Reported Cases

A Sample of Reported Cases

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 In the Matter of the Marriage of Dean and Dean, Docket No. 118,406, 2018 WL 3946236 (Unpublished Court of Appeals August, 2018).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. THIS CASE WAS PUBLISHED FEBRUARY, 2019. 2 15 2019.

CUSTODY CHANGE-Motion to Modify Child Custody Order Dismissed Without Hearing for Failure to Make Prima Facie Case in Motion. In the Matter of the Marriage of Bahlmann and Bahlmann, _____ Kan. App. 2d ______, ____P.3d. ______, 2019 WL ________ (April, 2019). The Riley County district court dismissed father's motion to modify a child custody order, on the grounds it failed to state a prima facie case as required by K.S.A. 23-3219(a), without a hearing. Lessons: (1) Allegations on information and belief do not rise to the level of evidence but are mere unsupported allegations. A district court should base its decision about a prima facie case on the sworn facts in the verified motion or affidavit; (2) When neither party requests oral argument of a motion, a district court has the authority under K.S.Ct. Rule 133(c)(2)(B), after waiting the seven day response time, to rule on that motion without a hearing. Mother filed a motion to dismiss father's Motion to Modify Child Custody Order. Father filed no response within 7 days. Review of whether the movant stated a prima facie case is de novo. (3) a prima facie showing is one "sufficient to establish a fact or raise a presumption unless disproved or rebutted." Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, Syl. 10 (2009); (4) K.S.A. 23-3219(a) requires sworn testimony and specificity...that is, specific and know factual allegations, as to time, place and circumstances. (4) They must show a substantial and material change in circumstances.

GRANDPARENT VISITATION-Divorcing Party Cannot Act in Grandparent's Place. Marriage of Grigsby, Docket No. 118,892. 2018 WL __________(October, 2018 Unpublished Court of Appeals). "Grandparents may be granted visitation rights with minor grandchildren. K.S.A. 2017 Supp. 23-3301. They have standing or sufficient legal interest to seek visitation in a divorce proceeding and must act on their own behalf in the absence of an agreement between divorcing parents permitting visitation. But one of the divorcing parties cannot act in their stead. Accordingly, [the imprisoned father] lacks the authority to represent his mother [the paternal grandmother]. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 892, 179 P. 3d 266 (2008) (litigant generally cannot raise another person's legal rights). The district court properly denied his motion to allow grandparent visitation."

JUDGMENTS-Dormancy. Marriage of Strom, Docket No. 118,676, 2019 WL _________, ___Kan. App. 2d ____, ____P.3d _____(Jan. 2019). Per the parties' agreement, husband owed wife a portion of his military retirement pay. Parties were divorced in 1995. No payments were made for 22 years. In 2017, husband moved the district court to declare the division of his military retirement account to be a void and unenforceable judgment, as it was dormant because wife did not file a renewal affidavit within 5 years of the divorce and did not revive the judgment within 7 years of the divorce. He also asserted the defense of laches. Wife moved to enforce and revive the judgment. The District Court, with which the Court of Appeals agreed, held, as the judgment required installment payments and, as a result, each payment expired seven years after it became due instead of the entire judgment expiring in 2002. Therefore, all payments after September 1, 2010 were revived and enforceable. K.S.A. 60-2403(a) applies to judgments in divorce actions. Larimore, 52 Kan. App. 2d 31, 42, 362 P.3d 843 (2015) is distinguishable, because, among other reasons, the Department of Defense would not pay her directly, and thus a QDRO could not be used, because the parties had not been married 10 years or more. 10 U.S.C. 1408(d)(2) (2012). The only means by which she could obtain payment was directly from her husband. Thus, the issue of whether she failed to file a QDRO within the requisite period of time is not applicable, because a QDRO was not available to her under the facts of this case. As to a judgment payable in installments, the dormancy period commences as to each installment when it becomes due and was collectible by execution or other legal process. Judge Buser dissented, believing that the property division of retirement benefits qualified as a final determination of the parties' interests in the marital estate, which means the judgment was subject to dormancy under K.S.A. 60-2403(a)(1) and In re Marriage of Moore, Docket No. 112,047, 2015 WL 5312023 at *3-5(Unpublished Kan. Ct. of Appeals 2015).

KANSAS PARENTAGE ACT-Effect of Acknowledgment of Paternity. Osborn v. Anderson, Osborn, KDCF et al., Docket No. 118,982. _____ Kan. App. 2d. _____, ____ P.3d _______ (October 19, 2018) 2018 WL __________. Osborn appealed the district court's summary judgment in favor of the defendants, dismissing Osborn's lawsuit for the wrongful death of his non-biological son for lack of standing. "In 2014, Osborn signed a voluntary acknowledgment of paternity form naming him the father of A.O....It is undisputed...Osborn is not A.O.'s biological father. Osborn and A.O.'s mother briefly married, but the marriage was annulled....A.O. died while in the care of her mother's boyfriend. Osborn filed a wrongful death action against the defendants, which the district court dismissed for lack of standing, finding that Osborn is not A.O.'s heir-at-law." The issue was whether Osborn was A.O.'s father "in the eyes of the law." The Court of Appeals found that he was, due to the voluntary acknowledgment of paternity, and reversed and remanded the case for further proceedings.

KANSAS PARENTAGE ACT-Application in Probate Proceeding. In the Matter of the Estate of Chad Allan Fechner, ____ Kan. App. 2d ____, ____ P.3d. _____, 2018 WL _______ (Court of Appeals November 2, 2018). Syl. 1. If whether a person is an heir is contested in a probate proceeding, the district court has authority to order DNA testing to help determine the contested issue. Syl. 2. When factual questions about paternity are contested in a probate proceeding, the Kansas Parentage Act presumptions for determining paternity set out in K.S.A. 23-2208 apply, whether or not any of the parties to the probate proceeding would have standing to bring a separate Parentage Act case. Syl. 3. In deciding whether to order DNA testing to determine paternity in a probate proceeding, the district court should consider (1) whether DNA evidence would be relevant; (2) whether providing a sample will unduly infringe on privacy rights; (3) whether there is a reasonable possibility of match or non-match; (4) the presumptions of paternity in the Kansas Parentage Act; and (5) the best interests of the child test from In re Marriage of Ross, 245 Kan. 591, 783 P. 2d 331 (1989). Syl. 4. A district court abuses its discretion by failing to exercise that discretion based on a misunderstanding of the law. In this case, two people claimed an interest in an estate as relatives of a man who died with no will and no living parents, siblings or children. One of these people suggested the other was not biologically related to the decedent, and asked for DNA testing. The district court denied that request, concluding it lacked authority to order such tests. It then heard evidence and sustained the "questioned" person's claim to part of the estate. The Court of Appeals ruled that the district court had discretionary authority to order DNA testing, and the court abused its discretion when it failed to exercise that authority because it thought it did not have the discretion to order such testing.

MAINTENANCE-Length of Payments. In the Matter of the Marriage of Meng, Docket No. 118,944, 2018 WL ________ (Unpublished Ct. of App. November 2, 2018). Length of maintenance was not included as an issue in the pretrial order. The trial court ordered it for 24 months after a 20 year marriage. Upon rehearing before another judge, the trial judge having retired, the second/rehearing judge ordered it for 70 months, finding there was some abuse of discretion by the trial judge, finding there was no consideration of the length of the marriage or the length of maintenance. Query, if there was no consideration of the length of maintenance, why/how is there now an issue about the length of maintenance, namely, 24 v. 70 months? The rehearing judge observed there was no argument about the length of maintenance in the trial transcript. There were no factors given by anybody, or any testimony about length of maintenance. He concluded that was true because length of maintenance was not made an issue in the PTO. The rehearing judge then considered the maintenance award factors in considering length of maintenance factors. The PTO reserved two issues for trial: (1) whether to include husband's overtime in income for child support and maintenance, and (2) whether the parties' assets and liabilities should be equally divided. There is language in the appellate opinion about CHANGING the length of maintenance, in that "changing the length of maintenance" was not reserved as an issue in the PTO. The "change" to which the appellate court refers is that BOTH PARTIES followed the Shawnee County Guidelines and suggested 75 months of maintenance in their factual statements included in the PTO. Thus, when the trial judge entered an order for fewer months, the argument was neither side was prepared to argue for more or less time, because the length of time was not an issue in the PTO. It was not error for the rehearing judge to change the order to the number of months BOTH parties included in the PTO, especially since neither asked the court to amend the PTO. LESSON: In the PTO, mention the length of time suggested by the guidelines, but don't fail to raise it as an issue unless you are concerned it could exceed/be less than the guidelines.

PROPERTY SETTLEMENT AGREEMENT-Enforcement. Marriage of Buchanan, Docket No. 118,867, 2019 WL _______ (Unpublished Court of Appeals March 1, 2019). Husband claims district court erred in approving mediated property settlement agreement because wife selected the mediator, a past real estate client of the wife; and because husband was not sufficiently aware of the parties' assets and liabilities at the time he entered into the mediated agreement. First, S.Ct. Rules 901-904 do not apply to a mediator selected by the parties (versus the court) so the mediator had no duty to disclose that he was a past client of husband's wife. Wife provided husband a handwritten list estimating the value of the parties' real and personal property and all debts known to her. She did not know about several debts related to her husband's farming and trucking businesses because her husband kept that information private. Wife prepared a typed agreement which did not include the information known to her husband but unknown to her. Against wife's initial demand for $297,000 in maintenance, she ultimately settled for $35,150, some household goods, her vehicle and bank account, while her husband received the remaining household goods, the marital home, land, his personal vehicle, farm vehicles, all farm-related debt, and all the assets and debts of his trucking business. "A reasonable person could conclude, as the district court did, the parties were aware of their assets and liabilities when they negotiated their agreement. The district court did not err in finding the mediated agreement was valid, just and equitable.

QDRO-Judgment Extinguished. Marriage of Porterfield, Docket No. 118,479, 2019 WL _______ (Unpublished Court of Appeals February 22, 2019). Following Marriage of Larimore, 52 Kan. App. 2d 31, 362 P. 3d 843 (2015), rev. denied 305 Kan. 1252 (2017), the Court of Appeals agreed with the trial court (Judge Vano) in denying wife's motion to compel entry of a QDRO 19 years after the Decree of Divorce was entered. The judgment dividing the property was extinguished under K.S.A. 60-2403(c) due to passage of time. A judgment becomes dormant five years after it is entered unless it is revived within two years of its dormancy (which may be accomplished with a renewal affidavit or execution). Reserving jurisdiction to enter a QDRO does not affect the finality of the judgment dividing property. The district court's judgment dividing property was final when the Decree was entered. The district court's obligation to enter a QDRO as a means by which to enforce its judgment does not affect the finality of the judgment. "Once dormancy exceeded the time within which it [the judgment] could be revived, [wife] had nothing to enforce." In re Marriage of Smith, Docket No. 115,365, 2012 WL 1649835 at *4 (unpublished Kan. Ct. of App. 2012).

UCCJEA-Emergency Jurisdiction. In the Interests of K.L.B. and A.S.B., Minor Children, ____ Kan. App. 2d _____, _____ P. 3d ______, 2018 WL _______ (October 19, 2018). Syl. 1. A party may raise subject matter jurisdiction at any time before any court. Syl. 2. The purpose of the UCCJEA is to avoid jurisdictional competition between courts of different states and to make sure only one state at a time has jurisdiction over child custody matters in regard to a particular family. Syl. 3. If a court in another state has not commenced a proceeding exercising jurisdiction over child custody matters in regard to a particular family or has otherwise declined to exercise such jurisdiction, there is no jurisdictional competition with a state that has exercised such jurisdiction in accordance with the UCCJEA. Syl. 4 If a state asserts jurisdiction on an emergency basis pursuant to the UCCJEA and no proceeding exists in any other state which might have exercised jurisdiction over the same family, the orders issued by the court exercising emergency jurisdiction become a final determination. In this case, the family was originally from Kentucky. After being in Kansas for a week, the children were taken into state custody. Mother was eventually extradited to Kentucky on Kentucky charges. The Sedgwick County District Court ultimately terminated mother's parental rights. Mother appeals, arguing (1) the district court did not properly exercise jurisdiction under the UCCJEA; and (2) substantial competent evidence did not support the court's finding that she was unfit and would remain so for the foreseeable future. The Court of Appeals affirmed the District Court, finding it had appropriate emergency jurisdiction under circumstances where the mother was suffering from severe mental and other issues and the welfare of the children was at issue.

VETERAN'S MILITARY DISABILITY PAY-Nondivisibility. In the Matter of the Marriage of Babin, ____ Kan. App. 2d _____, ____P. 3d ______, 2019 WL __________, Docket No. 119,099 (February 1, 2019). Federal law preempts state courts from ordering the division of military disability benefits and the distribution of any portion of those benefits to a veteran's former spouse. Military retirement pay is subject to such distribution. However, in the instant case, the district court erroneously ruled it could enforce a settlement agreement in which the parties' agreed distribution of military disability benefits could be made (which agreement the husband later successfully backed out of). The Court of Appeals remanded the case to the district court for, among other things, reconsideration of its ruling on spousal maintenance. Also, the Court of Appeals observed "there is nothing in the federal law that prevents state courts from considering disability pay in dividing other assets." In other words, while the court can't order distribution of any portion of the disability benefits to the other spouse, the district court can consider the benefits received in determining a fair distribution of assets and award of maintenance.