FAMILY LAW UPDATE T. Bradley Manson T. Lynn Ward I. Introduction The Kansas Supreme Court issued three opinions relevant to the practice of family law between April 2014 and March 2015, all of which are discussed at length in this chapter. The Court also addressed, by way of two separate Orders, the administrative authority of the Tenth Judicial District’s Chief Judge to issue Administrative Orders permitting the issuance of marriage licenses to same-sex couples. While those two actions make for interesting reading, they will not be covered here. The Court of Appeals also handed down several significant decisions in cases that were published. Those cases most valuable to the family law practitioner are discussed below. While this article does not generally cover appellate decisions involving Adoption and Guardianship issues, several of those decisions will be addressed in this article to provide analysis regarding issues that may be helpful to the family law practitioner. Finally, a brief review of some of the unpublished Court of Appeals decisions are included, due to the remarkable guidance they can provide to family law practitioners (and courts).

II. Kansas Supreme Court Decisions A. Postmarital Agreements In In re Marriage of Traster, 339 P.3d 778 (Kan. 2014), the Kansas Supreme Court was asked to determine whether a postnuptial agreement is a “separation agreement” as that term is used in K.S.A. 60-1610(b)(3) (now found at K.S.A. 23-2712). In answering, the Court ruled that, in the absence of legislative clarification, the term “separation agreement” includes all agreements, entered during marriage, that provide for a spouse's property rights in the event of divorce or separation, regardless of whether the parties intend to remain married at the time of the agreement's execution. In so ruling, the Supreme Court affirmed in part and reversed in part the decisions of both the trial court and the Court of Appeals. In the end, the decision adds to the limited, and at times confusing, body of case law related to postmarital agreements in Kansas.

In In re Marriage of Traster, 48 Kan. App. 2d 356, 291 P.3d 494, 502 (2012), the Court of Appeals had upheld the Trasters’ post-nuptial agreement which, by its terms, provided the vast majority of the net worth to Wife and left Husband with less than 2% of the parties’ assets. The parties intended to stay married at the time they executed their postnuptial agreement. They had not incorporated the Kansas Uniform Premarital Agreement Act (KUPAA), the statutory scheme which governs the validity and enforceability of premarital agreements, into their postnuptial agreement. Consequently, the panel found the parties’ agreement was not a premarital agreement as that term is used in the KUPAA, nor was it was it a separation agreement as defined by Kansas divorce statute, because that term is used to describe agreements between spouses who have no intention of staying married. The Court of Appeals thus created a third category of marital agreements not covered by any statutory scheme, and set out a six-factor test to

1 determine the validity and enforceability of a contract executed by spouses who intend to remain married. In formulating the six-factor test, the panel relied on cases from various jurisdictions, but recognized the common-law rule regarding agreements fixing property rights between spouses, summarized in Fincham v. Fincham, 160 Kan. 683, Syl. ¶ 1, 165 P d. 209 (1946) as follows:

The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties....

Even after the enactment of K.S.A. 60-1610, which governed the division of property in the event of divorce, the Kansas Supreme Court continued to apply this common-law rule to analyze the validity and enforceability of premarital agreements. When the Court decided In re Marriage of Adams, 240 Kan. 315, 7829 P. 2d 1151 (1986), the premarital agreement at issue, certainly an agreement intended to fix property rights between husband and wife, was analyzed based on the common-law rule as summarized in Fincham, not based on the statutory language governing separation agreements. As the Kansas Supreme Court noted in Traster, this suggests the statutory term “separation agreement” was not considered applicable to prenuptial agreements providing for asset division if the parties later divorced, and, therefore, the statute did not completely replace the common law. The legislature enacted KUPAA in 1988, thus specifically addressing prenuptial agreements and defining a prenuptial agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” K.S.A. 23-2402 (a). The purpose of the KUPAA was to create a uniform set of rules regarding the enforceability of premarital agreements, but it also created a category of marital agreements granted more favorable statutory treatment than “separation agreements” pursuant to the law governing dissolution. Pursuant to the KUPAA, a premarital agreement no longer had to be “just and equitable in its provisions” so long as it was voluntarily executed and not unconscionable. Not surprisingly, some practitioners began incorporating the KUPAA as a choice-of-law provision in postnuptial agreements, thereby selecting the KUPAA’s unconscionability standard to determine the legality of their postnuptial agreements.

In Davis v. Miller, 269 Kan. 732, 7 P.3d 1223 (2000), the Kansas Supreme Court upheld the parties’ right to incorporate the KUPAA to a postnuptial agreement, specifically holding that such a use of the choice-of-law standard did not violate public policy. In Davis, the Court found parties can bind themselves to an otherwise inapplicable statute, but also applied the KUPAA to the particular facts of the case, which involved parties who had been married for over 20 years. For example, when analyzing the agreement for unconscionability, the Davis Court reviewed the comments to the UPAA, which verified that the standard of “unconscionability” (as used in the KUPAA) is the same as that applied with respect to “divorce settlements or awards” and found that “in the context of negotiations between spouses as to the financial incidents of their marriage, the standard includes protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.” The Davis Court also reviewed the economic circumstances of the parties resulting from the

2 agreement at the time of divorce, and found the division of net worth Wife would receive at the time of divorce would provide her the “means to continue a lifestyle that was commensurate with the lifestyle she led when married.”

The Davis court specifically noted that parties entering into a postmarital agreement “are in a vastly different position than parties entering into a premarital agreement” and cited a New Jersey case noting that the dynamics and pressures involved in a mid-marriage context “are qualitatively different than a pre-marriage situation.” Although the Court ultimately allowed the application of the KUPAA to the parties’ postmarital agreement, there was a recognition that the analysis under the KUPAA would not ignore the context inherent to a married relationship. This was explicitly recognized when the Court analyzed the sufficiency of financial disclosures provided by Husband, when the Court stated “disclosure of assets in a premarital context is much different than disclosure of assets in a mid-marital context.”

When the Court of Appeals issued its decision in Traster, it took this line of reasoning further in creating a higher level of scrutiny for postnuptial agreements where parties did not incorporate the KUPAA:

Unlike parties to a premarital agreement or a separation agreement, parties to a postmarital agreement have stated their intention to remain part of an existing marriage in which they already share a vested interest, personal intimacy, and mutual trust. The trusting and confidential nature of this existing relationship exposes the parties to a greater risk of unfair advantage in the bargaining process for two reasons. First, spouses who intend to stay married are unlikely to view the marital interest as distinct from their own interest. As a result, spouses to a postmarital agreement run the risk of putting the interests of the couple ahead of their own which, in turn, will make them less cautious than they would be if negotiating at arm's length with an ordinary contracting party. [citation omitted] Second, spouses who intend to stay married run a greater risk of unfair advantage in the bargaining process because the spouse who has the stronger desire to preserve the marriage necessarily becomes more vulnerable to the financial demands of the other.

Given the lack of statutory scheme for assessing the enforceability of a postmarital agreement, the panel stated:

Syl. ¶ 8. The appropriate standard for assessing the enforceability of a postmarital agreement is review of the agreement by the Court to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party’s own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all material assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of material assets and all martial rights in the event of a divorce; (5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the agreement are not unconscionable at the time of dissolution.

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The six-factor test recognized the common-law requirement that an agreement between spouses should be “just and equitable in its terms” at the time of execution, but also required the terms to be “not unconscionable” at the time of dissolution, a requirement that seemed to be supported by the Davis holding. The panel specifically cited the well-established principles of contract law which encourage the freedom of parties to contract without government interference. The panel also pointed out there is no requirement in Kansas that joint marital property be divided equally, and ultimately upheld the Trasters’ agreement by applying the six- factor test. The trial court, which had applied the statutory scheme governing separation agreements, had found the agreement was void as against public policy and “not fair and equitable” in its terms. Although the panel appears to have created a higher level of scrutiny for postmarital agreements, the panel’s application of the six-factor test resulted in the agreement being upheld, whereas the determination of the trial court that the agreement was a separation agreement, led to the division of property being set aside as not equitable.

On appeal, the Kansas Supreme Court tried to ascertain the legislative intent behind the statute governing separation agreements, but was unsuccessful due to the lack of legislative history. The Court was also unconvinced by secondary sources that purported to define the differences between postnuptial agreements and separation agreements, because the sources failed to provide sufficient analysis to support their conclusions. The Court ultimately rejected the panel’s reasoning that a postnuptial agreement executed by parties who intend to remain married would not qualify as a separation agreement under the divorce statute because “the statute governing separation agreements is part of the Kansas statutory scheme controlling dissolution of marriage.” In the absence of persuasive guidance regarding the intent of the legislature in crafting the statute, the Court held “the better statutory interpretation is to include all agreements entered into during marriage that provide for a spouse’s property rights in the event of divorce or separation within the meaning of separation agreement” as that term is used in K.S.A. 23-2712.

Because K.S.A. 23-2712 requires that a separation agreement be “valid, just and equitable” before a district court incorporates the terms into a divorce decree, the court is required to scrutinize the terms of the agreement. This means the district court must make two independent determinations. First, the postnuptial agreement must be a valid contract. This encompasses traditional contract requirements, such as a lack of fraud and public policy considerations. Second, the agreement must be just and equitable. This encompasses whether the terms provide an acceptable or fair property division under the particular circumstances. The analysis requires the trial court to scrutinize the agreement to prevent fraud and oppression, and mere agreement by the parties does not vitiate the court’s duty to examine the agreement to determine if it is valid, just and equitable. Cook v. Cook, 7 Kan. App. 2d 179, 638 P.2d 980, rev'd on other grounds, 231 Kan. 391, 646 P.2d 464 (1982). The trial court is given broad discretion to determine whether the agreement is just and equitable, but must do so prior to incorporating it into a decree of divorce.

In addition to disapproving the panel’s six-factor test, the holding also disavowed the trial court’s public policy analysis into whether the property division in a separation agreement tends

4 to “invite and encourage divorce.” Because the legislature enacted the “just and equitable” standard in the divorce statute, trial courts do not have to examine property distribution in a separation agreement to determine whether it encourages divorce and therefore violates public policy. The Court then applied the “just and equitable” standard to the division of property in the Trasters’ agreement. According to the Court, the trial court’s determination that the agreement was “unreasonable and inequitable” was guided by several errors of law. Although the Court found there was an insufficient factual analysis to permit adequate appellate review, it went on to note the Trasters’ explicit reasons for the unequal division of property. The Court continued, stating:

One important consideration would have been whether the reasons David and Debra gave for the one-sided property division were factually based at the time they were recited in the separation agreement; and, if so, what would be wrong with honoring those stated justifications. Similarly, the district court gave no apparent thought to the fact that these terms were voluntarily entered into or to the Trasters' express agreement that this asset division was “fair, just and reasonable” and comported “with all legal requirements so as to be fully enforceable under the laws of the State of Kansas.

(Emphasis added.)

The Court then affirmed the general rule in Kansas that “marital agreements are to be upheld and liberally interpreted to carry out the makers' intentions when there is a lack of fraud, no overreaching, and no other public policy impediment.” By citing this common-law principle, the Court affirmed that Kansas courts will continue to recognize parties’ freedom of contract, and that if a trial court is unable to follow this general rule, “what is required is a careful and full recitation of the facts and particular circumstances that justify the district court's conclusions that the parties' intentions cannot be honored.”

Ultimately, the Court determined that subjecting all postnuptial agreements to the same scrutiny, regardless of the parties’ intent at the time of execution, would be more “straightforward and easier to apply.” Prior to the Court’s decision, and without any statutory scheme governing the analysis of postmarital agreements, this is true. However, the Court’s decision does invite legislative clarification. Subjecting all postnuptial agreements to the same scrutiny does not adequately account for the change in circumstances that can occur when a postnuptial agreement is executed years or even decades prior to a parties’ divorce. A separation agreement executed in anticipation of a divorce is typically submitted for review by the district court within days, weeks or at most months of being executed; the parties’ respective positions will have not changed considerably since the execution of the agreement. But a postnuptial agreement executed years or even decades prior to the initiation of a divorce action creates a much more complex scenario for the court to analyze under the statute governing divorce. Further, subjecting all postnuptial agreements to the same scrutiny does not account for the substantially different intentions parties have when they form a contract with a desire to maintain a marriage, versus forming a contract with the intent to separate and divorce. In this respect, there is room for legislative clarification.

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Although the analysis required by the Supreme Court’s decision may not require the level of scrutiny called for under the Court of Appeals’ Traster decision, it does affirm a higher level of scrutiny than that required to analyze the validity and enforceability of a prenuptial agreement under the KUPAA. Consequently, practitioners should be aware of the different levels of scrutiny which will be applied to a postnuptial agreement under the two statutory schemes, and advise their clients accordingly.

B. Divided Custody and Exceptional Circumstances

The Kansas Supreme Court interpreted the divided residency subsection of K.S.A. 23-3207 in Cheney v. Poore, Kan. , 339 P. 3d 1220 (2014), holding that the statute, which provides for divided residence of children between parents only in exceptional circumstances, did not apply to determination of residential custody of a child who had a half-sister.

Most family law practitioners would recognize the facts in Cheney as being fairly typical of many paternity cases. The parties, Jeanna Cheney and Zachary Poore, were never married. They began dating when Jeanna was pregnant with another man’s child. She gave birth to that child, Jocelyn, and the biological father’s name was not put on the birth certificate. Zachary “acted as Jocelyn’s father from the time she was born.” Jeanna gave birth to Zachary’s child, Justine, during the parties’ relationship. The couple continued to live together with both children until the end of their relationship in September 2012. After the relationship ended, Jeanna filed a petition to establish Zachary’s paternity and a motion requesting temporary custody of Justine. Zachary filed and answer and counterpetition, requesting residential custody of Justine and a continuing relationship with Jocelyn. After the close of evidence at trial, the district judge made a finding that Zachary was the biological father of Justine. Jeanna specifically noted she would object to the judge making any findings regarding Jocelyn, and the only issue remaining for the judge to decide was that of parenting time related to Justine. In its memorandum decision, the district court noted Zachary was the only father Jocelyn had ever known but that he had no standing to request parenting time with her because he was not her biological father or step- parent. The court went on to state that it could divide custody of the children in an exceptional case pursuant to K.S.A. 2013 Supp. 23-3207(b) and that this was an exceptional case. The court reasoned that to have both children principally reside with Jeanna with only Justine allowed to leave the home to visit Zachary would be less favorable and more stressful than to have Justine principally reside with Zachary and then return to Jeanna’s home to exercise visitation with Jeanne and Jocelyn. Based on the language of the divided residency subsection, the trial court granted residential custody of Justine to Zachary.

Jeanna appealed the trial court’s decision, and although Zachary disagreed with the trial court’s reliance on the statute, he argued the trial court’s determination regarding residency of Justine could still be affirmed on appeal because substantial competent evidence supported the district court’s finding regarding her best interest. The appellate court agreed the language of K.S.A. 2013 Supp. 23-3207(b) was inapplicable to the situation because Zachary had no custodial parental rights over Jocelyn. Despite the determination that the district court erred in applying the “exceptional circumstances” language to the facts of the case, the Court of Appeals concluded the memorandum decision provided evidence that the trial judge had correctly applied

6 the legal standards found in K.S.A. 2013 Supp. 23-3201 and K.S.A. 2013 Supp. 23-3203 for awarding residential custody. The Kansas Supreme Court affirmed the Court of Appeals with respect to the application of the divided residency statute to half-siblings, holding that “the statute does not require a district court to make an exceptional case finding before rendering a decision that will result in dividing the residential custody of half siblings.” In so ruling, the Court specifically adopted the reasoning of a prior unpublished Court of Appeals decision which the panel had relied upon in reaching its conclusion. In In Re Marriage of Taylor, 2012 WL 1352867 (Kan.App.) (unpublished decision), a Court of Appeals panel interpreted the statute and found the legislature did not intend to include half siblings and stepsiblings within the scope of the divided custody statute in place at that time. The Taylor panel went on to recognize, however, that one factor in determining child custody is the interaction and interrelationship of the child with parents, siblings and any other person who may affect the child’s best interest. The Taylor panel recognized that “half siblings and stepsiblings- especially those residing with the child and a parent- may have a significant impact on the child's life. Thus, if such a relationship exists, it must be taken into consideration by the court in determining the child's residency, even though the most important factor to consider is the best interests of the child.”

The district court is in the best position to make the inquiry and determination as to which residential custody award is in the best interest of the child and, in the absence of abuse of judicial discretion, its judgment will not be disturbed on appeal. A district court can abuse its discretion when a ruling is based on an error of law. Based on the trial court’s misunderstanding of the statute, the trial court declared the case to be an “exceptional case” and made findings to support its exceptional-case conclusion. The mistake shaped the trial court’s analysis of the facts which, in turn, led to its best interest determination. The Court could not divine from the memorandum decision that the district court actually applied the correct legal standard. Consequently, the Court of Appeals’ decision affirming the trial court’s decision was reversed and the case was remanded back to the district court for findings and fact and conclusions of law consistent with the correct legal standards.

C. Special Masters and Final Judgments

Kaelter v. Sokol

In Kaelter v. Sokol, Kan. , 340 P.3d 1210 (2015), the parties had been litigating issues related to their paternity, custody and property division case since it began in early 2007. On appeal, the issue was whether a journal entry from October 2010 ultimately resolved an outstanding issue related to past medical expenses. Pursuant to K.S.A. 2013 Supp. 60-2102(a)(4), an appeal to the Court of Appeals is a right of the parties from a final decision in a case. Generally, a final decision disposes all issues remaining in a case, and leaves no further actions for the lower court to take. The Court of Appeals may exercise jurisdiction as long as it is allowed by statute. Flores Rentals, L.L.C. v. Flores, 283 Kan. 476, 481 (2007). However, it is for the appellate court to review a case on appeal for jurisdiction regardless of whether a party raises a jurisdictional issue, and if it finds that it does not have jurisdiction, it must dismiss the appeal.

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This case had been filed originally in early 2007, after Ms. Kaelter filed a case against Mr. Sokol, seeking determinations of paternity, custody, support, and an equitable division of the parties’ jointly acquired assets. The district court referred the matter to a special master who issued its report and recommendation to the district court. The district court adopted the special master’s findings of fact and conclusions of law, without receiving additional evidence or testimony from the parties, and ordered Mr. Sokol to pay Ms. Kaelter a sum of money for unreimbursed medical expenses. Mr. Sokol appealed, and the Court of Appeals affirmed the district court’s decision, awarding appellate costs and attorney fees to Ms. Kaelter. Mr. Sokol petitioned and was granted review by the Supreme Court. The final order by the district court indicated that it could not make a sufficient determination of unreimbursed medical expenses without further documentation. Because the record on appeal did not indicate whether the issue had been resolved, the Supreme Court issued a show cause order, requiring the parties to appear at oral argument ready to explain the status of whether the appeal was premature. Both parties appeared at oral argument and confirmed that the issue remained outstanding. The Supreme Court ultimately determined that the appellate court did not have jurisdiction to hear the appeal, and therefore, reversed the decision and dismissed the appeal. The award of attorney fees and costs award to Ms. Kaelter on appeal was also reversed. Because the award was based on an error of law, the Supreme Court found that the Court of Appeals had abused its discretion in awarding attorney fees because the appeal should never have been heard due to lack of jurisdiction. Therefore, the award of fees was an improper order.

III. Court of Appeals Decisions

A. Attorney Fees

In the Interest of F. In affirming an award of attorney fees against adoptive parents in In the Interest of F., a Minor Child, Kan. , 341 P.3d 1290 (2015), the Court of Appeals recognized the discretion allowed in the trial court’s award. Review of an attorney fees award is under an abuse of discretion standard, and a district court abuses its discretion only when its award is based on error, or if no reasonable person would agree with the decision. An award of attorney fees in a non-criminal action is authorized under K.S.A. 59-2134(c), and although it has considerable discretion regarding the amount of attorney fees, the district court should consider the factors set forth under Rule 1.5(a) of the Kansas Rules of Professional Conduct.

The mother of the minor child consented to the adoption of the minor child, while the father, a semi-indigent individual, objected to the adoption. The matter went to trial with the adoptive parents and the father, and the district court terminated father’s rights. Father was ordered to pay $500 for his attorney fees, and the remainder was to be paid by the adoptive parents. Father paid $100 to his attorney. When father’s attorney presented his fee request, in the amount of $5,622.77, to reflect the $100 payment, and expenses for serving court papers and the deposition transcript in the amount of $262.77, and his hourly rate of $150 per hour. The district court approved his request based on the fact that it was in line with what was being paid

8 for such services in Sedgwick County, Kansas, that the hours he spent working on the case were appropriate, and that he is an experienced attorney who merits such a rate. The adoptive parents appealed this approval, arguing that the attorney fee rate should have been $80 per hour, not $150 per hour. The appellate court determined that although the district court did not specifically mention the factors specifically in its decision, it did reflect that the court had considered several of the factors when it made its determination. And the remaining factors that were not considered, were of little to no relevance. The court noted that the adoptive parents argued the relevance of In re Adoption of J.M.D., a case where the appellate court in that case reduced the hourly rate from $200 to $80, where it noted that the $80 rate was used for court-appointed attorneys who represented indigent defendants. The appellate court here further noted that the appellate court in J.M.D. was using its own discretion to award fees after considering Rule 1.5 factors at a rate of $80 per hour, but it does not limit fees in other cases, and listed cases where the appellate courts have awarded fees at a higher hourly rate. B. Retroactive Applicability of the Protection from Stalking Act Dester v. Dester In Dester v. Dester, 50 Kan. App. 2d 914, 335 P.3d 119 (2014), the court held that amendments to the Protection from Stalking Act allowing extensions of final protection from stalking orders could be applied retroactively. Mr. Dester appealed the decision of the district court to grant a second extension of a protection from stalking order against him, arguing that the district court did not have jurisdiction to do so. Ms. Dester and Defendant were married, and divorced after 6 years. They had one child. Ms. Dester filed for divorce, and shortly thereafter, a motion for protection from stalking case against Mr. Dester for calling her 58 times in a six- hour time period one day, and 26 times around noon the following day. The district court held a hearing, and granted Ms. Dester an order for protection from stalking for one year, or until November, 2012. Shortly before the year was up, Ms. Dester filed a motion to extend the term of the protection order for another year. The district court held a hearing, and granted the motion, extending the protection order for another year, or until November, 2013. Shortly before November, 2013, Ms. Dester filed another motion for a second extension. The district court held a hearing, and although Mr. Dester argued that the district court did not have jurisdiction to grant a second extension, the court disagreed and granted another extension for one year, or until November, 2014. Mr. Dester appealed this decision. Mr. Dester argued that the 2012 amendment to the protection from stalking did not apply retroactively, and therefore, the court did not have jurisdiction to extend the final PFS for a second year. He argued that it affects his substantive rights of freedom of speech and freedom of movement. The Court of Appeals viewed the issue of whether an intervening statutory amendment applies to a second extension as an interpretation of a statute and a question of law in which their review is unlimited. It is the appellate court’s duty to attempt to ascertain legislative intent through statutory language, giving common words and ordinary meaning. The Court of Appeals reviewed the Act, and determined that it is to be liberally construed to protect its victims, and to facilitate access to judicial protections for those victims. The 2012 Amendment modified the original statutory language from its previous wording that it could be extended for “up to one additional year” to the fact that it could be extended “for an additional

9 year.” Thus, Mr. Dester argued that the revised state did not apply retroactively because the amendment to the statute did not happen until after the original PFS case was filed, and the order was entered. The general rule involving whether a statute is applied retroactively or prospectively is 1) whether the statutory language clearly indicates that it is to apply retroactively, or 2) whether the change is procedural or remedial in nature, and not substantive. There is no expressed language in the 2012 amendment to the protection from stalking act, so the Court of Appeals reviewed whether the change was procedural or remedial in nature. They noted that procedural laws involve the manner and order in conducting suits, or whether it involved how the case proceeds to enforce legal rights; while substantive laws establish rights of the parties. Procedural laws have no vested rights in the remedy or method of proceeding in a lawsuit. Here, the Act protects an individual from being stalked, and that the remedy sought is the type of relief a victim may seek from the court and procedure for doing so. Therefore, the Court of Appeals found that the 2012 amendment was procedural or remedial in nature, and therefore, found that it could apply retroactively only if they found that if applied retrospectively, they would not prejudice a party’s substantive or vested rights. The appellate court reviewed whether Mr. Dester’s rights were vested by looking at 1) the nature of the rights at stake (procedural, substantive, remedial); 2) how rights were affected; and 3) the nature and strength of public interest furthered by legislation. Mr. Dester had argued that he had a vested right in not having a stalking order entered against him for another year. However, after applying the above factors, the Court of Appeals found that he does not have a vested right in harassing someone, or in not having a PFS ordered against him for another year. Any restrictions on Mr. Dester’s freedom of speech and movement are to be narrowly tailored and not to be unlawfully restrictive. There is a public interest at stake - the need to protect victims from stalking. Therefore, allowing an extension beyond the original two year limitation is minimally restrictive. The Court of Appeals ultimately affirmed the district court’s ruling. C. Step-Parent Adoptions/Termination of Parental Rights In the Matter of the Adoption of P.Z.K., K.S.A. 2013 Supp. 59-2136(d) governs termination of a parent’s rights in a step-parent adoption, while K.S.A. 2013 Supp. 59-2136(d) governs the termination of parental rights in all other adoptions. In In the Matter of the Adoption of P.Z.K., 50 Kan. App. 2d 617, 332 P.3d 187 (2014), the court held the statutory provision requiring consent by presumed father for stepparent adoption does not apply to the biological father who contested adoption, where he was never married to the mother and the child was not a legitimate child of the father under pre-1985 Kansas law. Father and mother were not married at the time of the birth of P.Z.K. in 2002. Mother and SRS filed a petition for determination of paternity in 2011. Father was ordered to take a genetic paternity test, and after the results indicated he was the biological father, he was ordered to pay $205 in child support and to reimburse mother for support from birth. Mother married step-father who filed a petition for the adoption of P.Z.K. in 2013. Mother consented and Father refused to consent. The district court found by clear and convincing evidence under K.S.A. 2013 Supp. 59-2136(h)(1)(A) that Father had abandoned or neglected the minor child, and terminated

10 his rights. Father appealed, arguing for the first time on appeal that the district court should have applied K.S.A. 2013 Supp. 59-2136(d), rather than K.S.A. 2013 Supp. 59-2136(h), and further, that there was no clear and convincing evidence to support a finding of unfitness. Although the issue was first raised on appeal, the Court of Appeals found that this issue was an exception to the general rule that issues first raised on appeal are not appropriate, and that the issue involves only a question of law determinative of the case. Interpretation of a statute is a legal question and is reviewed under an unlimited standard. Natural Father relied on In re J.M.D., 293 Kan. 153, 158 (2011), where the Supreme Court looked at the statutory framework of whether all step-parent adoptions are governed by K.S.A. 2013 Supp. 59-2136(d). The Supreme Court in In re J.M.D. found that termination of parental rights is governed differently in step-parent adoptions and other types of adoptions, distinguishing K.S.A. 2010 Supp. 59-2136(d) from K.S.A. 2010 Supp. 59-2136(h). However, the Court of Appeals distinguished this case from In re J.M.D., because the father in that case was the presumed father of the child because mother and father were married at the time J.M.D. was born, and that K.S.A. 2013 Supp. 59- 2136(d) governs when there is a presumed father due to a marital relationship, or when the child is the father’s child under prior state law. Here, Father and Mother were not married, and there was no presumption of paternity until 2011 when the paternity action was filed, and he was determined to be the presumed father through genetic testing. Father did not contest that the parties were not in a marital relationship, but rather that he is the legitimate father of the child under prior state law. However, after analyzing the words and their plain meaning for statutory interpretation, the appellate court determined that “prior law” is ambiguous because it can refer to any laws prior to the current statutes, or laws in effect prior to K.S.A. 2013 Supp. 59-2136(h). Because of the nature of its ambiguity, the Court of Appeals looks to the canons of construction, more specifically at the canon noscitur a sociis, or translated, “it is known from its associates.” Therefore, the appellate court compared elements of the statute to determine the meaning of the words and phrases within the statute, and found that subsection as a whole used the term “legitimate child.” With respect to legitimacy, the appellate court looked to statutes prior to 1985 because those differentiated between legitimate and illegitimate children, or children born inside or outside of a marriage. The Court of Appeals found that K.S.A. 2013 Supp. 59-2136(d) refers to situations covered under Kansas statutes prior to 1985 to the extent they referenced legitimate and illegitimate children. Genetic testing was not enacted to determine paternity until 1994, and therefore, K.S.A. 2013 Supp. 59-2136(d) only applies to stepparent adoptions when the child has a presumed father due to a marital or nonmarital relationship, or if his legitimacy qualifies him under laws of the state enacted before 1985. Therefore, Natural Father does not fall under these categories, and the district court was not required to apply K.S.A. 2013 Supp. 59-2136(d). The Court of Appeals also considered whether there was clear and convincing evidence to support the district court’s termination of Natural Father’s rights. Under K.S.A. 2013 Supp. 59-2136(h), a parent’s rights can be terminated upon a finding of clear and convincing evidence of any of the factors listed in that subsection. Therefore, the district court’s determination that Natural Father abandoned or neglected the minor child from 2005 through the present was enough to satisfy the elements under the statute and to terminate his rights. Natural Father did not challenge the finding that he had little to no contact with the minor child after he was three years of age. The Court of Appeals ultimately affirmed the district court’s decision on this alone,

11 and did not address any of the Natural Father’s other arguments for the sufficiency of the ruling under other factors. D. Permissible sanctions for Indirect Civil Contempt

In re Marriage of Shahamer

In In re Marriage of Shahamer, 50 Kan. App. 2d 152, 323 P. 3d 184 (2014), former husband filed motion seeking to hold wife in contempt for violations of various parenting time provisions of the parties’ divorce decree and subsequent court orders. After an evidentiary hearing on the motion, the district court held former wife in contempt for failing to be on time for an exchange, failing to provide father the weekly update mandated by prior court orders and failing to honor the “statutory court order to foster the relationship between” the children and their father. Evidently frustrated by wife’s conduct, the district court sentenced her to six months in the Sedgwick County jail, suspended all but two days of the jail time, then placed her on “12 months of probation” with the district court. At the subsequent hearing on wife’s Motion to Alter or Amend, the district court expressed its frustration with the “constraints inherent to indirect civil contempt citations” by declaring: I do not think the case law—and maybe I will get reversed, but I—who cares. I mean, I do care, but I just don't envision that the law is that if you violate a court order ... like in a divorce case, certain visitation times. If those are violated, no weekly updates ... showing up habitually late for the parenting.... The judge's hands are tied, ... there can be basically no real penalty in contempt. I just don't think that that's what the law stands for. And what the Court of Appeals I think appreciates, I hope, and the Supreme Court is, is that it is extremely difficult to get the parties in family law cases to comply with the orders. That it is vitally important that trial court judges have the ability to enforce their orders.

In recognition of the fact that current case law requires that a person subject to indirect civil contempt be given the ability to purge herself or himself of the contempt, the district court ruled that the district court ruled as follows: So I will deny [Shelhamer's] motion and require her to either immediately surrender herself to the Sedgwick County jail and remain there until she can provide proof to the court that she is providing the weekly updates, that ... the next parenting time that the children are provided to Dad on time, and that there is no further derogatory comments made to the children or actions by [Shelhamer] to undermine the relationship between the minor children and [their father], or ... I will allow [Shelhamer] to do the two days in jail, per my previous order.” Seeking clarification of this order, wife’s counsel asked how wife was supposed to comply with the order to avoid spending time in jail. The district court replied:

I understand this is difficult, but I am not going to allow that to turn court orders in family law cases into just so much fluff that's non-binding, that's optional, that parties can willy- nilly mess with the other, mess over what's in the children's best interest, and then give the court a big raspberry.... [T]his trial court judge is not going to stand for that.... I don't think that that's what the law of contempt stands for, either. I think it stands for parties are going to

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comply with court orders or they are going to face the sanctions of the court, to include jail time.

The only issue on appeal was whether the district court abused its discretion in sanctioning wife. Kansas statutes create two classes of contempt, direct and indirect. Direct contempt is committed in the presence of the judge, while all other forms of contempt are denominated as indirect contempt. See K.S.A. 20–1202. In this case, wife’s contempt was indirect as it occurred outside the presence of the judge. Whether the contempt is criminal or civil is based on the character of the sanction imposed. “Civil contempt proceedings are remedial in nature and designed to advance the private right of a litigant won by court order. Any civil contempt penalty is intended to be coercive, and relief can be achieved only by compliance with the order.” In re J.T.R., 47 Kan.App.2d at 95, 271 P.3d 1262. Here, the parties and the district court all agree that wife was sentenced for indirect civil contempt. The sanction for indirect civil contempt is intended to be remedial and must furnish the contemnor the “keys to the jailhouse door” and allow her to purge her contempt at any time by complying with the order in question. On the other hand, sanctions for criminal contempt are intended to punish the contemnor for disobedience or disrespect to the court, with punitive judgment imposed in vindication. State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338 (1997). However, when a court undertakes to punish in criminal contempt, the due process rights that attend any criminal charge should apply. In re J.T.R. 47 Kan. App. 2d at 101, 271 P.3d 1262. These rights include rights to notice, to court- appointed counsel if indigent, to trial, to confront witnesses, and to invoke the privilege against self-incrimination. The Court of Appeals cited the Kansas Supreme Court’s decision in Goetz v. Goetz, 181 Kan. 128, 138, 309 P.2d 655 (1957), which set down the fundamental principle repeatedly recognized in reversing punitive sentences when imposed in the context of civil contempt proceedings: “If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.” In reversing the district court’s decision, the court held that where a district court simply wants to punish a contemnor, the proper remedy is a proceeding the criminal contempt.

E. Failure to Change Beneficiary Designation on Retirement Account

Jones v. Culver

In Jones v. Culver, 50 Kan. App. 2d 386, 329 P.3d 511 (2014), Glenda Culver received the proceeds of her former husband’s retirement account because he failed to change the beneficiary designation following their divorce. Despite being awarded his 401(k) as his sole and separate property, free and clear of any right, title or interest in Glenda, Byron Funk failed to execute the change of beneficiary designation on his retirement account. When he died intestate 14 years later, the proceeds were distributed to Glenda. The administrator of his estate sued Glenda, alleging her retention of the proceeds constituted (1) unjust enrichment; (2) breach of contract with Byron; and (3) a breach of her fiduciary duty to Byron’s estate. The Court of Appeals affirmed the district court’s decision granting summary judgment in favor of Glenda.

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The divorce decree included standard directions requiring the parties to “make, execute and deliver to the other party any and all deeds of conveyance…or any other instruments which may be necessary or convenient to carry out the terms of the” divorce decree. The district court noted that under K.S.A. 60-1610(b) (now K.S.A. 2013 Supp. 23-2802[d]), a change in beneficiary must be addressed in a divorce decree or by the actions of the owner. The district court noted the parties’ divorce decree did not include the change in beneficiary language and refused to grant equitable relief where the parties had failed to comply with the statute. On appeal, the Court of Appeals exercised unlimited review over the issues of the interpretation and legal effect of the divorce decree and pretrial order, as well as the interpretation of the caselaw and statutes cited by the district court. The Court of Appeals was not convinced by the estate’s argument that the pretrial order, listing the parties’ proposed divisions of marital assets, formed a contract between the parties. The court also declined to find there was any breach involved, since the order in question only provided that Byron would keep his 401(k) account post-divorce. The court reasoned that what he arranged to do with the proceeds upon his death was entirely up to him, and that he may have intended for Glenda to receive the proceeds of the asset upon his death.

This same reasoning was applied to reject the estate’s argument under the doctrine of unjust enrichment. In Kansas, the elements of an unjust enrichment claim are: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value. Haz–Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 177, 910 P.2d 839 (1996). The court held the district court was correct when it determined that “the acceptance or retention of the 401(k) benefits by Glenda was not under such circumstances as to make it inequitable for her to retain the 401(k) proceeds without payment of their value” because by leaving Glenda as the named beneficiary, Byron “must have intended such a result.” By allowing his earnings to contribute to the 401(k) plan created by his employer, Byron was a settlor of the trust, thus it was necessary that the divorce decree provide for any changes in a beneficiary designation related to the account. Where Byron failed to make that necessary change, the district court was correct in refusing to modify the legal obligation as matter of equity.

F. Failure to Disclose Financial Information In re Marriage of Johnson The district court may assess a sanction under Section V.B.2. of the Kansas Child Support Guidelines for a parent's failure to disclose a material change of circumstances, even if the failure to disclose is not willful. In re Marriage of Johnson, 50 Kan. App. 2d 687, 687, 336 P.3d 330, 330-31 (2014). In Johnson, Hal and Ladonna’s decree of divorce required Hal to pay $478 per month in child support to Ladonna. After the divorce, Hal resigned his position and took a higher earning position out of state. Ladonna subsequently filed a motion to modify child support based on a material change in circumstances and asked the court to determine Hal’s child

14 support arrearage. At the hearing on her motion, LaDonna’s attorney cited the following April 2012 amendments to the guidelines adopted by Kansas Supreme Court Administrative Order No. 261:

V.B.2. Duty to Notify: In the event of a failure to disclose a material change of circumstances, such as the understatement, overstatement, or concealment of financial information, as a result of such breach of duty, 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 amount. The court may also adopt other sanctions.

LaDonna’s counsel drew the district court’s attention to the way the guidelines “beefed up” the duty to disclose a material change in circumstances by allowing district courts to sanction a party for breaching that duty. Counsel noted that one such sanction is for the district court to determine the dollar value of the party's failure to disclose and assess the amount in addition to the Line F.3 child support amount. Counsel asked the district court to order that Hal pay the difference between his former and modified child support obligation beginning April 1, 2012—the date the amendments to the guidelines took effect, even though LaDonna’s motion to modify child support had not been filed until October 2012.

The district court modified Hal’s child support to $1,279 per month, which was a difference of $801 per month between what Hal should have been paying and what he was actually paying. The district court determined Hal was in arrears at the rate of $801 per month beginning July 1, 2012, but ordered him to pay the child support arrearage commencing in September 2013, which was the month Hal’s spousal support obligation was scheduled to terminate. After hearing arguments and reviewing briefs on Hal’s motion to reconsider, the district court set aside the portion of its earlier decision that ordered Hal to pay an arrearage of child support commencing July 1, 2012 and changed the effective date to November 1, 2012. In doing so, the district court relied on K.S.A. 2013 Supp. 23-3005(b), which states that the court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.

On appeal, LaDonna argued the district court erred in ruling that K.S.A. 2013 Supp. 23– 3005(b) prohibits the district court from assessing a sanction under Section V.B.2. of the guidelines. She contends that the statute governs modification of child support; whereas, the relevant section of the guidelines allows a district court to assess a sanction in response to a party's breach of the duty to disclose a material change in circumstances. Hal argued K.S.A. 2013 Supp. 23–3005(b) preempts the sanction provision of Section V.B.2. of the guidelines, claiming the Supreme Court cannot impose such a sanction through the guidelines. The Court of Appeals disagreed, stating:

When a child support modification is coupled with a parent's failure to disclose a material change of circumstances, the guidelines now allow the district court to assess a sanction for the parent's failure to disclose the material change of circumstances. The child support modification authorized by statute typically is based on a change in a parent's income that

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constitutes a material change of circumstances. But the additional sanction under the guidelines is for a parent's failure to disclose the material change of circumstances in the first place. These are two separate issues; consequently, the sanction provisions of Section V.B.2. of the guidelines do not conflict with the statute.

The court also held the district court erred by ignoring the plain language found in K.S.A. 16- 204, which requires the payment of postjudgment interest for past due child support commencing the date the judgment was entered in district court. In a concurring opinion, Judge Powell suggested that, should the district court deem a sanction appropriate, “the guidelines direct it to impose a sanction equal to the amount of child support to which LaDonna would have otherwise been entitled had she been timely informed of Hal's increase in income, minus the child support actually paid by Hal during the relevant period, plus any other sanctions, such as attorney fees, the district court sees fit in its discretion to impose.” In support of this approach, Judge Powell called the duty to disclose a material change in circumstances in the child support context “the linchpin of our child support guidelines” because child support is based on the income of both parties. “A child support recipient is unlikely to be aware of any substantial increase in the other party's income, while a child support obligor has a disincentive to disclose significant changes in income that would result in an increase in child support payments.” Judge Powell reasoned:

The whole purpose of the sanction provision is to provide an incentive for a party to disclose a material change in circumstance. Without the certainty that a sanction will be equal to the benefit gained from a failure to disclose, parties will always have an incentive to conceal material information and attempt to “roll the dice” in court should their concealment be discovered. Moreover, consistent with this view, the “other sanctions” provision in the guidelines provides for the district court to impose additional sanctions, such as attorney fees, to assure that all the costs associated with attempting to recoup lost child support can be reimbursed.

G. Conflicting Presumptions of Paternity

Greer ex rel. Farbo v. Greer

When the court is faced with two conflicting presumptions of paternity, it is required to conduct a hearing to determine which presumption “is founded on the weightier considerations of policy and logic, including the best interests of the child” before it determines the child's legal parentage. K.S.A. 2013 Supp. 23–2208(c). In Greer ex rel. Farbo v. Greer, 50 Kan. App. 2d 180, 324 P.3d 310 (2014), Dana Greer gave birth to a baby, while married to Jack Greer. However, she and Jack had been separated for a time, during which she became involved with John Farbo. Voluntary genetic testing conducted after the baby’s birth revealed that John is the baby’s biological father. Based on the genetic test results, John filed a petition in district court to establish his paternity of the baby. In his petition, John asked the court “for a hearing to determine it is in the best interests of the minor child to determine paternity [and] to make a

16 finding that petitioner is the natural father.” The district court relied on In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989) and scheduled a Ross hearing to determine the child’s best interests prior to establishing paternity. After hearing the testimony of both presumed fathers, as well as of Dana, the district court ruled as follows:

Based on both the evidence and Kansas caselaw, considering the genetic test results was not in Emily's best interests. Based upon that finding, the district court went on to find that all the court was “left with is the presumption of paternity that this child was born of the marriage of Dana Greer and Jack Greer. So that will be the finding and order of the court.

On appeal, the court was asked to determine whether the Ross hearing was proper. Although it was raised for the first time on appeal, the court determined it was an issue of first impression in Kansas and consideration of the theory was “necessary to both serve the ends of justice and to prevent the denial of fundamental rights.”

Pursuant to K.S.A. 2013 Supp. 23-2208(a), there are six statutory presumptions of paternity, which may be rebutted only by clear and convincing evidence by a court decree establishing paternity of the child in another man, or as provided in in K.S.A. 23-2208(c), which provides that if two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control. If a presumption is rebutted, the party alleging the existence of a father and child relationship has the burden of going forward with the evidence. Given this statutory framework, the court reviewed the changes to the Kansas Parentage Act since the Kansas Supreme Court’s decision in Ross, which did not contain conflicting presumptions, and said that:

Based upon the current statutes and caselaw, if there is not a genetic test in place at the time the action is filed and a party requests that one be performed, the order for genetic testing must be based on a determination, after a hearing, that such a test is in the best interests of the child. But if the testing is completed before the case is filed, the presumption is elevated to a legal, albeit rebuttable, presumption. These statutory changes remain in the law to this day and are codified at K.S.A. 2013 Supp. 23–2208(a)(5) (genetic test results can create a presumption of paternity), K.S.A. 2013 Supp. 23– 2208(c) (best interests of child considered when weighing two or more presumptions), and K.S.A. 2013 Supp. 23–2212 (genetic tests may be conducted prior to filing case, and report of results must be admitted unless timely objection lodged).

In most cases invoking a Ross hearing since it was decided, one party attempts to challenge a long-standing presumption prior to any genetic testing of the parties by filing a paternity action. The court held that Ross remains good law in Kansas, but a Ross hearing is only required in two very specific situations, namely:

When (1) there is not a genetic test resulting in a presumption of paternity performed prior to the filing of the paternity action, or (2) a genetic test was completed prior to the filing of the paternity action but the result is inadmissible due to a proper statutory

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objection being lodged. In addition, Ross would only apply when one man's presumption is at risk of rebuttal; when “no credible evidence exists that child has a presumed father,” a Ross hearing in advance of admitting a genetic test results is not required. See 1 Elrod and Buchele, Kansas Family Law § 7.15 (2013 Supp.).

Because the district court failed to recognize and weigh the competing presumptions, the decision was found to be in error, reversed and remanded for a hearing for the district court to weight the two competing presumptions as required by the statute.

IV. Unpublished Opinions: In re Marriage of Katona No. 109,429, 2014 WL 1612458 (Kan. App. 2014) (unpublished opinion). The issues on appeal included whether the trial court erred by applying child support retroactively, granting a non-exercise of parenting time adjustment, imputing Mr. Katona’s stock option as income for child support purposes, applying incorrectly the interstate pay differential, finding that Mr. Katona’s severance package was included in the separation agreement, and granting attorney fees to Ms. Katona. The court considered the trial court’s application of a non- exercise of parenting time requirement proper, its consideration of Mr. Katona’s stock option as income for child support purposes was supported by substantial evidence, and inclusion of Mr. Katona’s severance package in the separation agreement was supported by substantial evidence. However, the court determined the trial court committed error by applying the award of child support less than one month after the motion was filed, calculating the amount applied as interstate pay differential, and by awarding attorney fees to Ms. Katona. In the Matter of the Marriage of Monslow, No. 109,788 (unpublished opinion). Ms. Monslow was awarded 40% of Mr. Monslow’s income derived from his two patents in the journal entry and decree of divorce. Mr. Monslow sold his patents for $595,000 and never informed Ms. Monslow of the sale. Ms. Monslow found out about the sale, and filed a motion with the district court. The district court awarded Ms. Monslow a judgment in the amount of $216,481.06 against Mr. Monslow for her percentage of the income derived from the sale of the patents. Ms. Monslow filed a garnishment request after Mr. Monslow failed to pay her. The bank answered the garnishment request, stating that there was only $76,409.73 in husband’s account. Ms. Monslow filed a motion with the district court, who then ordered that amount to be paid to wife. Mr. Monslow filed a post-judgment motion to quash the subpoena, arguing that Ms. Monslow had not strictly adhered to the garnishment statute, K.S.A. 2012 Supp. 60-733(a), as the amount requested was $80 more than what she was owed. The court reviewed the statute and case law cited by Mr. Monslow, and determined that although there may have been an error in the amount requested in the garnishment order, it was harmless error because strict compliance with the statute is not required in situations where an overpayment is made. The party is simply required to reimburse the overpayment to the party. Therefore, the district court’s decision to deny husband’s motion to quash due to strict compliance was affirmed. Trenzado v. Trenzado, No. 109,937, 2014 WL 1707980 (Kan. App. 2014) (unpublished opinion). Mr. Trenzado appeals the district court’s decision to grant a protection from stalking order to Ms. Trenzado. Mr. Trenzado argued that the district court erred when it admitted evidence regarding events not listed in Ms. Trenzado’s petition, and claims there was insufficient evidence to

18 support the order. The court determined the district court did not commit error in admitting evidence of two incidents of alleged stalking, even though the incidents were not listed in the petition. Other evidence would have supported the entry of an order of protection from stalking. The court further found there was sufficient evidence to support the entry of a protection order, and that the district court properly made credibility determinations. In the Matter of the Marriage of Steele, No. 110,593, 2014 WL 1708125 (Kan. App. 2014) (unpublished opinion). Ms. Steele appealed the decision of the district court placing the minor child in the custody of Mr. Steele. She argued that the district court committed errors by not considering every factor under K.S.A. 2013 Supp. 23-3203, placing the minor child in Mr. Steele’s residential custody and denying her motion for reconsideration. The court reviewed the claim that the court did not consider every factor in its determination, but found that specific discussion of each factor was not necessary and it was sufficient for the district court to comment that it had considered the factors under the statute. The appellate court further found that substantial evidence supported the district court’s decision that Ms. Steele did not foster a relationship between the minor child and Mr. Steele. Finally, the court determined that mother’s argument that her newly improved attitude and failure to hire an attorney to represent her at trial was not newly discovered evidence that would warrant reconsideration. In the Matter of the Marriage of Vogt, No. 109,415, 2014 WL 1796008 (Kan. App. 2014) (unpublished opinion). After 22 years of marriage, the parties were divorced in 2011. The district court ordered Mr. Vogt to pay for child support, and for spousal maintenance. No one appealed the decision. Less than one year later, Mr. Vogt filed a motion to modify child support and spousal maintenance. The district court denied his motions based on the fact that he was voluntarily underemployed, and that he had the ability to pay the amounts that were ordered. Mr. Vogt appealed the decision, arguing that the district court committed error denying his motion because the finding of voluntary underemployment was not supported by substantial evidence. He also appealed based on issues concerning Ms. Vogt’s receipt of a portion of his military pension. The Court of Appeals reviewed the district court’s decision for abuse of discretion, finding that substantial evidence - more specifically Ms. Vogt’s testimony - supported the finding of voluntary underemployment, and ultimately affirmed the district court’s decision. The Court of Appeals dismissed the remaining issues for lack of jurisdiction that were not raised in front of the district court regarding Ms. Vogt’s collection of a portion of his military pension. In the Matter of the Marriage of Liu, No. 109,822, 2014 WL 1796152 (Kan. App. 2014) (unpublished opinion).The parties were divorced in September, 2012, after a short marriage. They had one child. The court trustee’s office filed a motion to modify child support in January, 2013, based on a decrease in Mr. Liu’s income. The district court denied his motion, and Mr. Liu appealed that decision. The Court of Appeals reviewed the district court’s decision not to grant a modification of child support for abuse of discretion de novo, noting that following the Kansas Child Support Guidelines is mandatory, and that failure to do so is reversible error. Based on a failure to provide findings of fact and conclusions of law with respect to the district court’s denial, the court reversed the district court’s denial and remanded the case for the district court to provide a basis for its decision. In the Matter of the Marriage of Bos, No. 109,850, 2014 WL 1796155 (Kan. App. 2014) (unpublished opinion). Mr. Bos argued that the divorce decree should be set aside because he was fraudulently induced into agreeing to it under K.S.A. 2013 Supp. 60-260(b)(3), and that the

19 terms of the decree were not fair, just or equitable under K.S.A. 2013 Supp. 60-260(b)(6). The Court of Appeals found that the district court properly exercised its discretion when it found that there was no basis for relief under K.S.A. 2013 Supp. 60-260(b)(3). The appellate court also determined that because Mr. Bos failed to articulate with specificity that the agreement was unfair, the district court was within its discretion to deny the motion to set aside the decree. Ms. Bos’ argument for attorney fees also failed because she could not demonstrate that motions filed by Mr. Bos were frivolous. Harasymezuk v. Danny Napier, No. 109,997, 2014 WL 1796258 (Kan. App. 2014) (unpublished opinion). A Ross hearing is not required where there is only one putative father. District court correctly denied Napier’s request for a Ross hearing before it could order genetic testing to establish Napier as the child’s father.

In the Matter of the Marriage of Sprague, No. 110,152, 2014 WL 3843200 (Kan. App. 2014) (unpublished opinion). The issues on appeal by Mr. Sprague for the Court of Appeals to consider were whether the district court had authority to order Mr. Sprague to sell the marital residence to Ms. Sprague as part of the divorce order, and whether the district court abused its discretion when it set the value of the marital residence. Mr. Sprague argued that the separation agreement stated that the court could only become involved if the parties did not agree to matters material to the sale of the house to the public. Ms. Sprague argued that the provision in the separation agreement allowed for the sale of the residence to either party or the general public. The Court of Appeals agreed that the separation agreement did allow for the district court to order Mr. Sprague to sell the house to Ms. Sprague, and further found that nothing in the record indicated that no reasonable person could not adopt the court’s view to give the residence the value it did. The Court of Appeals, therefore, affirmed the district court’s decision, and denied Ms. Sprague’s request for attorney fees because the appeal was not found to be frivolous. In the Matter of the Marriage of Chrispen, No. 111,117, 2014 WL 3843515 (Kan. App. 2014) (unpublished opinion). Ms. Chrispen appealed the district court’s decision changing residential custody to Mr. Chrispen. She alleged there was no material change of circumstances since the entry of the agreed parenting plan that supported the court’s decision, and that the issue of res judicata applied to the modification because the issues surrounding Mr. Chrispen’s claim that a material change in circumstances existed had already been considered when the parties agreed to the parenting plan. The court found the district court did not abuse its discretion because there had been a material change in circumstances when Mr. Chrispen had moved back from Nebraska to be with his children in Kansas, and affirmed the decision. The appellate court further determined that Ms. Chrispen had not raised the issue of res judicata to the district court and it was therefore inappropriately raised for the first time on appeal. In the Matter of the Marriage of Klementowski, No. 111,128, 2014 WL 3843516 (Kan. App. 2014) (unpublished opinion). Ms. Klementowski appealed the district court’s division of property in her divorce proceedings. She argued that the district court violated her procedural due process rights by accepting values of the parties’ retirement plans without holding an additional hearing regarding the issue, and that the district court abused its discretion when it valued and divided property. Because she failed to raise her first argument on appeal, Ms. Klementowski’s argument regarding violation of due process rights was not considered. The district court was affirmed.

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In the Matter of the Marriage of Rocha, No. 110,443, 2014 WL 3907106 (Kan. App. 2014) (unpublished opinion). After a three-day trial before the district court, the district court issued its ruling regarding the divorce. Ms. Rocha filed a motion to reconsider the court’s decision, arguing that there was an improper spousal maintenance award, inappropriate division of assets, improper child custody determination and the judge’s impartiality. The court partially granted her motion, clarifying the court’s order for Mr. Rocha to pay Ms. Rocha’s student loans. Ms. Rocha appealed the district court’s decision arguing the same issues raised in her motion for reconsideration. The Court of Appeals reversed in part, remanded in part, and affirmed the district court’s decision in part. The panel considered whether the district court failed to act as an impartial factfinder, and reviewed the transcript from the trial, finding that none of Ms. Rocha’s arguments were meritorious; that she failed to prove prejudice in some of the comments made by the court; and that there was no error or judicial impropriety on the part of the district court. The Court of Appeals also considered the district court’s decision to grant custody to Mr. Rocha, and found that substantial evidence supported its decision, and ultimately found no abuse of discretion. The Court of Appeals reversed the district court’s ruling regarding spousal maintenance, finding that the district court abused its discretion by setting over all of Mr. Rocha’s pension to him, but then ordering him to pay spousal maintenance in an amount equal to what Ms. Rocha’s share of the pension benefits would have been. Further, the district court erroneously characterized her share of Mr. Rocha’s benefits as maintenance, and that it was an abuse of discretion to order spousal maintenance. It was further erroneous for the district court to have ordered that a portion of the spousal maintenance was to be paid towards Ms. Rocha’s attorney fees, and a further portion was to be paid towards her child support obligation to Mr. Rocha. The Court of Appeals remanded the case to the district court to reconsider its decision, specifically with respect to its consideration of the pension as a marital asset consistent with K.S.A. 2013 Supp. 23-2802(a) and reconsideration of maintenance consistent with K.S.A. 2013 Supp. 23-2902(a). In the Matter of the Adoption of Z.N.E., No. 111,348, 2014 WL 3907120 (Kan. App. 2014) (unpublished opinion). The natural mother of Z.N.E. appealed the district court’s order denying her request to withdraw her consent to the adoption of Z.N.E. by the natural mother’s step- mother. Natural mother’s attorney filed a motion to withdraw her consent within a month of obtaining her consent, arguing that she had been unduly coerced, under duress, and did not understand what she was signing. The district court held a hearing regarding the request, and heard testimony from natural father, natural mother, her attorney and her attorney’s assistant. The district court denied natural mother’s request. She timely appealed, arguing the same arguments she did before the district court - that the district court erred in failing to allow her to withdraw her consent. The burden is on the movant to demonstrate by clear and convincing evidence that her consent was not freely and voluntarily given, and a district court’s finding that movant has not met her burden, cannot be disturbed on appeal absent arbitrary disregard for undisputed evidence or bias, passion or prejudice on the part of the district court. The Court of Appeals affirmed the district court’s decision, finding that natural mother failed to demonstrate fraud, duress, undue influence, mistake, or lack of understanding, and that substantial evidence supported the district court’s decision to deny her motion to withdraw her consent. In the Matter of the Marriage of Colgan, No. 109,430, 2014 WL 4080072 (Kan. App. 2014) (unpublished opinion). Mr. Colgan appealed the district court’s decision to grant permanent spousal maintenance without a hearing, to set the valuation date prior to the filing of the petition

21 during a period of separation, and to divide the parties’ retirement accounts using that valuation date. The Court of Appeals reviewed the district court’s decisions for abuse of discretion. The district court did not abuse its discretion, however, by not giving Mr. Colgan a hearing after it reserved the issue of spousal maintenance to after trial in order to allow for Mr. Colgan to file his taxes, and to report to the district court the result of his filing, when Mr. Colgan’s attorney had not asked for a hearing date regarding the issue. The district court further did not commit error when it determined spousal maintenance, and applied it retroactively. The district court also did not abuse its discretion by fixing a reasonable valuation date at a time during their separation, as valuation dates may be set by the district court under K.S.A. 2013 Supp. 23-2802(b). These dates can include the date of separation, the date of filing, or the date of trial. Finally, the district court did not commit error by ordering one-half of the existing retirement accounts at the time of the valuation date to the other party, despite the fact that Ms. Colgan had liquidated her retirement account as of that date. The Court of Appeals affirmed the district court’s decision. In the Matter of the Marriage of Paslay, No. 110,636, 2014 WL 4231265 (Kan. App. 2014) (unpublished opinion). The parties divorced in 2006, and Ms. Paslay had primary placement of the minor children, while Mr. Paslay paid her child support. The parties had agreed that the minor children would go to parochial school, but Mr. Paslay failed to pay Ms. Paslay any amount to assist with the payment of tuition. Ms. Paslay filed a motion to modify child support in May, 2013, and the district court held a hearing regarding the matter. Because the parties had agreed the minor children attending parochial school, the district court modified the child support order in order to account for tuition expenses. When Mr. Paslay found out the children had received a scholarship for part of the tuition, he filed a motion for reconsideration of the child support amount to take into consideration the scholarship. The district court denied his request, despite hearing evidence of the scholarship, finding that it was appropriate to consider tuition as a reasonable expense in the calculation of child support. Mr. Paslay appealed, arguing that the district court abused its discretion when it continued to use the incorrect adjustment to the worksheet which included the extraordinary tuition expense originally presented prior to the scholarship award, and that the district court erred when it failed to correct the worksheet when it learned that the children were receiving a scholarship to cover part of the tuition expense. The Court of Appeals affirmed the district court’s decision to include the extraordinary expense on the child support worksheet, but determined that the district court abused its discretion when it denied Mr. Paslay’s motion for reconsideration after learning of the scholarship. The Court of Appeals reversed its decision to this extent, and remanded the case to the district court for further proceedings regarding the amount of child support and the newly discovered evidence of a scholarship. In the Matter of the Marriage of Arambula and Valenzuela, F/K/A Juana Arambula, No. 110,669, 2014 WL 4435902 (Kan. App. 2014) (unpublished opinion). The parties had entered into a property settlement agreement where Ms. Valenzuela was primary residential custodian of the minor children, and possessed the marital residence. Mr. Arambula filed a motion to modify custody and parenting time shortly thereafter, and the district court granted his motion, ordering residential custody of the parties’ twin daughters and possession of the marital residence to Mr. Arambula. The Court of Appeals affirmed the district court’s ruling because there was substantial evidence to support the denial or grant of Mr. Arambula’s motion, and therefore, could find no abuse of discretion.

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In the Matter of the Marriage of Okpala and Chigbo, No. 110,930, 2014 WL 4435924 (Kan. App. 2014) (unpublished opinion). Ms. Okpala appealed the district court’s ruling that a common law marriage did not exist between the parties, despite evidence showing that the parties held themselves out to the public as married persons. A common law marriage requires three elements: 1) the parties’ capacity to marry; 2) a present agreement to be married; and 3) the parties hold themselves out as married persons to the public. The claim failed on the third prong, in part because of testimony by Mr. Chigbo, who the district court found to be more credible than Ms. Okpala as she had altered the title to the residence after the fact to demonstrate they were married. Because the appellate court does not reweigh the evidence, or issue credibility determinations, the Court of Appeals affirmed the district court’s decision, finding that substantial credible evidence supported the district court’s decision. In the Matter of the Marriage of Larson, No. 111,228, 2014 WL 4435943 (Kan. App. 2014) (unpublished opinion). Ms. Larson appealed the district court’s decision to grant primary residential custody to Mr. Larson during the school year and parenting time with Ms. Larson during the summer vacation, as well as the judge’s failure to recuse himself. Ms. Larson argued that it was Mr. Larson’s burden to show a material change in circumstances if the district court were to modify custody or parenting time. The Court of Appeals agreed with Mr. Larson, however, that he did not have to show a material change in circumstances. Rather, the district court was to consider the best interest of the child with respect to its modification because there had been no court orders regarding shared residential custody arrangement. The arrangement had been determined during mediation, and therefore, the issue of primary residential custody had not been litigated prior to the district court issuing this order. The Court of Appeals reviewed the district court’s decision for error though regarding the modification of custody, and whether it properly considered all of the best interests of the child factors under K.S.A. 2013 Supp. 23-3203. The panel agreed that Mr. Larson did not need to show a material change in circumstances. The Court of Appeals found that the district court had properly considered the factors under K.S.A. 2013 Supp. 23-3203, and that its decision was not an abuse of discretion. When analyzing an allegation of judicial bias, the Supreme Court has developed a two- prong test: 1) that the person must show that the judge has a duty to recuse; and 2) that the defendant must show actual bias or prejudice. The Court of Appeals determined that Ms. Larson had not met her burden under the first prong because she could not show that simply because the judge had represented Mr. Larson’s family many years prior to the trial, he had a duty to recuse himself. Therefore, no error was committed when the judge did not recuse himself. The Court of Appeals affirmed the district court’s decision.

Eaton, et al. v. Eaton, No. 110,207, 2014 WL 5347064 (Kan. App. 2014) (unpublished opinion). The Estate of James Eaton and James’ brother and nephews appealed the district court’s decision on summary judgment to award the one-half interest of 280 acres to Peggy Eaton at the death of James. The dispute involved a prenuptial agreement between Mr. and Ms. Eaton prior to the marriage in 1986, and wills that were executed two days after the marriage in 1986, and a transaction that involved the execution of three quitclaim deeds for land from James’ brother to James and Peggy as joint tenants with full rights to survivorship. After James’ health went downhill, he executed another will regarding his property in 2010 without his wife’s consent, filed for divorce, and executed quit claim deeds gifting the land to James’ nephews. James died

23 during the divorce proceedings. The district court ruled that Peggy had not consented to a later drafted will by James, and that the quitclaim deeds had not been effectively delivered to James’ nephews because they remained in the possession of James’ brother as power of attorney in a safe deposit box until after a temporary order had been entered restraining the parties from encumbering their property. On appeal, the Estate argued that the district court erred in granting summary judgment in favor of Peggy because of the following: 1) Peggy had waived any future rights to the property at issue when she signed the prenuptial agreement; 2) the 1987 deeds transferring the 280 acres did not constitute after acquired joint property between Peggy and James; and 3) the delivery of the 2010 quit claim deeds was effective in transferring title to James’ nephews. On review of a summary judgment motion, the Court of Appeals denies a motion only if reasonable minds could differ as to the conclusions that were drawn from the evidence. With respect to the argument regarding the prenuptial agreement and the wills being interpreted together, the panel found no error with respect to the district court’s findings because the documents were executed two days apart, by the same parties, and each concerned the handling of their estates and properties. The appellate court then found that evidence supported that the 280 acres of land were jointly acquired property after their marriage, and therefore, no tsubject to the prenuptial agreement. The Court of Appeals then considered the law regarding valid gifts: 1) there must be intent for it to be a gift; 2) there must be delivery by the donor to the donee; and 3) there must be an acceptance by the donee of the gift. The Court of Appeals agreed with the district court that there was no delivery of the deeds to James’ nephews because the deeds were not recorded at the time he made the gift, but rather were held in a safe deposit box until after the divorce was filed. The Court of Appeals ultimately affirmed the district court’s ruling, finding that the prenuptial agreement did not extend to the 280 acres as jointly-owned- after-marriage acquired property, and that James’ one-half share of jointly owned property passed to Peggy upon James’ death.

Grothe v. Grothe, No. 109,002, 2014 WL 5801003 (Kan. App. 2014) (unpublished opinion). Nancy Grothe and George Grothe were married, and divorced ten years later. In the divorce decree, the parties agreed in the journal entry that he would maintain a $100,000 life insurance policy, leaving her as sole beneficiary. After the divorce, however, George cancelled the life insurance policy that listed Nancy as beneficiary, and opened a policy listing as beneficiary his new wife Mary. When George died, Nancy found out that that he did not maintain a policy for her, and she filed a suit against the estate claiming a breach of contract against the estate and unjust enrichment against Mary. The district court found that there was a breach of contract, and imposed a constructive trust on Mary’s home, life-insurance policy, and bank account. The district court also awarded Nancy prejudgment interest from the date Mary received the insurance proceeds to the time the order was entered. Mary appealed, claiming that Nancy’s breach of contract claim was barred by the statute of limitations, that the district court abused its discretion when it imposed a constructive trust on assets and real property of Mary’s, and that the district court abused its discretion when it awarded Nancy prejudgment interest. The breach of contract claim, however, was not time barred because in Kansas when a person is contractually obligated to provide a death benefit, the cause of action arises when the person obligated under the contract dies. Further, the factors for unjust enrichment had been met when Mary received the full amount of insurance benefits, which require that: 1) a benefit has been conferred upon the defendant; 2) the defendant retains the benefit; and 3) under the circumstances, the

24 defendant’s retention of the benefit is unjust. Therefore, the district court’s decision to impose a constructive trust was not an abuse of discretion because sufficient evidence supported the district court’s conclusion. Finally, the Court of Appeals did not find an abuse on the district court’s part regarding awarding prejudgment interest from the date Mary received the insurance proceeds. Nancy was entitled to the $100,000 upon the death of George, and although Mary was not aware of the claim, Nancy was not able to make use of the money since the time of his death, and therefore it was not unreasonable for the court to compensate Nancy for the loss of interest from the date Mary received the proceeds. The Court of Appeals ultimately affirmed the district court’s decision. In the Matter of the Marriage of Carrie Sinks, No. 110,316, 2014 WL 4627495 (Kan. App. 2014) (unpublished opinion). Mr. Sinks appealed the district court’s division of marital assets, calculation of child support, and calculation of maintenance, in the parties divorce action. Ms. Sinks cross-appealed the district court’s decision. Mr. Sinks argued on appeal that the district court erred in allowing the rebuttal expert witness to testify at trial although Ms. Sinks had failed to designate the witness as an expert within the allotted time frame. Because the district court committed error by considering the testimony of Steven York regarding valuation on the parties’ business even though he had not been timely designated as an expert at trial, the Court of Appeals reversed the decision of the district court. The panel remanded the case to the district court for reconsideration of the value of the parties’ properties, as well as Mr. Sinks’ income, without considering any testimony or evidence from Mr. York. The Court of Appeals dismissed all other claims of error on appeal, and denied Mr. Sinks’ request for costs and attorney fees. In the Matter of the Marriage of Carrie Sinks,110,966, 2014 WL 4627600 (Kan. App. 2014) (unpublished opinion). The district court dismissed Mr. Sinks’ motion to modify maintenance and support after announcing to the parties that it did not have jurisdiction to hear the motion because the matter was on appeal to the Court of Appeals (Sinks I). Mr. Sinks appealed the district court’s dismissal. The Court of Appeals reviewed K.S.A. 2013 Supp. 23-2903 and K.S.A. 2013 Supp. 23-3005, the statutes regarding maintenance and support respectively, noting that the district court has continuing jurisdiction regarding motions to modify maintenance and support. The Court of Appeals reversed and remanded the district court’s decision, and further awarded attorney fees regarding the appeal in the amount of $4,636 as an adequate and just award. In the Matter of the Marriage of Fowler, 2014 WL 1363423 (Kan. App. 2014) (unpublished opinion). The court’s review is focused on evidence that supports the trial court’s findings and not evidence which may tend to establish contrary findings or different results; the court will not reweigh the evidence on appeal. The trial court’s determination that a change of residential custody was in the best interests of the children was not error and was supported by substantial evidence. In the Matter of the Marriage of Kropp, No. 110,282, 2014 WL 1363535 (Kan.App. 2014) (unpublished opinion). It is well-settled law in Kansas that “a court is powerless to modify a valid, just and equitable separation agreement, except as to matters authorized by statute, unless the agreement provides for or the parties consent to such power.” Lewis v. Lewis, 4 Kan.App.2d 165, 166, 603 P.2d 650 (1979). As such, a “trial court does not have subject matter jurisdiction to modify a maintenance agreement if the agreement specifies the only manner by which it can be modified.” In re Marriage of Gurganus, 34 Kan.App.2d 713, 124 P.3d 92 (2005).

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In the Matter of the Marriage of Stevenson, No. 109, 497, 2014 WL 2224570 (Kan. App. 2014) (unpublished opinion). At trial, district court valued growing crops as “somewhere above the actual input price and somewhere below the gross return.” On appeal of the district court’s division of property, wife argues the proper way to value growing crops should have been the gross proceeds minus the harvest expenses. Wife also appealed the district court abused its discretion in failing to include crop insurance and subsidy payments as part of the gross proceeds. District court was within the wide discretion a trial court must exercise in dividing marital property. In the Matter of the Marriage of Carpenter, No. 110,205, 2014 WL 2403813 (Kan. App. 2014) (unpublished opinion). The issues of custody and contempt are still unresolved. The parties rights in the action have not been finally determined thus there is no final order with respect to the issues before the district court. Mother’s appeal must be dismissed. In the Matter of the Marriage of Murphy, No. 110,386, 2014 WL 2404267 (Kan. App. 2014) (unpublished opinion). District court found the petitioner failed to provide the elements of a common-law marriage, which requires: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife. Each element must coexist to establish a common-law marriage. The burden to prove a common- law marriage rests upon the party asserting it. A finding that petitioner failed to establish the elements of a common-law marriage is a negative finding which will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or reliance upon some extrinsic consideration such as bias, passion, or prejudice.

In the Matter of the Marriage of Anjard, No. 109,797, 2014 WL 2747607 (Kan.App. 2014). When a party has previously raised an issue on appeal and that issue has been decided, the doctrine of law of the case precludes the issue from being heard again in the same case. A person's refusal to accept the outcome of a fully and fairly fought judicial contest does not obligate the courts to continually reweigh and redecide the issue.

State, ex rel. TDR v. Mutch, No. 110,687, 2014 WL 3024122 (Kan.App 2014) (unpublished opinion). The court will not consider appended items which are not found in the record.The burden to designate the record on appeal falls on the party making the claim. Because Mutch's argument on appeal requires an analysis of the Missouri divorce decree, Mutch's failure to include the necessary document in the record on appeal means we must reject his arguments. A finding that no children were born of the marriage is not the same as a determination of paternity for a child.

In the Matter of the Marriage of Dicus, No. 111,073, 2014 WL 3630637 (Kan. App. 2014) (unpublished opinion). Pursuant to K.S.A. 2013 Supp. 23-2904, the court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. In any event, the court may not award maintenance for a period of time in excess of 121 months. If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have

26 jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments. Upon motion and hearing, the court may reinstate the payments in whole or in part for a period of time, conditioned upon any modifying or terminating circumstances prescribed by the court, but the reinstatement shall be limited to a period of time not exceeding 121 months. The recipient may file subsequent motions for reinstatement of maintenance prior to the expiration of subsequent periods of time for maintenance payments to be made, but no single period of reinstatement ordered by the court may exceed 121 months.

In the Matter of the Marriage of Arensman, No. 110,220, 2014 WL 3732004 (Kan. App. 2014) (unpublished opinion). It is a legally appropriate use of a nunc pro tunc order under K.S.A.2013 Supp. 60–260(a) to correct clerical mistakes in the legal descriptions of property. Pursuant to that statute, the district court may correct a clerical mistake whenever such an error is found, and the court may do so on motion, or on its own, with or without notice.

Whittaker v. Preston, et. al., No. 110,973, 2014 WL 5347581 (Kan. App. 2014) (unpublished opinion). When interpreting conveyances, Kansas appellate courts first look at the language used within the four corners of the instrument in an attempt to determine the intent of the parties. The district court’s refusal to consider extrinsic evidence was appropriate, where the language of the deed clearly and unambiguously expressed the grantor’s intent.

In the Matter of the Marriage of Glover, No. 110,195, 2014 WL 5612339 (Kan. App. 2014) (unpublished opinion). While it is true that either party can use the multiple-family application credit in their defense, it is still limited to adjusting the child support of a parent who “has legal financial responsibility for the support of other children who reside with that parent.” Kansas Child Support Guidelines IILB.6. (2013 Kan. Ct. R. Annot. 128).

In the Matter of the Marriage of Beachner and Beachner, No. 109,331, 2014 WL 6676038 (Ka.App. 2014) (unpublished opinion). Husband appeals the district court’s division of net worth, alleging the trial court improperly valued the stock in the parties’ family business by disregarding the goodwill inherent in the company, adopting wife’s expert’s method for calculating the normalized net income, disregarding husband’s appraisal of the equipment, and employing an after-tax net asset methodology. The court affirmed the trial court’s decision, finding the values assigned to the business were within the range of the evidence presented by wife’s expert witness. Further, court held the trial court did not abuse its discretion by adopting expert analysis establishing a net asset value for the business because valuing it as a going concern (including the value of goodwill) would be inappropriate without a noncompete agreement included as a condition of sale.

In the Matter of the Marriage of Smith, No. 109,901, 2014 WL 3907092 (Kan.App. 2014) (unpublished opinion). FELA provides the exclusive remedy for a railroad employee who is injured while his or her employer engages in interstate commerce. See Erie R.R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057 (1917). Despite the fact that FELA awards are governed by federal statute, Kansas courts are not preempted from dividing FELA awards in a divorce, as long as the award qualifies as marital property. In re Marriage of Buetow, 27

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Kan.App.2d 610, 611, 3 P.3d 101 (2000). The district court reasonably concluded the settlement was compensation for injuries sustained during Michael's employment and was not compensation for post-divorce loss of earning capacity. Because the evidence supports this finding, husband’s FELA settlement was marital property subject to division. Without a copy of the parties’ postnuptial agreement in the record, the court is unable to review the interpretation of its provisions.

S.D. and E.D. v. Grandin, No. 111,251, 2014 WL 7570523 (Kan.App. 2014) (unpublished opinion). The Kansas Child Support Guidelines, Section III.B.6, provides that the Multiple– Family Application may be used only by a parent not having primary residency when establishing an original order of child support or an increase in support is sought by the parent having primary residency. Pursuant to the plain and unambiguous language in Section III. B. 6, because father is not appealing from an original order of support or from a request for an increase in support sought by mother, he is not entitled to a multiple-family adjustment as a matter of law. The court also agreed with the district court when it rejected father’s argument that he “need not work 40 hours a week” so long as his weekly income was greater than the minimum wage multiplied by forty hours. In so ruling, the court upheld the imputation of income where a parent is deliberately underemployed.

In the Matter of the Marriage of Einsel, No. 109,367, 2014 WL 1795993 (Kan. App. 2014) (unpublished opinion). The court exercises unlimited review in the interpretation and effect of written instruments, including the interpretation of the journal entry of divorce. Stewart v. Stewart, No. 110058, 2015 WL 326424 (Kan. App. 2015) (unpublished opinion). Ongoing and pervasive abuse of wife by husband caused wife to move to Kansas with the children, although no acts of abuse actually occurred within the state of Kansas. Pursuant to the UIFSA, the district court had personal jurisdiction to enter a support order and money judgement orders against husband pursuant to K.S.A. 2013 Supp. 23-36,201(e). In the Matter of McKinley, No. 110,882, 2015 WL 423813 (Kan. App. 2015) (unpublished opinion). When denying a motion to modify child support based on voluntary unemployment, it is appropriate to refer to KCSG for guidance. Additionally, the court may base probable income of someone who is voluntarily unemployed on “the parent's recent work history, occupational skills, and the prevailing job opportunities in the community.” KCSG § II.F.1.b

State, et. al. v. Burton, No. 111176, 2015 WL 423953 (Kan.App.2015) (unpublished opinion). Father was originally ordered to maintain health insurance for the parties’ children and his child support obligation was credited for the anticipated costs of the coverage. Several years later, mother filed a pro se motion for reimbursement to recover $10,056 in costs she incurred to purchase health insurance care for the children, but framed the request as a motion for reimbursement of out of pocket medical expenses. Mother's purchase of health and dental insurance based on Father's failure to do so cannot be construed as an uninsured medical expense assessed to the parties in accordance with their proportional share of income. The Income Withholding Act, K.S.A. 2014 Supp. 23-3101 et seq., provides a remedy when an obligor parent fails to obtain or maintain health benefit coverage as ordered, by allowing for a judgment against

28 the obligor in the amount incurred by the obligee for substantially similar health benefits, or the difference between the child support order and the amount the support order would have been without the credit for unpaid premiums and with any premiums paid by the obligee for substantially similar health benefit coverage.

Anderson v. Richard, No. 112027, 2015 WL 802759 (Kan.App. 2015) (unpublished opinion). Except in child support actions as provided in K.S.A.2014 Supp. 23–2211(b), K.S.A.2014 Supp. 23–2211(a) of the KPA requires that the child, mother, and each presumed or alleged father be made parties to any action. Not joining the proper parties deprives the trial court of subject matter jurisdiction. State ex rel. Secretary of SRS v. Stephens, 13 Kan.App.2d 715, 717, 782 P.2d 68 (1989). K.S.A.2014 Supp. 23–2209(a)(2) states that “a child or any person on behalf of such a child, may bring an action at any time until three years after the child reaches the age of majority to determine the existence of a father and child relationship which is not presumed under K.S.A.2014 Supp. 23–2208, and amendments thereto. The statute does not prevent others from bringing an action because a presumed father already exists. K.S.A.2014 Supp. 60–241(b) states that involuntary dismissals due to lack of jurisdiction, improper venue or failure to join a party under K.S.A. 60–219 are not an adjudication on the merits. For this reason, dismissal of Anderson's case with prejudice was improper and an abuse of discretion. The trial court must allow him to amend his pleadings.

Riesberg v. Barkman f/k/a Swendson, No. 111,966, 2015 WL 1125163 (Kan.App. 2015) (unpublished opinion). Riesberg appeals the trial court’s decision finding that he and his former girlfriend (Barkman) were co-owners of a golden retriever and awarding her possession of the dog. Kansas courts recognize that cohabiting parties are co-owners of property that was purchased during the cohabitation period and was jointly acquired or acquired with the intent that both parties would have an interest in the property. See Frazier v. Goudschaal, 296 Kan. 730, 741, 295 P.3d 542 (2013). A court's analysis of who has ownership rights over property acquired during cohabitation is not limited to which party actually paid for it. Werner v. Werner, 59 Kan. 399, 403, 53 P. 127 (1898) (stating that legal title in one party's name does not preclude the other party from claiming ownership); Becker v. Ashworth, No. 104,417, 2011 WL 2206635, (Kan.App.2011) (unpublished opinion). Riesberg is not entitled to relief under either a replevin or a partition cause of action, and the district court’s decision is affirmed.

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