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KANSAS FAMILY LAW APPELLATE COURT DECISIONS—JUNE-JULY, 2021

On Behalf of | Aug 1, 2021 | Family Law

CHILD SUPPORT-Modification-Underemployment.   Marriage of Rees (n/k/a Denning) v. Rees, Docket No. 123,206, 2021 WL _______ (July, 2021-Ellis-Affirmed).  Father changed jobs, moving to a different town and working for a lower wage.  Mother alleged the district court relied on outdated KCSG in finding father was not deliberately unemployed, thus abusing its discretion.  “Kansas district courts have continuing jurisdiction to modify child support orders when there is a material change in circumstances. § V.A…. Voluntary termination from employment will not ordinarily constitute a material change of circumstances that justifies a reduction in child support.  The court may consider the circumstances surrounding termination from employment § V.B.5….What is a material change in circumstances is fact specific. In re Marriage of Case, 19 Kan. App. 2d at 890.”   “A material change in circumstances is a precondition that must be met by a party seeking adjustment of their child support obligation. “  The trier of fact must be convinced the termination was for rational and sufficient reasons.  Under the 2020 guidelines, the child support receiving parent need not prove under-or un-employment is for the purpose of avoiding child support…thus lessening the burden on the receiving parent…such that they must prove the deliberateness, but not the ostensible purpose, of underemployment.   In the instant case, the district court believed father’s termination from his employment, although voluntary, was for good and sufficient reasons (namely that his parenting time with his child in Hays was terminated, so he had no reason to stay, and wanted to be near his family in Emporia).  Father testified, and mother did not contradict, that father worked 40 hour weeks and was pursuing the best job opportunity for him in the area.   Thus, the district court was affirmed on appeal in reducing father’s child support obligation.

CUSTODY—Considerations—Children’s Wishes—In Camera Interviews.  In the Matter of the Marriage of Biernacki, Docket No. 122,594, 2021 WL ________ (June 11, 2021-Finney-Affirmed).  The best interests of the child control custody and parenting time.  K.S.A. 23-3201; Harrison v. Tauheed,  292 Kan.  663, 672, 256 P.3d 851 (2011). The party seeking a change has the district court burden of persuasion. Simmons v. Simmons, 223 Kan. 639 (1978); In re Marriage of Fireowed, Docket No. 120,893, 2019 WL 5474302, at*2 (Kan. App. 2019).  The district court must act in its sound judicial discretion.  In re Marriage of Rayman, 273 Kan. 996, 999, 47 P. 3d 413 (2002).  Abuse of discretion is the standard on appeal.  The district court has exceptionally broad authority.  Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P. 3d 515 (2018).  The district court must consider all relevant factors.  K.S.A. 23-3208(a), which is now the parenting time check list many courts follow.  The district court did not change custody at the request of the mother.  Although the child told the court in chambers he wanted to live mostly with his mother (the moving party) the district court discounted that desire.  Under K.S.A. 23-3203(a)(3) the court may consider the “desires of a child of sufficient age and maturity”, “but a child’s views alone are not determinative and have diminishing import when the child is chronologically or emotionally immature.” In its discretion, a court may choose not to interview children…especially if they are of tender years.