Recent Legal Developments

RECENT CASES

ACQUIESCENCE IN JUDGMENT—Right to Appeal Lost. Welliver v. Dickerson, Docket No. 116,567 (Unpublished Court of Appeals, September, 2017) 2017 WL 3822965. Wife was ordered to pay husband a sum of money as an equalization payment. She paid that sum into the district court clerk. Husband filed a written request with the court clerk and asked to be paid the deposited sum. He received the funds on the same day he requested them. By so doing, he voluntarily accepted the benefit of the judgment, therefore losing the right to appeal. His appeal was dismissed. See Uhlmann v. Richardson, 48 Kan. App. 1, 17, 287 P. 3d 287 (2012).

ANNULMENT—Sham (for example, "green card") Marriages are Voidable Under K.S.A. 23-2702(b). Kidane v. Araya, 53 Kan. App. 2d 341, 389 P. 3d 212, Docket No. 114,986 (Court of Appeals January, 2017). "Annulment is a judicial determination to set aside a marriage which was invalid at its inception because of some defect existing at the time of the marriage. A divorce dissolves a lawfully established marriage. A void marriage is a marriage that is invalid from its inception, cannot be made valid, and can be terminated by either party without obtaining a divorce or annulment. A voidable marriage is a marriage that is initially invalid but that remains in effect unless terminated by court order. A sham marriage is a purported marriage in which all the formal requirements are met or seemingly met but in which the parties go through the ceremony with no intent of living together as husband and wife. A ‘green card’ marriage is a slang term for a sham marriage in which a United States citizen marries a foreign citizen for the sole purpose of allowing the foreign citizen to become a permanent United States resident. Sham marriages are voidable under K.S.A. 23-2702(b). Annulment proceedings are no longer equitable in nature [and have not been since 1963]. Such causes of action are now governed solely by statute." Therefore, equitable doctrines, for example, the "clean hands doctrine," is not applicable. In this case, Judge Hauber determined both parties had participated in a fraud upon the court. He determined that their actions constituted felonies: that is, that "the sole purpose of the marriage is to commit a fraud on immigration authorities whose duty it is to issue green cards which allow persons to legally remain in the United States. Such a marriage has an illegal purpose which is clearly contrary to public policy." Further, the equitable defense of the "clean hands doctrine" does not apply to a statutory claim.

ATTORNEY FEES – Evidence Required. In the Matter of the Marriage of Emerson, Docket Nos. 118,219 and 118,381, 2018 WL 3485663 (Unpublished Court of Appeals July 20, 2018). Attorney fees in a divorce case may be awarded under K.S.A. 23-2715. An award cannot be made without evidence to support the request. There must be testimony or other documentation to substantiate the reasonableness of attorney fees awarded by the court. Fees which are not supported by meticulous, contemporaneous time records identifying the specific tasks being billed should not be awarded. Davis v. Miller, 269 Kan. 732, 748, 7 P.3d 1223 (2000). The criteria contained in Kansas Rules of Professional Conduct, Rule 1.5(a) should be considered by the court. It would appear that if the court had recited that it had considered the requirements as contained in that Rule, and had a copy of the attorney’s bill, in the form of an affidavit, those requirements would be met. In a family law case, the district court may award attorney fees to either party "as justice and equity require." Further, because the district court has authority to grant attorney fees, the Court of Appeals has authority to award attorney fees for services on appeal.

ATTORNEY FEES----Awarded by Appeals Court for Protracting Litigation. In the Matter of the Marriage of Hamdeh, Docket No. 111,998, 2016 WL 6651514 (Unpublished Court of Appeals, November, 2016). Wife incurred substantial attorney and expert witness fees in order to prove what husband knew all along, which was the actual marriage date of the parties. He knew that the parties had been married in Lebanon on January 7, 2003. He caused "protracted litigation over the date of the marriage for the purpose of attempting to enforce an alleged ‘prenuptial’ agreement signed by the parties in June 2003, when, in fact, the parties were married on January 7, 2003." Then, in opening statements of the trial on the prenuptial agreement, Hussein’s (husband’s counsel?) counsel admitted the date of the marriage was January 7, 2003. The court of appeals sent the case back to the district court with instructions to hold an evidentiary hearing to determine the reasonable amount of wife’s attorney fees and expenses incurred as a result of the litigation over the date of the marriage, and to award fees and expenses to the wife. The district court abused its discretion in failing to award wife attorney fees and expenses associated with proving the date of the marriage.

CHILD SUPPORT—Business Expenses for Self Employed. Marriage of Crainshaw, Docket No. 114,470, 2017 WL 839521 (Unpublished Court of Appeals Opinion, March, 2017—Judge O’Grady). Father filed a post-trial motion to modify (or eliminate) maintenance, and to modify child support. He was a self-employed repair person/contractor. At the time of trial, his wife was not working. He alleged his health had deteriorated since the time of trial; that he did not own a television, electronic tablets, or golf clubs, did not have health insurance, life insurance, disability insurance, worker’s compensation or long term care insurance. The only insurance he had was on the truck used for his business. He had to live with his mother. Since the trial his ex-wife had become a para educator, working 32 ½ hours a week, 36 weeks a year, at $12.63 an hour. The trial court reduced spousal maintenance to $400.00 per month, from $700.00 per month, and reduced child support. The trial court has the discretion to determine whether depreciation should be deducted as a reasonable business expense. In this case, the court found that it was not reasonable. Father also argued that costs for transportation, phone and internet, bookkeeping and accounting, and equipment depreciation should have been deducted, as that each were reasonably necessary for his production of income. The court said "this court is not typically persuaded that the mileage tax deduction for a vehicle is appropriate. Often this amount, again a legitimate tax write-off, is not an accurate reflection of actual expenditures." Vehicle and trailer insurance, registration and personal property taxes were actual expenses, but they added up to less than the federally allowed 56 cents per mile mileage rate. Therefore, the court did not allow the mileage rate, as the actual expenses were less than the "mileage rate." The court did not allow "phone expenses as there was no evidence that father would not have a cell phone anyway or that he was paying anything extra for special service." Because the amounts claimed for accounting and bookkeeping expenses seemed high for a small business, and were increased as a result of litigation, because the court had no way of knowing what charges would have been incurred for accounting and bookkeeping but for the litigation, they were not allowed. Wife argued in her brief that husband had failed to present any evidence to support a contention that he historically had to replace expensive fixed assets on some type of a regular schedule, an argument with which the trial court apparently agreed. The only fault the Appellate Court had with Judge O’Grady was that he did not give a reason for denying father’s request to make the modification of maintenance retroactive. Because the Appellate Court could not determine whether the court’s refusal to make the award retroactive was arbitrary, fanciful or unreasonable, or based on an error of fact or law, because no reasons were given, the case was remanded to the District Court on the narrow issue for the District Court to make specific findings as to why it did not make the modification in the maintenance award retroactive as requested.

CHILD SUPPORT-Educational expenses—Jurisdiction to Modify Agreement Providing for Payment of Educational Expenses Beyond Age 18. In the Matter of the Marriage of Williamson and Williamson, Docket No. 115, 518, 2016 WL 7429527 (Unpublished Court of Appeals December, 2016). "Where educational expense obligations of a parent are extended past the age of majority by an agreement incorporated into the decree of divorce, the trial court has no jurisdiction, once the child has reached majority, to modify the agreement to make education expense payments under K.S.A. 23-3001. The exception would be when the parties reserved the power to make a subsequent modification in the agreement or when the parties mutually agreed to a subsequent modification." In this case, father and mother agreed to pay an equal share of college expenses for their two children. Father, more than two years after entry of the decree, filed a motion to modify that obligation on the grounds he could no longer afford it. The district court held it had no jurisdiction to modify the agreement. The Court of Appeals agreed.

CHILD SUPPORT-Extracurricular activities expense in addition to regular child support. In the Matter of the Marriage of Hou and Chu, Docket No. 118,083, 2018 WL 2170812 (Unpublished Court of Appeals May 11, 2018 - O’Grady). As part of a child support decision for the parties’ divorce, the court ordered father to share in the expenses of extracurricular activities in addition to his regular child support payments. Father appealed, claiming that extracurricular activities are already included in child support payments, Kansas Child Support Guidelines, § II. A. (2018 Kansas Supreme Court Rule 79). In re Marriage of Ronen, 29 Kan. App. 2d 443, 446, 26 P.3d 1287 (2001). However, a district court can deviate from the amount of child support determined through use of the Guidelines. In re Marriage of Skoczek, 51 Kan. App. 2d 606, 614. A district court must justify any deviation through specific written findings in the journal entry as to how the deviation is in the child’s best interests. 51 Kan. App. 2d at 608. Such findings are reviewed for substantial competent evidence. Failure to make such written findings is considered reversible error. In this case the district court properly deviated from the child support calculation because it made written findings in multiple journal entries for why it deviated, and those written findings were supported by substantial competent evidence. The court explicitly determined that it was in the children’s best interests to remain involved in extracurricular activities, and they could not do so unless the father paid for part of them, in addition to his ordinary child support. Having father pay for extracurricular activities in addition to his regular child support payments was not part of the "special needs adjustment". It was not an adjustment at all under § IV. E. of the guidelines. Instead, the district court used its inherent power to deviate from the guidelines based on the best interests of the children, which was supported by written findings and substantial competent evidence. A father may also be ordered to share equally in private school expenses in addition to his regular child support payments, In re Marriage of Ballinger, Docket No. 116,904, 2017 WL 4455160 at page 3 (Unpublished Kan. App. 2017). The reasoning is that courts may deviate from the Guidelines when done in writing; district courts are in the best position to decide child support issues, including what is in the child’s best interest; the district court’s decision is reasonable; and private school is more expensive than public school.

CHILD SUPPORT—Income definition for self-employed-"non-liquid capital gains". In the Matter of the Marriage of Dean and Dean, Docket No. 118,406, 2018 WL 3946236 (Unpublished Court of Appeals August, 2018). The district court excluded "non-liquid capital gains" from father’s income for purposes of calculating child support. The court of appeals found this was error. Gross income for self-employed parents is "income from self-employment and all other income including that which is regularly and periodically received from any source." Kansas Child Support Guidelines §§ II.E.1., II.E.3. (2018 Kan. S. Ct. R. 82). The Child Support Worksheet (2018 Kan. S. Ct. R. 112) guides the calculation of the child support obligation. Self-employment gross income is recorded on Line B.1 and is then reduced by the "reasonable business expenses" recorded on Line B.2 to yield the "domestic gross income." A court may deviate from the Line D.9 child support amount if it finds, from relevant evidence, that a deviation would serve the best interests of the child, but it must make written findings explaining the deviation. Kansas Child Support Guidelines § I (2018 Kan. S. Ct. R. 79). However, appellate decisions tell the district court where it may exercise discretion, for example, with the equal parenting time adjustment, In re Marriage of Skoczek, 51 Kan. App. 2d 606, 608, 351 P.3d 1287 (2015), and in whether to include depreciation in income, In re Marriage of Wiese, 41 Kan. App. 2d 553, 554, 203 P. 3d 59 (2009), and what accounting method to use in making such determination, and in whether to include an individual’s share of a Subchapter S corporation. In re Marriage of Brand, 273 Kan. 346, 356, 44 P. 2d 321 (2002). Excluding an increase in equity from income permits the payor of child support to build up equity at the expense of the child because the payor can defer income until the child reaches the age of majority. 273 Kan. at 356-57. The Guidelines do not grant the court the discretion to exclude non-liquid capital gains from rental income received by self-employed persons. The underlying policy concern is the impermissible shielding of income.

CHILD SUPPORT MODIFICATION—Dismissal for Failure to Prosecute—Abuse of Discretion Standard on Appeal. In the Matter of the Marriage of Tubbesing, Docket No. 115,232, 2017 WL 383412, (Unpublished Court of Appeals February, 2017- Gyllenborg). Mother’s Motion for Modification of Child Support, after repeated continuances, was dismissed by the district court for lack of prosecution after 18 months. Mother argued the district court abused its discretion in dismissing the motion. Specifically, mother argued that the District Court made an error in law in relying on K.S.A. 60-241(b) as authority for dismissing the motion, thereby abusing its discretion. The appellate court concluded "the dismissal of the motion for lack of prosecution-under either K.S.A. 60-241(b) or under the district court's inherent powers-was reasonable." The motion was on file for 18 months. The Kansas Court of Appeals pointed out the United States Supreme Court decision that "courts have an inherent power to dismiss proceedings for lack of prosecution as part of their duty ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’" Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). The Kansas Supreme Court takes the same position. Coutts v. Crider, 219 Kan. 692, 695, 549 P.2d 1019 (1976). In other words, the court does not have to rely on a specific statute in order to exercise its inherent power to dismiss cases for lack of prosecution.

CHILD SUPPORT MODIFICATION-- Sanctions for Failure to Disclose Changes. Silliman v. Silliman, Docket No. 117,373, 2017 WL 4455300 (Unpublished Kansas Court of Appeals October, 2017-Wonnell). Since 1994, The Kansas Child Support Guidelines have provided that "[a] parent shall notify the other parent of any change of financial circumstances including, but not necessarily limited to, income, work-related childcare costs, and health insurance premiums which, if changed, could constitute a material change of circumstances." KCSG § V.B.1. Until the April, 2012 amendments, the guidelines did not provide the court with authority to sanction a parent for failure to disclose a material change of circumstances. In April, 2012, the Kansas Supreme Court adopted Administrative Order 261, which added § V.B.2. to the KCSG. This section now appears in Administrative Order 287 (effective September 1, 2016), and provides not only that the court "may determine the dollar value of a party’s failure to disclose, and assess the amount in the form of a credit on the Line F.3. child support amount or an amount in addition to Line F.3. child support for a determinant amount of time, or other sanctions"; but also states "a parent shall have 30 days within which to provide the requested information in writing to the other parent. Refusal to provide the requested information may make the non-complying parent responsible for the costs and expenses, including attorney fees, incurred in obtaining the requested information." The guidelines impose a duty on one parent to disclose what may be a material change of circumstances to the other parent, regardless of whether the other parent has submitted a written request for the information. Failure to respond to the written request adds another layer of exposure to the failing parent, namely, the possibility he or she will be responsible for the costs and expenses, including attorney fees, incurred in obtaining the requested information.

COMITY v. FULL FAITH and CREDIT-Land titles. Ward v. Hahn, 54 Kan. App. 2d 476, 400 P.3d 669 (July, 2017). Syl. 2: "In a divorce proceeding, the courts of one state cannot directly affect the legal title to land situated in another state unless allowed that effect by the laws of the state in which the land is situated. Kansas does not allow that effect. Syl. 10: "A Kansas district court may not enforce, under the principle of comity, a Nebraska district court’s order purporting to directly transfer legal title to land situated in Kansas, because doing so would violate Kansas public policy. A Nebraska district court "directly awarded" Kansas property to wife, stating: "The above-described real estate is now the property of [wife]," and its order "shall be recorded in the real estate records of Osborne County, Kansas to effectuate the transfer of the... real estate to [wife]." Wife petitioned the Kansas district court to enforce the Nebraska district court’s order and to partition the land between wife and ex-husband’s parents. The Kansas district court found that the Nebraska district court’s order assigning the Kansas real estate to wife had no effect on the legal title to the Kansas real estate and was not entitled to enforcement under the Full Faith and Credit Clause of the United States Constitution. The Kansas court noted only foreign judgments entitled to full faith and credit in Kansas may be enforced under our Foreign Judgments Act, K.S.A. 60-3001 et. seq. The Kansas district court purported to enforce the Nebraska district court order under principles of comity, finding doing so would not violate the public policy of Kansas. The Court of Appeals fully reviewed the law on the subject, and rendered the decision as set out herein.

CONTEMPT OF COURT—Defendant’s absence from hearing. S.M.J., through her mother and next friend Whitney D. Jacobs v. Ogle, 54 Kan. App. 2d 618, 402 P.3d 607 (August, 2017). "David Ogle failed to follow a longstanding court order that he not disparage Whitney Jacobs, the mother of his child, so Jacobs asked the district court to hold Ogle in contempt. Neither Ogle nor his attorney attended the contempt hearing, though both knew about it. The district court proceeded without Ogle and held him in contempt, imposing some monetary sanctions and [jail time] if Ogle didn’t pay." The Court of Appeals held the contempt hearing should not have been held without Ogle, and the district court’s judgment finding Ogle in contempt was vacated. The proper procedure was for the court to issue a bench warrant commanding Ogle’s appearance, and when he was brought before the court, to then hold the contempt hearing. K.S.A. 20-1204a(c).

CUSTODY—Move Away. Marriage of Nemec, Docket No. 115,474, 2016 WL 6031300 (Unpublished Court of Appeals October, 2016). This case essentially became a move-away case in which the district court terminated a shared residential custody order, resulting in father becoming the residential custodial parent. When the parties divorced in 2013, the district court granted mother and father shared residential custody on a week-to-week basis "as long as the parties are residing in the same community and the children can attend the same school district without difficulty." The district court’s order explicitly stated that if mother moved outside the school district the children were currently attending then father would have residential custody of the children and mother would have parenting time as set out in the 20th Judicial District Court’s guidelines. The court, in a June, 2013 order, advised mother how far away she could move in order to maintain a shared residential custody arrangement. Mother advised father of her proposed move, which was outside the limits set by the district court. Father filed a motion asking the district court to find the move was not a reasonable distance; expressed concerns that additional traveling would be hard on the children, and would interfere with their ordinary routines and would be hard to accommodate with the children’s varied activity schedules. The district court found that the mother’s move would not be in the children’s best interests, and that if she moved any further than the distance designated by the court, father would immediately become the primary residential parent and the mother would enjoy parenting time according to the guidelines. The standard on appeal is abuse of discretion. Mother asked for a change in the existing child custody order when moving beyond the distance set by the court (and therefore the children would be living with her half the time in that location). The district court properly imposed the burden of proof on her, as the party seeking a change in custody, to show that it was in the children’s best interests. In upholding the district court’s decision, the appellate court determined that K.S.A. 23-3203 does not require the district court to make specific findings with respect to each factor listed in the statute, on the record. A trial court’s findings may be supported by the evidence in the record, and the court may have applied the correct legal standard, even though it does not make explicit findings as to every enumerated statutory factor. Frakes v. Frakes, Docket No. 114,954, 2016 WL 4414021, at *5-7 (Kan. App. 2016-unpublished opinion). It is not necessary for the court to enumerate each of the statutory factors to have considered all of them. The court observed, "citizens of this nation generally enjoy a constitutional right to travel and reside where they choose, but this constitutional right may be balanced against a legitimate state interest in restricting the residence of a custodial parent. A divorced person may ordinarily travel and move without restraint or limitation imposed by the desires or wishes of a former spouse. However, when custody of a minor child has been entrusted to a divorced parent, such person may be required to forgo or forfeit some rights to custody or visitation consistent with the best interests and welfare of the children and the rights of the other parent." Carlson v. Carlson, 8 Kan.App.2d at 564, 566-67, 661 P.2d 833 (1983).

CUSTODY—Prima facie showing in motion to change residential placement. In the Matter of the Marriage of Rutz-Uehling and Uehling, Docket No. 116,466, 2017 WL 1369958 (Unpublished Court of Appeals April, 2017). Father filed a motion under K.S.A. 23-3219(a) alleging substantial and continuing change of circumstances warranting changing his 12 year old daughter’s parenting time with him from summer to the school year. He alleged in his motion (1) over 7 years had passed since the last custody and parenting time order; (2) the child was 12 years old at the time of the present motion; (3) she was of sufficient age and maturity to reasonably express her desires; and (4) she wanted to reside with him during the school year instead of the summer. The district court dismissed the motion, without hearing, because it believed father had failed to allege a material change in circumstances. The appellate court treated the district court’s action as "akin to granting a motion to dismiss, which means we assume the factual allegations contained in the motion are true." Then, the sole question is whether the alleged facts constitute a prima facie showing of material change of circumstances. The majority of the appellate court panel believed it did. Judge Schroeder, writing a dissent, did not. The court did note its decision was limited to the facts of this case, and that it was not holding that the wishes of a 12 year old child, standing alone, are enough to establish a material change in circumstances, nor that a 12 year old is necessarily of sufficient age and maturity to express a responsible opinion on residency. Rather, the court took the allegations as true in deciding whether dismissal of the motion without hearing was appropriate.

CUSTODY—Statutory factors of K.S.A. 23-3203-Application and Acknowledgment. In the Matter of the Marriage of Dacus and Dacus, Docket No. 116,124, 2017 WL 2403345 (Unpublished Ct. of Appeals June, 2017). Mother appeals district court’s award of custody to father. Court of Appeals agrees the district court apparently did not consider the statutory factors, and never referenced the best interest of the child legal standard required for custody decisions. "While the district court does not need to make specific fact findings on the record with respect to each factor listed … the district court in this case appears to have made few, if any, findings of fact regarding the statutory factors. There is no citation to the statute in the district court’s ruling from the bench or its written ruling. The court, in explaining its method "as determining if the child was doing okay in his or her current placement and, as a general rule, allowing the child to stay there "assuming all other factors are equal…does not appear to accurately reflect the method for determining custody outlined in K.S.A. 23-3203….The paucity of factual findings and absence of any clear reference to K.S.A. 23-3203 or the proper legal standard does not support a presumption that the district court made all of the necessary findings to support its decision." The case was reversed and remanded for further factual findings and legal conclusions.

DISCOVERY—Failure to comply with discovery, resulting in default judgment against the non-complying party, is reversed. In The Matter of The Marriage of DePriest & Weaver, Docket No. 117,682, 2018 WL 3485722 (Unpublished July 20, 2018 Court of Appeals-Mason, District Judge). DePriest (wife) filed a petition for divorce in October, 2016. In April, 2017, following two pretrial conferences, the District Court granted default judgment against Weaver (husband) as a sanction for failing to respond fully to DePriest’s discovery requests and failing to comply with court-ordered discovery deadlines. Weaver appeals. The Court of Appeals reversed and remanded the case. Weaver failed to file his pretrial questionnaire and witness and exhibit lists by the deadline imposed by the court. Weaver did not respond to DePriest’s request for bank records on a business account. The court made an ex parte call to the bank to find out if the records were available, which they were not electronically. After making the call, the District Court entered default judgment against Weaver. One issue was whether the court entered a default judgment under K.S.A. 60-255(a), requiring notice to the defendant, versus as a sanction under K.S.A. 60-216(f), a discovery sanction. The imposition of discovery sanctions is governed by an abuse of discretion standard. K.S.A. 60-216(f) authorizes the District Court to impose sanctions for failing to appear at a pretrial conference, being substantially unprepared to participate, or failing to obey a scheduling or other pretrial order. The severe sanction of default judgment should only be used as a last resort when other lesser sanctions are clearly insufficient. The Supreme Court has found abuse of discretion in the entry of dismissal or default as a discovery sanction several times. Entering a default judgment for refusal almost totally to comply with discovery and other orders of the trial court, to attend the pretrial conference, or to attend the hearing on defendant’s motion to dismiss, is not an abuse of discretion. The court should not have made an ex parte factual investigation regarding the bank records, nor should it have imposed the ultimate sanction of dismissal without due consideration or explanation of why a lesser sanction would be clearly insufficient. The grant of default judgment was reversed and the case was remanded for further proceedings.

GRANDPARENT VISITATION RIGHTS -- K.S.A. 23-3301(b)--In the Matter of the Paternity of M.V. vs. T.R. and K.R., Docket No. 118,189, ____ Kan. App. 2d _____, _____ P.3d ______, 2018 WL 2451812 (Court of Appeals June 1, 2018 ) A mother appealed the district court’s decision in a paternity case granting grandparent visitation to the child’s maternal grandmother. Mother claimed the district court violated her constitutional due process rights by adopting grandmother’s visitation plan without finding her plan was unreasonable. The Court of Appeals agreed with mother that the district court violated her due process rights by ordering grandparent visitation time on a schedule different from what mother had offered without finding that mother’s visitation plan was unreasonable. The Court of Appeals reversed the district court’s grandparent visitation order and remanded for further proceedings. The district court found that a substantial relationship existed between grandmother and the child, and that visitation rights would be in the child’s best interests. The district court cited In re T.N.Y., 51 Kan. App. 2d 956, 360 P.3d 433 (2015), for the proposition that grandparents may assert visitation rights in a paternity action as well as divorce cases. Mother had a proposed visitation plan for the grandmother, which was not the same as the grandmother’s. In court, the mother said she was okay with the child seeing her grandparents, but requested the district court to modify the visitation schedule to exclude overnight visits. Her reasons included that (1) the grandmother had an unknown man living at her residence, and (2) grandmother sometimes took the child to jail to see her father, who was facing child sex abuse charges, and those visits violated a court order and were against the mother’s wishes. Mother asked the district court to adopt her proposed visitation plan as being reasonable. The district court did not mention mother’s proposed visitation plan in making its ruling, and made no findings that mother’s visitation plan was unreasonable. It denied mother’s request for attorney fees finding that grandmother was not better off financially than mother. Mother claimed on appeal that her constitutional due process rights were violated by adopting grandmother’s visitation plan without finding that mother’s visitation plan was unreasonable, and she also said she should have attorney fees. Mother asserted she had a constitutional right to raise her child, that it was a fundamental right to which the court must give great deference, and there was no indication the district court presumed she was a fit parent acting in her child’s best interests. At common law, grandparents had no legal right to override a parent’s wish to deny contact with the child. In re Hood, 252 Kan. 689, 691-94, 847 P.2d 1300 (1993). The latest Kansas grandparent visitation statute is K.S.A. 23-3301. K.S.A. 23-3301(a) only provides for grandparent visitation in a divorce proceeding. The case In re T.N.Y. held that limiting grandparent visitation to divorce proceedings violates the equal protection rights of children whose parents never married. 51 Kan. App. 2d at 969-70. The Court of Appeals struck the offending language from the current grandparent visitation statute, resulting in a determination that a grandparent can assert visitation rights in a paternity action. 51 Kan. App. 2d at 969-70. The burden is on the grandparent to prove that visitation rights would be in the child’s best interests and that a substantial relationship between the child and the grandparent has been established. Troxel, the United States Supreme Court case, 530 U.S. 57, 64-65 (2000), emphasized that parents retain their fundamental right to make decisions regarding the care, custody, and control of their children. Troxel’s holding has been adopted and applied in Kansas. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001). In the instant case, the district court needed to presume that mother was acting in the child’s best interests, and needed to give special weight to her proposed visitation schedule. The court should not have rejected mother’s visitation schedule without finding that it was unreasonable. When the record does not reflect that the district court even considered mother’s proposed visitation plan, and never found it to be unreasonable, the Court of Appeals determined that it had to reverse the district court’s grandparent visitation order and remand for the district court to conduct the proper analysis under Troxel and related Kansas cases. On remand, the district court was ordered to reconsider mother’s request for attorney fees, and said "the court shall grant the request unless it expressly finds that justice and equity require otherwise," citing K.S.A. 23-3304, that in an action for grandparent visitation, costs and reasonable attorney fees shall be awarded to the respondent unless the court determines that justice and equity otherwise require. In re Cathey, 38 Kan. App. 2d at 377.

JURISDICTION—Residency Requirement. In the Matter of the Marriage of Doughty, Docket 116,186, 2017WL 2212128 (Unpublished Court of Appeals, May, 2017). K.S.A. 23-2703(a). A trial court lacks subject matter jurisdiction to enter a divorce decree when the petitioner has not resided, that is, "must have been an actual resident in the state, for 60 days immediately preceding the filing of the petition." The word "actual" in the statute means "bona fide," that is, having an intent to reside here. Perry v. Perry, 5 Kan. App. 2d 636 (1981). In this case, the petitioner/wife moved to Kansas in October and filed her petition in November, short of the 60 day requirement. Therefore, any order entered in the matter, including the Decree of Divorce and the division of property, were void for lack of subject matter jurisdiction. The Court of Appeals ordered the Decree of Divorce vacated, and the case to be dismissed without prejudice.

JURISDICTION—Residency Requirement. In the Matter of the Marriage of Brizendine and Randall, Docket 115,265, 2017WL 836827 (Unpublished Court of Appeals, March, 2017). Husband filed for divorce in Hutchinson, Kansas on September 14, 2015. Wife filed for divorce in California on September 18, 2015, and husband was served with the proceeding on September 25, 2015. Wife was not served with the Kansas divorce proceeding until November 4, 2015. In December, 2015, wife filed a motion to dismiss the Kansas case, primarily because husband had ceased to be a Kansas resident when the parties moved to California in 2010, and therefore, had not been an actual resident of Kansas for at least 60 days before filing his petition. Wife therefore claimed the District Court had no jurisdiction to consider husband’s petition. The District Court on January 26, 2016 issued a written order granting wife’s motion to dismiss husband’s petition, finding the parties were residents of Kansas when they married in 2009, but they became California residents when they moved to California, and that husband had become a California resident in 2011, and had not become a resident of Kansas for 60 days before he filed his Kansas petition. The court considered K.S.A. 60-308(b)(1)(H), the long-arm statute, finding that husband had established a residence in California, and had not reestablished a residence in Kansas for at least 60 days prior to filing his petition under K.S.A. 23-2703(a).

MAINTENANCE---Considerations. In the Matter of the Marriage of Hamdeh, Docket No. 111,998, 2016 WL 6651514 (Unpublished Court of Appeals, November, 2016). The trial court awarded wife only 1 year of maintenance after a 7 ½ year marriage. The appellate court determined the district court had substantial competent evidence to support its conclusion that the wife’s language skills did not justify a maximum spousal maintenance award. Although she claimed her lack of ability to speak English impeded her ability to work, the guardian ad litem appointed by the court testified about wife’s ability to function during a lengthy meeting without an interpreter, and no evidence indicated that wife struggled during that meeting. Further, wife had received substantial support from her family and years of maintenance payments made during the pendency of litigation. The court should consider the same factors in making a maintenance award, even though they are not statutory, as the court does in making a division of property. See K.S.A. 23-2802(c). Those factors should include evidence regarding the length of the marriage, the manner, source, and acquisition of property, family ties and obligations, dissipation of assets, duration of the marriage, and present and future earning capacities.

MAINTENANCE---Court’s Discretion. Marriage of Thummel, Docket No. 115,303, 2017 WL 262039 (Unpublished Court of Appeals, January, 2017). This case is included because it contains an excellent summary of the factors the court must consider; distinguishes them from the factors the court must consider in dividing property; and refuses to grant farmer husband ($50,000 – $80,000 annual income) maintenance from his dentist wife ($250,000 annual income) after a 20 plus year-long marriage. Here, the parties had 4 children, one of whom had reached the age of majority at the time of divorce, and the other 3 were 17, 13, and 8. Husband and wife had Bachelor of Science degrees from Kansas State. They lived in Colby. They were both 44 at the time of the divorce. "An award of spousal maintenance is governed by K.S.A. 23 – 2902. In re Marriage of Hair, 40 Kan. App. 25 475, 483, 193 P. 3d 504 (2008). An appellate court generally reviews a district court's maintenance award for abuse of discretion…. Judicial discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable…. A maintenance award must be fair, just, and equitable under all circumstances. K.S.A. 23-2902(a)…. [T]he amount of maintenance is based on the needs of one of the parties and the ability of the other party to pay." In Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976) the court listed elements which may be considered by a district court in determining whether to award spousal maintenance. These elements have not changed in 40 years. "There are no factors set out in the Kansas maintenance statute; however the Williams court created elements that may be considered in determining whether to grant spousal maintenance. For the division of property statute, the court shall consider the elements set forth in the statute. K.S.A. 23-2802(c). If the findings of the District Court are supported by the evidence, there is no abuse of discretion.

PARENTAL RIGHTS TERMINATION--Denial of motion to terminate. In the Interest of T.S., A Minor Child, Docket No. 114,895, 2018WL2896086 (Unpublished Court of Appeals June 22, 2018). The judgment of the Court of Appeals affirming the District Court was affirmed. The appeal was dismissed for lack of jurisdiction. A Kansas appellate court does not have jurisdiction to review a denial of a motion to terminate parental rights under K.S.A 2016 Supp. 38-2273(a). A grandfather moved to terminate the parental rights of his grandson’s parents. "The district court appointed the grandfather as the child’s permanent custodian but declined to terminate the father’s parental rights. The Court of Appeals then dismissed the grandfather’s appeal for lack of jurisdiction. Because the plain language of K.S.A 2016 Supp. 38-2273(a) does not provide the right to appeal the District Court’s order denying the grandfather’s motion, the decision of the Court of Appeals was affirmed. The District Court ruled that the grandfather proved by clear and convincing evidence that father was unfit. The court further ruled that terminating father’s parental rights would not be in the child’s best interest. Father appealed the finding of unfitness. Grandfather cross-appealed the decision not to terminate father’s parental rights. The Supreme Court cited In re A.S., 52 Kan. App. 2d 173, 364 P.3d 1203, Syl.¶3 (2015) as authority for its proposition. The dissent could not "read the language…[of the statute] as manifesting a legislative intent to make denial of the motion to terminate parental rights incapable of correction by a higher court," in part because it then makes adoption impossible, which may not be in the best interest of the child.

PARENTAL RIGHTS TERMINATION --Reversed- Decision to Be Based on Facts, not Conjecture about What Might Happen if Rights Not Terminated . In the Interest of J.S. and A.H. Jr., Docket No. 115,529, 2016 WL 6139109 (Unpublished Court of Appeals October, 2016). This is a case reversing the district court’s termination of parental rights. In order to terminate parental rights, a court must find by clear and convincing evidence that the parent is unfit. K.S.A. 38-2269(a). When reviewing a district court’s decision to terminate parental rights, the appellate court considers "whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence, that [the parent’s rights should be terminated]." In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). In this case, the district court found by clear and convincing evidence that mother was an unfit parent by reason of conduct or condition, which rendered her unable to properly care for the child. The appellate court reversed the district court’s opinion, reasoning "the district court’s opinion seems to be based on what might happen if parental rights were not terminated, not on the evidence of what had actually happened . . . because the district court and the professionals failed to prove specific, concrete examples of [mother’s] unfitness to be a parent, the evidence does not show that it is highly probable that [mother] is unfit to be a parent." Mother may not be the best model of motherhood, but that is not the standard she has to meet. In re K.R., 43 Kan.App.2d 891, 904, 233 P.3d 746 (2010).

PROPERTY DIVISION---Considerations. In the Matter of the Marriage of Hamdeh, Docket No. 111,998, 2016WL 6651514 (Unpublished Court of Appeals, November, 2016). District courts are vested with broad discretion in adjusting the property rights and financial affairs of the parties involved in a divorce action. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002). The district court must make a just and reasonable division of the marital property. K.S.A. 23-2802(c). If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). Because Kansas is an equitable division state, divorce courts are not required to make an equal split of all property acquired during the marriage. In re Marriage of Rodriguez, 266 Kan. 347, 352-53, 969 P. 2d 880 (1998). Although the ultimate division of property must be just and reasonable, it need not be equal. In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 715, 229 P.3d 1187 (2010).

PROPERTY DIVISION—Equalization Payment-Gift. In the Matter of the Marriage of Biernacki and Biernacki, Docket No. 115,624, 2017 WL 3001299 (Unpublished Court of Appeals July, 2017). The Court of Appeals reverses the district court because the district court awarded wife an equalization payment of $18,000 based upon "a fact that was not supported by substantial competent evidence…. [T]he district court's decision... was an abuse of discretion because it was based on an error of fact." The only evidence presented at trial was that husband's grandfather gifted him the down payment on the parties' residence. While the district court found that wife testified the gift was to both husband and wife, and that there was insufficient evidence to support husband's claim that the gift was only to him, "[wife] admits she never testified that the gift was to both [husband] and her, but she argues that the district court's division of property was, nevertheless, fair and equitable….[T]he district court expressly based its decision on its finding that [wife] had testified the gift was to both of them…." According to what appears to be undisputed evidence, namely, testimony from both husband and wife, the gift was made solely to husband. This decision reviews the "substantial competent evidence" standard for division of property, and the statutory factors the court must consider in doing so. K.S.A. 23-2802 (c). "A decision based on an error of fact constitutes an abuse of discretion." The case was reversed and remanded for the court to reconsider father’s motion to alter and amend the judgment "and issue a decision consistent with applicable law."

PROPERTY DIVISION-Equalization Payment--Miscalculation results in remand. In the Matter of the Marriage of Emerson, Docket Nos. 118,219 and 118,381, 2018 WL 3485663 (Unpublished Court of Appeals, July 20, 2018). The Court of Appeals found the District Court erred in calculating the equalization payment and in ordering attorney fees without supporting evidence of those fees, and on those grounds remanded that part of the case for the District Court to correct the equalization payment to accurately reflect the values assigned to the parties’ net assets by the court, and denied both parties’ motions for appellate attorney fees. The court made a mathematical error in calculating the equalization payment, causing husband to overpay wife by $16,689.00. The appellate court included, in its decision, a spreadsheet, and explained how the district court’s math was inaccurate. Further, the district court’s award of attorney fees was reversed, because the court found no testimony or other documentation to substantiate the reasonableness of wife’s attorney fees. Fees which are not supported by meticulous, contemporaneous time records identifying the specific tasks being billed should not be awarded. Davis v. Miller, 269 Kan. 732, 748, 7 P.3d 1223 (2000). In that case, the Kansas Supreme Court ordered the District Court to consider the 8 criteria in Rule 1.5(a) of the Kansas Rules of Professional Conduct in determining the reasonableness of attorney fees.

PROPERTY DIVISION-Gifts and Inheritance. Marriage of Thummel, Docket No. 115,303, 2017 WL 262039 (Unpublished Court of Appeals, January, 2017). The District Court is not required to award to each spouse the property inherited by each during the marriage, but it is required to make a fair and equitable division of property. In re Marriage of Hair, 40 Kan. App. 2d at 480-81, 190 P. 3d 504 (2008). When a district court divides property in a divorce, it shall consider the factors outlined in K.S.A. 23-2902(c).

PROPERTY DIVISION—Premarital Agreement: "marital" v. "joint" property. Marriage of South, Docket 114,846, 2017 WL 840233 (Unpublished Court of Appeals March, 2017). Judge Sutherland was affirmed in part, but was remanded to make a tax calculation. Wife appealed the District Court’s decision, claiming that it "wrongfully classified the parties’ vacation home and certain items of personal property as ‘marital property’ rather than ‘joint property’ under the terms of the premarital agreement." She also claimed the District Court erred in ordering her to reimburse husband for a portion of the parties’ 2014 income tax liability. The premarital agreement created five distinct categories of property and assets: joint property; separate property; marital property; jewelry; clothing and articles of personal adornment; and household goods and furnishings. The agreement also provided for the distribution of these categories of property if the parties were divorced. The agreement provided that if the marriage lasted five years or more, wife would receive $500,000.00 or one-half the fair market value of the "marital property," whichever is greater, and that the agreement would be covered by the laws of the state of Kansas. After five and one-half years of marriage, the parties separated. "The primary issue at trial was whether the Sanibel [Florida] home and various items of personal property were "joint" or "marital" property under the terms of the premarital agreement. Also at issue was the parties’ liability for their jointly filed 2014 income taxes." The court determined the Sanibel, Florida home was marital property under the premarital agreement, and that a Corvette, golf club membership, and yacht club membership were also marital property under that agreement. The District Court concluded that the parties’ 2014 income tax liability was a marital debt for which the parties were equally responsible, and wife was ordered to reimburse husband for her share of taxes he paid on her income. Wife’s position was that the court incorrectly classified the Sanibel home, Corvette, golf club membership, and yacht club membership as "marital" rather than "joint" property, and that the District Court wrongfully concluded she was responsible for a portion of the parties’ 2014 income tax liability. The reason the classification of the property was important, is that wife would receive $500,000.00 and half the value of all "joint property," but not "marital property," which was defined as all property acquired during the marriage that was not jointly titled. The court examines the manner in which property is titled. It is suggested that this opinion be consulted in the drafting of premarital agreements, as a means by which to avoid the conflict that arose in this case, which, highly summarized, was the interpretation of the words "joint property" and "marital property"; whether Florida or Kansas law applied in making that determination; and how property would be divided.

PROTECTION FROM ABUSE—Court must advise of right to counsel. Walker v. Brizendine, Docket No. 114, 776, 2016 WL 5012505 (Unpublished Court of Appeals September, 2016). Brizendine, against whom a petition for order of protection was filed, appeals the district court’s entry of such an order against him, on the grounds the district court failed, as required by K.S.A. 60-31a05(a), to advise him of his right to counsel. That statute says the district court "shall [emphasis added] advise the parties of their right to be represented by counsel" at the hearing on the petition. The district court failed to give such advice to Mr. Brizendine. The Court of Appeals determined use of the word "shall" as it appears in this statute is "mandatory rather than directory." The district court’s entry of an Order of Protection was reversed. The matter was remanded. The Court of Appeals ordered that Brizendine was entitled to a new hearing, and that a different judge be assigned to the case for that, and all other, purposes.

PROTECTION FROM ABUSE—Unwanted sexual contact causes bodily injury, a required element of abuse under the act. Kerry G. v. Stacy C., Docket No. 114,757, 55 Kan. App. 2d 246, 411 P.3d. 1227 (December, 2016). Stacy had 3 unwanted sexual contacts with Kerry. All of them began while she was sleeping. The unwanted sexual acts would constitute rape under the Kansas Criminal Code. Unwanted sexual touching causes "bodily injury" under the Protection from Abuse Act. "Rape" includes knowingly engaging in sexual intercourse with a victim who does not consent because the victim is unconscious. K.S.A. 21-5503(a)(1)(B). "Intercourse" includes any penetration of the female sex organ by any object. K.S.A. 21-5501(a). Intentionally or recklessly causing bodily injury is one of the requirements for showing abuse under the Act. K.S.A. 60-3102(a)(1).

PROTECTION FROM ABUSE ORDER VIOLATION IS NOT A LESSER INCLUDED OFFENSE OF STALKING. State of Kansas v. Sinzogan, 53 Kan. App. 2d 324, 388 P.3d 176 (Court of Appeals January, 2017), Docket No. 113,901. Violation of an Order of Protection Pursuant to K.S.A. 21-5924(a)(6) is not a lesser included offense of stalking pursuant to K.S.A. 21-5427(a)(3). Proving stalking requires proof the defendant recklessly violated a protective order. Proving violation of a protective order requires the offense be committed knowingly. "A crime requiring a higher culpable mental state cannot be a lesser included crime of a crime that requires a lower culpable mental state." Both the district and appellate courts believed violation of a protective order and stalking are not multiplicitous. Defendant was found guilty of, and sentenced upon, both stalking and violation of a protective order.

PROTECTION FROM STALKING—Minor Child. C.M., for and on behalf of A.M., a minor child v. McKee, 54 Kan. App. 2d 318, 398 P.3d. 228, (June, 2017). " A protection-from-stalking order is available in Kansas when someone has engaged in a course of conduct that placed the other person in reasonable fear for that person's safety and that would cause a reasonable person to suffer substantial emotional distress. " Mr. McKee, against whom the petition for protection from stalking was filed, contended on appeal that "a reasonable 11-year-old child would not have feared for her safety or suffered substantial emotional distress" due to his actions. When the court reviewed the case from the vantage point of "a reasonable 11-year-old child," sufficient evidence supports the district court's conclusion that this child was reasonably in fear and suffered substantial emotional distress--caused when McKee jumped out from behind bushes as the girl was walking home from school and when he took his hands off the steering wheel of his truck and swerved in the direction of the car the girl was riding in."

PFA-PFS---DUE PROCESS. Roberts v. Weaver, Docket Nos. 114,423 and 114,434, 2017 WL 462175 (Unpublished Court of Appeals February, 2017). The District Court cannot hear evidence on a PFA petition, with which the defendant was properly served, and conclude that, while there was insufficient evidence to establish the PFA but sufficient evidence to establish a PFS, a Protection from Stalking Order should enter. The standards for the two statutes are different, and failure to serve the defendant with a PFS petition, thus giving him notice and opportunity to be heard on those allegations under those standards, violates defendant’s due process rights. K.S.A. 60-31a04d.

PROFESSIONAL GOODWILL—Divisibility upon Divorce. Marriage of Thummel, Docket No. 115,303, 2017 WL 262039 (Unpublished Court of Appeals, January, 2017). "To determine whether the District Court correctly valued the professional goodwill, this court uses a two-part standard of review. First to be determined is whether there was substantial competent evidence to support the award of goodwill. Second, it must be determined whether the trial court abused its discretion when it assigned a particular value to the goodwill." Under K.S.A. 23-2801(a), "professional goodwill to the extent that it is marketable for that particular profession" is included in the property owned by married persons. In this case, the trial court set a value on wife's dental practice, but did not include goodwill in that value. Note goodwill was excluded not because it cannot be included, but because none was found to attach to wife's dental practice in this particular case.

SETTLEMENT AGREEMENT VALIDITY—Duress, Fraud and Undue Influence Alleged. In the Matter of the Marriage of Fisher, Docket No. 117,927, 2018 WL 3486148 (Unpublished Court of Appeals July 20, 2018—Leavenworth District Court). Wife claimed the District Court’s decision denying her motion for relief from judgment in her divorce action, on the grounds of duress, undue influence and fraud which were committed by her former spouse, should have caused the court to invalidate the settlement agreement. Among other things, wife alleged husband had threatened to physically harm her, her son, and her parents if she did not sign the settlement agreement. The court was not persuaded by the claims of husband’s physical threats against his ex-wife, noting that she had not raised such issues until her second post-divorce motion, and that she had no evidence, save her testimony, to corroborate her allegations. The property division resulted in wife receiving over $100,000.00, while husband was left in debt $70,261.00. Although wife waived maintenance and her right to part of husband’s military retirement, the court found the division of the assets was valid, just and equitable. The court considered the testimony of threats, undue influence, duress, and fraud. There was a handwritten note on the agreement that her lawyer advised her against signing it and she signed it anyway. In post-trial motion hearings, Judge Wiley recited the facts upon which he relied in determining the agreement was fair, just and equitable. The Court of Appeals affirmed the District Court’s denial of the motion for relief from judgment.

UCCJEA—Inconvenient Forum. In the Matter of the Paternity of A.T., a minor child, by and through his Natural Father and Next Friend, Kimario Dwayne Anderson v. Azeb Aregaye Tesfu, Docket No. 115, 783, 2016WL 5853088 (Unpublished Court of Appeals September, 2016). Before a district judge makes a determination that Kansas is an inconvenient forum in which to make a child custody determination, and that another state is a more convenient forum, the court must give the parties an opportunity "to submit information" and "shall consider all relevant factors" including eight specifically listed factors in K.S.A. (Supp. 2015) 23-37,207(b). In this case, the district court, sua sponte, decided Kansas was an inconvenient forum without giving the parties an opportunity to present information concerning the appropriateness of Kansas as a forum. The Court of Appeals reversed the district court's order staying the case (to allow another state to make a determination) and remanded the case to the district court with directions to specifically consider the statutory factors in K.S.A. 23-37,207(b) after giving the parties an opportunity to present information.