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Marci Frazier v. Kelly Goudschaal

February 22, 2013


Appeal from Johnson District Court; KEVIN P. MORIARTY, judge.


SYLLABUS BY THE COURT 1. Subject matter jurisdiction refers to the power of a court to hear and decide a particular type of action. Jurisdiction over subject matter is the power to decide the general question involved and not the exercise of that power. 2. The existence of jurisdiction and standing are both questions of law over which an appellate court's scope of review is unlimited. 3. In this state, a district court has the authority to make an equitable division of property that nonmarried cohabitants accumulated while living together, but only to the extent that such property was jointly accumulated by the parties or acquired by either with the intent that both should have an interest therein. 4. The jurisdiction of equity to grant specific performance of contracts, or to reform or cancel them in a proper case, is well settled. 5. A court may exercise its jurisdiction over a contractual dispute in order to evaluate the contract's legality. Contracts are presumed legal, and the burden rests on the party challenging the contract to prove it is illegal. 6. Under the Kansas Parentage Act (KPA), any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. K.S.A. 38-1126. A woman claiming to be a presumptive mother of a child is an interested party under the KPA. 7. The public policy in Kansas requires our courts to act in the best interests of the child when determining the legal obligations to be imposed and the rights to be conferred in a mother and child relationship. After a family unit fails to function, the interests of the children involved become a matter for the State's intrusion in order to avoid jeopardizing the children if a parent's claim for the children is based solely or predominantly on selfish motives. 8. The interpretation and legal effect of written instruments are matters of law, subject to unlimited appellate review without regard to the trial court's determination. 9. Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts that are lawful and that contravene none of its rules shall be enforced and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless it is injurious to the interests of the public or in contravention of some established interest of society. Illegality from the standpoint of public policy depends upon the facts and circumstances of a particular case, and it is the duty of courts to sustain the legality of contracts where possible. There is no presumption that a contract is illegal, and the burden of showing the wrong is upon the party who seeks to deny his or her contractual obligation. The presumption is in favor of innocence, and the taint of wrong is a matter of defense. 10. A parent may knowingly, intelligently, and voluntarily waive his or her rights under the Kansas parental preference doctrine. 11. A coparenting agreement is not automatically rendered unenforceable as violating public policy merely because it contains the biological mother's agreement to share the custody of her children with another, so long as the intent and effect of the arrangement will promote the welfare and best interests of the children. 12. Denying a child conceived by artificial insemination the opportunity to have two parents through a coparenting agreement does not comport with the constitutional mandate to provide substantive legal equality for all children regardless of the marital status of their parents. 13. Under the specific facts of this case, the coparenting agreement between the biological mother and her same-sex partner contained no element of immorality or illegality and did not violate public policy, but rather the contract was for the advantage and welfare of the children, rendering it enforceable by the district court to the extent it is in the best interests of the children.

The opinion of the court was delivered by: Johnson, J

Affirmed in part and remanded with directions.

The opinion of the court was delivered by

Kelly Goudschaal and Marci Frazier were committed to a long-time, same-sex relationship, during which they jointly decided to have two children via artificial insemination. In conjunction with the birth of each child, the couple executed a coparenting agreement that, among other provisions, addressed the contingency of a separation. A few months after the couple separated, Goudschaal notified Frazier that she was taking the children to Texas, prompting Frazier to file this action, seeking inter alia to enforce the coparenting agreement. The district court's final order divided all of the women's property, awarded the couple joint legal custody of the two children, designated Goudschaal as the residential custodian, established unsupervised parenting time for Frazier, and ordered Frazier to pay child support. Goudschaal appeals, questioning the district court's division of her individually owned property and challenging the district court's jurisdiction and authority to award joint custody and parenting time to an unrelated third person. We find that the district court had the legal authority to enter its orders, but we remand for further factual findings.


The Parties' Relationship

The relationship of Frazier and Goudschaal began in 1995. At some point, the couple decided to start a family, utilizing assisted reproductive technologies (ART) in the form of artificial insemination. Originally, the plan was for both women to become pregnant, so that they could share a child from each partner. But when Frazier was unable to conceive, they mutually agreed that Goudschaal would bear both children. In 2002, Goudschaal gave birth to their first daughter; their second daughter was born in 2004.

Before the birth of their first daughter, Frazier and Goudschaal signed a coparenting agreement. In 2004, the couple executed another coparenting agreement that made provisions for the second child. That agreement identified Frazier as a de facto parent and specified that her "relationship with the children should be protected and promoted"; that the parties intended "to jointly and equally share parental responsibility"; that each of the parties "shall pay the same percent of [child] support as her net income compares to [their] combined net incomes"; "that all major decisions affecting [the] children . . . shall be made jointly by both parties"; and that in the event of a separation "the person who has actual physical custody w[ould] take all steps necessary to maximize the other's visitation" with the children. In addition, both a consent for medical authorization and a durable power of attorney for health care decisions were executed. Further, each woman executed a last will and testament that named the other as the children's guardian.

Goudschaal, Frazier, and the two children lived together as a family unit. The adults jointly purchased a home, jointly owned personal property, and shared bank accounts. Although Frazier was primarily responsible for handling the couple's financial transactions, both parties contributed to the payment of bills and to the educational accounts for the children. For their part, the children used their legal surname of "Goudschaal-Frazier," and, notwithstanding the absence of a biological connection, both children called Frazier "Mother" or "Mom." The teachers and daycare providers with whom the family interacted treated both Frazier and Goudschaal as the girls' coequal parents.

At some point, the adults' relationship began to unravel, and by September 2007, Frazier and Goodschaal were staying in separate bedrooms. In January 2008, Goudschaal moved out of their home. For nearly half a year thereafter, the women continued to share parenting responsibilities and maintained equal parenting time with the girls. In July, however, Goudschaal began to decrease Frazier's contact with the girls, allowing her visitation only 1 day each week and every other weekend. Finally, in October 2008, Goudschaal informed Frazier that she had accepted a new job in Texas and intended to move there with both girls within a week. Frazier responded by seeking relief in the Johnson County District Court.

Proceedings in the District Court

Frazier first filed a petition to enforce the 2004 coparenting agreement. She also filed a separate petition for equitable partition of the couple's real and personal property. The first petition was later dismissed, and the petition for partition was amended to include the request to enforce the coparenting agreement. Goudschaal responded with a motion to dismiss, claiming that the district court lacked subject matter jurisdiction to address Frazier's requests for child custody or parenting time and arguing that the court could not properly divide certain portions of the parties' individually titled property.

The district court denied Goudschaal's motion to dismiss, opining that the district court had "two separate and independent bases for jurisdiction." First, the court held that the petitioner had invoked the court's equitable jurisdiction to determine whether "highly unusual or extraordinary circumstances" existed which would permit the court to apply the best interests of the child test to grant Frazier reasonable parenting time, notwithstanding the parental preference doctrine.

Secondly, the district court found jurisdiction under the Kansas Parentage Act (KPA), K.S.A. 38-1110 et seq., to consider Frazier's claim that she is a nonbiological parent. Specifically, the district court pointed out that K.S.A. 38-1126 provides that "[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship." (Emphasis added.) The court considered Frazier as having interested party status by virtue of her claim that she has notoriously and in writing acknowledged the mother and child relationship with these children. See K.S.A. 38-1113(a) (motherhood can be established "under this act"); K.S.A. 38-1114(a)(4) (paternity can be established by notoriously or in writing recognizing that status); and K.S.A. 38-1126 (insofar as practicable, the provisions of the KPA applicable to the father and child relationship also apply to the mother and child relationship).

At the hearing on the petition, in addition to presenting the coparenting agreement, the parties stipulated to the value of the house and proffered evidence regarding all their assets and liabilities, such as retirement accounts, tax returns, mortgages, and income. The district court concluded that the parties lived and operated as a couple who had comingled their assets and thus each had an equitable interest in the other's financial accounts. The court noted that "[e]ach party received the benefit of sharing bills and responsibilities in a family setting." As a result, the court concluded it would result in unjust enrichment if the assets and liabilities were not equitably divided. Accordingly, the court ordered an equalization payment of $36,500 to Frazier and assigned $60,000 of the second mortgage debt on the house to Goudschaal. The debt assignment was required because, as the court acknowledged, Goudschaal's retirement account could not be divided with a nonspouse.

Regarding the children, the district court determined that an award of joint custody was in the best interests of the children. Goudschaal was awarded residential custody. Frazier was ordered to pay monthly child support and was granted reasonable parenting time. After Frazier resumed visitation with the girls, they began to experience behavioral problems that prompted their being placed in therapy. However, the record does not contain any reports from that therapist.

Goudschaal appealed the district court's decision. The appeal was transferred to this court on its own motion. K.S.A. 20-3018(c).

Arguments on Appeal

Given the manner in which the arguments have been presented to us and to assure the parties that we have considered all of their respective arguments, we take the liberty of beginning by summarizing the parties' arguments on appeal.


Goudschaal's brief to this court asserts two issues, albeit the first issue is divided into subparts. The overarching complaint on the first issue is that the district court violated Goudschaal's constitutionally protected parental rights when it awarded joint custody and parenting time to a non-parent, i.e.,Frazier. Goudschaal summarily dismisses the coparenting agreement by declaring that "an action to enforce a co-parenting agreement . . . is not a cause of action recognized by Kansas courts."

Citing to Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), Goudschaal starts with the premise that child custody is a parent's fundamental right, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and that such protection includes the right to make decisions concerning one's children's care, custody, and control. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Relying on state law applying a parental preference doctrine and the notion that parents are presumed to do what is best for their children, Goudschaal then contends that the State cannot interfere with a biological parent's fundamental right to the care, custody, and control of his or her children unless there has been a judicial finding that the natural parent is unfit, which did not occur in this case.

Goudschaal asserts that she is the only person with the constitutionally protected status of parent of her children and that Frazier is simply an unrelated third party.

Goudschaal refuses to accept that the KPA would permit a person who is not the biological mother of a child or who has not legally adopted the child to become a "mother" within the meaning of the KPA. Specifically, she contends that any presumption arising from a notorious or written acknowledgment of maternity is always rebutted if there is another female who is the known and undisputed birth mother. In other words, Goudschaal argues that known biological lineage always and definitively trumps any statutory presumption of parenthood. She suggests that nothing in the KPA provides for there to be two mothers, as the district court suggested. Finally, and perhaps more fundamentally, Goudschaal suggests that the question of whether Frazier could be a parent under the KPA is academic because the district court never made that explicit finding in this case.

Goudschaal then argues that, by not qualifying as a legal parent, Frazier has no standing to petition for custody of a child who is not a child in need of care and who has a natural parent who is not alleged to be unfit. Goudschaal points out that this court has said that "'[i]n the absence of an adjudication that a natural parent is unfit to have custody of a child, the parent has the paramount right to custody as opposed to third parties . . . .'" In re Guardianship of Williams, 254 Kan. 814, 826, 869 P.2d 661 (1994) (quoting Herbst v. Herbst, 211 Kan. 163, 163, 505 P.2d 294 [1973]). Likewise, Goudschaal recites that "'[t]here is no mechanism for a third party to intervene in the relationships of an intact family that has not subjected itself to judicial intervention or failed society's minimal requirements for adequate parenting.' Morris, Grandparents, Uncles, Aunts, Cousins, Friends: How is the court to decide which relationships will continue?,12 Family Advocate 11 (Fall 1989)." In re Hood, 252 Kan. 689, 691, 847 P.2d 1300 (1993).

Continuing in the same vein, Goudschaal avers that the district court erred in finding that it had equitable jurisdiction to award visitation to a third party such as Frazier. Pointing to Hood, Goudschaal contends that there is no common-law right of third-party visitation, but rather those rights have to originate with the legislature. See 252 Kan. at 693-94. Additionally, she quotes from our Court of Appeals, in State ex rel. Secretary of Dept. of S.R.S. v. Davison, 31 Kan. App. 2d 192, Syl. ¶ 3, 64 P.3d 434 (2002): "Third-party visitation is a creature of statute and in derogation of a parent's constitutional right to direct the upbringing of his or her children. Third-party visitation statutes must, therefore, be strictly construed." Moreover, Goudschaal warns that if courts entertain visitation requests based on what is in the best interests of the children, that will "open[] a floodgate without establishing any boundaries," and the result will be an increase in the intrusion by the courts into a family's private life caused by "ex-boyfriends, ex-girlfriends, aunts, uncles, guardians, teachers, daycare providers, nannies, or any other individuals who have formed a relationship with the child."

The remedy Goudschaal seeks is for this court to vacate the district court's order granting Frazier joint custody and parenting time. She does not mention vacating the portion of the order that requires Frazier to pay her child support.

For her second issue, Goudschaal complains that the district court treated the division of the parties' assets as if it were a marital dissolution by adding up all of the assets, subtracting all of the debts, and dividing the remainder in half. She contends that our caselaw has invested district courts with authority to divide the property of cohabitants only to the extent that such property was "jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein." Eaton v. Johnston, 235 Kan. 323, Syl. ¶ 2, 681 P.2d 606 (1984). Although Goudschaal concedes that the largest asset, the residential real estate, was a jointly acquired, divisible asset, she complains that the parties' retirement accounts and insurance policies were separate, individual accounts. She asks for the case to be remanded for a reconsideration of the division of assets, applying the appropriate standard.

As an aside, the parties appear to overlook the irony of Goudschaal's concession that Kansas courts have jurisdiction over the jointly acquired property of cohabiting adults, while arguing that those same courts cannot acquire jurisdiction over the children brought into existence by the same cohabiting adults. Nevertheless, that is Goudschaal's position on appeal.


Frazier sets up her brief with seven issues, six of which address various aspects of the overarching question of whether the district court had the jurisdiction and authority to award her joint custody and parenting time. The final issue discusses the division of property.

In her first issue, Frazier asserts that the KPA provided a basis for the district court's exercise of jurisdiction in this case. She acknowledges the absence of an explicit statement from the district court declaring Frazier to be a parent within the meaning of the KPA. Nevertheless, she argues that such a ...

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