a protection from abuse order. For the reasons
explained in the opinion, we hold the appeal is moot and must be dismissed.

Brie A. Kerschen sought a protection from abuse order on behalf of her 15-year-
old daughter against Kingsley Uduzei Uwadia, alleging that he caused or attempted to
cause his daughter bodily injury and placed her in fear of imminent bodily injury.
Kerschen cited ongoing physical abuse by Uwadia that included a closed-fist punch to
their daughter's face, and a specific incident in August 2017.
2

After the district court found that Uwadia caused his daughter substantial physical
pain by hitting her on her leg and that he was not merely imposing discipline, the court
issued a protection from abuse order. Uwadia appeals.

While this appeal was pending, Kerschen notified the court that her daughter had
died. The motions panel of this court directed Uwadia to explain why this appeal was not
moot even though the protection order had expired and his daughter was deceased. He
responded that the case is not moot because his rights to custody of his other two children
could be affected based on the finding of abuse here. The motions panel retained the
appeal without ruling on mootness.

We hold the appeal is moot. A review of the applicable law highlights why.

An appeal is moot if "it is clearly and convincingly shown the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and it would not impact any of the parties' rights." Wiechman v. Huddleston, 304 Kan. 80,
84, 370 P.3d 1194 (2016). Here, with the death of the parties' daughter, she can no longer
be the subject of the issuance of any future order of protection, and any current order of
protection expires upon her death. In other words, with the death of the real party in
interest, Z.U., the case is moot.

Our policy is clear—Kansas appellate courts do not decide moot questions or render
advisory opinions. The mootness doctrine recognizes that the role of the court is to
"'determine real controversies relative to the legal rights of persons and properties which
are actually involved in the particular case properly brought before it and to adjudicate
those rights in such manner that the determination will be operative, final, and
conclusive.'" State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).

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Our Supreme Court has given us guidance on this point when it ruled that issues
on a protection order that has expired are moot. Smith v. Martens, 279 Kan. 242, 106 P.3d
28 (2005). But a court can consider moot issues that are a matter of public importance
and capable of repetition. The Martens court, for example, chose to address the
constitutionality of the Protection from Stalking Act, K.S.A. 60-31a01 et seq., but
dismissed the remaining issues on the protection order as moot because it had expired.
279 Kan. at 244-45. In other words, important public issues that can be repeated can be
addressed by the courts even in a moot case.

Using the same technique, a panel of this court in Jordan v. Jordan, 47 Kan. App.
2d 300, 304, 274 P.3d 657 (2012), took up the appeal of a one-year extension of a
protection order because, although the extension order had expired, the issue about the
quantum of proof required to support a one-year extension was capable of repetition and
was of public importance. Therefore, the court addressed the issue.

We see no question of public importance arising here. Instead, Uwadia contends
his rights to custody of his other two children could be affected based on the finding of
abuse here. He also contends there was insufficient evidence to support the court's
finding that he had caused his daughter substantial pain. We question whether this is
sufficient grounds to continue this moot appeal.

It is true that rights vital to the parties have been recognized by this court as a
reason to consider a moot issue if dismissal of the appeal would adversely affect those
rights. See Skillet v. Sierra, 30 Kan. App. 2d 1041, 1046-47, 53 P.3d 1234 (2002). Even
with this recognition, the Skillet court dismissed a protection from abuse appeal as moot
when the order had expired and any issues involving the child could be resolved in an
ongoing paternity case. 30 Kan. App. 2d at 1046, 1048. Likewise, the issues between this
mother and father involving their daughter and this incident have expired with her death.
Like the Skillet court, these issues can be addressed in other legal proceedings.
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The only case that offers some support for Uwadia's position is Kaster v. Riley,
No. 117,008, 2018 WL 672106, at *4 (Kan. App.) (unpublished opinion), rev. denied 308
Kan. 1595 (2018). The Kaster court considered an expired protection from stalking order
because a finding that a person is a stalker or involved in stalking behavior can have
long-term consequences for that person. The court recognized that in any future
protection from stalking cases or criminal cases incorporating that behavior, such a
determination could have a substantial impact on the court's perception of that person,
what charges could be filed, or sentences might be entered. We distinguish Kaster
because this is not a stalking case.

Finally, we decline the invitation to speculate about what may or may not occur
between Uwadia and Kerschen in the future. See S.N. v. Ehling, No. 114,412, 2016 WL
5867481, at *3 (Kan. App. 2016) (unpublished opinion).

No exception to the mootness doctrine applies here. We dismiss this appeal as
moot.

Dismissed.