In re Marriage of Smith

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NOT DESIGNATED FOR PUBLICATION

No. 120,758

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

DONELLE ELIZABETH SMITH,
Appellee,

and

ANDREW KYLE SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed October 25, 2019. Affirmed.

Thomas A. Dower, of Gilliland & Hayes, LLC, of Hutchinson, for appellant.

Dan W. Forker, Jr. and Lauren C. Alvidrez, of Forker Suter LLC, of Hutchinson, for appellee.

Before STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: After getting divorced in 2013, Donelle Smith (Mother) and
Andrew Smith (Father) shared physical custody of their daughter, T.S., with each party
taking primary custody on alternating weeks. That changed in June 2018 when Mother
moved to Mechanicsville, Virginia, to pursue an employment opportunity. In late
summer, Father filed a motion to modify custody asking the district court to enter an
order designating him as the permanent primary residential custodian for T.S. But
following an evidentiary hearing, the court denied Father's motion and granted primary
residential custody of T.S. to Mother. Father now appeals, claiming that the district court
abused its discretion by issuing a decision that was not based on substantial competent
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evidence. For the reasons stated below, we find the district court did not abuse its
discretion by awarding primary residential custody of T.S. to Mother; therefore, we
affirm.

FACTS

The factual record in this case is sparse. There is no record of the testimony
presented to the district court at the evidentiary hearing on the custody issue. Likewise,
there is no record of the exhibits, if any, that were offered or admitted into evidence at
that hearing. And the parties have referred to several alleged facts in their briefs that are
not set forth in the record on appeal.

To the extent that we can glean the facts from the record, it appears that Mother
and Father are the natural parents of T.S., who was born in 2011. They were granted a
divorce on December 16, 2013, in Platte County, Missouri. As part of that divorce,
Mother and Father agreed to joint legal and residential custody of T.S. At some point
after the divorce, Mother moved from the Kansas City area to Hutchinson, Kansas, to
pursue better employment opportunities. Father followed, negotiating with his own
employer to work remotely so that he could relocate to Hutchinson, Kansas, and maintain
the shared physical custody arrangement. Mother and Father lived in Kansas for more
than two years and continued to share custody of T.S. without incident.

Mother also has an older, teenage daughter from a prior relationship. Father and
the teenager had a "substantial relationship," and the teenager would stay with Father
every other week when he had physical custody of T.S. At some point in 2016, Father
gave the teenager a cell phone. Unbeknownst to Father, the phone was connected to a
cloud based storage drive. The teenager was able to gain access to that cloud drive where
she found nude and sexually explicit photographs of Father and an adult female. This
reportedly "upset and disturbed" the teenager, who showed the photos to Mother. Mother
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testified she believed the disclosure of the photos was inadvertent, and Father testified
that he did not know how the teenager was able to gain access to the photos. There was
no evidence that T.S. was ever exposed to the photographs. Mother continued to allow
both T.S. and the teenager to stay with Father for approximately two years after the
disclosure, with no additional incidents or problems.

During the 2017-2018 school year, Mother lost her job in Hutchinson but was able
to find a similar job with increased compensation in Virginia. Mother moved to Virginia
to begin her new employment in June 2018. Mother and Father agreed that T.S. could
spend the summer in Virginia but that they would need to discuss and work out her
primary residency before the beginning of the 2018-2019 school year. The parties were
unable to reach an agreement and, on August 14, 2018, Father filed a motion to modify
custody in the Reno County District Court. Mother opposed the motion.

On September 4, 2018, the district court granted Father temporary residential
custody of T.S. and ordered the parties to participate in mediation in an effort to agree on
a permanent custody arrangement for T.S. That mediation was apparently unsuccessful,
and the custody matter was set for an evidentiary hearing on November 19, 2018.
Following that hearing, the district court ruled from the bench that it was granting Mother
primary residential custody of T.S. In its later written findings, the district court noted
that most of the relevant statutory factors weighed equally between Mother and Father
but—highlighting the 2016 nude photos incident involving the teenager—concluded that
T.S.'s "best interest is served by living primarily with her mother and spending significant
time with her father as the school calendar allows."

Father filed a motion to reconsider on January 10, 2019, arguing that the district
court's decision was not supported by the evidence. Specifically, Father claimed the
court's decision was based almost entirely on the 2016 nude photos incident and the
alleged trauma it caused the teenager, notwithstanding the fact that there was no evidence
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presented at the hearing that the teenager experienced trauma. The district court held a
hearing on January 25, 2019, but ultimately denied Father's motion. In doing so, the
district court judge noted:

"[I]f I were deciding between you two having shared custody and you having no custody
there's no hesitation. I would give you shared custody but I had to decide between
Virginia and Kansas and you are very equally attractive parents as I found. You both
respect each other, you both have stable lives, you both have nice homes, you both have
extended family. I had to make a decision, though and I felt like that was valid."

Father timely appealed. While the appeal has been pending, Mother filed a motion
seeking $1,021 from Father, per month, in child support.

ANALYSIS

Father argues the district court's decision to grant Mother primary residential
custody of T.S. is not supported by substantial competent evidence. A district court's
decision to grant or deny a motion to modify child custody or residency order will not be
disturbed in the absence of an abuse of discretion. See In re Marriage of Grippin, 39
Kan. App. 2d 1029, 1031, 186 P.3d 852 (2008).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based. [Citation omitted.]" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

An appellate court reviews the evidence in the light most favorable to the
prevailing party to determine if the district court's factual findings are supported by
substantial competent evidence and whether they support the court's legal conclusions.
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"Substantial competent evidence is '"evidence which possesses both relevance and
substance and which furnishes a substantial basis of fact from which the issues can
reasonably be resolved."'" Wiles v. American Family Life Assurance Co., 302 Kan. 66,
73, 350 P.3d 1071 (2015). This court does not reweigh the evidence, pass on witness
credibility, or redetermine questions of fact. In re Marriage of Vandenberg, 43 Kan. App.
2d 697, 705, 229 P.3d 1187 (2010).

Pursuant to K.S.A. 2018 Supp. 23-3201, a district court must "determine legal
custody, residency and parenting time of a child in accordance with the best interests of
the child." K.S.A. 2018 Supp. 23-3203(a) lists 18 nonexclusive factors that the district
court must consider when determining the best interests of the child. Here, the district
court's written order made findings of fact, considered the relevant statutory factors
related to the best interests of the child in light of those facts, and then concluded as a
matter of law that granting Mother primary physical custody was in the best interests of
the child.

Father argues the factual findings made by the district court are not supported by
substantial competent evidence. In support of this argument, Father does not cite to the
"Findings of Fact" section of the court's order, but instead cites to the factual findings
made by the court in the "Discussion" section of the opinion:

"[T.S.] has parents who could continue to successfully co-parent with shared
residency but that is not possible due to the distance between homes. [Father]'s lapse in
allowing his former step-daughter to access sexually explicit photos hopefully has led to
[Father] examining his own behavior. Unfortunately, the emotional trauma to the young
girl will not be erased by an apology. At this time in [T.S.]'s life her best interest is
served by living primarily with her mother and spending significant time with her father
as the school calendar allows." (Emphasis added.)

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Although the italicized statement is made by the district court under the
Discussion section of its order and not the Findings of Fact section, we necessarily
conclude the statement is a finding of fact upon which the district relied in making its
custody decision. Our conclusion in this regard is based both on the factual nature of the
statement and the fact that the statement immediately precedes the court's conclusion of
law that granting primary physical custody to Mother would be in T.S.'s best interests.

Having concluded that the statement constitutes a finding of fact by the court, we
now move to Father's claim that this factual finding is not supported by substantial
competent evidence. Father appears to concede there was testimony from Mother at the
hearing that the teenager was "upset and disturbed" after the teenager found the sexually
explicit photographs on the phone. But Father claims the record contains no evidence, let
alone substantial competent evidence, to support a finding that the teenager or T.S.
suffered emotional trauma, as found by the district court. To the contrary, Father asserts
that T.S. never even saw the photos, that Mother continued to share physical custody of
T.S. and the teenager with Father after the incident as she did before the incident, and that
the record contains no evidence that the isolated photo incident resulted in any negative
change in behavior, trouble in school, or need for therapy for either T.S. or the teenager.

Given there is no transcript of the evidentiary hearing, we are unable to determine
whether the district court's factual finding that the teenager suffered emotional trauma is
supported by substantial competent evidence in the record. As the appellant, Father has
the duty to designate a record sufficient to establish his claim of error. See Kelly v.
VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).

In Mother's appellate brief, however, we note that she does not dispute the fact that
there was no testimony that the teenager or T.S. suffered emotional trauma. Instead,
Mother argues that the district court's decision was not based on this isolated factual
finding in the Discussion section of the order. In support of her argument, Mother cites to
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the transcript from the court's hearing on Father's motion to reconsider, in which the court
responded to Father's argument regarding a lack of evidence to support the court's finding
of emotional trauma:

"I hope that you are right, [Father's counsel] and [Father], that there has been no
lasting or emotional damage to the older daughter by what happened. Time will tell.
Things like that don't always surface immediately but, you know, if I were deciding
between you two having shared custody and you having no custody there's no hesitation.
I would give you shared custody but I had to decide between Virginia and Kansas and
you are very equally attractive parents as I found. You both respect each other, you both
have stable lives, you both have nice homes, you both have extended family. I had to
make a decision, though and I felt like that was valid. . . . [A]s I stated in my written
findings a lack of maturity and that for me weighed the balance or tipped the balance."

The district court's language appears to acknowledge that, as Father argued, there
was no evidence presented at the hearing that teenager had experienced "emotional
trauma" to date. Nevertheless, the court denied Father's motion to reconsider its decision
to grant Mother primary residential custody of T.S. In denying reconsideration, the court
generally referenced the other findings in its original order that supported its custody
decision. In that order, the court considered the emotional and physical needs of the child
pursuant to K.S.A. 2018 Supp. 23-3203(a)(5) and determined that

"[the child's] emotional needs are better met by her mother. [Father] displayed a lack of
maturity and appropriate oversight in allowing his former step-daughter to access
sexually explicit photos. [Father] testified he did not know [the teenager] could gain
access but as a parent or former step-parent, [Father] should have known. Parents have a
responsibility to monitor the information and images to which their children are
exposed."

Father does not challenge the fact that the sexually explicit photos could be
accessed on the phone he gave to the teenager or the fact that the teenager did, in fact,
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access those photos. Evidence of the photos was presented at trial and both parties
offered testimony with regard to the incident. The district court, upon reviewing the
photo evidence and hearing testimony of the parties, determined that the child's exposure
to the nude and sexually explicit photographs happened as a result of Father's failure to
exercise appropriate oversight in monitoring the information and images to which the
children were exposed. Father does not challenge the court's factual findings in this case
that he had a lapse in judgment and that he failed to exercise appropriate oversight by
allowing his former step-daughter to access sexually explicit photos of himself.

The district court was faced with making a difficult decision between two fit
parents who were both seeking residential custody. The court found that the parties were
both "very equally attractive parents." Although admittedly an isolated incident, the
court's decision in this case was heavily influenced by the fact that Father gave the
teenager a phone and that the teenager was able to access sexually explicit photos of
Father. In turn, the court found that Father's actions in this regard represent a lapse in
judgment and a failure to exercise appropriate oversight is similarly supported by
substantial competent evidence. Father does not challenge the evidence that supports the
district court's factual findings but instead highlights evidence that he believes would
support a contrary conclusion. Specifically, Father argues that the absence of evidence to
prove that the incident involving the photographs has had a lasting negative effect on the
teenager supports an alternative conclusion with regard to the amount of weight this
incident should have been given by the court in determining his ability to meet the
emotional needs of the child.

But Father's argument fails to take into consideration our standard of review,
which requires us to view the evidence "in a light most favorable to the prevailing party
below to determine if the court's factual findings are supported by substantial competent
evidence and whether those findings support the court's legal conclusion." In re Marriage
of Vandenberg, 43 Kan. App. 2d at 704. We are not permitted to reweigh evidence and
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determine credibility on contested issues. 43 Kan. App. 2d at 705. Here, the court
expressly recognized this was a close case. And the court readily acknowledged that both
parents met the emotional needs of the child. But the court concluded T.S.'s emotional
needs would be better met by Mother given Father's lapse in judgment as described
above. Perhaps another judge would have decided the custody issue differently. But
reviewing the evidence in a light most favorable to Mother, as required, we hold that the
district court's findings of fact are supported by substantial competent evidence and that
those findings of fact support the court's decision to award primary residential custody of
T.S. to Mother. As such, the district court did not abuse its discretion.

Affirmed.