                         NOT DESIGNATED FOR PUBLICATION

                                           No. 121,117

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         AMBER TORRES,
                                           Appellee,

                                                 v.

                                    ELIZABETH DE SANTIAGO,
                                           Appellant.


                                 MEMORANDUM OPINION

       Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed April 3, 2020.
Reversed.


       Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.


       No appearance by appellee.


Before BUSER, P.J., SCHROEDER and WARNER, JJ.


       BUSER, J.: Amber Torres filed a petition for protection from stalking on behalf of
herself and her minor child against Elizabeth De Santiago. The district court granted the
protection order against De Santiago to be in effect for one year, beginning September
20, 2018. Subsequently, the plaintiff has sought to extend the motion for another year.
The district court has continued the hearing on that motion while keeping the original
order in effect. On appeal, we hold there was insufficient evidence to issue the original
order and, therefore, reverse the district court.




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                       FACTUAL AND PROCEDURAL BACKGROUND

       On July 24, 2018, Torres filed a petition for a protection from stalking order on
behalf of herself and her minor child against De Santiago in the Sedgwick County
District Court. The petition alleged that Torres received text messages that threatened her
life and her daughter's life. The district court granted Torres a temporary ex parte
protection order that same day.


       The district court held a hearing on the motion on August 9, 2018. During the
hearing, Torres stated that she knew De Santiago from high school and the father of her
child is also the father of De Santiago's child. Torres claimed that she had been receiving
harassing text messages from De Santiago suggesting that Torres' daughter would be
taken away and that the child would be motherless and fatherless. Torres stated she
received numerous text messages, starting from the time when she was pregnant. Torres
showed copies of the messages to the district judge, but the text messages are not
included in the record on appeal.


       Torres stated the text messages came from various phone numbers. The district
court noted the text messages could be sent from cell phone apps which hide the identity
of the sender. Torres stated she believed the messages came from De Santiago because of
their content which included details and personal knowledge about Torres' life. Torres
testified that "[t]he text messages we had gotten, they knew way too much for them—for
like someone else to like know about it. It was information that only them [sic] would
have known."


       De Santiago denied sending any text messages to Torres and offered to show her
text message log to the district court. De Santiago admitted that their children shared the
same father but stated that he is no longer involved in her life and she had previously
obtained a restraining order against him.

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       The district court continued the case until September 20, 2018, to determine if
Torres continued to receive harassing text messages. During that time, the temporary
protection order remained in effect.


       At the September 20, 2018 hearing, Torres stated that she had received additional
text messages since the last hearing. Copies of these messages were not admitted in
evidence and do not appear in the record on appeal. At the hearing, Torres stated that
some of the messages included statements from De Santiago's sister that were sent to the
father of their children. Torres also stated that some of the messages say "I," indicating
the text messages were from De Santiago herself. Torres testified that she believed De
Santiago was responsible for the messages because De Santiago was upset that Torres
had a child with the father.


       Torres highlighted one message in particular:


       "[T]he one that you're looking at . . . They're talking about the court. They're talking
       clearly about court. I have not spoken to anyone besides the father of my child and my
       mom about this; and, of course, my job. And that's the reason why they transferred me
       places. That's the only reason I know it's her, because [the messages are] talking about
       court."


       For her part, De Santiago again denied the messages originated from her. De
Santiago argued it was unfair for her to be accused without proof. The following
exchange took place between De Santiago and the district court:


                 "MS. DE SANTIAGO: Right. But like I say, why is it pointed to me? I'm not the
       one doing it.
                 "THE COURT: Because you're the one named.
                 ....




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               "THE COURT: You know, the circumstances show that you have reason to
       harass her. And that she has been harassed. She has the e-mails and the like, showing that
       she's been harassed.
               ....
               "THE COURT: So, you know, there's basically nothing anyone can do. If you
       can go ahead and substantiate that your telephone is not the one that's been using that,
       yes, that's fine. But, you know, it could be someone sitting at a computer in your home
       using it."


       The district court surmised that someone else was also involved. The district judge
stated, "Well, you know, like I said, I have suspicions in my mind that it's somebody else.
And it could be a third woman that you all are probably not even familiar with."
Ultimately, the district court concluded that the preponderance of the evidence showed
that the offending messages came from De Santiago. The district judge addressed De
Santiago:


               "THE COURT: You are the person that these e-mails apparently come from.
       You are the person that has a problem or had a problem with Ms. Torres because you
       both have a man in common.
               ....
               ". . . the evidence showed by a preponderance of evidence that you have been
       stalking Ms. Torres. And so I'm going to have to issue an order. . . .
                ....
                "THE COURT: The evidence has shown the harassment has come from you
       because your name's mentioned; the fact that her boyfriend/your boyfriend, the father of
       her child/the father of your child are the same; the fact that statements are mentioned in
       the texts and the like, that you know, your child's not going to have a daddy or have a no-
       good daddy just like he's been for me. And things like that you know.
               ....
               "THE COURT: Somebody in your life is causing these problems. And you have
       to think in your own mind, who could this be."




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         The district court entered an order for protection from stalking to be in effect for
one year, until September 20, 2019. De Santiago subsequently filed a motion to alter or
amend the judgment. She argued the text messages presented to the court did not prove
that she was the person who sent them to Torres. In response, Torres claimed De
Santiago's motion was untimely, failed to assert new evidence, and failed to explain how
the district court abused its discretion as required by statute.


         At the hearing on the motion to alter or amend, Torres' counsel noted the text
messages had stopped. The district court denied the motion to modify noting that De
Santiago failed to produce new evidence and it did not see any reason to modify the
order.


         De Santiago filed a timely notice of appeal and an appellate brief. Torres did not
file an appellate brief or otherwise respond to De Santiago's appellate arguments.


         During the pendency of this appeal, Torres filed a motion to extend the protection
order for another year. Recent additions to the record on appeal show that during this
time the district court has continued the hearing while keeping the original order in effect.


                                           ANALYSIS

         In this appeal, it is necessary to individually address three issues raised by De
Santiago.


         First, we consider whether this appeal is moot. See State v. Montgomery, 295 Kan.
837, 840, 286 P.3d 866 (2012) (As a general rule, "Kansas appellate courts do not decide
moot questions or render advisory opinions.").




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       The protection order expired on September 20, 2019. During the pendency of this
appeal, however, Torres filed a motion to extend the protection order for another year.
With our approval, De Santiago has filed additions to the record on appeal which show
that the hearing on Torres' motion for extension of the protection order has been
continued. Preemptively, De Santiago contends that consideration of this issue on appeal
is not moot. Based on the recent additions to the record on appeal, we agree that this
matter is not moot but warrants our consideration.


       Second, De Santiago contends the district court did not have subject matter
jurisdiction over the protection from stalking petition because the record does not
establish that the stalking events occurred in Sedgwick County. De Santiago points to the
plain language of K.S.A. 2018 Supp. 60-31a04(a) and (b), which lists the substantive
items a petitioner must include in the petition for protection from stalking when an adult
and minor child is involved. She contends that because Torres never established that the
stalking occurred in Sedgwick County or Kansas the district court had no jurisdiction to
enter either the temporary or final protection order.


       De Santiago raises the jurisdiction issue for the first time on appeal. However,
jurisdictional issues may be raised for the first time on appeal. Kincade v. Cargill, Inc.,
27 Kan. App. 2d 798, 800, 11 P.3d 63 (2000). Our standard of review provides: Whether
jurisdiction exists is a question of law over which our court's scope of review is
unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017).


       Because this case is readily resolved on the merits, we exercise our discretion and
decline to address the procedural matter of jurisdiction. See State v. Sammons, No.
111,591, 2014 WL 7572365, at *2 (Kan. App. 2014) (unpublished opinion); Sherrod v.
Breitbart, 720 F.3d 932, 936-37 (D.C. Cir. 2013) (holding that a court may presume
jurisdiction and reach the merits when the answer to the merits issue is especially clear).


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         Next, we consider the principal issue raised by De Santiago on appeal—whether
there was sufficient evidence to support the issuance of the protection from stalking
order.


         Our standard of review provides that a protection from stalking order is evaluated
under a preponderance of the evidence standard. "As with other civil cases, these facts
need only be proved by a preponderance of the evidence, meaning it is more likely than
not that the facts are true." C.M. v. McKee, 54 Kan. App. 2d 318, 322, 398 P.3d 228
(2017). "On appeal, we generally conclude that the district court has found whatever facts
would support its judgment if those facts are supported by substantial evidence." 54 Kan.
App. 2d at 324. "In considering the sufficiency of the evidence we do not reweigh the
evidence or pass on the credibility of the witnesses. To the contrary, we view the
evidence in the light most favorable to the prevailing party." Wentland v. Uhlarik, 37
Kan. App. 2d 734, 736, 159 P.3d 1035 (2007).


         At the outset, De Santiago contends the district court erroneously relied on text
messages that were testified to by Torres or shown to the district court from photographs
of the texts which were never admitted in evidence. According to De Santiago, although
Torres was appearing pro se, she should be held to the same evidentiary standards as a
licensed attorney. But, to the same effect, De Santiago also appeared pro se at the hearing
and she failed to make a contemporaneous objection to the district court's consideration
of the admissibility of the text messages. K.S.A. 60-404 generally precludes an appellate
court from reviewing an evidentiary challenge absent a timely and specific objection
made on the record. Foster v. Stonebridge Life Ins. Co., 50 Kan. App. 2d 1, 25, 327 P.3d
1014 (2012). This argument was not preserved for appellate review.


         The gravamen of De Santiago's sufficiency of evidence argument is that Torres
failed to prove by a preponderance of the evidence that De Santiago was the individual
who sent the offensive texts. We are persuaded this argument has merit.
                                               7
       We have made an independent review of the evidence presented at both hearings
on the petition. Based on this review, two key findings may be made. First, there was no
direct evidence that De Santiago sent the offensive texts to Torres. In particular, the
sender of the texts did not identify himself or herself in the texts. Moreover, there was no
direct evidence that the texts were sent from De Santiago's cellphone. The district judge
candidly noted the difficulty in proving the identity of the person who sends texts: "Well,
one of the problems is, like I say, there are apps now that you can get that make it seem
that someone's texting you from one phone number . . . and it's not them." The district
court's order was not premised on direct evidence that De Santiago sent the offending
texts. Our review of the evidence confirms the absence of any such direct evidence.


       Second, the only evidence that De Santiago sent the texts was circumstantial in
nature. For example, the district court surmised that because Torres and De Santiago had
children from the same father that De Santiago may have a motive to dislike Torres.
Additionally, Torres testified that based on the content of some of the texts, in her
opinion, De Santiago was the author. The district court ultimately found the
preponderance of evidence showed that De Santiago was involved because the messages
contained information that only she or someone she talked to would know. In particular,
the district court noted that the messages sent after the initial court hearing referred to the
prior court hearing regarding the protection order.


       Despite the district court's finding that De Santiago sent the offensive texts, the
court's statements evaluating the identity evidence undermined its conclusion. For
example, the district judge said to De Santiago:


      •      "Somebody in your life is causing these problems. And you have to think in
             your own mind, who could this be[?]"
      •      "Someone is really working against you. . . . It's very possibly a third
             woman."
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      •      "But the problem is, you know, you could have a cousin or you could have a
             sister or just a friend that could do that."
      •      "Well, you know, like I said, I have suspicions in my mind that it's
             somebody else. And it could be a third woman that you all are probably not
             even familiar with."
      •      "But my suspicions are, there's probably someone else out there, for
             whatever reason. I don't even know the man's name . . . that wants to cause
             tension between you and Ms. Torres."
      •      "I don't know. You'll have to sit back and think. Someone—if someone else
             is doing this, they're doing this to hurt you. . . . And you know, it's someone
             who is acting as a friend. . . . But you know, causing you severe problems."


       The district court's speculative comments underscore the frailty of the
circumstantial evidence that De Santiago sent the offending texts. As identified by the
district court, the number of individuals who had a reason to hurt De Santiago and Torres
by sending the offensive texts was rather large.


       While circumstantial evidence has probative value, we are persuaded that this
evidence was not sufficiently substantive to identify De Santiago as the sender of the
texts. Given the lack of any direct evidence that De Santiago sent the texts, and the
several individuals identified by the district court who may have sent the texts, we are
persuaded that in the light most favorable to Torres, there was not a preponderance of
evidence to support the issuance of the protection from stalking order.


       Reversed.




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