Opinion
No. 106,336.
2012-06-1
In the Matter of the PATERNITY OF A.L., a Minor, by her Natural Mother and Next Friend, Lesa LANK, Appellee, and Pantaleon Florez, Jr., Appellant.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge. Pantaleon Florez, Jr., appellant pro se. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.
Pantaleon Florez, Jr., appellant pro se. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pantaleon Florez, Jr., appeals the district court's decision denying his motion to modify child support and ordering him to pay attorney fees incurred by the petitioner, Lesa Lank, in responding to that motion. Florez claims the district court erred in finding that he failed to show a material change in circumstances warranting a modification of child support. He also claims the district court erred in awarding attorney fees and in denying his motion to alter or amend the judgment. For the reasons set forth herein, we affirm in part, reverse in part, and remand with directions.
This appeal concerns the same parties and involves many of the same facts that were addressed in a prior appeal, In re Paternity of A.L. v. Florez, No. 104,684, 2011 WL 2801080 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. –––– (2011). We will review the lengthy factual and procedural history of this case.
What We Know From the First Appeal
In 2008, Lank and Florez had a baby girl, A.L. During their relationship, Lank split her time between Wichita and Topeka. Florez, a solo law practitioner in Topeka, saw Lank during the week in Topeka. Their relationship ended before A.L.'s birth. Florez remarried his former wife, and Lank stayed in Wichita. Although Florez initially disputed his paternity of A.L., genetic testing proved that he was the father. Lank filed a paternity action against Florez, seeking child support and costs for maternity and genetic testing expenses.
As early as October 2008, and in any case no later than December 2, 2008, Florez was first ordered to provide his income information. In May 2009, the district court noted that Florez “ha[d] not yet provided his 2006, 2007 and 2008 tax returns, contrary to Court order.” On June 16, 2009, Florez was again ordered to provide his 2006–08 tax returns.
On September 17, 2009, the district court held an evidentiary hearing on the paternity action. By that time, Florez had evidently provided a copy of his 2006 tax return, which showed his gross business income as $62,464. While Florez did not provide his 2007 or 2008 tax returns to the district court, he testified that he earned $30,000 in 2007 and $14,000 in 2008. Florez claimed his income averaged around $31,000 per year for 2006–08.
Lank disagreed with Florez' reported income and called Kurt James, an attorney who had previously worked for Florez, to testify as to what Florez might be earning. James testified that Florez should be earning around $115,000 per year, taking into account Florez' 29 years of experience as an attorney, his areas of practice, his potential overhead costs, his hourly rate of $200, and nonpayment by some clients. Based on James' testimony and Florez' failure to provide his actual income data, the district judge imputed Florez with a yearly income of $80,000:
“I will impute your income—and I will be conservative on that—I will impute it at $80,000 based upon the testimony and [Florez'] refusal to provide his current year to date income figures. At the very least, Mr. Florez, you could have had the decency to bring your accountant down here to testify why he was not able to comply with my order and the previous judge's orders.”
On November 12, 2009, after the evidentiary hearing on the paternity action but before the district court's oral rulings were journalized, Florez filed a motion to alter or amend judgment, to which he appended his 2007 and 2008 tax returns. On November 17, 2009, the district court held a hearing on the motion and declined to reconsider Florez' imputed income.
On February 22, 2010, the written journal entry of the district court's oral rulings in the paternity action was finally filed. The district court granted Lank a judgment for one-half of maternity and genetic testing expenses and an award for attorney fees. The district court also denied any parenting time for Florez due to his refusal to provide a smoke-free environment for A.L. Based on Florez' imputed income, the district court ordered him to pay $918 per month in child support.
On or about March 4, 2010, Florez filed another motion to alter or amend judgment, again asking the district court to reconsider his imputed income. Lank opposed the motion, arguing that the issues raised were substantially similar to those raised in Florez' previous motion to alter or amend, which had already been denied by the district court. On April 27, 2010, the district court held a hearing and overruled the motion, noting in part that it had already addressed the issues raised in the motion.
On May 10, 2010, Florez filed a motion to modify parenting time because his wife had quit smoking. The district court granted Florez parenting time for 6 hours every Saturday in Wichita and further ordered the parties into case management to decide on an expansion of the parenting time.
On June 24, 2010, Florez filed a notice of appeal to this court. On appeal, Florez challenged the district court's determination of the income imputed to him for child support purposes as well as the district court's denial of his motions to alter or amend judgment. This court upheld both the imputed income and the denial of Florez' motions to alter or amend. 2011 WL 2801080, at *5–6. This court's decision was entered on July 15, 2011, and review was denied by our Supreme Court on November 4, 2011.
Developments Pending the First Appeal
On September 30, 2010, while Florez' first appeal was pending before this court, Florez filed in the district court a motion to modify child support, which is the subject of the present appeal. Florez asserted that he had sustained a substantial change in income from the amount the district court had imputed to him in the original child support determination. He argued that this constituted a material change in circumstances warranting a modification of child support.
The district court held a hearing on Florez' motion on February 4, 2011. The hearing was presided over by a different judge than the judge who presided over the earlier hearings. At the February 4, 2011, hearing, Florez sought to admit his 2007, 2008, and 2009 tax returns in support of a new 3–year income average which would be lower than the imputed income and thus lower his child support obligation. Florez further argued that adjustments should be made to his child support obligation based on changed day care costs, which would actually increase his obligation, and long-distance parenting time and child tax exemption credit, which would decrease his obligation.
Lank opposed the motion, arguing that the evidence of Florez' 2007 and 2008 tax returns had in fact been provided to the district court during the original child support determination and that Florez had also testified during those proceedings as to his year-to-date income for 2009. Lank further argued that with respect to increased day care costs which she paid, it was her prerogative, not Florez', to file a motion to modify. She also argued that the district court had already considered and denied the long-distance parenting time credit and that the district court had already considered and granted the child tax exemption credit. Lank asked for attorney fees for having to defend “an unfounded, frivolous motion to reduce the child support.”
After Florez presented his evidence, Lank moved for judgment as a matter of law. She contended that Florez had failed to demonstrate the requisite material change in circumstances, as required under K.S.A.2010 Supp. 60–1610(a)(l) and the Kansas Child Support Guidelines, because he had not presented any evidence which had not been considered by the district court in making the original child support determination. Lank also contended that the district court could not modify the child support order because the district court's original determination of child support was still subject to appeal.
The district court sustained Lank's motion for judgment as a matter of law. The district court indicated that it had reviewed the pleadings and transcripts with respect to the original child support determination. The district court found that the previous judge had imputed income to Florez through and including 2009 and that therefore no evidence presented by Florez regarding income through 2009 could be considered. The district court also found that Florez' motion was barred by res judicata. With respect to Lank's request for attorney fees, the district court directed her attorney to provide an itemized statement of work performed in relation to the motion to modify. Lank's attorney thereafter filed an itemized statement of attorney fees. On February 14, 2011, after reviewing the statement, the district court issued a letter decision awarding attorney fees to Lank in the amount of $4,983.
Florez filed a motion to alter or amend the judgment. Florez argued that the attorney-fee statement did not clearly separate the work performed in relation to Florez' motion to modify child support from other work performed by the attorney on Lank's behalf. He also argued that the statement appeared to include unbillable administrative work, that amounts awarded for certain items were excessive, and that he had not been given an adequate opportunity to review and object to the statement.
After a hearing on April 12, 2011, the district court denied Florez' motion to alter or amend the judgment. The district court found that it had reviewed the attorney-fee statement in detail and believed that the amount awarded was appropriate in light of Florez' failure to comply with discovery orders and his failure to present new evidence, resulting in an unnecessary hearing on the motion to modify child support. Florez timely appealed the district court's judgment.
As a preliminary matter, Lank challenges this court's jurisdiction to hear Florez' present appeal. Lank argues that the district court lost jurisdiction to hear issues related to child support and attorney fees—broadly, the same issues raised in this appeal—once Florez' first appeal was docketed and that likewise this court has no jurisdiction to hear the present appeal. Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or on the appellate court's own motion. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009). Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
Lank's argument that this court lacks jurisdiction to hear Florez' present appeal is without merit. Even after Florez' first appeal was docketed, the district court retained continuing jurisdiction to consider Florez' motion to modify child support. See Kansas Child Support Guidelines § V (2011 Kan. Ct. R. Annot. 137). Although the district court eventually found that Florez had not demonstrated the requisite material change in circumstances to justify a child support modification, this finding did not divest the district court of jurisdiction to hear the motion. Further, although an issue of attorney fees was pending before this court in Florez' first appeal, the specific request for attorney fees in relation to Florez' motion to modify child support clearly was not at issue in the first appeal. We conclude the district court retained continuing jurisdiction to consider Florez' motion to modify child support and this court likewise has jurisdiction to consider those issues in the present appeal.
Turning to the merits of the appeal, Florez argues that the district court erred in denying his motion to modify child support because the evidence and arguments that he submitted regarding his 2009 income, increased health insurance and day care costs for A.L., and long-distance parenting time expenses previously had not been considered by the district court and constituted material changes in circumstances warranting modification of child support. He also argues that the district court erred in determining that his motion to modify child support was barred by res judicata. Lank contends that the district court properly determined that none of the alleged changes in circumstances presented by Florez warranted the modification of child support. Lank also contends that Florez failed to adequately brief the issues or designate a record on appeal sufficient for this court to review his claims.
With respect to Florez' argument that the district court erred in determining that his motion was barred by res judicata, the record indicates that res judicata was only a secondary basis for the district court's decision, if at all. Furthermore, aside from setting forth the law generally applicable to res judicata, Florez fails to explain why the specific issues previously litigated in the district court are not barred from relitigation. Florez has not presented an argument, supported by pertinent authority, sufficient to allow this court to review his claim of error and thus has abandoned the issue. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
As to whether the district court erred in finding that Florez had failed to show a material change in circumstances, the district court's determination is reviewed for abuse of discretion. See In re Marriage of Schoby, 269 Kan. 114, 120–21, 4 P.3d 604 (2000). An abuse of discretion occurs when the action is arbitrary, fanciful or unreasonable, meaning that no reasonable person would have taken the action of the district court. Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). An abuse of discretion also occurs when the district court fails to consider proper statutory limitations or legal standards. Farrar v. Mobil Oil Corp., 43 Kan.App.2d 871, 876–77, 234 P.3d 19,rev. denied 291 Kan. 910 (2010). To the extent that Florez' claim requires interpretation and application of the Kansas Child Support Guidelines, this court's review is unlimited. See In re Marriage of Winsky, 42 Kan.App.2d 69, 73, 208 P.3d 355 (2009).
Florez specifically contends that the evidence and arguments he submitted regarding his 2009 income, increased health insurance and day care costs for A.L., and long-distance parenting time expenses previously had not been considered by the district court and constituted material changes in circumstances warranting modification of child support. We will review the evidence and arguments presented by Florez on each of his claimed material changes in circumstances.
First, with respect to Florez' 2009 income, the district court reviewed the transcripts with respect to the original child support determination and found that the previous judge had imputed income to Florez through and including 2009. In other words, the district court found that it had already considered Florez' 2009 income in the original determination of child support. Florez claims the district court's finding was erroneous, but he has failed to include the transcripts with respect to the original child support determination in the record on appeal. Without these transcripts, we cannot determine whether the district court erred in finding that Florez' 2009 income had been considered in the original determination of child support. Thus, Florez has not met his burden to designate facts in the record to support his claim of error. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010).
Second, with respect to increased health insurance and day care costs for A.L., it is clear from the district court's original child support determination that Lank was paying the entirety of these costs. Any increase in these costs, borne by Lank, would decrease Lank's net child support obligation and thus actually increase Florez' net child support obligation. Therefore, Florez cannot show that the district court's refusal to find that these increased costs constituted a material change in circumstances caused him any prejudice. Absent a record that affirmatively shows prejudicial error occurred below, this court presumes the action of the district court was proper and that no error occurred. State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008).
Third, with respect to Florez' request for an adjustment based on long-distance parenting time expenses, we find that Florez' argument has merit. As Florez points out, no parenting time was ordered at the time of the original child support determination. Thus, there was no need for the district court to consider an adjustment for long-distance parenting time expenses, as required under Kansas Child Support Guidelines § IV(E)(1) (2011 Kan. Ct. R. Annot. 131). Although Lank argued below that the issue of long-distance parenting time expenses had already been litigated, she failed to recognize that the district court's original consideration of those expenses should have been rendered moot when the district court ordered no parenting time. In May 2010, after the original child support determination was made, Florez was granted parenting time. At the February 4, 2011, hearing, Florez argued that he should receive a long-distance parenting time adjustment of $265 per month. Under these circumstances, the district court should have considered whether the long-distance parenting time expenses constituted a material change in circumstances sufficient to warrant a modification of child support.
Finally, Florez argues that the district court erred in determining the amount of attorney fees awarded to Lank. Florez asserts that Lank's attorney-fee statement was not properly itemized and that the district court merely guessed at which items in the statement directly related to the defense against Florez' motion to modify child support. Florez also asserts that the district court erred by denying his motion to alter or amend the judgment because he was not given an opportunity to object to the fees requested by Lank's attorney. Generally, this court reviews a district court's award of attorney fees in matters related to child support for abuse of discretion. In re Marriage of Risley, 41 Kan.App.2d 294, 300, 201 P.3d 770 (2009). A district court's decision on a motion to alter or amend judgment is also reviewed for abuse of discretion. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004).
Here, Florez failed to include Lank's attorney-fee statement in the record on appeal. Although Florez attached an attorney-fee statement to his brief, this is not to be considered as a substitute for the record itself. See Kansas Supreme Court Rule 6.02(f) (2011 Kan. Ct. R. Annot. 39). Without including the attorney-fee statement in the record on appeal, this court cannot review the reasonableness of district court's decision on attorney fees. See Crum, 286 Kan. at 161. But since we are remanding this case for the district court to reconsider the motion to modify child support as it relates to Florez' request for a long-distance parenting time adjustment, this action may affect the district court's determination as to whether Lank is entitled to an award of attorney fees. Lank had argued in district court that the motion to modify child support was frivolous in its entirety and the district court found that the hearing was unnecessary; but we have determined that the motion was not entirely frivolous. Thus, on remand the district court should reconsider its award of attorney fees.
In summary, this case is remanded for the limited purpose of considering whether Florez' long-distance parenting time expenses constitute a material change in circumstances warranting a modification of child support. The attorney-fee award is vacated and remanded for reconsideration. For continuity, on remand the case should be assigned to the same judge who presided over the February 4, 2011, hearing.
Affirmed in part, reversed in part, and remanded with directions.