Recent Legal Developments

Recent Legal Developments-Recent Appeals Court Decisions Follow

RECENT KANSAS FAMILY LAW CASES

KANSAS CHILD SUPPORT GUIDELINES CHANGE EFFECTIVE JANUARY 1, 2016
The Kansas Supreme Court has adopted updated child support guidelines that judges will use to determine parents' child support payment obligations beginning January 1, 2016. The updated guidelines reflect changes in spending on children since the guidelines were last updated four years ago. The updates are expected to increase child support obligations by up to 3.5 percent across all income groups. The updated guidelines will be used to determine new child support obligations after their January 1, 2016, effective date. They will not immediately affect existing support obligations, although they may be used when a parent seeks to modify an existing child support order, or the parents' financial circumstances are reviewed by the court. Federal law requires states to review their child support guidelines every four years, and Kansas has reviewed and revised its guidelines nine times since they were initially established in 1989. A 14-member advisory committee spent more than a year reviewing the guidelines and making proposed updates, which were open for public review and comment before the committee made its final recommendations to the court. The committee includes parents who either pay or receive child support, and attorneys, judges, and tax professionals with expertise in child support. An economist with Wichita State University helped with the review by examining data from the U.S. Department of Agriculture that show trends in how parents spend money on children. The economist noted the consumer price index increased by more than 8.5 percent over the last four years. Child support pays for housing, clothing, transportation, recreation, health care, child care, and other expenses that would have been shared by the parents had the family remained intact. The updated child support guidelines, economist's report, and public comment results are available on the Kansas judicial branch website at www.kscourts.org under Programs.

FATHERS ARE AWARDED CUSTODY IN JOHNSON COUNTY DISTRICT COURT
Mr. Walker represented fathers in six separate District Court cases in which the fathers were awarded residential custody of their children. In one, a paternity case, a single father was awarded primary residential custody of his four year old daughter. In another, a divorcing father was awarded primary residential custody of his four children, ranging in age from 12 to 2. In another, father was awarded sole residential custody of his two sons, ages 6 and 8. In August, 2014 a father was awarded primary residential custody of his 8 year old daughter in spite of allegations of his abuse of prescription medications and other alleged m

CHILD SUPPORT-CREDIT FOR LUMP SUM PAYMENT OF ACCUMULATED SSDI BENEFITS-OCTOBER, 2015. In re Marriage of Stephenson & Papineau, ___ Kan. _____, ____ P. 3d _____ (October, 2015), reversing 49 Kan. App. 2d 457, 308 P.3d 1270 (2013). The issue is whether a child-support obligor, who became disabled and applied for social security disability insurance (SSDI) benefits for himself and his dependents may be reimbursed or receive a credit for past child-support payments. The case was remanded to the district court for determination of whether it is in the best interests of the parties' children for father to receive credit, and theoretically reimbursement, from mother for such payments. A district court may, but does not necessarily have to, grant a credit to an obligor who is current on child support when a lump-sum SSDI accrued benefit duplicates the obligor's support payment. A credit, if granted, may be used to offset other support obligations imposed by the court on the obligor. Alternatively, the district court might adjust an obligor's support obligation, require reimbursement of the duplicative payments from funds which are discrete from SSDI benefits, or fashion some other equitable remedy permitted under applicable federal statutes and regulations.

QDRO-Extinguished Judgment. SEPTEMBER, 2015 Marriage of Moore, Docket No. 112,047, 2015 WL _______. (Unpublished Court of Appeals September, 2015). A division of property in a divorce case is a judgment. Even though the court, in its Journal Entry of Judgment dividing property reserved jurisdiction in order to enter additional orders, if necessary, regarding dividing retirement benefits (in this case KPERS), the judgment is still subject to going dormant, K.S.A. 60-2403 (a)(1) and being extinguished. In this case, after the judgment dividing retirement benefits was extinguished by operation of law, the parties entered into an agreement about how to divide certain future retirement benefits, not benefits earned prior to the entry of the now-extinguished QDRO. The court's award of a money judgment to husband for benefits accrued prior to the judgment being extinguished was reversed, the Court of Appeals finding, absent wife's agreement, there was no judgment from which an award could be made.

KANSAS COURT OF APPEALS SUSTAINS DISTRICT COURT DECISION REFUSING TO OVERTURN KANSAS DEPARTMENT OF CHILDREN AND FAMILIES' SUBSTANTIATED FINDING OF ABUSE AND NEGLECT-OCTOBER, 2015.
Sharp v. KDCF, Docket No. 110,504 (Unpublished Kansas Court of Appeals October, 2015).

APPEAL OF TEMPORARY ORDERS-MOOTNESS. Marriage of Hodges, Docket No. 113,884, 2015 WL ________ (Unpublished Court of Appeals December, 2015). Among other things, including finding the district court did not err in awarding custody of the parties' children to their father, the Court of Appeals held issues regarding mistakes or deficiencies in the temporary order granting father temporary custody of the parties' children were moot when the final order in the case was entered. "When the final order was issued, any objections to the temporary order became moot because any judicial action to modify the temporary order after that time would have been ineffectual and would have no impact on either [father] or [mother's] rights. See In re A.E.S., 48 Kan. App. 2d 761, 763, 298 P.3d 386 (2013).

KANSAS TRIAL COURT'S DECISION REGARDING CHILD SUPPORT, MAINTENANCE, AND PROPERTY DIVISION UPHELD
Mr. Walker successfully argued before the Kansas Court of Appeals the trial judge had correctly awarded maintenance and child support, and divided property. The appellate court held, while previous rulings of a trial judge may be numerous and erroneous, they are not alone sufficient to show the required bias or prejudice to disqualify a judge under Kansas statutes. Marriage of Steinbrink.

MODIFICATION OF MAINTENANCE - KANSAS
Mr. Walker successfully argued before the Kansas Court of Appeals that a district court retains the power to modify court-ordered maintenance at any time, despite such right not being specifically mentioned in the trial court's ruling establishing such maintenance. In re Marriage of Ehinger, Syl. 8, 121 P. 3d 467.

EARLY RETIREMENT BENEFITS DIVISIBILITY - KANSAS
Mr. Walker successfully argued before the Kansas Court of Appeals that early retirement benefits in pay status could be considered by the trial court as income, thus included as income in calculating child support and maintenance, but did not as a matter of law have to be considered divisible as property. In re Marriage of Cordray, 2004 WL 1191446, 90 P.3d 379 .

CHILD SUPPORT DECISION OF TRIAL COURT REVERSED ON APPEAL
Mr. Walker successfully argued before the Kansas Court of Appeals that the trial court's failure to consider a father's tax returns and small business income, in calculating child support, was reversible error. This resulted in the case being reversed and remanded to the trial court for further decision. Marriage of Hutson, Case No. 95,690.

GRANDPARENT VISITATION RIGHTS CHANGED SEPTEMBER, 2015
The Kansas Court of Appeals holds that a 2012 amendment to the state statutes which eliminated the district court's long-held authority to order grandparent visitation of minor children whose parents never married, while continuing to authorize courts to order grandparent visitation of children whose parents have been married, discriminates based on a child's legitimacy and is therefore a violation of the Equal Protection Clause of the United States Constitution. T.N.Y. and Z.H. v. E.Y., L.D. and R.D., Docket No.113,099.

LIMITED CASE MANAGER QUALIFICATIONS OCTOBER, 2015
One appointed by the court as a limited case manager, whose qualifications do not meet the statutory requirements, is not qualified to make recommendations to the district court regarding residency of children. Owens v. Owens, Docket No. 113,026.

POLICY LIMITS SETTLEMENT IN CLOSED-HEAD INJURY CASE
Mr. Walker obtained policy limits plus a personal contribution from the negligent driver, in settling a case for an unhelmeted motorcycle driver who was injured when the other driver turned in front of him, causing permanent closed-head injury.

CLOSED-HEAD INJURY SETTLEMENT REACHED
Another closed-head injury settlement was reached for a tenant injured by a falling cement block in an apartment complex laundry room.

POLICY LIMITS SETTLEMENT REACHED
The firm reached a policy limits settlement in a vehicular collision in which the negligent driver fell asleep at the wheel, causing serious injury to her passenger.

SEMI-CAR COLLISION YIELDS MULTIPLE SIX FIGURE SETTLEMENT
A collision between a semi-tractor-trailer and car, which resulted in non-operated neck and back injuries to the driver of the car, resulted in a multiple six figure settlement for the car's driver, who was represented by Mr. Walker in Jackson County Circuit Court.

SEMI-PICKUP COLLISION RESULTS IN MULTIPLE SIX-FIGURE SETTLEMENT
Mr. Walker helped a man and his wife reach a multiple six figure settlement through mediation, for back and leg injuries the young father suffered, resulting from the collision of a semi-tractor-trailer with the pickup truck he was driving down a country road
in Ray County, Missouri.

REAR-END COLLISION POLICY LIMITS SETTLEMENT REACHED
In April, 2013 Mr. Walker reached a policy-limits settlement with both the insurance company for the negligent driver who collided with his client, and settled with the underinsured motorist's insurance carrier for his own client. The obvious lesson here is to never waive under- or- uninsured motorist insurance coverage with your own auto insurance carrier. In this low impact, less-than-$500.00 property damage case, Mr. Walker's client suffered serious permanent injury for which the negligent driver's liability insurance was inadequate.

Case Manager's Report-no need for hearing when report doesn't change status quo.Eck v. Eck, Docket No. 112,902, 2016 WL ___________, (Unpublished Court of Appeals January, 2016). Parents divorced in 2006. As part of that proceeding, the case manager recommended father have primary custody. In 2013, mother asked the case manager "to issue a recommendation reevaluating the custody arrangement with the hope she would be awarded primary custody. The case manager made a recommendation, which was to leave the arrangement as it was. Mother filed a "generic," non-specific objection to the recommendation, which the court overruled without a hearing. Mother appeals, claiming her due process rights were violated by the court's failure to hold a hearing. "After [mother] filed her objection, the district court initially set the matter for an evidentiary hearing. The case then came before a different judge ...for a prehearing conference. At the prehearing conference [that judge] concluded an evidentiary hearing on the objection was unnecessary because the case manager's recommendation did not change the parenting arrangement." The district court made custody rulings in 2011 to which mother did not object. The case manager recommendations in 2013 were no different than in 2011. "Janise filed an objection to the case manager's recommendations ...which was perfunctory and stated no basis justifying a request for a hearing. There were no specific factual allegations made or any showing of disputed material facts at oral argument which would justify an evidentiary hearing." The district court reviewed the current recommendations of the case manager, found there had been no change, accepted the recommendations of the case manager, and ruled no further hearing was necessary, a result with which the Court of Appeals agreed. LESSON: If one truly has grounds to object to the case manager's recommendations, state them, and any disputed facts, in the objection and request for hearing thereon filed with the district court.