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Recent Cases

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ADOPTION-Termination of Parental Rights–Failure to Assume Parental Duties. In the Matter of the Adoption of S.D., Docket No.123,361 (Unpublished. Ct. of App.) 2021WL 1323809 (April 9, 2021-Atchison­ Affirmed). Reiterating long-standing Kansas law, consent to an adoption is not needed from a parent who fails or refuses to assume the duties of a natural parent for two years preceding (immediately preceding, according to prior law) the filing of a petition for adoption of his or her child. In this case, the failure to assume duties included failure to have significant contact with the child during the relevant period. The district court terminated father’s parental rights based on his failure, then granted the step-parent adoption. The district court did not base its ruling in any way on father’s deficiency in child support payments, but rather, his failure to continue taking UA’s as ordered by the court; refusing to comply with discovery orders; and other failures, the district court finding father knew “very clearly what was going on in terms of visitation, parenting time, child support.”

APPELLATE JURISDICTION-Finality of Underlying Case/Order. In the Matter of the Marriage of McAllister, Docket No.122,612 (Unpublished Ct. of App.) 20213439166 (August, 2021-Johnson-Appeal Dismissed). “The right to appeal is statutory in Kansas. Subject to certain exceptions, appellate courts have jurisdiction to entertain an appeal only if the party files the appeal in the manner prescribed by statute. Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. A party may invoke this court’s appellate jurisdiction as a matter of right from a final decision in any action. K.S.A. 60-2102(a)(4). A final decision is one that finally decides and disposes of the entire merits of the controversy and reserves no other questions or directions for the future or further action of the court. There is a strong policy against piecemeal appeals in Kansas. In this case, the District Court set aside the Decree of Divorce, at wife’s request, after the District Court entered a default judgment. The District Court granted wife’s motion to set aside the default judgment because it determined it lacked personal jurisdiction over wife. That decision was based on wife’s lack of contacts with Kansas. At the time, she was living in Switzerland. While the District Court set aside the default decree of divorce, the underlying case is still pending. Therefore, the District Court still has at least two options. It can dismiss the case for lack of personal jurisdiction, or it can enter judgment solely on the divorce and distribute any marital property in Kansas if it otherwise has in rem jurisdiction. Without such a final order, the case is not concluded. Because there is no final order which would establish the appellate court’s jurisdiction to hear the appeal, the [appellate court dismissed) it.”

CHILD SUPPORT-Modification-Retroactive Credit-Pleading Requirements. In re Ralph v. Ralph, Docket No.122, 832 (Unpublished Ct. of App.) 2021WL 936056 (March 12, 2021-Johnson-Affirmed). This case is highly summarized for the purpose of teaching a lesson, rather than particularizing all of its details for the purpose of reporting the outcome of this particular case. Father filed a post-trial motion for modification of residential custody and child support when a child of the parties came to live with him full time. Prior to that time, he had accumulated a child support arrearage to the mother in excess of $81,000. He had filed an earlier motion (years earlier) for modification, as a part of which he failed to file a parenting plan, child support worksheet, and Domestic Relations Affidavit. The District Court, with whom the appellate court agreed, ordered mother to pay father child support, awarded him custody of the child, but would not grant his request for retroactive credit against his $81,000 child support arrearage for the entire period of time the child lived exclusively with him, because his earlier motion did not follow Kansas Supreme Court Rule 139 and K.S.A. 23-3002 by filing a ORA and CSW with his motion. Thus, the earliest date to which the court could/would grant such credit would be the date upon which such instruments were filed. These are “mandatory perfection provisions of K.S.A. 23-3002(b).” He had notice of this deficit because his ex-wife’s reply to his earlier motion told him so, even if he did not know the rules.

GRANDPARENT VISITATION-Jurisdiction-Divorce v. Paternity, PFA, and CINC Cases. Frost v. Kansas DCF, 59 Kan. App. 2d 404, 483 P. 3d 1058, Docket No. 122,737 (March 11, 2021-Johnson-Affirmed). This case provides a history of grandparent visitation rights in Kansas. The district court dismissed the grandparents’ petition on the basis of In re T.N.Y., 51 Kan. App. 2d 956, 360 P. 3d 433 (2015). That was the law when the district court made its decision. The district court correctly followed its mandate. This panel of the appellate court decided not to follow the different panel’s ruling in T.N.Y. It nonetheless agreed the grandparents’ petition should be dismissed, but for a different reason, since it determined the decision in T.N.Y. should no longer be the law. One might ask how lawyers are to advise clients, and judges are to decide cases, when they follow the law, but a different group of judges on the same court decide to change the law in the case before them.

The issue in this case was the jurisdiction of the district court. Grandparents of an unmarried minor child sued KDCF, as the child was in state custody, and the grandparents were bound by an outstanding no-contact order issued in a CINC case. TNY, a paternity case, decided grandparent visitation should be limited only to divorce cases. 51 Kan. App. 2d at 963. The district court in the instant case decided that TNY   therefore did not extend grandparent visitation to other family law contexts (e.g. PFA or CINC cases).

The instant case clarifies that grandparents may file independent actions seeking visitation with their grandchildren, in the county where the child resides, and seek also similar relief in divorce cases. It held K.S.A. 23-3301 (the grandparent visitation statute) is constitutional. They must still prove (a) a substantial relationship with the grandchild and (b) that the relationship is is in the child’s best interests. The only pending cases in which grandparents may pursue visitation are divorce cases. They cannot intervene in paternity, CINC, or PFA cases.

The instant, independent action was properly dismissed, according to the appellate court, because grandparent visitation was not ripe for the parties, because the CINC cases take precedence over orders from other courts, and because the CINC court’s no-contact order governs until either the CINC case closes or the order is modified. K.S.A. 38-2201(a). Even if the district court has ordered grandparent visitation, DCF could not have allowed it, because a CINC no-contact order supersedes all other court orders.

JUDGMENT: Enforcement v. Modification. In the Matter of the Marriage of Miller and Miller, Docket No. 123,003 (Unpublished Ct. of App.) 2021 WL 1936062 (May 14, 2021-Shawnee-Affirmed). Wife was assigned a portion of the marital debt in the Decree. She failed to pay on it for over 8 years. Husband, during that time, paid on both his portion of the marital debt and his wife’s portion, with interest (husband paid 78% of the debt whereas his wife paid 22% of it). Prior to husband filing a motion to enforce the division of debt in the original decree, wife filed bankruptcy. A different judge heard the post-trial motion.

That judge ordered that wife pay interest on the debt husband paid on her behalf. Wife claimed that, since interest was not mentioned in the original judgment, the court modified the judgment without jurisdiction to do so. The appellate court disagreed.

“Generally, a district court has no continuing jurisdiction or power of modification over a division of property after entering an original divorce decree. Lewis v. Lewis, 4 Kan. App. 2d 165 {1979). In In re Marriage of Nelson, 2010 WL 4977112 at *3 (Kan. App. 2010-unpublished), the appellate court determined the district court could not award an ex-wife a money judgment for husband’s failure to provide a residence for his ex-wife and children because that remedy was not supported by the original judgment. By so doing, the district court created a new remedy. However, ordering an ex-wife to pay the share of the debt the court had previously ordered her to pay is not a modification. It is enforcement.   In re Marriage of Garren, Docket No. 91,957, 2004 WL 2282137, at*2 (Kan. App. 2004-unpublished). Further, K.S.A. 16-204{d), interest on a judgment is automatic. It is not a measure of damages. It is compensation fixed by law.

JURISDICTION OF DISTRICT COURT WHILE APPEAL PENDING-SUPPORT, ENFORCEMENT of JUDGMENT, AND SANCTIONS. Marriage of Leming, Docket No. 122,603 {Unpublished Ct. of App.) 2021 WL 2483114 (June 18, 2021-Sedgwick-Affirmed).   A district court can try to enforce its order (in this case that a father liquidate his assets to support his children since he is in prison and practically incapable of otherwise generating support) while a case is pending on appeal. “District courts have jurisdiction to enforce a domestic judgment while the case is pending on appeal.” In re Marriage of Fisher, Docket No. 93,761, 2006 WL 2043015, at*9-10 {Unpublished Kan. Ct. of App. 2006). “While divorce cases are pending on appeal, the duty to support is still in effect.” Gordon v. Gordon, 218 Kan. 686, 692, 545 P. 2d 328 {1976). Sanctions may also be entered while a case is pending on appeal. It may be used when a party exhibits a pattern of obstructive behavior to deter the party from continuing that behavior, and when they act in bad faith, as the husband did in this case by failing to explain the disposition of his assets the court told him to liquidate to pay his child support. The assets basically disappeared and the support went unpaid, but counsel appeared on father’s behalf at court hearings.

PATERNITY: CHILD SUPPORT-Prenatal care and birth expenses requested after the initial paternity order-Denied. Carman v. Harris, Docket No. 118,734, 313 Kan. 315, 485 P.3d 644 (Kan. S. Ct. 4.30.2021. Johnson County- affirmed). In a paternity case, mother asked, over one year after the hearing officer ordered, and the district court affirmed, the initial paternity determination and child support order, for reimbursement of prenatal care and birth expenses. The district court denied the request on grounds of timeliness. Both the Court of Appeals and Supreme Court affirmed.

Mother gave birth in 2014. She assigned her support rights to DCF. In December, 2014 DCF filed a paternity petition which did not seek expenses for prenatal care or for the birth of the child-herein lies the lesson that we should include this request, perhaps as a matter of course, in the boilerplate of our petitions. After various hearings and motions, in an April, 2015, Journal Entry the hearing officer reduced the child support obligation previously entered. The standard 14 day finality warning was included in that Journal Entry, and in a subsequent Journal Entry denying father’s request for a second rehearing. On August 3, 2016, mother for the first time filed a request for prenatal and birth expenses. The court denied that request, on grounds including that it was not included in the original paternity order and now more than one year had passed since that order was entered and the request was being made for the first time.

While K.S.A. 23-2215 permits a court to award birth expenses when entering an initial child support award in a paternity order, repeating the lesson set out above, the district court was not asked to do so in the initial petition and did not do so. K.S.A. 23-3005 governing modification of child support orders allows modification retroactive to the first day of the month following the filing of the motion to modify. “The trial court lacked authority to modify retroactively [the father’s] support obligation, except during the limited timeframe in [K.S.A. 23-3005{b)].” Further, mother did not seek relief under K.S.A. 60-260 {b){l), (b)(6), or (c).

PROPERTY SETTLEMENT AGREEMENT-Division of Tax Refunds. Marriage of Pease, Docket No. 122,000 (Unpublished Ct. of App.) {4.30.2021 Riley County- affirmed). When the parties’ PSA clearly sets forth that the parties will divide any tax refunds equally, husband’s claim that his payment of a quarterly payment and extension payment should be offset against the portion of the refund due failed. Wife was awarded $9,000 in appellate attorney fees. Lesson: consider PSA language covering this eventuality, for example, “to the extent one party pays any quarterly, extension or other tax payment for the tax year for which the parties are to receive any tax refund which they are to divide according to the terms of this agreement, that party shall receive dollar for dollar credit for such payments, therefore reducing the sum the other party shall receive as a refund by said amount” or other appropriate language.   If you are reading this opinion, don’t immediately conclude the result reached by the appellate court is obvious. It makes a lot of sense that if one party prepays an obligation he or she owes under the terms of the PSA, he or she would get appropriate credit for such payment.

RESIDENTIAL PLACEMENT-FATHER’S MOVE TO ALASKA WARRANTS CHANGE FROM FATHER TO MOTHER. Marriage of McNutt v. Gates, Docket No. 123,507 (Unpublished Ct. of App.), 2021 WL 4224660 (September 17, 2021-Geary, affirmed). The trial court granted mother’s motion for change of residential placement from father, a Junction City resident moving to Alaska, to mother, who was living in Illinois during the pendency of the motion. Father moved the children to Alaska in December, 2019. The case was tried in August, 2020. On appeal, the standards are abuse of discretion or when substantial competent evidence does not support findings of fact upon which the exercise of discretion is based. First, a material change of circumstances must be found. Then, the best interests test must be applied. K.S.A. 23-3222{c). How the move impacts the children, the parents, and increases costs to the non-moving parent are all considerations. In this case, father’s move increases costs to mother because it would increase her distance from the children. Absent the move, mother could drive or fly a short distance to see the children. She would now have to drive almost one week straight to drive, and would have to fly between 7 and 12 hours, from Chicago. Also, the move would likely decrease mother’s parenting time. Mother’s attorney fee request was denied. Although the appeals court did not agree with father’s contentions, it did not feel father’s appeal was frivolous.

RETIREMENT BENEFITS-OWN ER v. BENEFICIARY/ ANNUITANT -KPERS. Marriage of Blosser, Docket No. 123,225 (Unpublished Ct. of App.) 2021WL 2493205 (June 18, 2021-McPherson-reversed and remanded). Under the parties’ agreement and divorce decree, husband was awarded the “KPERS 457 account and KPERS account that pays a monthly benefit” as his “sole and separate property.” Wife was a joint annuitant of his KPERS accounts. The Decree did not terminate that interest. The Court of Appeals reversed the district court finding that the terms of the Decree were unambiguous and that the KPERS accounts had an ownership interest and a beneficial interest, and that the language in the agreement failed to terminate wife’s beneficial interest in his plans as a joint annuitant because there was no language to that effect either in the Decree or Agreement. The lesson is that setting aside the accounts to a party as his or her sole and separate property, without more, may not terminate the other spouse’s interest as a beneficiary of those accounts. I therefore suggest the addition of this language in agreements, or suggest this language in decrees: “Neither party shall either acquire or retain any beneficial or joint interest in any asset the ownership of which by this agreement or otherwise is in or set over to the other party, including, without limitation, retirement, pension, profit-sharing, RSU, stock options, deferred compensation, life insurance, annuity, investment or financial account, unless the same is specifically set out in this agreement. “The Court of Appeals, contrary to the district court, found the Decree ambiguous because the meanings ascribed by both parties…that wife did, or did not, retain a beneficial interest in the husband’s KPERS accounts could reasonably be construed from the language in the Decree. The case was remanded for further evidentiary hearing to determine the parties’ intent about the KPERS accounts and to enforce and clarify the divorce decree accordingly. NOTE FURTHER that language such as “neither party shall make any claim, except as herein agreed,” and “each party relinquishes his or her right, title and interest in the property allotted to the other” may accomplish this objective, see Hollaway v. Selvidge, 219 Kan. 345, 348-49, 548 P. 2d 835 (1976), although the quoted language does not appear materially different from that appearing in the instant case.

UIFSA REGISTRATION-PETITION INCLUSION. Chalmers v. Burrough, 58 Kan. 531,472 P. 3d 586 (August 27, 2021-Sedgwick-Reversed and remanded with directions). Failure to include a copy of the Order establishing or modifying child support with the “registration packet” is not fatal to the registration. One may seek leave to amend to add such Order. In this case, Mr. Chalmers “attempted to register a child support order from Florida in Sedgwick County District Court and moved to modify the amount of the order. Initially, no one realized Mr. Chalmers mistakenly left the order out of the registration materials. The district court imposed a temporary modification order. When it came to light that Mr. Chalmers had failed to include the Florida order with his registration materials, the district court concluded it never had jurisdiction to modify the order, so it voided the registration and modification and dismissed the case. The Court of Appeals affirmed.” The underlying order was $10,000 per month. Burrough was personally served with the petition and attachments and neither responded to nor challenged the petition to register. The modification order, to $1,000 per month, was entered by agreement of the parties. More than 2 months after the modification order was entered, Chalmers’ attorney filed a Motion for Order Allowing Addition to the Record, viz., the underlying Order, to which Burrough’s attorney filed a “motion to dismiss the case and void the judgment due to lack of jurisdiction and lack of subject matter jurisdiction.” The Supreme Court concluded, among other things, that registration itself is not what gives the district court jurisdiction over the out-of-state order. K.S.A. 23-36,601. The district court’s legal conclusion that the failure to properly register the order meant it did not have jurisdiction was reversed. That which is required to establish jurisdiction is otherwise set out in the act.

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