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Recent Developments In Kansas Appellate Cases

CHILD CUSTODY—Hearsay Exception. Marriage of J.H. and K.H., Docket No. 125,823, 2023 WL ______­, (Unpub. Ct. of App. Sept. 1, 2023 Franklin Dist. Ct. J. Witteman reversed and remanded). The trial court excluded as hearsay the testimony of a detective who interviewed the mother of a minor child for alleged sexual abuse of the minor child by her mother’s husband, and another detective conducted a forensic interview with the child. A few months later, the same detective observed a DCF second forensic interview of the minor child. The detective testified the substance of the child’s second interview stayed the same, but she disclosed more information in the second interview. Mother’s attorney asked the detective to describe what the child said in the first interview. Father’s attorney objected that such testimony was hearsay. Mother’s attorney told the court the child was available to testify. The trial court sustained the hearsay objection. Mother argued such exclusion violated her due process right to fully present her case. The Court of Appeals agreed, apparently in part because mother’s Fourteenth Amendment right to make decisions regarding the care, custody and control of her child was involved. While hearsay is an out-of-court statement offered to prove the truth of the matter asserted, an exception to that rule is found in K.S.A. 60-460(a), which is a statement previously made by a person [albeit a minor in this case] who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by the declarant while testifying as a witness.   

CHANGE OF CHILDREN’S CUSTODY—Summary of Procedure. S.D.II v. L.D., Docket No. 125,231, 2023 WL ______ (October 6, 2023. Geary Dist. Ct. J. Boehm—Affirmed in Part and Dismissed in Part). An appellate court generally reviews a trial court’s order granting or denying a request to modify custody for an abuse of discretion. State, ex rel. Secretary, DCF v. M.R.B., 313 Kan. 855, 861-62, 491 P. 3d 652 (2021); In re Marriage of Grippin, 39 Kan. App. 2d 1029, 1031, 186 P. 3d 852 (2008). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. The party asserting the abuse of discretion bears the burden of proving the error occurred.

In deciding whether the district court abused its discretion, the Court of Appeals reviews the evidence in the light most favorable to the prevailing party to determine if the district court’s factual findings are supported by substantial competent evidence and whether they support the court’s legal conclusions.  In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 704-5, 229 P. 3d 1187 (2010).  In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998).

Overall, the paramount consideration of the district court in deciding custody or residency is the best interests of the children.  Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). K.S.A. 23-3201. K.S.A. 23-3218(a) allows a district court to change or modify any prior order of custody, residency, visitation, and parenting time, when a material change of circumstances is shown. A twofold policy underlies the material change in circumstance rule. First, a reasonable degree of stability in a child’s important relationships contributes to the emotional, intellectual, and moral development of the child. Second, the court generally favors one-time adjudication of matters and opposes repetitive actions. In re Marriage of Bahlmann, 56 Kan. App. 2d 901, 908, 440 P. 3d 597 (2019).

In this case, in changing custody from father to mother, the specific issues mother presented were: an unwillingness to coparent; leaving the children with a person of whom father did not approve; inability to communicate, cooperate, and manage parental duties with father, as demonstrated by her refusal to provide father an updated address; unilateral decision-making regarding the care and custody of the children; and a failure to cooperate with the father to find a custodian to whom both parents agreed.

This case is a short course on the necessary elements for proving grounds supporting a change of custody, complete with examples of what not to do if you are the parent resisting the change.

 CHILD SUPPORT— Material change of circumstances.  In the Matter of Pretz and Pretz, Docket No. 125,000, 2023 WL ______ (Unpub. Ct. of App. 1.20.2023 Johnson-Judge Jayaram affirmed). The Court of Appeals reviews a District Court’s determination of whether there has been a material change of circumstances to modify child support for an abuse of discretion. The moving party bears the burden of showing that abuse. Kansas law requires courts to follow the Kansas Child Support Guidelines when determining child support. Modification of child support is governed by K.S.A. 23-3005, which states courts may modify child support orders within three years of the original order or a modification order “when a material change of circumstances is shown.” K.S.A. 23-3005(a). KCSG § V.A. No case has precisely defined what constitutes a material change in circumstances to modify child support, but the Court of Appeals has recognized that it “requires consideration of a variety of facts and circumstances and must be of such a substantial and continuing nature as to make the terms of the initial decree unreasonable.” In this case, mother asserted the hearing officer’s use of the multiple-family application when determining the amount of child support constitutes a material change in circumstances because it raises the question of how many children father was supporting. She made this allegation without citing authority to support the proposition. Further, the change in circumstance must occur after the court has entered a child support order. There was no allegation of any change in facts or circumstances that had arisen since the hearing officer entered a previous modification order to warrant further modification. The Court of Appeals found no abuse of discretion by the District Court.

CHILD SUPPORT-Calculation using Extended Income Formula and “Income Shares Model.” In the Matter of the Marriage of Obembe and Grammatikopoulou, Docket No. 124,097, 2023 WL _______ (Unpub. Ct. of App. 3/3/2023. Judge Luedke, affirmed). When the parents’ combined monthly incomes exceed $15,500, the district court may either calculate support using the schedules and assign the parents the highest amount on the relevant table even though their true income exceeds that threshold, or it may apply the Extended Income Formula. KCSG § III.B.3. The court must consider using the EIF if the parties’ incomes exceed the schedule cap, but need not ultimately use it. The district court is to add any child care and insurance costs to the basic child support obligation and divide the total obligation between the parties based on their proportionate shares of their combined income, under the theory that the children have the right to share in his or her parents’ standard of living (2 Elrod, Kansas Law & Practice: Kansas Family Law § 14.7 (2022 ed.)). Father’s argument that the amount of child support awarded exceeded the demonstrated needs of the children failed. “Kansas law is clear that child support is not based solely on the actual needs of the child, but mainly depends on the parents’ income and a child support award based on parents’ ability to pay may be upheld even if it exceeds the needs of the child.” Ottley v. Ottley, Docket No. 111,925, 2015 WL 3023389, at*6 (Unpub. Kan. Ct. of App. 2015) and Marriage of Guha, Docket No. 119,312, 2020 WL 3023389, at *6 (Unpub. Kan. Ct. of App. 2020).

DECREE INTERPRETATION—Parol Evidence. In the Matter of the Marriage of Wessley and Wessley, Docket No. 125,358, 2023 WL ______ (Unpub. Kan. Ct. of App. 9.15.23. Johnson County Dist. Ct.—J. Gurney, affirmed). The parties reached a mediated, signed agreement which was “incorporated” into the Decree. The interpretation of that agreement, as to the manner in which it divided a specific asset (a $2,250,000 plus note receivable payment), was the issue. The district court determined an ambiguity existed as to what and when payments were due. The district court received and considered parol evidence outside the parties’ (handwritten) agreement in deciding that issue, finding both the Decree and its incorporated settlement agreement were ambiguous. Said the Court of Appeals “the intent expressed in the parol evidence is clear. In resolving the ambiguity, the district court did not modify the Settlement Agreement or Divorce Decree—the district court’s order merely ensured the documents would be applied as the parties intended. The lesson appears to be that arguing that the district court was modifying the Decree and Agreement is a loser, as the court had no jurisdiction to do so. It was, rather, interpreting the documents, which it had the right to do based on the highly fact-based ambiguity of the interpretation of entitlement to payments under the promissory note.

GRANDPARENT VISITATION RIGHTS—How They Work. K.S. v. D.C., Docket No. 125,139 (Unpub. Kan. Ct. of App. February 10, 2023. Leav. Dist. Ct. J. Wiley, rev. and remanded). This is a dispute between two grandmothers. K.S. is the paternal grandmother. S.W. is the maternal grandmother. The state initiated CINC proceedings on behalf of the minor child. To avoid having their parental rights terminated, the child’s parents agreed to a permanent custodianship for the child, and the District Court appointed the paternal grandmother as permanent custodian and awarded visitation rights to the maternal grandmother. The  custodial??? grandmother sought to reduce the non-custodial grandmother’s visitation time. After hearing the matter, Judge Wiley denied the paternal grandmother’s request and ordered a visitation schedule commensurate with the past schedule. The paternal grandmother appeals.

K.S.A. 23-3301(b) controls. The District Court may “grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child’s minority upon a finding that the visitation rights would be in the child’s best interests and when a substantial relationship between the child and the grandparent had been established.” The District Court must make findings on both these issues before granting grandparent visitation. The burden is on the grandparent seeking visitation to prove these elements. In this case, there is no dispute that the grandparent seeking visitation had a substantial relationship with the child. The question was the child’s best interest. The burden is on the grandparent seeking visitation to prove these elements. Troxel v. Granville, 530 U.S. 57,65 (2000) recognizes the fundamental liberty interests of parents in the care, custody and control of their minor children. Courts cannot disregard decisions made by fit parents regarding visitations based solely on a determination of a child’s best interest. Rather, courts must afford special weight to a parent’s own decision when considering a fit decision regarding grandparent visitation.

In In re Paternity of M.V., 56 Kan. App. 2d at 36, the court held the best interests of the child standard alone is an insufficient basis to award grandparent visitation. The court must presume that a fit parent is acting in the child’s best interests and must give special weight to the parent’s proposed visitation schedule. The court cannot reject a fit parent’s visitation plan without finding it is unreasonable. But a parent’s determination is not always absolute because otherwise the parent can arbitrarily deny grandparent visitation without the grandparent having any recourse. Under K.S.A. 38-2268 ( c )(1), when  a permanent custodian is appointed, “such individual shall stand  in loco parentis to the child and shall have and possess over the child all the rights of a legal guardian.” Thus, in this case, as permanent custodian, the maternal grandparent has the same rights regarding the child that a parent would have.

The Court of Appeals remanded the case to the District Court to “make sufficient findings” and to apply the Troxel presumption that a fit grandmother who is the permanent custodian of her grandchild acts in the best interests of her grandchild and that her opinions on grandparent visitation are given special weight. The Court of Appeals could not determine whether the District Court interfered with the maternal grandparent’s due process right to parent her grandchild.

MAINTENANCE MODIFICATIONMaterial Change in Circumstances. In the Matter of the Marriage of Holmes and Gagel, Docket No. 125,035, 2022 WL _____ (Unpub. Ct. of App. 11.18.22- Johnson. Judge Rokusek, affirmed). Ex-husband filed a “Motion to Terminate Maintenance, or in the Alternative, To Decrease Maintenance.” The parties’ separation agreement, approved by the district court and incorporated into the Decree, provided maintenance would be paid until a specific date, unless one of the parties died, or wife remarried prior to the specified date. It also provided that husband “has not waived his rights to claim a change of circumstance in the future regarding the reduction of the amount of maintenance or the duration of maintenance, as set forth by statute, including his loss of employment in March of 2019.” At the time the parties entered into the property settlement agreement, husband was temporarily unemployed. He had no reported income at the time the parties reached their agreement regarding the amount and length of maintenance. The parties based the amount of maintenance on the amount husband earned prior to the filing of the petition for divorce. Husband was reemployed after the divorce petition was granted, earning slightly less than he had previously earned. Husband made the agreed upon maintenance payments for 16 months, and thereafter, claiming a material change in circumstances, filed the motion to which has been previously referred. He alleged in the motion that his monthly income had decreased, that his ex-wife’s income had increased, and that his ex-wife was residing in a new home with her boyfriend resulting in a decrease in the amount of her expenses. Husband said in his motion that these factors “render the current maintenance order unreasonable and in need of termination.” Wife pointed out that none of the agreed-upon events for the termination of maintenance occurred prior to the specified date. Cohabitation was not a triggering termination event set out in the property settlement agreement. Her best argument, according to the Court of Appeals, appeared to be “maintenance is transitional in nature and her income had not increased so substantially as to justify modification in the amount of maintenance.“

The District Court had to determine what constituted a ” material change in circumstances.” “[C]onsidering the fact that [husband] was unemployed at the time he signed the agreement, the only material change in circumstance that the Court could fathom would be if there was some reason [husband] was unable to work at all or was disabled to the [degree] he couldn’t work and couldn’t pay the maintenance. Because at the time he signed the agreement, he signed the agreement with no income and now he has a substantial income from which he can pay the maintenance.” A District Court has wide discretion over spousal maintenance. The standard on appeal is abuse of discretion. The district court’s decision whether to modify maintenance depends upon whether there is substantial competent evidence to support the ruling. A spousal maintenance obligation which is part of a property settlement agreement that is incorporated into a divorce decree entered by the District Court can only be terminated or modified “as prescribed by the agreement or as subsequently consented to by the parties.” Denial of the termination request was appropriate because the specified events had yet to occur. Modification depends upon whether a material change of circumstances occurred. One of the relevant factors to consider in determining that is to compare the financial condition of the parties at the time the property settlement agreement was reached with their financial condition at the time the modification request is made. The District Court determined that “the goal in maintenance is to allow the other party to equalize over time and to be able to establish themselves and earn their own income.” “The purpose of maintenance is to provide for the future support of the divorced spouse.”

MAINTENANCE—Considerations. Marriage of Bean and Johnson, Docket No. 124,478, 2023 WL _____ (Unpub. Kan. Ct. of Appeals Jan. 27, 2023—Ellis—J. Braun, affirmed). Marriage of Hair, 40 Kan. App. 2d 475, 484, 193 P. 3d 504 (2008) and Williams v. Williams, 219 Kan. 303, 306, 548 P. 2d 794 (1976) are the leading cases, the considerations in which are often repeated. An award of maintenance is discretionary and not mandatory. K.S.A. 23-2902(a) allows, but does not require, an award of maintenance. A District Court has wide latitude in determining whether to award spousal maintenance within the constraints of K.S.A. 23-2901 et seq. See In re Marriage of Monslow, 259 Kan. 412, 414, 912 O. 2d 735 (1996). An income disparity between the parties alone does not require an award of maintenance.  In Hair, no abuse of discretion was found, despite an income disparity of nearly $5,000 per month in gross income.

PATERNITY PRESUMPTIONSResolution When They Compete. In the Matter of the Parentage of W.L. and G.L., Docket No. 125,304, ____Kan. App. 2d ____ (June 16, 2023 Crawford District Court, J. Sunby, affirmed.) A person may not claim a presumption of parentage after a district court has tried and entered judgment on another person’s presumption of parentage for the same child. “E.L. [natural mother] was in a same-sex relationship with M.S.[partner, first in time] when twins were conceived through artificial insemination were born to E.L. After that relationship ended and the twins were 3 years old, the biological mother [E.L.] entered into a same-sex marriage with C.L.[partner-spouse, second in time] They have since been divorced. Both of E.L.’s ex-partners claimed to be the parent of the twins, but at different times. M.S. petitioned for parentage and the district court heard evidence, including from C.L., and entered a judgment finding M.S. the legal parent of the twins. C.L. first asserted her parentage after that order was entered. When M.S. moved to dismiss C.L.’s parentage petition for failure to state a claim for relief, the district court granted that motion. The Court of Appeals affirmed, finding C.L.’s parentage petition an improper collateral attack on the judgment.

PREMARITAL AGREEMENT INTERPRETATION—Covered and Uncovered Property; Dissipation of Financial Accounts.  In re Marriage of Bowers and Potts, Docket No. 124,040, 3034 WL _____ (Unpub. K. Ct. of App. February 10, 2023. Johnson County District Court, J. Gurney, Affirmed). Where an antenuptial contract is clear and unambiguous, the intent of the parties must be determined from the four corners of the instrument itself without the use of parol evidence. Courts should not strain to find ambiguity when there is none. Any mistake of law in interpreting a contract constitutes an abuse of discretion. This 29-page opinion distinguishes between property covered by the premarital agreement and a number of subsequent contracts, and that which is not. According to the appellate court, “a clear, simple, common sense reading of the premarital agreement demonstrates that the parties intended to protect their individual, separate property, and included all separately owned property regardless of its acquisition date. The clear intent of this agreement was to not allow the parties to infringe upon each other’s property. However, the agreement itself provided that in the event of termination of the marriage by divorce, dissolution, annulment or legal separation, wife would receive from husband’s separate property a specific sum of money for each completed year of marriage, which sum of money was not to be limited by the amount or value of husband’s separate property at the time of divorce. The parties’ reliance on a premarital agreement for the division of property does not preclude the court from applying governing law to divide property not included in the agreement, see K.S.A 23-2802(c) and the Kansas version of the UPA, K.S.A. 23-2401 et seq.

Husband argued, inter alia, that certain financial accounts were not “marital” property; were in fact his separate property; and therefore not subject to dissipation. The Court of Appeals held marital property “includes all property owned by married persons, whether described in K.S.A. 23-2601 or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership. Therefore, even if the account from which it was alleged funds were dissipated by husband was “Separate Property” under the terms of the premarital agreement, it would still be considered “marital property” under K.S.A. 23-2801(a), which is not the same as joint property under the terms of the premarital agreement. The court did not divide the account in question (thus did not divide property which was not divisible under the terms of the agreement) but considered husband’s dissipation of it in making its division of property.  Such was not an abuse of discretion.

PROPERTY DIVISION—Considerations—Dissipation of Assets. Marriage of Bean and Johnson, Docket No. 124,478, 2023 WL _____ (Unpub. Kan. Ct. of Appeals Jan. 27, 2023—Ellis—J. Braun, affirmed). K.S.A. 23-2801 et seq. Governs a division of property in divorce actions. The district court’s division of property is reviewed for an abuse of discretion. Under K.S.A. 23-2801(a) marital property is all of the property owned by married persons at the time of the marriage, as well as all of the property acquired by either spouse during the marriage. The factors to be considered by the court appear at K.S.A. 23-2802(c). Although a District Court must divide marital property in a just and reasonable manner, the division need not be equal. In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 715, 229 P. 3d 1187 (2010). Dissipation of assets: Courts may properly consider a party’s dissipation of assets when dividing property. K.S.A. 23-2802(c). In re Marriage of Rodriguez, 266 Kan. 347, 350-52, 969 P. 2d 880 (1998). A District Court has wide latitude to divide marital property and at this latitude provides the judge with discretion to consider whether marital assets were lost as a result of the wrongful conduct of one of the parties to the marriage. 266 Kan. 352. This seems to run contrary to Marriage of Sommers, 246 Kan. 652, 792 P. 2d 1005 (1990), decided 8 years earlier, which held “in domestic relations actions it was the legislative intent that, in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault.” While Sommers primary consideration was husband’s alleged infidelity as the fault not to be considered by the court, Sommers did not so hold. However, the instant case specifically allows consideration of dissipation.

PROTECTION FROM STALKING—Burden of Proof, Negative Finding, Right to Travel, Right to Loiter. M.G. v. C.H., Docket No. 124,450 (Unpub. Kan. Ct. of App. Sept. 1, 2023 Johnson Dist. Ct.- J. Scott, reversed and remanded). Judge found M.G. failed to meet her burden of proof and dismissed her petition. Judge found C.H. had a legitimate purpose for sending hundreds of pages of unwanted letters and postcards to M.G.; dozens of unwanted voicemails; and driving by M.G.’s residence repeatedly, taking photos of her house and the vehicles in her driveway—because M.G.’s husband had written C.H.’s husband (all according to the decision of the Court of Appeals). The Court of Appeals finds: “The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed.” The Court of Appeals finds the allegations made at trial met the definition of stalking, and only arbitrary disregard of the undisputed evidence could support the court’s finding the M.G. failed to meet her burden unless C.H.’s activities were constitutionally protected. The Court of Appeals holds that travel on a public roadway is not constitutionally protected. Neither the United States Supreme Court nor the Kansas Supreme Court have recognized an intrastate (v. interstate) right to drive a motor vehicle on a public roadway, even if done solely for personal pleasure. Even if there was a right to travel within a particular city, there is no right to travel down and remain on the street where M.G. lives. Further, the United States Supreme Court has recognized a right to “loiter” only in situations where doing so is entirely harmless in both purpose and effect. The Court of Appeals holds C.H.’s actions were only to harass M.G.

RETIREMENT ACCOUNT—Division Subject to Dormancy. Marriage of Holliday, Docket No. 124,116, 2023 WL ____, ____ Kan. ______ (June 30, 2023—Jackson County J. Etzel affirmed. Ct. of Appeals decision reversing Dist. Ct. is reversed). A district court’s division of a retirement account in a divorce proceeding constitutes a judgment subject to dormancy. K.S.A. 60-2403 when the division order qualifies under K.S.A. 60-254(a) as a final determination. The dormancy period does not run “during any period in which enforcement of the judgment by legal process is stayed or prohibited.” K.S.A. 60-2403(c). This tolling provision prevents a divorce decree dividing a KPERS account from becoming dormant until the benefits become payable to a plan member. Thus, the dormancy period starts when the benefits become payable to the plan member. This differs from plans governed by ERISA, because KPERS is a state governmental pension system controlled by Kansas law. Filing the divorce decree with the court clerk was equivalent to filing a QDRO with KPERS. Therefore, “a QDRO was timely filed and rights to receive a portion of the retirement benefits was preserved.”

SANCTIONS AGAINST ATTORNEY AND CLIENT—Marriage of Lucas, Docket No. 125, 233, 2022 WL _____ (Unpub. K. Ct. of App. December 16, 2022. Johnson Dist. Ct. J. Gurney, affirmed). Husband appealed the District Court’s decision denying his motions seeking sanctions under K.S.A. 60-211(a) against his ex-wife and her attorney. The Court of Appeals concluded the District Court did not err in determining that husband’s request for sanctions was untimely. The District Court did not abuse its discretion in granting wife’s request for sanctions. A District Court’s decision whether to award sanctions is only to be reversed on appeal for an abuse of discretion. The deadline for husband to seek sanctions against his ex-wife and her attorney expired 14 days after the District Court entered its judgment in the divorce action. K.S.A. 60 – 211 (c). Wife’s seeking to enforce a judgment previously entered by a District Court does not “open the door” for the other party to seek sanctions for acts that allegedly occurred before the entry of judgment. One of husband’s complaints concerned an email husband received from wife’s attorney, which was meant for one of her staff but was misdirected to the husband. Wife’s lawyer’s reference to him in the email was “This a— wasn’t sick!” As an email is not a pleading, written motion, or other document presented by wife or her lawyer to the court, within the ambit of K.S.A. 60 – 211 (c). Highly summarized, the District Court found that husband’s motion for sanctions against is wife was filed “without a reasonable basis in fact… and a good faith basis did not exist for the filing….” As a result, the District Court found that husband had violated K.S.A. 60-211 and ordered him to pay wife just over $1000 to compensate her for the amount of attorney fees she incurred as a result of defending against the motion for sanctions. The court also offered K.S.A. 23-2715 as justification for an award of attorney fees, in that such statute allows an award of attorney fees as justice and equity warrant. So, husband failed to establish that the District Court made a mistake in denying his motion for sanctions against his wife and her lawyer. He failed to establish that the District Court made a mistake in granting wife’s request for sanctions against him. The District Court’s decisions were affirmed.

SETTLEMENT—Set Aside for Failure to Disclose Assets. Marriage of Lozada, Docket No. 124,235, 2023 WL ______ (Unpub. K. Ct. of App. July 21, 2023—Johnson County J. Wonnell, affirmed). The parties tried their case in district court. The court did not at that time issue a final order. The parties shortly thereafter placed a “purported” settlement on the record. Wife shortly thereafter moved to set aside the settlement on the grounds that she learned new information about the parties’ assets that “undercut the ability to have a true meeting of the minds in arriving at their agreement.” The court, after hearing, sustained wife’s motion, finding the purported agreement was not binding. A second trial was conducted. Husband moved for a new trial thereafter, which motion was denied. Husband appealed the court’s (a) setting aside the purported agreement and (b) failure to tax treat a retirement account.

The Court of Appeals determined the alleged agreement was invalid and therefore properly set aside because many assets were absent from the agreement (about $669,000 worth), and that a settlement agreement is not final until the court signs the journal entry so indicating, In re Marriage of Towle and Legard, 56 Kan. App. 2d 857 (2019).

STEPPARENT ADOPTION—What constitutes failure to assume duties of natural parent. In the Matter of the Adoption of R.H., a minor child, Docket No. 125,525, 2023 WL ______(Unpub. K. Ct. of App. August 18, 2023. Geary Dist. Ct. J. Coppola, reversed and remanded with directions). District Court denied stepparent adoption petition because the boy’s natural father, who opposed the petition, had regularly paid child support. He had not regularly communicated with his son. The Court of Appeals found the “district court construed the statutory  grounds for termination of a natural parent’s rights too narrowly and gave too much weight to the payment of support as a singular factor defeating the adoption request.” The Court of Appeals reversed and remanded for further proceedings that “at a minimum require revised findings and conclusions comporting with the governing law and may include reopening the record to receive evidence on the parties’ present circumstances.”

THIRD PARTY INTERVENORS“Victim” of Wife’s Embezzlement. In the Matter of the Marriage of Martin, Docket No. 125, 287, ____ Kan. App. 2d _____ (June 16, 2023. Sedgwick Dist. Ct., J. Goering, affirmed). “Third parties asserting an interest in property of a marital estate can intervene or be joined as parties in a divorce action. The divorce court’s exclusive jurisdiction over the marital estate includes not only the power to equitably divide the marital property between the spouses, but it also includes the power to determine the third party’s interest in the marital property and to what extent that interest may be superior to the interest held by either spouse. The District Court granted Wife’s former employer equitable liens against property in the marital estate resulting from the husband’s pending divorce from his wife. The District Court did not make a mistake. The court granted intervenor’s request for equitable liens against specific assets in the marital estate while the divorce was still pending and before the marital property had been divided between husband and wife. The intervenors asked for liens upon property traced to that which had been purchased with funds embezzled from Wife’s former employer, the intervenors. The court, according to the Court of Appeals, erred when it removed such property from the marital estate, thus putting it beyond the reach of this intervening creditor of wife. Assets of husband and wife purchased with stolen money are part of the marital estate. The district court had authority to grant the equitable lien against the assets purchased with stolen money.

The District Court’s judgment granting intervenors’ request for equitable liens against specific assets traced to funds wife embezzled from intervenors is affirmed. The district court’s judgment removing this property from the marital estate is reversed. All marital property when the divorce action commenced must be divided between the spouses. By decree under KSA 23-2802,  net proceeds of any marital property that may have been sold has to be paid to the clerk of the District Court, and they are marital property which must be divided. Any marital property awarded to husband in the property division that the District Court has traced to stolen funds is subject to interveners, equitable liens, and the amounts determined by the District Court.  After the marital property is divided, intervenors may execute on their money judgment against wife.

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