Opinion
No. 105,335.
2012-09-28
Roy A. JORDAN, Appellee, and Shannon D. Jordan, Appellant.
Appeal from Butler District Court, Michael E. Ward, Judge. Stephen W. Johnson, of Cornerstone Law, LLC, of Newton, for appellant. Robert J. Lane, of Davis, Manley & Lane, LLC, of El Dorado, for appellee.
Appeal from Butler District Court, Michael E. Ward, Judge.
Stephen W. Johnson, of Cornerstone Law, LLC, of Newton, for appellant. Robert J. Lane, of Davis, Manley & Lane, LLC, of El Dorado, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
PER CURIAM.
This appeal comes to us following the district court's ruling in a contested divorce action involving Roy and Shannon Jordan. Roy lost his job during the pendency of this case. Shannon was not employed outside the home. Shannon appeals the court's denial of her request for spousal maintenance and the court's imputation to her of a minimum-wage income for the purpose of calculating child support.
With respect to the imputation of minimum-wage income, under the Kansas Child Support Guidelines the district court assumes that a parent is able to earn at least the federal minimum wage and to work 40 hours per week unless there is substantial evidence to the contrary. Though Shannon testified to her medical condition, she did not provide any evidence that she was incapable of engaging in gainful, full-time employment outside the home. Accordingly, we find no error in the district court's ruling on this issue.
With respect to the denial of maintenance, at the time of the divorce Roy's only income was in the form of unemployment compensation benefits. The district judge analyzed Shannon's maintenance claim without taking into account the judge's ability to fashion a maintenance formula based on a percentage of income which would automatically adjust any court-ordered maintenance obligation based on future changes in the parties' income, such as would occur if and when Roy obtained employment.
Such oversights occur from time to time in the course of busy court proceedings, even those presided over by an able and experienced trial judge such as here. It is helpful when the trial judge has diligent counsel who advocate for their clients by bringing such oversights to the court's attention so they can be promptly addressed. The trial court did not have that assistance here, as we shall see. Shannon's counsel did not invite the error for which Shannon now complains; that is, he did not urge the court to disregard a formula approach to maintenance. Nevertheless, he did not assist the court by pointing out the broad range of maintenance options (“a lump sum, in periodic payments, on a percentage of earnings, or on any other basis”) available under K.S .A.2010 Supp. 60–1610(b)(2).
We conclude that the district court abused its discretion by premising its order denying maintenance on a misstatement of the available bases for awarding spousal maintenance. See Farrar v. Mobil Oil Corp., 43 Kan.App.2d 871, 876–77, 234 P.3d 19,rev. denied 291 Kan. 910 (2010) (discretion is abused when a decision is guided by an erroneous legal conclusion or fails to consider proper legal standards). Accordingly, we reverse the order denying maintenance. We remand for further consideration of the maintenance issue without expressing any view as to whether, by what method, or in what amount spousal maintenance should be ordered.
Roy and Shannon Jordan were married 18 years prior to Roy filing for divorce in October 2009. At the time of trial in June 2011, Roy and Shannon had a 12–year–old daughter and 11–year–old triplet girls. Their son became 18 years of age before the divorce was granted.
Roy had been employed with an income of approximately $100,000, but he was laid off in May 2010 and was unemployed at the time the divorce was granted. Shannon apparently had not been employed outside the home for quite some time. The parties had accumulated few marital assets but had incurred significant debt.
Shannon was diagnosed with thyroid cancer 2 years before this divorce action. As a result her parathyroid was removed, requiring her to undergo ongoing intravenous infusion treatments twice a week. Each treatment lasts 8 to 9 hours. Shannon testified that she did not have any prospects for a job, though she anticipated obtaining a Pell grant, presumably related to an effort to complete her education and seek employment. There was no testimony whether, or to what extent, her condition and her medical treatment affected her ability to work outside the home.
The district court issued temporary orders awarding primary residential custody of the minor children to Shannon. The temporary orders directed Roy to pay $2,386, in monthly child support and spousal maintenance in the form of the monthly mortgage payment of approximately $1,400. Roy ceased making the mortgage payments after he was told that he would be laid off from his employment. In April 2010, Roy moved to modify the temporary orders for child support and maintenance, but he continued to work and was not terminated until May 2010. He received weekly severance payments of $1,938 for 4 weeks thereafter. In June 2010, at the time of trial, Roy's sole income apparently was $461 in weekly unemployment benefits.
The trial commenced on June 21, 2010. Roy testified that he did not have any definitive prospects for future employment. Following the trial, the district court granted the parties joint custody of the minor children and primary residential placement of the minor children with Roy. The district court imputed an annual income of $15,084 to Shannon based on a 40–hour–per–week minimum-wage job and ordered her to pay child support in the amount of $327 per month.
The district court denied Shannon's request for spousal maintenance due to the fact that Roy was unemployed. The court indicated that if Roy still had his job and his $100,000 of annual income, “this would definitely be a spousal maintenance case because of that disparity in income.” However, the court ruled:
1”And even Mrs. Jordan acknowledges in this case, I think in her testimony, I saw a note in my notes that she understands he doesn't really have the ability to make a maintenance payment at this point. But she asked, I think, if my notes serve me [correctly], that she wants the ability to revisit the maintenance issue if and when Roy Jordan gains employment.
“Now, I might agree with that concept in principle, but I'm not sure that I have the statutory authority to do that. And I'm saying that, Mr. Doudin, for [your] benefit. Maybe you can find a provision that would allow me to do that.
“But I know for a fact that I can modify maintenance payments downward based on a change in circumstances, but I don't know that I can order no maintenance today and then a year from now order maintenance based on the respondent getting a job at that point. I don't believe the statute would permit me.
“When I saw the statute, I mean K.S.A. 60–1610 would permit me to do that. But If I could—if I can, I might consider doing that. I'll just put it that way. So with respect to spousal maintenance, there's just no source from which to make a spousal maintenance payment at this point. And so it's kind of pointless for me to make an award of spousal maintenance because there's no pot of money from which to draw it, so I'm not going to make an award of spousal maintenance.”
The district court's journal entry on this point stated the following: “The Court finds that the Respondent acknowledges that an award of maintenance at this point is not appropriate and the Court makes no spousal maintenance award at this time.”
The district court found the marital home had a value of approximately $110,000, subject to a mortgage of $158,679. The court awarded the residence to Roy subject to the mortgage. The court also awarded each party a vehicle in the division of assets and made other necessary rulings regarding the division of assets and debts.
Shannon appeals the district court's order refusing to award spousal maintenance to her and imputing full-time minimum-wage income to her in computing child support. Maintenance
Shannon argues that the district court abused its discretion in not awarding her spousal maintenance. We review the district court's maintenance order for any abuse of discretion. See In re Marriage of Vandenberg, 43 Kan.App.2d 697, 706–07, 229 P.3d 1187 (2010). 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 trial court, then it cannot be said that the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). An abuse of discretion may also occur if the decision is guided by an erroneous legal conclusion or goes outside the framework of, or fails to consider, proper statutory limitations or legal standards. Farrar, 43 Kan.App.2d at 876–77. Shannon bears the burden of establishing any abuse. See Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009).
On appeal Shannon concedes: “In testimony the Respondent–Wife acknowledged Petitioner's unemployment and lack of ability to pay maintenance.” But she claims the district court abused its discretion in not entering a future maintenance order based upon an income ratio formula that would permit her to receive maintenance if and when Roy became reemployed.
At the close of all the evidence, and in lieu of closing arguments, the court conducted a rather informal colloquy with counsel to discuss the court's understanding of the issues to be resolved and for counsel to explain their positions on those issues. Roy's counsel interjected with his interpretation of the facts on a number of issues and objected to the court's suggestion that counsel essentially supplement the trial record with a letter to the court calculating temporary child support or temporary maintenance payments made by Roy.
The court then gave Shannon's counsel an opportunity to provide his perspective on the issues the court needed to decide. The court told Shannon's counsel, “I'd like you to share with me what you think [the] issues are for final determination here.” Shannon's counsel discussed the court's temporary orders that required Roy to pay the mortgage payments in lieu of cash maintenance payments to Shannon. He acknowledged that “the amount of the mortgage payment was pretty close to the amount of the spousal maintenance.”
The district court, in announcing its decision, stated: “I think, if my notes serve me [correctly], that she wants the ability to revisit the maintenance issue if and when Roy Jordan gains employment.” Shannon appears to have acknowledged that Roy could not pay any maintenance at the time of the divorce since he was unemployed. But while she may not have specifically asked the court to enter some provision in the decree for future payments based upon some sort of income ratio formula as she does on appeal, she made it clear that she was definitely asking for spousal maintenance if and when Roy regained employment. The district court clearly understood this. While Shannon's counsel did not explicitly frame the issue in his closing remarks, Shannon's testimony placed the issue before the court.
The district judge expressed sympathy for Shannon's need for future maintenance when he indicated that he would be inclined to award it at a later date if circumstances changed, but he did not believe that K.S.A.2010 Supp. 60–1610(b)(2) allowed him to provide for such after entry of the original decree of divorce. The judge was clearly correct. However, he apparently overlooked his ability to fashion a remedy in the decree which was appropriate under the circumstances of this case.
When the judge announced his findings and conclusions several weeks after the trial, he told both lawyers, “[A]fter you have a chance to talk to your clients, if there are some issues that need clarification or addressed—and I hope there are not. But if there are, please bring those to my attention ASAP in the form of a written motion, and we'll try to get those clarified as soon as we can.” Shannon's counsel did not assist the court by raising the maintenance calculation issue with the court in any such motion. With respect to deferring any maintenance order until later when Roy got a job, the judge specifically invited Shannon's counsel to “find a provision that would allow me to do that.” Shannon's counsel never came forward with the maintenance calculation theory she now advances on appeal.
In Kansas, a court has broad flexibility and “may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances.” K.S.A.2010 Supp. 60–1610(b)(2). This section prohibits a court from modifying an award of maintenance without the consent of the obligated party, “if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.” K.S.A.2010 Supp. 60–1610(b)(2). It further states in pertinent part: “Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis .” K.S.A.2010 Supp. 60–1610(b)(2).
In In re Marriage of Monslow, 21 Kan.App.2d 386, 900 P.2d 249 (1995), aff'd259 Kan. 412, 912 P.2d 735 (1996), the district court awarded spousal maintenance payments in the amount of $450 per month and provided for an additional maintenance calculated as 20 percent of any increases in the respondent's adjusted income above a certain level. The district court referred to this as an escalator clause. A panel of this court approved the district court's award of maintenance based on the escalator clause, noting the discretion given to the district court to construct a reasonable remedy:
“The term ‘any other basis' offers broad support to any reasonable formula employed by a trial court in awarding maintenance. It would appear to permit the use of any formula deemed reasonable under the circumstances. Accordingly, we hold that the Kansas statute does permit the reasonable use of an escalator clause in ordering maintenance.” 21 Kan.App.2d at 389.
Our Supreme Court affirmed in In re Marriage of Monslow, 259 Kan. 412, 420, 912 P.3d 735 (1996). See In re Marriage of Strieby, 45 Kan.App.2d 953, 963, 255 P.3d 34 (2011).
It is apparent that the district court in the present case considered some of the factors prescribed by our Supreme Court for use in deciding maintenance issue. In Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976), the court set out these factors: (1) the age of the parties; (2) the parties' present and prospective earning capacities; (3) the length of the marriage; (4) the property owned by the parties; (5) the parties' needs; (6) the time, source, and manner of acquisition of the property; (7) the family ties and obligations; and (8) the parties' overall financial situation.
Here, the district court mentioned the length of the marriage, the parties' present and prospective earning capacities, and the fact they were both presently unemployed. However, it is unclear whether the court based its decision not to award maintenance on these factors or on its belief that its hands were tied in fashioning an award of maintenance under the language in K.S.A.2010 Supp. 60–1610(b)(2). In other words, it is unclear whether the court properly exercised its discretion or merely chose not to award spousal maintenance based on a belief that it did not have the discretion to do so. The record seems to indicate that the court wished it had the ability to provide spousal maintenance in the event that Roy found employment but felt it could not do so.
Under these circumstances, the district court failed to exercise its discretion in determining whether to award maintenance as a percentage of income or through “any other basis” that would be reasonable under the circumstances. See K.S.A.2010 Supp. 60–1610(b)(2). It appears likely that Roy will find employment at some time, and the disparity in income and earning power between Shannon and Roy will again be significant. Rather than exercising its discretion to provide in the decree for such a possibility and fashioning a remedy for the future support of Shannon if that situation occurred, the court appears to erroneously have concluded that it did not have the authority to do so. Accordingly, we reverse the district court's order denying maintenance and remand for further proceedings on that issue. Imputing Income for Child Support
Shannon argues that the district court erred in imputing income to her based on a 40–hour–per–week minimum-wage job in calculating her child support obligation.
“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 (Guidelines) are subject to unlimited review. [Citation omitted.]” In re Marriage of Matthews, 40 Kan.App.2d 422, 425, 193 P.3d 466 (2008), rev. denied 288 Kan. 831 (2009). Use of the Guidelines is mandatory, and failure to follow the Guidelines is reversible error. Any deviation from the amount of child support determined by the use of the Guidelines must be justified by written findings in the journal entry, and failure to justify deviations by such written findings is reversible error. In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998); see In re Marriage of Atchison, 38 Kan.App.2d 1081, 1089, 176 P.3d 965 (2008).
The Guidelines clearly provide for imputed income:
“1. Income may be imputed to the parent not having primary residency in appropriate circumstances, including the following:
“a. Absent substantial justification, it should be assumed that a parent is able to earn at least the federal minimum wage and to work 40 hours per week.” (Emphasis added.) Kansas Child Support Guidelines, § II.F.1. (2011 Kan. Ct. R. Annot. 120).
Shannon testified that she must receive intravenous infusion treatments twice a week, each one consuming the better part of a day. Shannon testified that she did not have a job and did not have any prospects for a job. However, in her appellate brief she does not direct us to any testimony or evidence that her medical condition and treatment regimen prevented her from holding down a full-time minimum-wage job. Shannon did not submit to the district court a current child support worksheet to counter Roy's proposed child support worksheet that was filed prior to the court's decision on child support and adopted by the district court in making its award.
At the final hearing, Shannon testified that if she was awarded the house she had a plan to rent a room to help pay the mortgage. She apparently intended to return to school because she anticipated obtaining a Pell Grant to help cover her living expenses. The Child Support Guidelines place the burden on Shannon to show that imputing income to her was not appropriate. As noted above, “[a]bsent substantial justification, it should be assumed that a parent is able to earn at least the federal minimum wage and to work 40 hours per week.” Kansas Child Support Guidelines, § II.F.1.a; see In re Marriage of Hoffman, 28 Kan.App.2d 156, 158, 12 P.3d 905 (2000), rev. denied 270 Kan. 898 (2001). “It is within the district court's discretion to determine what is a substantial justification not to impute income to the noncustodial parent.” In re Marriage of Jones, 23 Kan.App.2d 858, 859, 936 P.2d 302 (2007).
While Shannon's earnings potentially may be limited by her need to receive infusion treatments twice a week, and while her medical condition may restrict the jobs she can hold, she failed to present any such evidence to the district court as “substantial justification” that she is not able to earn at least the federal minimum wage and work 40 hours per week. She did not object to Roy's proposed child support worksheet and provided no current one of her own. Under these circumstances, she has failed to show that the district court abused its discretion in its imputation of minimum-wage income to her in calculating the award of child support.
Affirmed in part, reversed in part, and remanded for further proceedings on the issue of spousal maintenance.