In re Marriage of Guthrie-Craig

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NOT DESIGNATED FOR PUBLICATION

No. 113,410

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

TAMARA LYNN GUTHRIE-CRAIG (now PATTERSON),
Appellee,

and

CHARLES "LEE" CRAIG,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; HAROLD E. FLAIGLE, judge. Opinion filed June 3, 2016.
Affirmed.

Jennifer A. Wagle, of Cleary, Wagle & West, of Wichita, for appellant.

Robert D. Wiechman, Jr., of Wichita, for appellee.

Before GARDNER, P.J., LEBEN, J., and HEBERT, S. J.

Per Curiam: Charles "Lee" Craig appeals from a district court order which denied
his motion to terminate his child support payments for his adult daughter and increased
the amount of his child support payments for his minor daughter. The district court found
that Charles was contractually bound to pay child support beyond the age of 18 and that
the court lacked jurisdiction to modify that contract. We agree.



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Procedural background
Tamara Lynn Guthrie-Craig (now Patterson) petitioned for divorce from Charles
"Lee" Craig in 2009. At that time, the couple had two minor children, Ca.C., born in
1994, and Cl.C., born in 2000. Tamara submitted a child support worksheet which was
incorporated in the divorce decree. The district court made a $1,043 upward adjustment
to the rebuttable presumption amount based on the overall financial condition of the
parties.

Prior to the divorce, Charles and Tamara had entered into a property settlement
agreement which provided in part:

"[Charles] shall pay to [Tamara] the sum of $1,250.00 every two weeks
beginning on September 3[], 2010 and continuing in a similar amount every two weeks
thereafter as and for child support through May 31, 2022. Said support shall be paid to
the Kansas Payment Center . . . until the minor child, [Cl.C.'s] eighteenth birthday. . . .
After [Cl.C.'s] eighteenth birthday, said child support obligation of $1,250.00 every two
weeks shall be paid directly to [Tamara] . . . and shall terminate upon May 31, 2022."

The effect of this agreement was that Charles would continue to pay child support
until the younger daughter was 22 and the older daughter was 28.

The agreement acknowledged its contractual nature and provided that it would not
be easily set aside.

"This agreement is absolute, irrevocable and is not conditioned upon the parties
being divorced or upon approval of the Court. It shall be considered to be contractual
between them and binding upon the parties, their executors, administrators, heirs,
devisees, beneficiaries, assigns or other legal representatives where applicable for the
purpose of carrying out the terms thereof. It may be set aside only should the Court see fit
and upon good cause being shown not to approve it.

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. . . .

"The provisions of this agreement replace any and all other agreements and
understandings either written or oral or Court ordered between the parties. Any
modifications hereto shall be done in writing, dated and signed and shall be made only by
the mutual consent and agreement of the parties except for further orders of the court."

The district court approved the property settlement agreement after finding it "fair,
just and equitable to both parties," and the property settlement agreement was
incorporated into the divorce decree issued in December 2010.

In 2013, when Ca.C. was 19 years old and Cl.C. was 13 years old, Charles filed a
motion to terminate his child support payments as to the older daughter and to modify
them as to the younger daughter. Charles argued the child support provision in the
divorce decree failed to comply with the Kansas Child Support Guidelines and should be
set aside to the extent it required him to pay child support past the age of majority.

At the evidentiary hearing, the parties agreed it had been Charles' idea to pay
support in the amount of $1,250 every 2 weeks through May 31, 2022, to help pay for
college and medical expenses. Charles testified to the following: child support was not
enforceable by the court after the child reached the age of majority, but he assumed child
support could be modified once the child turned 18; he had spoken to an attorney but had
decided not to hire one; he had read and understood the terms of the divorce decree
before signing it; and he had never agreed to pay child support through May 31, 2022, but
had signed the property settlement agreement "to get it over with." Charles was also
asked about the child support worksheet. After testimony regarding various W-2's from
several employers, Charles admitted that for 2013 his gross annual income was higher
than he had reported.

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Following the hearing, the district court issued a written decision denying Charles'
motion. As to the oldest child, the district court found that because she had reached the
age of majority, Charles remained "liable for support for that child until May, 2022, by
his agreement." As to the minor child, the district court found it had authority to modify
child support until the child reached 18 years of age. The district court found a material
change in circumstances, so ordered a recalculation of the child support payments. The
district court then increased the amount of child support, ordering Charles to pay $1,667
per month for the minor child from July 1, 2013, until she reached the age of majority, at
which time the support Charles agreed to in the property settlement agreement would
revive.

Charles then filed a motion to reconsider. Tamara also filed a motion due to the
district court's misstatement of child support amounts; she asked the court to correct its
ruling. Following a hearing on the motions, the district court denied Charles' motion to
reconsider and granted Tamara's motion. The court modified the language and ordered
Charles to pay $1,250 every 2 weeks as originally agreed upon. Charles timely appeals.

I. Did the district court err by finding the property settlement agreement was valid,
just, and equitable?

Charles first argues that the district court should have vacated the child support
orders in the decree because they are not fair, just, or equitable. He asks this court to find
the property settlement agreement was not valid, just, and equitable and contends the
district court erred by incorporating the agreement into the divorce decree without
making the requisite findings. Charles concedes that he is not challenging the division of
property but only the amount of child support payments.

We address below Charles' argument that the district court erred by failing to
modify his child support payments. That issue is determined by the Kansas Child Support
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Guidelines, which does not measure the amount of child support payments by a "fair, just
and equitable" standard. See Guidelines § I (2015 Kan. Ct. R. Annot. 111.) (noting the
calculation in the child support worksheet is a rebuttable presumption of a reasonable
child support order and any deviation must be made in the best interest of the child).

K.S.A. 2015 Supp. 23-2902(a) states the court may award maintenance "in an
amount the court finds to be fair, just and equitable under all of the circumstances." But
maintenance was not awarded in this case. Instead, Charles and Tamara agreed to extend
child support payments past the age of majority and the district court found the agreement
to be "fair, just and equitable to both parties." The correct standard to apply to property
settlement agreements, however, is that they must be "valid, just and equitable."
(Emphasis added.) See K.S.A. 60-1610(b)(3) recodified in K.S.A. 2015 Supp. 23-
2712(a); In re Marriage of Schmeidler, 2015 WL 5613151, at *2 (noting that separation
agreements are often called property settlement agreements).

When an appellant challenges the district court's findings regarding the "valid, just
and equitable" nature of a separation agreement, our review is limited to determining
whether such factual findings are supported by substantial competent evidence. In re
Marriage of Takusagawa, 38 Kan. App. 2d 401, 403, 166 P.3d 440, rev. denied 285 Kan.
1174 (2007).

Property settlement agreements incorporated into a divorce decree are not easily
modified. As a general rule, issues settled in a separation agreement that are incorporated
into a divorce decree "are not subject to subsequent modification except as provided for
in the agreement or as mutually agreed to by the parties. See In re Marriage of Hedrick,
21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996); [K.S.A. 60-1610(b)(3)]." Schmeidler,
2015 WL 5613151, at *2.

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To justify modification of his property settlement agreement, Charles relies on In
re Marriage of Kirk, 24 Kan. App. 2d 31, 941 P.2d 385, rev. denied 262 Kan. 961 (1997),
claiming the requisite level of scrutiny was not met when the district court incorporated
the property settlement agreement. He argues: "Had any such scrutiny been performed in
this case, the District Court would have found the parties' agreement regarding child
support was inequitable, invalid and unjust."

We agree that a certain level of scrutiny is required before a district court can
incorporate the agreement into the decree. See K.S.A. 60-1610(b)(3); Kirk, 24 Kan. App.
2d 31, Syl. ¶¶ 1-2. In Kirk, the parties filed a domestic relations affidavit but no property
values were listed in the separation and property settlement agreement and no testimony
or other evidence of value of the parties' businesses was reviewed by the district judge
before he approved the separation and property settlement agreement. 24 Kan. App. 2d
at 33. We determined that based on the record, the district court had failed to review the
separation agreement as required by K.S.A. 60-1610(b)(3).

But this case is distinguishable from Kirk. Here, the property settlement agreement
specified amounts of assets and debts. The property settlement agreement also contained
a specific provision regarding the support of the children—Charles agreed to pay $1,250
every two weeks beginning September 3, 2010, until May 31, 2022. And the parties
provided a child support worksheet that echoed this amount. The parties followed
Sedgwick County Local Rule 420, which provides: "If [a final hearing for an
uncontested or default case] is ordered, the testimony of one of the parties, either directly
before the Court under oath or through written interrogatories, shall be submitted to the
Court at the hearing." Tamara submitted a default affidavit and the parties did not appear
before the district court to argue the divorce. The district court reviewed the record and
found the property settlement agreement to be valid, just, and equitable and incorporated
it into the divorce decree.

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Charles fails to provide any evidence to support his contention that the property
settlement agreement was not valid, just, or equitable. As the party claiming an error
occurred, Charles has the burden of designating a record to support his claim; without
such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296
Kan. 636, 644-45, 294 P.3d 287 (2013). We therefore find substantial evidence
supporting the district court's determination that the property settlement agreement was
valid, just, and equitable.

II. Was Charles entitled to relief pursuant to K.S.A. 60-260(b)?

Charles next contends the district court erred in not relieving him of the child
support provisions of the decree pursuant to K.S.A. 60-260(b). In support, Charles relies
on Richardson v. Richardson, 3 Kan. App. 2d 610, 599 P.2d 320 (1979). Charles
concedes that as a general rule, property settlement agreements may not be modified by
the district court. Yet he contends the district court is not deprived of the "authority to
grant relief from a final judgment under K.S.A. 60-260(b) merely because the judgment
is a divorce decree incorporating a property settlement agreement." 3 Kan. App. 2d at
612.

We agree. But to say that a court retains the authority to do an act does not mean
that the court erred in not doing that act. We find the facts in Richardson to be clearly
distinguishable. In Richardson, the wife sought a nunc pro tunc order in the original
divorce proceeding to have a newly discovered piece of land set aside to her. The district
court liberally construed her motion as one seeking relief under K.S.A. 60-260(b). 3 Kan.
App. 2d at 611. In contrast, Charles presents no newly discovered evidence, relying
instead on the statute's catch-all provision, but showing no facts warranting relief under
K.S.A. 60-260(b). We find no error in the district court's denial of his 60-260(b) motion.

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III. Did the district court err by failing to comply with the Kansas Child Support
Guidelines?

Charles next contends the child support provisions of the divorce decree were not
based on a child support worksheet and did not comply with the Kansas Child Support
Guidelines. He claims the district court failed to make specific written findings when it
indicated its reason for the overall financial adjustment of $1,043 per month. We
disagree.

Parental child support obligations in a divorce action are governed by statute and
guidelines established by our Supreme Court. See generally K.S.A. 2015 Supp. 23-3001
et seq. (governing court's obligation and authority to make provisions for child support);
K.S.A. 2015 Supp. 20-165 (mandating Supreme Court to adopt rules establishing child
support guidelines; Kansas Supreme Court Administrative Order No. 261, effective April
1, 2012). "'The standard of review of a district court's order determining the amount of
child support is whether the district court abused its discretion, while interpretation and
application of the Kansas Child Support Guidelines are subject to unlimited review.'
[Citation omitted.]" In re Marriage of Thomas, 49 Kan. App. 2d 952, 954, 318 P.3d 672
(2014).

In the absence of specific findings, a district court's failure to follow the
Guidelines is reversible error. See In re Marriage of Thurmond, 265 Kan. 715, 716, 962
P.2d 1064 (1998). A court can deviate from the amount of child support determined
through use of the Guidelines but must justify any such deviation through specific written
findings in the journal entry. The deviations must serve the best interests of the children.
In re Marriage of Vandervoot, 39 Kan. App. 2d 724, 732, 185 P.3d 289 (2008). Such
findings are generally reviewed for substantial competent evidence and to ensure they are
sufficient to support the district court's conclusions of law. In re Marriage of Atchison, 38
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Kan. App. 2d 1081, 1089, 176 P.3d 965 (2008). Here, the district court made sufficiently
specific findings supported by sufficient evidence, as detailed below.

At the time the district court issued the journal entry and divorce decree in this
case, the 2008 Guidelines were in effect. See Guidelines § I (2010 Kan. Ct. R. Annot.
113). They provide:

"The calculation of the respective parental child support obligations on Line D.9
of the worksheet is a rebuttable presumption of a reasonable child support order. If a
party alleges that the Line D.9 support amount is unjust or inappropriate in a particular
case, the party seeking the adjustment has the burden of proof to show that an adjustment
should apply. If the court finds from relevant evidence that it is in the best interest of the
child to make an adjustment, the court shall complete Section E of the Child Support
Worksheet. The completion of Section E of the worksheet shall constitute the written
findings for deviating from the rebuttable presumption." Guidelines § I (2010 Kan. Ct. R.
Annot. 113).

The parties acted in accordance with Sedgwick County District Court Local Rules
when Tamara filed a domestic relations affidavit with the divorce decree. That affidavit,
stating the value for all of the assets, including the residence and the vehicles, was
relevant evidence, as was the evidence presented at the hearing in 2013 on Charles'
motion to modify his child support payments.

The amount on line D.9 of the child support worksheet attributed to Charles is
$1,665. Charles does not attempt to rebut that amount but disputes the district court's
adjusted amount, which increased that amount of child support by $1,043. The district
court indicated it did so because of the overall financial condition of the parties, as
provided in Section E of the worksheet, and that line E.6 was its reason for making the
adjustment. The completion of that section "shall constitute the written findings for
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deviating from the rebuttable presumption." Guidelines § I (2010 Kan. Ct. R. Annot.
113).

We find that the district court made the requisite findings for deviating from the
Guidelines and that those findings are supported by substantial competent evidence. The
district court thus did not abuse its discretion in determining $2,708 was Charles' net
parental child support obligation.

IV. Did the district court err by denying Charles' motion to modify child support?

Charles next challenged the district court's finding that it did not have authority to
modify the child support once the children reached the age of majority; those payments
were considered part of a contractual agreement. However, the district court found it did
have authority to modify the child support of the minor child. Using the Guidelines, the
district court recalculated Charles' child support payment as to the minor, Cl.C., until she
reached 18. After 18, the district court ordered the payments to revert back to the parties'
original agreement.

Charles argues that because the payments are for child support and district courts
have jurisdiction over child support amounts, the district court has authority to modify the
amounts even after the age of majority. He also argues the district court cannot claim to
lack authority as to the oldest child but have authority as to the minor child to modify the
payments until the child reaches the age of majority. Charles claims he initially agreed to
extend the payments to help the children pay for college or further education, but his
oldest daughter has chosen not to pursue higher education. Therefore, he contends, the
continued child support payments are actually disguised maintenance payments.

This issue presents a matter of statutory interpretation—a question of law over
which we have unlimited review. The most fundamental rule of statutory construction is
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that the intent of the legislature governs if that intent can be ascertained. Neighbor v.
Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). An appellate court must
first attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d
90 (2014). We do so here.

Charles argues the district court has authority to modify child support based on
K.S.A. 60-1610(b)(3), even if the property settlement agreement was incorporated into
the divorce decree. That law stated:

"If the parties have entered into a separation agreement which the court finds to
be valid, just and equitable, the agreement shall be incorporated in the decree. . . . The
provisions of the agreement on all matters settled by it shall be confirmed in the decree
except that any provisions relating to . . . support or education of the minor children shall
be subject to the control of the court in accordance with all other provisions of this
article." (Emphasis added.) K.S.A. 60-1610(b)(3).

Charles contends this language means that provisions relating to child support remain
subject to the control of the district court and cannot be settled merely by the agreement
of the parties. But the statute refers to support of a minor child; payment to a child after
the age of 18, although referred to as "child support" in the agreement, is not support of a
minor child. The plain language of the statute defies an interpretation that a district court
has control over a party's child support obligations ad infinitum.

Next, we look to K.S.A. 60-1610(a)(1), which addressed child support and
education of minor children. This statute provided: "The court shall make provisions for
support and education of the minor children. The court may modify or change any prior
order . . . when a material change in circumstances is shown . . . ." (Emphasis added.)
Thus as to the minor child, the district court had authority to modify the child support
payments while the child was a minor.
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The statute further provided:

"Regardless of the type of custodial arrangement ordered by the court, the court may
order the child support and education expenses to be paid by either or both parents for
any child less than 18 years of age, at which age the support shall terminate unless: (A)
The parent or parents agree, by written agreement approved by the court, to pay support
beyond the time the child reaches 18 years of age . . . ." K.S.A. 60-1610(a)(1).

That exception squarely applies here.

We note that at the time of the parties' divorce, K.S.A. 60–1610(a)(1) provided
that the obligation to pay child support shall terminate when the child reaches 18 unless
any one of three events occur: (1) the parents have agreed otherwise in a court-approved
writing; (2) the child reaches 18 before completing high school, in which case child
support continues to June 30 of that school year; or (3) a motion is filed to continue
support through the school year in which the child, held back by mutual parental consent,
becomes 19. Only the first of these exceptions applies here and neither our discussion nor
our holding relates to exceptions 2 or 3. Cf. Matter of Marriage of Bunting, 259 Kan.
404, 409-10, 912 P.2d 165 (1996) (interpreting K.S.A. 60–1610(a)(1)(C) as giving the
district court jurisdiction to continue child support for a student, although the motion was
filed after June 30 of the school year during which she became 18).

Reviewing the statutes as a whole, we find legislative intent that child support is
for minor children only. Furthermore, the district court has inherent authority to modify
child support payments made for minor children. Once a child turns 18 years of age, the
obligation to pay child support pursuant to the statute terminates, as does the court's
inherent authority to modify the support. See 2 Elrod, Kansas Law and Practice, Kansas
Family Law § 14:27 (2014-2015 ed.). Parents may contractually agree to extend the
payments in a written agreement, but such an agreement between the parties does not
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extend the court's authority to modify the agreements. See Bartlett Grain Co. v. Kansas
Corporation Comm'n, 292 Kan. 723, 726, 256 P.3d 867 (2011) ("[P]arties cannot confer
subject matter jurisdiction by consent.") (quoting Padron v. Lopez, 289 Kan. 1089, 1106,
220 P.3d 345 [2009]). If the parents have a written agreement for post majority support
incorporated into the decree of divorce, the trial court has no jurisdiction to modify the
periodic support payments after the child has attained the age of 18. Morrison v.
Morrison, 14 Kan. App. 2d 56, 60-61, 781 P.2d 745, rev. denied 245 Kan. 785 (1989).

Charles and Tamara both entered into the property settlement agreement and
neither party provided any conditions to the contractual obligation to pay child support
through May 31, 2022. Property settlement agreements are written contracts and are
governed by contract law, In re Ketter, No. 93,993, 2006 WL 1379584, at *6 (2006 Kan.
App.) (unpublished opinion), and Charles does not raise any claims regarding the
contract.

Accordingly, we find the district court did not err by modifying the child support
payments as to the minor child or by finding the property settlement agreement controlled
once the children reached the age of majority. Therefore, Charles is required to make the
payments through May 31, 2022, as he agreed to do.

Affirmed.