Opinion
No. 108,489.
2013-04-19
In the Matter of KcAnna CHANCE, minor child, by and through Richard T. KEISWETTER, father and next friend, Appellee, and Kelle Chance, Appellant.
Appeal from Rooks District Court; Edward E. Bouker, Judge. Richard E. Dietz, of Dietz & Hardman Law Office, of Osborne, for appellant. Leslie A. Hess and Andrea K. Swisher, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Hays, for appellee.
Appeal from Rooks District Court; Edward E. Bouker, Judge.
Richard E. Dietz, of Dietz & Hardman Law Office, of Osborne, for appellant. Leslie A. Hess and Andrea K. Swisher, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Hays, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kelle Chance appeals from the district court's decision changing residential custody of her two minor children from herself to the children's father, Richard T. (Troy) Keiswetter. Specifically, Kelle asserts that the district court abused its discretion by (1) misapplying the rule of law regarding Troy's burden to prove a material change in circumstances existed to justify a modification in custody and (2) misapplying the factors in K.S.A.2012 Supp. 23–3203 in determining the residential custody of the children. Finding no abuse of discretion, we affirm.
Facts
Kelle and Troy met in Topeka in October 2005 and began a romantic relationship. Kelle gave birth to KcAnna in January 2007 and in September 2007 moved with KcAnna into Troy's home in Topeka. Kelle then became pregnant with the couple's second child. In July 2008, Kelle moved with KcAnna to Phillipsburg to live with Kelle's mother and stepfather. A short time later, Troy moved to Plainville, approximately a 30–minute drive from Phillipsburg, to serve as principal of the high school.
In August 2008, Troy filed a petition in the district court seeking orders to determine current and prospective parentage, custody, and visitation of KcAnna and the child the couple was expecting. The second child, Kaleb, was born in September 2008. There has never been a dispute between the parties regarding the paternity of either child.
Following a trial, the district court awarded the parties joint legal custody on June 25, 2009, with Kelle having primary residential custody. Troy was given parenting time on alternating weekends, 1 weekday evening per week during the school session, and overnight 1 weekday per week during summer break. The parties subsequently struggled with disputes in and out of court over parenting time. The disputes were so contentious that two separate case managers and a guardian ad litem were appointed. Both parties filed numerous objections to the case managers' reports and spent in excess of $150,000 in attorney and court fees as of July 2011. They both sent heated emails directly to one another and through their attorneys. On more than one occasion, Kelle notified the police to be present at the parties' exchange of the children simply to document any violations of the court order. Troy filed two motions for citation against Kelle: one on July 7, 2011, and another on May 3, 2012. At one point, the judge referred the case to the county attorney with a recommendation that he consider filing children in need of care proceedings because the judge “believe[d] that this litigation and the animosity that exist[ed] between the parents ha[d] reached a state that [was] tantamount to child abuse.”
On July 25, 2011, Troy filed the motion for modification of child custody at issue here. On April 30, 2012, Troy filed an amended motion for modification of child custody. On May 29, 2012, the court held an evidentiary hearing for purposes of ruling on Troy's motion to modify custody. On June 21, 2012, the district court issued a memorandum decision changing the residential custody of KcAnna and Kaleb to Troy. Kelle appeals.
Standard of Review
“ ‘ “When the custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. [Citations omitted.]” ‘ “ Harrison v. Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011) (quoting In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 [2002] ).
Under an abuse of discretion standard, “ ‘the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards.... [A]n abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations.’ “ Tauheed, 292 Kan. at 672 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Unless the appellate court was to conclude that no reasonable judge would have reached the result reached below, the district court's decision must be affirmed. In re Marriage of Cobb, 26 Kan.App.2d 388, 392, 988 P.2d 272 (1999).
Analysis
On appeal, Kelle argues that the district court abused its discretion by (1) misapplying the rule of law regarding Troy's burden to prove a material change in circumstances existed to justify a modification in circumstances and (2) failing to properly apply and consider all of the relevant factors in K.S.A.2012 Supp. 23–3203 in deciding whether modification of the existing custody order would be in the children's best interest. We address Kelle's arguments in reverse order.
1. Factors to Consider in Determining Child Custody, Residency, and Parenting Time
Pursuant to K.S.A.2012 Supp. 23–3201, the court is required to determine custody or residency of a child in accordance with the best interests of the child. The nonexclusive list of factors that the court is required to consider in determining issues of child custody, residency, and parenting time is provided in K.S.A.2012 Supp. 23–3203:
“In determining the issue of child custody, residency and parenting time, the court shall consider all relevant factors, including, but not limited to:
“(a) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
“(b) the desires of the child's parents as to custody or residency;
“(c) the desires of the child as to the child's custody or residency;
“(d) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests;
“(e) the child's adjustment to the child's home, school and community;
“(f) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent;
“(g) evidence of spousal abuse;
“(h) whether a parent is subject to the registration requirements of the Kansas offender registration act ...;
“(i) whether a parent has been convicted of abuse of a child ...;
“(j) whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act; and
“(k) whether a parent is residing with an individual who has been convicted of abuse of a child....”
In her first claim of error, Kelle argues the district court abused its discretion by failing to properly apply and consider all of the relevant statutory factors in deciding whether modification of the existing custody order would be in the children's best interests. Specifically, Kelle asserts the district court improperly applied factors (d) through (f) and improperly failed to consider factors (a) and (g). a. K.S.A.2012 Supp. 23–3203(a)
Kelle argues that the court should have considered the “length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto,” in determining custody of the children because throughout the children's lives, Kelle has entrusted the care of the children “from time to time” to her mother and stepfather. She notes that they have been a significant part of the children's lives and that her mother has provided “significant assistance” to her in caring for the children.
However, a panel of this court has found that evidence of this factor is “only pertinent when the child has been in the custody of a person other than the child's parents.” In re D.R.K., No. 90,689, 2003 WL 22831935, at *4 (Kan.App.2003) (unpublished opinion) (citing the version of K.S.A.2012 Supp. 23–3203[a] in place before the recodification of the Family Law Code—K.S.A.2002 Supp. 60–1610[a][3][B][i] ). As Troy observes, the words “ ‘actual care and control’ “ imply that the person must have had custody or exercised parental rights over the children because these words mirror those adopted by our Supreme Court in the definition of custody. That court found custody to be that which “ ‘embraces the sum of parental rights with respect to the rearing of a child, including his [or her] care. It includes the right to the child's services and earnings, and the right to direct his [or her] activities and make decisions regarding his [or her] care and control, education, health, and religion.’ “ (Emphasis added.) Trompeter v. Trompeter, 218 Kan. 535, 539, 545 P.2d 297 (1976) (quoting 59 Am.Jur.2d, Parent and Child § 25).
In this case, Kelle's mother did not have custody over KcAnna or Kaleb. In her own brief, Kelle admits that her mother only cared for the children “from time to time” and simply provided “assistance” to Kelle in watching and caring for the children. Moreover, there was no evidence presented at the trial that Kelle ever gave her mother custody of the children for any extended time or that Kelle's mother exercised any decision-making power over the raising of the children. Thus, the district court correctly concluded that factor (a) did not apply to this case. b. K.S.A.2012 Supp. 23–3203(g)
Kelle argues the court also should have considered “evidence of spousal abuse” in determining custody because evidence was presented by Kelle, her mother, and her father of Troy's temper and violent behavior.
In finding that the evidence did not allow it to draw useful conclusions regarding this factor, the district court relied on the 2009 custody order which specifically considered the issue of Troy's alleged violence. The district court in this case noted that in that 2009 decision, the court stated:
“The court does not doubt that Troy has a temper and that violence occurred. The court also does not doubt that Kelle fuels the acrimony. In the meantime, the children suffer because the fighting and arguing has occurred in their presence, and because they cannot enjoy a strife free and normal relationship with both parents.”
Despite finding that some sort of violence may have occurred, the court determined in 2009 that such a finding was insufficient to support a conclusion that Troy's parenting time should be any less than that of a typical father. Based on the court's previous decision in 2009 and the fact that there had been no subsequent allegations of abuse, the district court here concluded that it would not consider the evidence of alleged abuse in making a determination regarding custody.
We find the district court did not err in declining to consider the allegations of abuse lodged by Kelle against Troy. First of all, the allegation of violence was the subject of an evidentiary hearing in 2009, after which the court held that, even if true, it would not consider the evidence of alleged abuse in making a determination regarding parenting time. Moreover, the only evidence of actual physical violence by Troy toward Kelle that was presented at the 2012 evidentiary hearing was the uncorroborated testimony of Kelle herself, who claimed that Troy had hit her while she was pregnant. Finally, the court specifically found believable the testimony of Troy's former girlfriend, who reported that Troy “never lost his temper.” In sum, a reasonable judge certainly could have reached the conclusion that this was not enough evidence to warrant considering spousal abuse in the overall analysis of whether to modify child custody; accordingly, the district court did not abuse its discretion in determining that factor (g) was not at issue in this case. c. K.S.A.2012 Supp. 23–3203(d)–(f)
Regarding the factors the district court did consider in its decision to change custody, Kelle essentially contends that the evidence presented by Troy to support these factors was insufficient or improperly weighed by the district court against evidence she presented at trial that weighed in her favor.
As to factor (d), “the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests,” Kelle asserts the district court failed to consider evidence presented at trial of the children's relationship with Kelle's family, most of who reside nearby in Phillipsburg, and the lack of evidence presented by Troy to establish the children's relationships with anyone other than Troy himself. But Kelle fails to mention evidence in the record of trips by the children with their father to visit his family in Neosho, Missouri, as well as photos depicting the children with members of his family and taking part in community activities. In addition, there was evidence that Kelle interfered with Troy's opportunity to take the children to his family functions because, at least on two specific occasions, Kelle refused to allow them to go. Moreover, Troy's ex-girlfriend testified that he was a great father, was patient, and never lost his temper and, again, the district court specifically found her testimony to be credible. Conversely, the district court found evidence presented by two of Kelle's ex-boyfriends to be troubling. They testified that she had a short fuse, was irrational and spontaneous, and even went to one of their homes late at night with the children and hit the boyfriend in the mouth while he slept.
As to factor (e), “the child's adjustment to the child's home, school and community,” Kelle asserts the district court failed to consider evidence presented at trial of the children's current involvement in the community through various church activities, beauty pageants, dance classes, and preschool against the fact that Troy's new job in McLouth would require the children to live in a community where they had no family or close friends. Although the district court found the children were relatively happy and adjusted where they were, the court also found that the children were happy and content when with Troy as well.
Significantly, the district court found factor (f), “the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent,” to be the most important consideration in this case. Despite evidence that Troy could be controlling and inflexible, the district court found he at least appreciated the necessity of promoting a relationship between the children and their mother and had proposed steps to do so. Presumably, the district court was referring to Troy's proposed parenting plan, under which he would provide Kelle with custody every other weekend as well as most holidays and would split the travel time by meeting halfway between McLouth and Phillipsburg. The district court cited several examples of Troy's controlling personality, including: a police officer's testimony that Troy “ ‘dominated the conversation’ “ and was uncooperative during a visitation dispute; Troy's “nasty and threatening emails” to the case manager; Kelle's unrefuted testimony that, regarding negotiating parenting time, Troy told her, “ ‘Don't send me offers. I'll tell you what I want’ “; Troy's comments indicating he blamed prior orders of the court for his troubles; and an incident in the trial where he interrupted the court's admonishment of an audience member with his suggestions as to who to admonish.
Regarding Kelle, the district court agreed with Troy that she was frustrating and obstructing him in gaining parenting time with the children, noting that she admitted she failed to afford Troy his scheduled visitation one day and had on several occasions failed to follow court orders regarding the children's phone calls to their father. The district court focused on an incident in which a court had granted custody to Kelle over a holiday weekend, despite that Troy had visitation on one of those days, so that she could take the children with her to visit relatives in New Mexico, but she took the children to Nebraska instead. Although Kelle's attorney took the blame for misunderstanding her destination, the court found her actions “smack of a contrivance designed to deprive Troy of parenting time.” The district court also observed that Kelle testified that if Troy were to get custody, she would not be satisfied with the amount of parenting time she had offered to Troy in her own proposed parenting plan. Further, the district court found Kelle gave absolutely no thought to the effect and harmful message to the children of having the police appear at the exchanges with their father. In addition, the district court found her testimony that sometimes complying with the court order was inconvenient to be inconsistent with her stated desire for more specific court orders so that the parties would know what they must do. The district court also noted that Kelle insisted that Troy exercise any spring break visitation during the Phillipsburg spring break rather than the spring break at Troy's school even though KcAnna and Kaleb had no connection to the Phillipsburg school system. Finally, the court found Kelle's emotional reaction to its temporary award of custody to Troy for the weekend following the trial to be “unwarranted and extreme.”
Nonetheless, Kelle argues on appeal that the district court failed to consider evidence of Troy's behavior that is similar to the behavior for which it condemned her when it considered factor (f). Yet, she points to all the same evidence that the district court clearly considered above that indicated that Troy was controlling and inflexible. Furthermore, she claims that Troy's controlling behavior was demonstrated through his demand of extra time during his own spring break instead of the Phillipsburg spring break. Kelle claims that, contrary to the district court's finding that the children had no connection to the Phillipsburg school system, KcAnna was in preschool at the time and thus did have a spring break period. However, other evidence in the record indicates KcAnna attended a private, Christian preschool that would not be tied to the Phillipsburg school system. Kelle also claims Troy received extra parenting time during his spring break only because he failed to return the children, at which point she agreed to allow him extra time. However, there is no evidence in the record to support this claim. Nonetheless, Kelle correctly notes that Troy also called the police regarding issues with exchanges of the children. She also correctly observes that Troy himself missed a court ordered phone call, and she further claims he refused to call her when she missed phone calls so that he could use the evidence against her in court.
Kelle also attempts to minimize the evidence of her own bad behavior. She asserts that her rejection of her own proposed parenting plan as applied to herself was based on her concern for the best interests of the children and that travelling 10 hours in a car every other week was not in the best interests of the children. Furthermore, Kelle emphasizes that any missed phone calls were unintentional and that she always tried to make them up the following day. Finally, she cites to testimony by both herself and Troy that she had provided him with additional parenting time to visit family in Neosho as well as when he came to Phillipsburg for various events.
Ultimately, in making its decision to change custody to Troy, the district court chose between two major factors: (1) The stability of the children where they are and (2) the unwillingness or inability of Kelle to respect and foster the bond between Troy and his children. Finding that the apparent stability was based more on time than on “a calming of the troubles between the parties” and that Kelle showed no sign of appreciating the need to change, the district court found the children's only hope of a normal relationship with both parents lay with Troy, who the court believed would follow through on his promise to foster the children's relationship with Kelle. The district court also noted that time would likely again establish stability for the children in a new household.
Kelle's arguments on appeal essentially call for this court to reweigh the evidence. It is not the function of an appellate court to reweigh the evidence. In re Marriage of Williams, 32 Kan.App.2d 842, 861, 90 P.3d 365 (2004). The question is not whether this court might have reached the same conclusion as the district court; it is simply whether one reasonable judge could agree with that conclusion. Tauheed, 292 Kan. 663, Syl. ¶¶ 1–2.
All of the district court's above findings are supported by evidence in the record, and it properly applied the relevant factors of K.S.A.2012 Supp. 23–3203 to this evidence in determining whether to modify the children's custody. There is no indication that the district court failed to consider any of the evidence cited by Kelle; it was all present in the record and in the testimony before the court. Despite noting the acrimony between the parties and the “precious little, if any, regard either of them have for the negative effects these legal proceedings and the parental attitudes they portray might have had on their children,” the district court also found that Kelle and Troy presented evidence showing them both to be devoted, loving, and capable parents. Thus, either result—allowing Kelle to retain residential custody of the children or transferring custody to Troy—would have been within the district court's sound discretion based on the evidence before it. Although consideration of some of the evidence may have favored keeping residential custody with Kelle under the statutory factors, the evidence found to be most credible by the district court in its analysis also favored changing residential custody to Troy. Thus, in its discretion, the district court concluded from this evidence and personal observations of both parties that Kelle was frustrating and obstructing Troy in gaining parenting time and showed no sign of changing her attitude or ability to appreciate and foster the children's relationship with their father, which warranted a change of custody.
The district court was in the best position to determine how to best serve the interests of the children. This court will not disturb its judgment absent an abuse of discretion. See Tauheed, 292 Kan. at 672 (quoting In re Marriage of Rayman, 273 Kan. at 999). There was no such abuse here.
2. Material Change in Circumstances
In her second point of error, Kelle contends Troy failed to provide any evidence to support the allegations in his motion that a material change in circumstances had occurred since the court issued its June 25, 2009, order granting Kelle primary residential custody. Absent any evidence to demonstrate such a change, Kelle claims the district court did not have the discretion to grant Troy's motion and modify the existing custody plan.
In order to change primary residency, the movant must show that there has been a material change in circumstances. K.S.A.2012 Supp. 23–3218. A material change of circumstances has no precise definition, but it requires consideration of a variety of factors and circumstances and must be of a substantial and continuing nature as to make the terms of the initial decree unreasonable. In re Marriage of Nelson, 34 Kan.App.2d 879, 887, 125 P.3d 1081,rev. denied 281 Kan. 1378 (2006). The burden of proving a change of circumstances sufficient to justify a modification of the divorce decree's custody award of the child rests upon the party requesting the change. In re Marriage of Grippin, 39 Kan.App.2d 1029, 1031, 186 P.3d 852 (2008).
Almost 2 years after the district court issued its order granting Kelle primary residential custody of the parties' children, Troy requested the court to modify the current custody plan based on the following material changes in circumstances:
• Kelle denied him access to the children for court-ordered visitation to which he was legally entitled, both in person and on the phone;
• Kelle disregarded court orders regarding custody and visitation;
• Kelle alienated the parties' minor children from Troy;
• Kelle's conduct hindered Troy's relationship with his children;
• Kelle encouraged the parties' children to call Kelle's boyfriend “dad”;
• The children had observed Kelle engage in inappropriate behavior;
• Kelle had made disparaging remarks about Troy to the children; and
• Kelle was unwilling and unable to respect and appreciate the bond between Troy and the parties' minor children, which necessarily denied him the opportunity to foster a healthy and happy relationship with them.
As discussed at length in the preceding section, the court held an evidentiary hearing on the motion to modify, after which it found modification to be in the best interests of the children. Nevertheless, the court failed to include in its memorandum decision an affirmative finding that a material change of circumstances existed to justify modifying the previous custody order. Neither party objected to the adequacy of the district court's findings. Generally, litigants and their counsel bear the responsibility to object to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct or supplement them; where they fail to object, an appellate court presumes the district court found all facts necessary to support its judgment. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012). Our function on appeal when the district court fails to make adequate findings and conclusions is to review the record to see if it supports a presumption that the trial court found all facts necessary to support the judgment. See United Proteins, Inc, v. Farmland Industries, Inc., 259 Kan. 725, Syl. ¶ 7, 915 P .2d 80 (1996).
Upon review of the record in this case, we find sufficient facts to support such a presumption. Specifically, and as set forth in great detail above, the record contains facts to support a finding that Kelle repeatedly interfered with Troy's ability to visit and communicate with his children as authorized by the 2009 court order and that Kelle was unwilling and unable to respect, appreciate, and promote the father-child bond between Troy and the parties' minor children. We find Kelle's failure to comply with the structured visitation schedule or to comply with the obligation to foster her children's relationship with Troy is sufficient to support a finding of material change in circumstances.
Affirmed.