In re Marriage of Hall

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No. 102,7671


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE MARRIAGE OF

NICHOLE HALL, n/k/a LICHLYTER,
Appellee,

and

RONALD D. HALL, JR.,
Appellee.

ANDREA LEFFEW, maternal grandmother
of SETH HALL, a minor child,
Appellant.


SYLLABUS BY THE COURT

1.
When reviewing a district court's child custody determination, an appellate court
utilizes an abuse of discretion standard. Judicial discretion is abused when judicial action
is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the
propriety of the action taken by the district court, then it cannot be said that the district
court abused its discretion.

2.
A party must lodge a timely and specific objection to the admission or exclusion
of evidence in order to preserve the evidentiary question for review.

3.
Pursuant to the case management process under K.S.A. 23-1001 et seq., the case
manager's recommendation is submitted as a proposed journal entry. K.S.A. 23-
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1003(d)(5). Once the recommendation is submitted, the parties are required to follow the
recommendation until further order of the court. K.S.A. 23-1003(d)(1). If a party
disagrees with the case manager's recommendation as set forth in the proposed journal
entry, such party may file a motion challenging the recommendation; the case manager
thereafter must explain to the court either by report or testimony the reasons for such
recommendation. K.S.A. 23-1003(d)(6). The burden is on the party challenging the
recommendation to establish that the case manager's recommendation is erroneous or
inappropriate.

4.
Pursuant to the limited case management process under Eighteenth Judicial
District Court Rule 424, the parties are not required to follow the recommendation of the
limited case manager at the time the recommendation is submitted. A submitted
recommendation cannot become the order of the court until one of the parties files and
then prevails on a motion to adopt the recommendation.

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed September 3,
2010. Affirmed.

Jennifer A. Wagle, of Floodman, Wagle & West, of Wichita, for appellant Andrea Leffew.

Keith E. Martin, of Smith, Shay, Farmer & Wetta, LLC, of Wichita, for appellee Nichole
Lichlyter.

Before STANDRIDGE, P.J., GREEN and HILL, JJ.

STANDRIDGE, J.: Andrea Leffew appeals from the district court's order modifying
grandparent visitation. For the reasons stated below, we affirm.


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FACTS

Seth Hall was born August 3, 2001, and is the minor child of Nichole Lichlyter
and Ronald D. Hall, Jr. Nichole filed for divorce in February 2005. On January 7, 2007,
Andrea Leffew, Seth's maternal grandmother, filed a motion to intervene and to establish
grandparent visitation. The district court granted the motion for grandparent visitation
and ordered a grandparent visitation schedule. Andrea received visitation on the first
Friday of each month beginning at 4 p.m. through Saturday at 6 p.m. and every other
Tuesday from the end of school until 6:30 p.m. Andrea also was awarded one full
weekend a year with Seth. As part of an agreement between Andrea and Ronald, Andrea's
visitation was to come exclusively from Nichole's parenting time.

A conflict arose in June 2008 when Father's Day fell on one of Andrea's weekends
with Seth. Andrea demanded that she be allowed a make-up weekend on June 27, 2008,
the first weekend after Father's Day that Nichole had Seth. Nichole refused to allow
Andrea the make-up weekend. On July 2, 2008, Andrea filed a motion to award visitation
time withheld by Nichole. Following Andrea's motion, the district court referred the
matter to a process known as Limited Case Management. The Limited Case Manager
assigned to the case ultimately made a variety of recommendations, among them that
Andrea should have make-up grandparent visitation.

Nichole filed a motion to modify Andrea's visitation on August 25, 2008. The
district court held hearings on January 7, 2009, and May 21, 2009, with regard to all
pending motions. The pretrial order set forth the following individuals as witnesses
Andrea intended to present at the hearing: Darrell Leffew, Douglass Cranmer, David
Johnson, Daniel Hale, Gregory Boxberger, as well as Nichole, Ronald, and herself.

During the hearing, Nichole and Ronald testified on Nichole's behalf, and Andrea
and Darrell testified on behalf of Andrea. Following the hearing, the district court
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modified Andrea's visitation schedule by awarding Friday to Saturday visits only in those
months in which there are five Saturdays. Although the court did not make any changes
to the previous order awarding visitation to Andrea every other Tuesday and one full
weekend during the summer, the modified order required that Andrea allow Seth to
participate in activities Nichole and Ronald enrolled him in, regardless of whether such
activities conflicted with Andrea's scheduled time.

After the modified order was issued, Andrea filed a motion to reconsider arguing
the court erred in allowing Ronald to testify, the court improperly disregarded the
recommendation made by the Limited Case Manager, and the court considered evidence
that already had been adjudicated. In response, the district court partially modified its
order on an issue unrelated to this appeal but denied the motion with regard to the
modified visitation schedule.

ANALYSIS

On appeal, Andrea presents the same points of error that she did in her motion to
reconsider before the district court: (1) The district court erred in allowing Ronald to
testify; (2) the district court erred in failing to adopt the recommendation of the Limited
Case Manager; and (3) the district court erred by considering issues that previously had
been adjudicated.

"When reviewing a [district] court's child custody determination, an appellate
court utilizes an abuse of discretion standard." In re Marriage of Jennings, 30 Kan. App.
2d 860, 862, 50 P.3d 506, rev. denied 274 Kan. 1112 (2002). "Judicial discretion is
abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons
could differ as to the propriety of the action taken by the [district] court, then it cannot be
said that the [district] court abused its discretion." Schuck v. Rural Telephone Service Co.,
286 Kan. 19, 24, 180 P.3d 571 (2008).
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Ronald's Testimony

In her first point of error, Andrea asserts the district court abused its discretion in
permitting Ronald to testify on behalf of Nichole because Ronald was not listed as a
witness for Nichole in the pretrial order. Notwithstanding her assertion on appeal, Andrea
failed to object when Ronald actually did testify on behalf of Nichole at the hearing.
Generally, "a party must lodge a timely and specific objection to the admission or
exclusion of evidence in order to preserve the evidentiary question for review." State v.
King, 288 Kan. 333, 348, 204 P.3d 585 (2009); see K.S.A. 60-404. For this reason, we
are procedurally barred from reviewing the merits of this first issue.

Recommendation of the Limited Case Manager

The Limited Case Manager recommended that the district court keep the
grandparent visitation schedule currently in place. Upon consideration of the
recommendation, the district court declined to adopt it. In so doing, the court stated that
at the time the recommendation was made, the Limited Case Manager did not have the
benefit of hearing sworn testimony from various witnesses, including Andrea, that readily
established the current visitation unreasonable and contrary to Seth's best interests.

In her second point of error, Andrea asserts the district court erred in failing to
adopt the recommendation of the Limited Case Manager. More specifically, Andrea
relies on K.S.A. 23-1003(d) to argue that the district court was required to adopt the
recommendation of the Limited Case Manager because Nichole (who had the burden of
proof as the party challenging the recommendation) failed to affirmatively demonstrate
that the Limited Case Manager's recommendation was erroneous or inappropriate.

Andrea's reliance on K.S.A. 23-1003(d)—a statute that sets forth the duties of a
statutorily appointed Case Manager—is misplaced. This is because the district court did
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not refer the matter to Case Management pursuant to K.S.A. 23-1001 et seq. Instead, the
district court referred the matter to Limited Case Management, a process created and
governed not by state statute but by Sedgwick County local rules. See Eighteenth Judicial
District Court Rule 424. Practitioners have referred to the Limited Case Management
process adopted by Sedgwick County as "a hybrid between mediation and case
management." Johnson, ADR Process in Kansas Child Custody Cases, 75 J.K.B.A. 16,
p. 16 (Sept. 2006).

Relevant to the point of error alleged here, the Case Management process differs
significantly from the Limited Case Management process. In the Case Management
process, the Case Manager's recommendation is submitted as a proposed journal entry.
K.S.A. 23-1003(d)(5). Once the recommendation is submitted, the parties are required to
follow the recommendation until further order of the court. K.S.A. 23-1003(d)(1). If a
party disagrees with the Case Manager's recommendation as set forth in the proposed
journal entry, such party may file a motion challenging the recommendation; the Case
Manager thereafter must explain to the court either by report or testimony the reasons for
such recommendation. K.S.A. 23-1003(d)(6). At this point, the burden is on the party
challenging the recommendation to establish that the Case Manager's recommendation is
erroneous or inappropriate. See In re Marriage of Gordon-Hanks, 27 Kan. App. 2d 987,
995, 10 P.3d 42, rev. denied 270 Kan. 898 (2000).

In the Limited Case Management process, however, the parties are not required to
follow the recommendation of the Limited Case Manager at the time it is submitted. In
fact, local rule provides that such recommendation cannot become the order of the court
until one of the parties files and then prevails on a motion to adopt the recommendation.

As previously stated, the district court referred this matter not to Case
Management but to Limited Case Management. As such, the Limited Case Manager's
recommendation did not become the order of the court upon submission; Nichole was not
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required to file a motion challenging the recommendation in order to keep the
recommendation from becoming the order of the court; and Nichole did not bear the
burden of establishing that the Limited Case Manager's recommendation was erroneous
or inappropriate in order for the district court to reject the recommendation of the Limited
Case Manager. Instead, Sedgwick County local rule required Andrea—as the party who
wanted the district court to adopt the Limited Case Manager's recommendation—to file a
motion with the district court requesting adoption of the recommendation. Significantly,
no such motion was ever filed.

Based on the facts set forth above, we conclude the district court did not abuse its
discretion in failing to adopt the recommendation of the Limited Case Manager.

Previous Litigation

In its ruling, the district court discussed an allegation of child abuse made by
Andrea against Nichole in 2007. Noting that the Kansas Department of Social and
Rehabilitation Services declined to investigate the allegation at the time the allegation
was made and that the court was presented with no credible evidence of the abuse
alleged, the court expressed concern about Andrea's motive in making the allegation.

As she did in her motion for reconsideration filed with the district court, Andrea
argues on appeal that the district court erred by considering the allegation of abuse in
deciding whether to modify grandparent visitation. More specifically, Andrea argues the
court was procedurally barred from reconsidering the abuse allegations in conjunction
with the motion to modify because the allegations were previously raised, assessed, and
resolved in a prior court order issued in conjunction with Andrea's original motion to
establish grandparent visitation. For the reasons stated below, we are not persuaded by
Andrea's argument.

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First, the district court affirmatively stated in ruling on Andrea's motion for
reconsideration that it did not consider the circumstances surrounding Andrea's allegation
of abuse in deciding whether to modify grandparent visitation. We find no reason to
question the district court's statement in this regard, especially since the district court's
ruling was based upon conduct that occurred after the 2007 hearing at which the
allegations of abuse were raised: Andrea's refusal to talk on the phone, Andrea's refusal
to allow Seth to attend a school honor roll banquet and a boy scout banquet, Andrea's
refusal to allow Seth to enroll in basketball, Andrea's decision to tell Seth that aliens are
the origin of human life, Andrea's decision to allow Seth to eat too much candy, and
Andrea's decision to buy Seth an excessive number of gifts and not allow him to take
those gifts to his home. We are persuaded that the district court's reference to allegations
of abuse were included in its ruling for purposes of factual background only and were not
considered by the district court in deciding whether to modify grandparent visitation.

Second, at no time during the hearing did Andrea lodge an objection to the
introduction of evidence regarding the allegations of abuse. "[A] party must lodge a
timely and specific objection to the admission or exclusion of evidence in order to
preserve the evidentiary question for review." King, 288 Kan. at 348; see K.S.A. 60-404.

For the reasons set forth above, we affirm the district court's order modifying
grandparent visitation.


1REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted
a motion to publish pursuant to Rule 7.04 (2009 Kan. Ct. R. Annot. 54). The published version
was filed with the Clerk of the Appellate Courts on December 7, 2010.