Opinion
No. 107,867.
2013-11-8
In the Matter of the MARRIAGE OF Sandra MICHEL, Appellee, and Donato Michel, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Robert S. Jones, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Robert S. Jones, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Donato Michel appeals from the district court's division of property and debts and orders for child support and spousal support in a divorce action. He also appeals from the district court's decision to deny his motion for a new trial or to alter or amend the judgment and his motion for reconsideration and other relief. For the reasons stated below, we find insufficient evidence to support the amount of income the district court imputed to Donato due to the land and cattle Donato owned in Mexico for purposes of calculating child support. Accordingly, we vacate the award of child support and remand for the district court to make additional findings of fact regarding the proper amount of income to impute to Donato based on his land and cattle in Mexico. If the district court is unable to make the required findings on remand, the district court shall recalculate the proper amount of child support without imputing any income to Donato based on the land and cattle in Mexico. We affirm the district court's decision in all other respects.
Facts
Donato and Sandra Michel were married in January 1999 in Chicago, Illinois. They had one child during the marriage, Alberto, who was bora in 2002. Sandra had another minor son, Jorge, from a previous relationship who came to live with the parties 2 years into the marriage. She had never received any support for Jorge from his biological father. Prior to the marriage, Sandra lived in Mexico and Donato lived in Chicago. After they married, they both lived in Chicago, where Donato was employed at Alpha Baking and owned an auto body shop. Sandra was employed at a school as a lunch room helper.
In 2006, Donato and Sandra sold the body shop and moved to Delphos, Kansas. They purchased a house in Delphos using some of the proceeds from the sale of the body shop for at least part of the down payment, although the amount of these proceeds was disputed at trial. Sandra testified that they received $122,000 from the sale of the body shop. Donato, however, testified that they only received $25,000 from the sale of the body shop, which they used along with the proceeds from the sale of a house in Chicago that Donato owned for the $100,000 down payment on the Delphos home.
After moving to Kansas, Sandra did not work outside of the home. Sandra testified she did not work because Donato worked for Habco, Inc., which regularly required him to be away from home for several weeks at a time.
Sandra later moved out of the parties' home in Delphos to Salina, where she stayed in a women's shelter before obtaining housing. She subsequently filed a petition for divorce in June 2010. On July 29, 2010, Sandra filed a motion in the divorce case asking the court to compel Donato to provide documentation regarding some property in Mexico. She filed another motion to compel discovery on September 3, 2010. In response, the district court issued an order compelling discovery on September 22, 2010. In addition, the district court held a hearing on November 22, 2010. Both parties appeared at the hearing, and the court again ordered Donato to provide to Sandra all the remaining unproduced documents. Donato, however, never produced any documents regarding land in Mexico.
At trial on May 26, 2011, Sandra testified that Donato owned three parcels of land in Mexico. She said when she was preparing to move to Salina, she found several documents related to these parcels in an envelope in a drawer. Donato admitted in his testimony that he had inherited one of these parcels from his father, which he shared with his siblings. He asserted that he could not sell this inherited land because it was part of a homestead.
Sandra also testified she discovered from the wife of one of Donato's brothers that Donato was purchasing an interest in another parcel of land in Mexico located on the opposite side of town from the inherited land. Donato sent $26,000 to Mexico in 2004 to buy an interest in this parcel of pasture land from one of his brothers, but Sandra testified that Donato had never talked to her about it. The documentation of this transfer showed that another of Donato's brothers also was contributing $26,000 toward this transaction, which the document valued at $52,000. Donato testified that this document was nothing more than an agreement among his brothers and himself to work the farmland and settle cattle on it.
The record also contains a document that references the “divestiture” of a third parcel of land in favor of Donato. Donato testified that this third document had nothing to do with title to land. He said it references his niece's property, which he had permission to use. Donato claimed that he intended to rent this land from his niece for grazing livestock but did not have the money to do so.
Sandra testified that during the marriage she and Donato would travel to Mexico in November every year. She claimed these trips were paid for from the cash sales of cattle Donato owned in Mexico. She said the cattle were always loaded and sold at that time of year and Donato kept the proceeds. On one of these trips in 2008, she saw the land and took pictures of cattle on one of the parcels of land. The parties could not agree at trial which parcel of land was depicted in the pictures. Nevertheless, Sandra testified that while taking these pictures she overheard Donato refer to the cattle as his. She also said there were approximately 65 cattle branded with a DM—Donato's initials—and that she saw farm machinery and equipment as well as two horses on the land when she visited. However, Donato testified that he did not own any farm equipment and that the cattle currently belonged to his mother and previously had belonged to his father, who died in 1987 and also was named Donato Michel.
Sandra testified that she found a wire transfer of approximately $4,000 that was deposited in the parties' joint bank account in May 2010. She did not know what happened to this wire transfer money, and Donato would not tell her who sent it. Sandra believed Donato sent money to Mexico during the marriage, but she did not know how much. She speculated that he sent his daughters in Mexico approximately $500–$600 per month while they were in school. Donato said he sent his daughters $300–$400 per month. Donato also said that he himself withdrew over $6,000 from the parties' bank account from January 4, 2010, to June 11, 2010. Donato also said he opened a savings account on May 29, 2010, and deposited $1,000 in it. In June 2010, he received a counter credit of $3,000 in this account.
On the other hand, Sandra stated that she wrote a check in 2009 to a friend using $5,000 from the parties' tax return because Donato promised her half of that money and never gave it to her. She said the friend only held this money for her and the parties later used that money to purchase a truck and tires. Sandra further admitted to taking $700 from Donato's wallet when she left in 2010 and to writing a check for $250 on June 25, 2010, after she left, for cash to send Jorge to Mexico.
Sandra testified that after she moved out of their house in Delphos to Salina, she tried to find employment. She said she got call backs from several employers and was offered a job with Kohl's in March 2011. However, Sandra testified that she could not begin work at Kohl's because her son Jorge was diagnosed with Leukemia the first week of March 2011. After Jorge was released from the hospital in April, she did not try to find employment again because Jorge was undergoing treatment several times a week in Wichita. Sandra said she drove him to Wichita for his treatments and was the only one who could care for him while he was home. Sandra noted that these treatments would continue for 2 to 5 years.
The parties sold their home in Delphos in August 2010. The proceeds were split and transferred to each party's attorney's trust account. Both parties agreed to remove some money from these proceeds to give to Sandra while she was in Wichita with Jorge and to pay a mediator for a settlement conference. The parties also owned three cars: a Camry, a minivan, and a Silverado truck. The record showed they had several credit cards with outstanding balances as well. In addition, a letter to Donato was introduced at trial that indicated he had a pension fund.
After all the evidence was submitted and the arguments were made, the district court took the matter under advisement and issued its memorandum decision and order on July 18, 2011. The court granted Sandra a divorce from Donato and approved the parties' agreement for joint legal custody of Alberto. In calculating child support under the Kansas Child Support Guidelines, the district court declined to impute income to Sandra as the parent having primary residency after finding Sandra was unemployed due to Jorge's illness. Finding Sandra's testimony regarding the land and cattle ranching operations in Mexico to be more credible than Donato's, the court imputed additional income of $10,000 per year ($833 per month) to Donato, noting that Donato failed and refused to produce requested information regarding this land so the court had to determine the amount to impute based on the evidence presented.
As to the division of property, the district court again made a factual finding that Donato owned the lands in Mexico and had an interest in the cattle on those lands, “based upon the deeds and amounts paid by [Donato], the pictures of the cattle on this land, the statements of [Donato] that the cattle were his, and the ‘DM’ brand on the cattle.” The court also found Donato's interests in the Mexican land and business were in his name only and would be retained by him after the conclusion of the case. The district court went on to find the parties used approximately $100,000 from the sale of the auto body shop in Chicago to buy their residence in Delphos, which was later sold for a profit of $57,775.17. Accordingly, the court awarded all of the remaining proceeds of the sale of the Delphos property to Sandra as “an equitable distribution in consideration of [Donato's] continued ownership of the land and business in Mexico.”
The district court also awarded spousal maintenance to Sandra of $700 per month for 37 months. It awarded the 2005 Chevrolet Silverado to Sandra and the 1997 Dodge Caravan and the 1995 Toyota Camry to Donato. It also awarded to each party the bank accounts in their individual names, gave the remaining balance of the joint account to Donato, and $1,000 from Donato's bank accounts to Sandra. The court found Donato had a pension benefit and awarded 20% of the value of Donato's interest in the pension account to Sandra. The district court also awarded the household goods and furnishings to whoever had possession of them, with the exception of the tools, which it awarded to Donato. Finally, the court ordered Sandra to assume the Dillard's and Sam's debts and Donato to assume the Sears Mastercard, Chase, Discover, Mastercard, Kansas Department of Revenue, and Internal Revenue Service debts.
Donato filed a motion for a new trial or to alter or amend judgment and a motion for reconsideration and other relief. He attached an affidavit to the motion for reconsideration from an official in Mexico in untranslated Spanish. In support of his motion to reconsider, Donato claimed the affidavit stated that he could not personally raise or sell cattle in the state of Domingo, Mexico. After a hearing, the district court denied both motions on March 26, 2012.
Analysis
On appeal, Donato argues the district court abused its discretion (1) in calculating child support, (2) in awarding spousal maintenance, (3) in dividing the assets and debts between the parties, and (4) in denying Donato's posttrial motions. We address each of Donato's arguments in turn.
A. Child support
Donato claims the district court's decision to impute additional income to him but decline to impute additional income to Sandra for purposes of calculating child support were based on findings of fact by the court that have no evidentiary support in the record and, as a result, amount to an abuse of the court's discretion as a matter of law.
“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 child support guidelines is mandatory and failure to follow the guidelines 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). However, where a case falls factually outside the child support guidelines, the guidelines do not limit the authority of the district court, and appellate review is strictly one of abuse of discretion. In re Marriage of Branch, 37 Kan.App.2d 334, 338, 152 P.3d 1265,rev. denied 284 Kan. 945 (2007).
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). An abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. O'Brien v. Leegin Creative Leather Products, Inc ., 294 Kan. 318, 331, 277 P.3d 1062 (2012). The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009).
1. An additional $10,000 in income imputed to Donato
Donato challenges the court's decision to impute an additional $10,000 in income to him for purposes of determining child support based on the court's factual finding that he owned a cattle, farming, and ranching operation in Mexico. Specifically, Donato argues: (a) there was insufficient evidence presented at trial from which a reasonable person could conclude that Donato owned three parcels of land in Mexico and held an interest in the cattle on those lands; (b) that even if he did own the land and held an interest in the cattle, the district court's decision to impute income to him as a result of that ownership is inconsistent with directives in the Kansas Child Support Guidelines; and (c) that even if he did own the land and held an interest in the cattle, the amount of additional income chosen by the district court to impute was an arbitrary figure chosen by the court and has no factual support in the record. a. Ownership in land and interest in cattle
The court found Donato owned three parcels of land in Mexico and held an interest in the cattle on those lands. Donato claims this finding of fact made by the district court is not supported by substantial competent evidence in the record. Generally, litigants and their counsel bear the responsibility of objecting to inadequate findings of fact and conclusions of law in order to give the district court the opportunity to correct them. Where no objection is made, this court will presume the district court found all facts necessary to support its judgment. However, this court may still consider a remand if the lack of specific findings precludes meaningful review. O'Brien, 294 Kan. at 361.
In deciding to impute additional income to Donato, the district court made the following finding regarding the land and cattle in Mexico:
“[Sandra] has produced deeds for the land in Mexico and pictures of the cattle on [Donato's] land in Mexico. [Sandra] also testified about the parties' visits to this property in Mexico and statements of [Donato] claiming ownership of the cattle. [Donato] denies any ranching business or income from Mexico. The Court finds [Sandra's] testimony to be more credible.”
Later in its division of property, the district court again made findings regarding the Mexican land:
“The Court finds that [Donato] does own these lands and does have an interest in the cattle on those lands based upon the deeds and amounts paid by [Donato], the pictures of cattle on this land, the statements of [Donato] that the cattle were his, and the ‘DM’ brand on the cattle.”
The court also noted that Sandra found the deeds hidden in an envelope in a drawer and that Donato failed to produce any information about these properties and business interests. The district court observed the deeds reflected that Donato's “interests in the Mexican land and business [are] in his name only and will be retained by [him] after this case is concluded.”
In support of a lack of evidence, Donato appears to argue that because he asserted at trial that he did not have an ownership interest in the cattle or land, there was insufficient substantial competent evidence to support the district court's above finding to the contrary. But the record reflects otherwise. As to the land, Sandra produced a document for each parcel of property in which she claimed Donato had an interest. The accompanying translations of these Spanish language documents showed that Donato had acquired an interest of some kind—most likely an ownership interest based on the language—in each of these parcels.
Sandra's Exhibit 30 described the land that Donato admitted he inherited from his father and that he claimed he shared with his siblings and could not sell because it was part of a homestead. The translation of the document with Donato's name on it stated that it “protects the 25.00% ownership right.” A similar document included in this exhibit states that Joel Amaya Michel also had a 25% interest in the land. This is substantial competent evidence to support the court's conclusion that Donato had an ownership interest in this land along with his siblings.
Furthermore, the translated version of Sandra's Exhibit 28 describes the land for which Donato paid $26,000 and clearly states: “I received from Mr. Donato Michel and Jesus Michel, the amount of $26,000 dollars for the pasture land, property of Mr. Jose Michel.” Although Donato testified that this document is simply an agreement between his brothers and himself to work the farmland and settle cattle on it, either way, this document indicates that Donato evidently had a valuable interest of some kind in property that he used the parties' marital assets to acquire. A reasonable person could find this evidence sufficient to support a conclusion that Donato owned this parcel of land; as such, we deem it substantial competent evidence to support the district court's conclusion in this regard. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
The document pertaining to the third parcel, as translated, states:
“Nancy Alejandra Michel Nava,....
“[B]y means of this Instrument comes to compromise on property in favor of Mr. Donato Michel Mendoza the rights to relate to [a plot of land] ... in which she owns 50%....
“The Grantor Ms. Nancy Alejandra Michel Nava undertakes that once she receives from the National Agrarian Register the title of property, she will sign before a Notary Public Final Scripture in favor of Mr. Donato Michel Mendoza....
“This divestiture in property is performed by Ms. Nancy Alejandra Michel Nava in favor of Mr. Donato Michel Mendoza in a total full form, without reservations of any kind and with irrevocable character.”
Donato testified that this document had nothing to do with title to the land and instead referenced his right to use his niece's property. However, the language of this document belies that claim. The document stated Nava would sign the title of property “in favor of Mr. Donato” and referred to the transfer as a “divestiture in property.” Thus, the document serves as substantial competent evidence to support the court's conclusion that Donato owns or will own the property described in this document.
Moreover, Sandra's testimony at trial also is substantial competent evidence supporting the district court's finding that Donato owned the lands. She testified that Donato owned three parcels of land in Mexico, some of which she had visited and witnessed being used for grazing and farming. She also testified that she had found out from the wife of one of Donato's brothers that Donato was purchasing an interest in one of these parcels from his brother.
As to the cattle, the photos and Sandra's testimony are substantial competent evidence to support the district court's finding that Donato had an interest in the animals. Sandra testified that she and Donato visited the Mexico property annually to load and sell the cattle. She said Donato kept the cash from these sales and used it to pay for the annual trips. On one of these trips in 2008, Sandra saw the land and took pictures of cattle on one of the parcels of land. Sandra submitted these photos of cattle, which Donato said were taken on the property described in Sandra's Exhibit 35. While taking these pictures, she overheard Donato refer to the cattle as his. Sandra testified that on one of these trips, she saw approximately 65 cattle branded with a DM, which are Donato's initials.
Donato testified that the cattle had belonged to his father, whose initials were also D.M., and thus now belonged to his mother after his father's death. However, as Sandra notes in her brief, it is not the function of an appellate court to retry divorce cases. Instead, the court's function is to review the record to determine whether a district court's findings have a factual basis in the evidence and whether its discretion in the matter has been abused. See Darr v. Darr, 194 Kan. 593, 595, 400 P.2d 721 (1965). Nor does this court weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact. See In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168 (2010). The district court in this case found Sandra's testimony regarding the Mexican land and cattle to be more credible and thus found Donato had an interest in the cattle. Because a reasonable person certainly could find Sandra's testimony and the photos sufficient to support this finding, both the testimony and the photos are substantial competent evidence.
Based on the discussion above, we find substantial competent evidence supports the district court's finding that Donato owned the three parcels of land in Mexico and held an interest in the cattle on those lands. See Hodges, 288 Kan. at 65. b. The definition of income in the Kansas Child Support Guidelines
Donato claims that even if he did own the land and the cattle, the district court's decision to impute income to him as a result of that ownership for purposes of calculating child support is inconsistent with directives in the Kansas Child Support Guidelines on the issue of imputing income.
A district court may order child support to be paid in a divorce under K.S.A.2010 Supp. 60–1610(a)(1). In determining the amount paid, the court “shall consider all relevant factors, without regard to marital misconduct, including the financial resources and needs of both parents.” K.S.A.2010 Supp. 60–1610(a)(1). In addition, the guidelines state that the district court shall consider “all relevant evidence presented in setting an amount of child support.” Kansas Child Support Guidelines § I (2012 Kan. Ct. R. Annot. 121).
The guidelines also state that “[i]ncome may be imputed to the parent not having primary residency in appropriate circumstances.” Kansas Child Support Guidelines § II.F.1 (2012 Kan. Ct. R. Annot. 124). The guidelines provide a nonexhaustive list of appropriate circumstances for imputation, including when a parent is deliberately unemployed or underemployed, was fired from employment for misconduct, or receives significant in-kind payment that reduces personal living expenses as a result of employment. Kansas Child Support Guidelines § II.F.1.b, c, d, e (2012 Kan. Ct. R. Annot. 124). “Domestic gross income” is defined in the guidelines as “income from all sources, including that which is regularly or periodically received.” Kansas Child Support Guidelines § II.D (2012 Kan. Ct. R. Annot. 122).
Relying on those particular sections of the guidelines cited above, Donato argues the district court was not authorized to impute income to him based on the land and cattle in Mexico because such a situation is not affirmatively designated as an appropriate circumstance in the guidelines that allows for imputing income to a nonresidential parent. Specifically, Donato argues that because there is no evidence in the record to establish that he was unemployed, underemployed, or receiving regular, periodic, or in-kind payments from Mexico, any money he may have received as a result of owning land in Mexico or holding an interest in cattle is not income as that term is defined in the Kansas Child Support Guidelines. Interpretation of the guidelines is a question of law subject to unlimited review. See In re Marriage of Callaghan, 19 Kan.App.2d 335, 336, 869 P.2d 240 (1994) (finding whether Social Security disability payments fit within definition of income under guidelines is question of law over which court's review is unlimited).
But as Donato concedes and the district court noted, the list of appropriate circumstances that allow for imputing income to a nonresidential parent that is set forth in the guidelines is not exhaustive and the authority of the court is not limited when faced with a situation that is not contemplated by the guidelines. See In re Marriage of Branch, 37 Kan.App.2d at 338–39. Although cited examples of appropriate circumstances tend to highlight unemployment or in-kind payment from an employer, nothing in the guidelines prohibits a district court from imputing income based on a nonresidential parent's alternative source of income from outside of his regular employment. Significantly, both the Kansas statutes and the guidelines provide that all relevant factors and evidence must be considered in setting an amount of child support. See K.S.A.2010 Supp. 60–1610(a)(1); Kansas Child Support Guidelines § I (2012 Kan. Ct. R. Annot. 121). The guidelines define “domestic gross income” as “income from all sources.” Kansas Child Support Guidelines § II.D (2012 Kan. Ct. R. Annot. 122). Moreover, the term “income” as it is used within the child support guidelines is broadly construed by Kansas courts and has been interpreted to mean “ ‘every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever.’ “ In re Marriage of Callaghan, 19 Kan.App.2d at 336 (quoting In re Marriage of McPheter, 15 Kan.App.2d 47, 48, 803 P.2d 207 [1990] ). For the reasons stated above, we conclude as a matter of law that any income Donato received from owning land or cattle in Mexico constitutes income under the Kansas Child Support Guidelines; thus, the district court did not err in considering it. c. The amount of additional income imputed
Finally, Donato claims that even if he did own land in Mexico and held an interest in cattle on that land, the amount of additional income chosen by the district court to impute to him as a result of that ownership interest was an arbitrary figure chosen by the court and has no factual support in the record.
Identifying what income is “received” for the purpose of calculating child support depends on a factual analysis applied on a case-by-case basis. In re Marriage of Matthews, 40 Kan.App.2d at 427. In so doing, the district court must make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.
We agree that the findings of fact made by the district court in this case are insufficient to support the court's decision regarding the amount of additional income that should be imputed to Donato. The court's basis for imputing $10,000 of additional income to Donato was only that he owned three parcels of land in Mexico and held an interest in the cattle on those lands. The court made no finding that Donato actually received income as a result of owning the land or cattle in Mexico and, if so, the expenses and costs associated with generating such income. While we understand the district court's frustration with Donato regarding his repeated failures to comply with court orders requiring him to produce documents relating to the land and cattle in Mexico, we still are faced with insufficient findings from which to conclude that the judgment, as it presently stands, represents a correct application of the law. Although we agree with the district court that any income generated from the land and the cattle in Mexico may be imputed to Donato, we must remand for additional findings of fact regarding the proper amount of that imputed income. If the court is unable to make the required findings on remand, the court shall recalculate the proper amount of child support without imputing any income to Donato based on the land and the cattle he owns in Mexico.
2. The failure to impute income to Sandra
Donato asserts the district court abused its discretion by failing to impute income to Sandra in its child support calculations. He raised this issue to the district court below in his motion for a new trial or to alter or amend judgment.
Under the Kansas Child Support Guidelines, the district court may impute income to the parent having primary residency “in appropriate circumstances,” but this imputation should not result in a higher support obligation for the other parent. Kansas Child Support Guidelines § II.F.2 (2012 Kan. Ct. R. Annot. 124). The guidelines also provide that “[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 (2012 Kan. Ct. R. Annot. 124). Although this rule is found within the subsection of the guidelines authorizing the court to impute income to the noncustodial parent, the general language referring to “ a parent” indicates that it could apply to either the noncustodial or custodial parent. It is within the district court's discretion to determine whether substantial justification exists to justify the decision not to impute income to a parent. In re Marriage of Jordan, No. 105,335, 2012 WL 4677189, at *6 (Kan.App.2012) (unpublished opinion).
In this case, the district court declined to impute income to Sandra as the parent having primary residency:
“[Sandra] is unemployed. [Sandra] received a job offer from Kohl's in March, 2011, but she was unable to accept the position due to the illness of her son Jorge, age 15. Jorge was diagnosed with leukemia and was hospitalized in Wesley Medical Center in Wichita for 3 weeks. Jorge has an ongoing treatment program that requires [Sandra] to transport him to Wichita once or twice a week for chemotherapy. This treatment is expected to last 2–5 years.”
Based on these facts, the district court concluded that Sandra's “situation at this time is not an appropriate circumstance for income to be imputed.” In a later section of its decision discussing spousal maintenance, the district court pointed out that Sandra “has to remain available to care for her son Jorge and to transport him to his treatments in Wichita.”
On appeal, Donato claims the district court's findings were not supported by substantial competent evidence. Specifically, Donato claims the court failed to make any finding that Sandra could not work full-time or that Sandra had no work opportunities that would allow her to take Jorge to his appointments. To support his claim, Donato cites to the motion for a new trial he filed with the district court to argue that Jorge's health had improved, he only required treatment on an intermittent basis, and his treatment appointments were scheduled well in advance. But Donato failed to provide the district court with any evidence to support these claims about Jorge's health and treatment plan and fails to do so in this appeal as well. Conversely, the district court's factual findings on this issue are supported by substantial competent evidence presented at trial. In her testimony, Sandra said she tried to find employment in Salina. She testified that she got call backs from several employers and was offered a job with Kohl's in March 2011. Sandra said she could not begin work at Kohl's because Jorge was diagnosed with Leukemia the first week of March 2011. Sandra said after Jorge was released from the hospital in April, she did not try to find employment again because Jorge was undergoing treatment several times a week in Wichita which caused him to be very tired. She said she drove him to Wichita for his treatments and was the only one who could care for him while he was home. Sandra noted that these treatments would continue for 2 to 5 years.
We acknowledge that Donato presented evidence at trial that Jorge's illness did not require Sandra to care for him full-time while he was at home. Donato submitted a letter from Jorge's doctor that said:
“This will verify that Jorge Cabrera ... has been diagnosed with Leukemia and is currently receiving chemotherapy. His therapy is given intermittently and will go on for approximately 2 1/2 years. He should be able to participate in normal activity ( e.g., school) throughout.”
And when asked about this letter in her cross-examination, Sandra admitted that the only restrictions on Jorge's activities were that he needed to rest when he was tired, he could not lift anything heavy, and he could not go out too much in the sun.” Sandra also testified, however, that Jorge was very tired from his chemotherapy treatments and she was the only one available in her home to care for him. Thus, the fact that Jorge's illness did not require Sandra to care for him full-time while he was at home does mean the district court's factual findings on this issue are not supported by substantial competent evidence.
In sum, we conclude the district court's factual findings are supported by substantial competent evidence and that those factual findings establish the substantial justification necessary to support the court's decision not to impute income to Sandra as the custodial parent under the guidelines. Although a reasonable person might disagree, another reasonable person could certainly find that the district court was correct in finding Sandra, although physically able to work, could not work because she was the sole caregiver for a child who was able to attend school but had a medical condition requiring a level of care beyond that of a normal single parent, which included driving him to his chemotherapy treatments in Wichita several times a week. As such, we conclude the district court did not abuse its discretion in declining to impute income to Sandra under the circumstances. See In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006) (“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.”). B. Spousal maintenance
Next, Donato asserts the district court abused its discretion in awarding spousal maintenance of $700 per month for 37 months to Sandra. He claims the district court did not make the proper findings and the award was not supported by the evidence. He raised this issue to the district court below in his motion for a new trial or to alter or amend judgment by requesting a decrease or elimination of the spousal maintenance ordered based upon Sandra's ability to work and financial needs.
“An appellate court generally reviews a trial court's award of maintenance for an abuse of discretion. [Citation omitted.] Nevertheless, because the trial court is required to comply with statutes authorizing payment of support and maintenance, where it fails to do so, this court will find reversible error.” In re Marriage of Vandenberg, 43 Kan.App.2d 697, 706–07, 229 P.3d 1187 (2010).
A maintenance award must be fair, just, and equitable under all the circumstances. K.S.A.2010 Supp. 60–1610(b)(2). The purpose of spousal maintenance is to provide for the future support of the divorced spouse, and the amount of maintenance is based on the needs of one of the parties and the ability of the party to pay. In re Marriage of Hair, 40 Kan.App.2d 475, 484, 193 P.3d 504 (2008) (citing Carlton v. Carlton, 217 Kan. 681, 681, 538 P.2d 727 [1975] ),rev. denied 288 Kan. 831 (2009). In Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976), the Kansas Supreme Court set forth elements that a district court may consider in determining whether to award maintenance, including: (1) the age of the parties; (2) the parties' present and prospective earning capabilities; (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 property; (7) family ties and obligations; and (8) the parties' overall financial situation. The Williams court also noted that there is no fixed rule on the subject and the district court in a divorce action is vested with wide discretion in adjusting the financial obligations of the parties. 219 Kan. at 306. However, our Supreme Court also has found an abuse of discretion when the district court went outside the framework of legal standards or statutory limitations or when it failed to properly consider the factors given by the higher courts to guide the discretionary determination. Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004).
In awarding spousal maintenance to Sandra, the district court found that Sandra was 36 years old, had 11 years of education, worked as a school lunch room helper when the parties lived in Illinois, was unemployed, and had to remain available to care for her son Jorge and to transport him to his treatments in Wichita. It also found Donato was 56 years old, had 12 years of education, had worked throughout the 12 1/2–year marriage, had worked in a bakery and operated an auto body shop in Illinois, and had been employed by Habco, Inc. for 4 1/2 years. “[H]aving considered these facts and the division of property and debts ordered herein,” the district court ordered Donato to pay to Sandra spousal maintenance of $700 per month for 37 months.
In his first argument on this issue, Donato claims the district court did not make the proper findings because it did not discuss every Williams factor or specifically mention his ability to pay and the needs of Sandra. But the language used by the Williams court in considering the cited factors is discretionary: the factors “may” be considered by the district courts in dividing the property. 219 Kan. at 306. Thus, the district court was not under any duty to consider or discuss each and every one of the Williams factors.
Nonetheless, our review of the memorandum decision and order reveals that the district court did in fact consider all of the Williams factors. In its factual findings, the district court expressly identified both Sandra's and Donato's ages and the length of the marriage. It also discussed Sandra's family ties and obligations when it said she had to remain available to care for her son Jorge and to transport him to his treatments in Wichita. The district court considered the property owned by the parties and the time, source, and manner of acquisition of that property. The court stated that it had considered “the division of property and debts ordered herein,” and in its property division, it discussed how the parties acquired some items of property, as will be discussed below. In addition, the district court's discussion of the parties' years of education and former and present employment show that it also considered the parties' present and prospective earning capabilities. And, although perhaps not phrased as such, the court took into account Sandra's needs and Donato's ability to pay by considering their overall financial situation, the parties' education levels, and the fact that Sandra was unemployed and Donato worked at Habco, Inc. See McClaren v. McClaren, 214 Kan. 217, 219, 519 P.2d 720 (1974).
Donato claims that even if this court finds the district court did make the proper findings, its findings are not supported by the evidence. When the district court's findings regarding maintenance are supported by the evidence, this court will not second guess its decision. In re Marriage of Hair, 40 Kan.App.2d at 486. In this case, the record contains substantial competent evidence to support all of the district court's above factual findings. Sandra testified that she was 36 years old, was in school up to the 11th grade, worked as a lunch room helper in Chicago, was unemployed due to her son's illness, and was the only person available to care for him and drive him to his treatments in Wichita. Donato testified that he was 56 years old, had 12 years of education, had been employed at Habco, Inc. for 4 years and 6 months, worked at a bakery in Chicago for 16 years before that, and owned a body shop in Chicago.
In his second argument on this issue, Donato claims the district court failed to provide the calculations it used to determine the amount of maintenance awarded and that there is no other evidence to support the award. Although Donato is correct that the district court should have provided its mathematical calculations showing how it arrived at $700 per month, we find no abuse of discretion in failing to do so. See K.S.A.2012 Supp. 60–252; Supreme Court Rule 165(a) (2012 Kan. Ct. R. Annot. 262); In re Paternity of Delgado, No. 93,639, 2006 WL 851281, at *2 (Kan.App.2006) (unpublished opinion). This is because the evidence supports the ultimate award of $700 per month in spousal maintenance. See Supreme Court Rule 165(b) (district court presumed to have considered any evidence properly admitted in arriving at its decision unless it states otherwise). Specifically, each party provided the district court with a Domestic Relations Affidavit (DRA), which described their respective financial situations. Sandra's DRA shows she had monthly expenses of $2,486. Donato's DRA shows that he had monthly expenses of $1,386. The district court found Donato made $42,243 annually ($3,520 monthly) at his job, which was verified by Donato's 2010 W–2 from Habco, Inc. As discussed above, the district court also imputed $833 per month to Donato's income, which means that Donato had a remaining balance of $2,977 per month after paying his expenses ($3,520 + $833–$1,386). Given this evidence, it appears he would be more than able to pay Sandra $700 in spousal maintenance each month, in addition to the $523 court-ordered child support payments. Moreover, the record shows that Sandra was in need of maintenance, since she had monthly expenses of $2,486 and no income. Thus, there is substantial competent evidence in the record to support the district court's award to Sandra of $700 per month in spousal maintenance.
Given we have remanded for additional findings of fact regarding the proper amount of income to impute to Donato as a result of his interest in the land and cattle in Mexico, we must also consider the possibility for purposes of reviewing the award of maintenance here that the district court may decide not to impute any income to Donato based on the interests in Mexico due to insufficient evidence of such income. But even without that imputed income, there still is substantial evidence in the record to support the court's decision to award $700 per month in spousal maintenance to Sandra. Donato received monthly income from his employer in the amount of $3,520 and paid monthly expenses of $1,386, which left a remaining balance of $2,134. Given this evidence, it appears he is able to pay Sandra $700 in spousal maintenance each month and the $523 court-ordered child support payments, or less if the district court recalculates child support without the imputed income.
We find the district court properly considered the Williams factors in its award of spousal maintenance and its findings are supported by substantial competent evidence in the record, either with or without considering the imputed income. We further find reasonable persons could have differed as to the propriety of the action taken by the district court; thus, it cannot be said that the district court abused its discretion in awarding $700 per month for 37 months in spousal maintenance to Sandra. See In re Marriage of Bradley, 282 Kan. at 7. C. Property
Donato contends that the district court abused its discretion in how it divided the assets and debts between the parties. Specifically, he argues the court failed to make the proper findings to support the division. He properly raised this issue to the district court below in his motion for a new trial or to alter or amend judgment.
The district court has broad discretion in adjusting the property rights of parties involved in a divorce action, and its exercise of that discretion will not be disturbed by an appellate court absent a clear showing of abuse. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002).
The division of property in the divorce decree for this case was governed by K.S.A.2010 Supp. 60–1610(b)(1), which provides:
“The decree shall divide the real and personal property of the parties, including any retirement and pension plans, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse's own right after marriage or acquired by the spouses' joint efforts, by: (A) a division of the property in kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale. Upon request, the trial court shall set a valuation date to be used for all assets at trial, which may be the date of separation, filing or trial as the facts and circumstances of the case may dictate.”
That statute also gives factors the court “shall consider,” which are similar to the Williams factors used to determine spousal maintenance awards and include:
“the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; the tax consequences of the property division upon the respective economic circumstances of the parties; and such other factors as the court considers necessary to make a just and reasonable division of property.” K.S.A.2010 Supp. 60–1610(b)(1).
Property division in a divorce proceeding must be just and reasonable but need not be equal. In re Marriage of Vandenberg, 43 Kan.App.2d at 715. Our Supreme Court has said that in making a just and equitable division of the property, the trial court must consider all of the property having present value. McCain v. McCain, 219 Kan. 780, 784, 549 P.2d 896 (1976). In addition, a trial court is not obligated to award to each party all property owned by such party prior to the marriage or property inherited or received by gift during the marriage. In re Marriage of Schwien, 17 Kan.App.2d 498, 505, 839 P.2d 541 (1992), disapproved of on other grounds by In re Marriage of Cray, 18 Kan.App.2d 15, 846 P.2d 944 (1993), rev'd in part and modified in part254 Kan. 376, 867 P.2d 291 (1994).
In this case, the district court found the parties used approximately $100,000 from the sale of the body shop in Chicago to buy their residence in Delphos, which was later sold for a profit of $57,775.17. The court awarded all of the remaining proceeds of the sale of the Delphos property to Sandra as “an equitable distribution in consideration of [Donato's] continued ownership of the land and business in Mexico,” although it did not place a value on this land and business. The court also found Donato had a pension benefit and awarded 20% of the value of Donato's interest in the pension account to Sandra based on its finding that the parties were married for 6 of the 15 years Donato worked at the bakery where he received the pension. Without explanation, the district court awarded the 2005 Chevrolet Silverado to Sandra and the 1997 Dodge Caravan and the 1995 Toyota Camry to Donato. It awarded the bank accounts in each parties' names to those parties, gave the remaining balance of the joint account to Donato, and $1,000 from Donato's accounts to Sandra, again without explanation. The district court awarded the household goods and furnishings to whoever had possession of them, with the exception of the tools, which it awarded to Donato. Finally, the court stated without explanation that Sandra shall assume the Dillard's and Sam's debts and Donato shall assume the Discover, Sears Mastercard, Chase, Discover, Mastercard, Kansas Department of Revenue, and Internal Revenue Service debts.
On appeal, Donato argues the court abused its discretion by failing to assign a fixed value to the Mexican land, the vehicles, the bank accounts, the retirement account, the household property, and the debts it divided. Sandra, on the other hand, asserts that the district court is not required to explain mathematically how it came to its decision. Instead, she says the court is presumed to have considered any evidence properly admitted in arriving at its decision under Supreme Court Rule 165(b) and there was sufficient evidence in the record from which the court could divide the property.
Sandra is correct that there is no statute or case that requires the district court to state the specific value of each item of property in its division of property. It simply must consider the factors in K.S.A.2010 Supp. 60–1610(b)(1) and make a just and equitable division of the property considering all of the property at present value. See McCain, 219 Kan. at 784. It appears from the entire memorandum decision and order that the district court did consider the K.S.A.2010 Supp. 60–1610(b)(1) factors that were applicable in its decision. In addition to the Williams factors discussed above in the analysis of the court's spousal maintenance, the district court also considered the time, source, and manner of the parties' acquisition of property because it discussed Donato's sale of his real estate in Chicago, how the parties bought their home in Delphos, the parties' bank accounts in their own names, and that the tools belonged to Donato.
Sandra is also correct that there was sufficient evidence in the record to support the district court's decision regarding how to divide the parties' assets and debts. The district court is presumed to have considered any evidence properly admitted in arriving at its decision under Supreme Court Rule 165(b). See Perkins v. Perkins, 154 Kan. 73, 76, 114 P.2d 804 (1941) (even though trial court made no specific finding of values, evidence warranted a finding of total value of property). The record here provides sufficient evidence regarding the value of the Mexican property to support the district court's decision to offset Donato's ownership of that property to Sandra in the form of the proceeds of the sale of the home in Delphos, Kansas. The translation of the contract in Sandra's Exhibit 28 stated that the parcel of land Donato bought an interest in with his brother was valued at $52,000 and that Donato had a $26,000 interest in this land. In addition, Donato's DRA lists $40,000 as the value of the land he inherited. Although there is no evidence from which to value the third parcel of land, these two lands together total $66,000, which by themselves would justify the court's decision to give to Sandra the $57,775.71 from the sale of the home in Delphos, Kansas, for purposes of equitably offsetting the value of these properties. In addition, the district court clearly explained its reasoning in awarding Sandra 20% of Donato's pension benefit when it stated that they had been married for 6 of the 15 years Donato worked at the bakery to earn this pension. By those numbers, the couple was married for 40% of his time at the bakery, so the district court was justified in awarding Sandra half of that percentage of Donato's pension.
But in addition to his interests in Mexico and his pension, Donato also challenges the district court's decision to divide the parties' vehicles, bank accounts, household goods, and debts without assigning a fixed value to those assets and debts. Again, however, a court is presumed to have considered any evidence properly admitted in arriving at its decision. Supreme Court Rule 165(b). The DRA submitted by Donato to the court for its consideration with regard to personal property showed the following:
• 2005 Chevrolet Silverado (no value or designated ownership);
• Four Wheeler (no value or designated ownership); and
• 1995 Toyota Camry valued at $600 (no designated ownership).
Although Donato did not list the cattle as personal property owned individually or jointly, Sandra introduced into evidence photographs of the cattle and testified that she personally observed the cattle that belonged to Donato. In her DRA, Sandra valued the cattle and other personal property as follows:
• Cattle valued at $50,000 belonging to Donato;
• 2005 Chevrolet Silverado valued at $7,875 belonging to Sandra;
• 1997 Dodge Caravan valued at $1,350 belonging to Donato;
• 1995 Toyota Camry valued at $1,975 belonging to Donato;
• Four Wheeler (no value) belonging to the children;
• Tractors (2) and farm machinery valued at $20,000 belonging to Donato; and
• Horses (2) valued at $1,000 belonging to Donato.
The debts were shown by Sandra with exact amounts in her DRA. Exhibits were admitted which verified some of the debts set forth in Sandra's DRA. Donato's DRA also included balances on these debts, or at least most of them. Sandra's DRA also included balances in the parties' checking accounts; and she introduced at trial documentation from Donato's savings account at Bank of America, which showed Donato received a wire transfer of $4,000, and documentation from Donato's Sunflower Bank account, which showed a balance of $1,637 on the date she filed the petition for divorce.
Although Donato gave the district court very little to go on regarding the value of the parties' assets, Sandra helped fill the void created by Donato's failure to come forward with relevant information and documents. The district court's effort to deal with the equities was clearly within its discretion based upon the state of the record and Donato's position. In this case, the court awarded Donato all of the cattle in Mexico valued at $50,000; two vehicles valued at $3,325; and his checking and savings accounts valued at $4,637 (after Sandra received $1,000 of the total proceeds per the court's order). Meanwhile, the debts were divided based upon Sandra's claims in the DRA as to who was responsible for each debt. The court had discretion to do so and, on a practical note, could not have expected Sandra to assume any more debt than it placed on her, given her lack of employment and the limited income she had under the circumstances.
For all of the reasons stated above, we find the district court did not err in failing to state the specific value of each item in dividing the property between the parties here. We further find sufficient evidence in the record to support the district court's decision regarding how to divide the parties' assets and debts; specifically, we find the district court properly considered the factors in K.S.A.2010 Supp. 60–1610(b)(1), made a just and equitable division of the property considering all of the property at present value, and did not abuse its broad discretion in doing so. D. Posttrial motions
Donato's final argument is that the district court abused its discretion when it denied his motion for a new trial or to alter or amend judgment and his motion for reconsideration and other relief. In support of this argument, Donato contends he presented newly discovered evidence that likely would have produced a different result upon retrial.
Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977); Crone v. Nuss, 46 Kan.App.2d 436, 450, 263 P.3d 809 (2011), rev. denied 294 Kan. –––– (June 13, 2012). The standard of review for a motion to alter and amend is an abuse of discretion. Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 441, 970 P.2d 526 (1998), cert. denied526 U.S. 1112 (1999). A motion to reconsider is the equivalent of a motion to alter or amend judgment, so the standard of review is an abuse of discretion standard. Wharry v. Cross, No. 90,003, 2003 WL 22479596, at *3 (Kan.App.2003) (unpublished opinion).
In August 2011, after the trial, Donato filed a motion for a new trial or to alter or amend judgment and a motion for reconsideration and other relief. He attached an affidavit to the motion for reconsideration from a Mexican official in untranslated Spanish that, according to Donato, explains Donato could not personally raise or sell cattle in the state of Domingo, Mexico. The translation provided in the record, however, states Donato “has no title of branding iron, therefore, does not own livestock” and “does not have arable land, only 164 hectares of pasture.” After a hearing on the motions, the district court denied them on February 24, 2012.
We begin by briefly noting that K.S.A.2012 Supp. 60–259(f) likely was not the proper procedural vehicle for raising Donato's posttrial issue of newly discovered evidence. Our Supreme Court has said the purpose of K.S.A. 60–259(f) is to allow the trial judge the opportunity to correct prior errors. In re Marriage of Willenberg, 271 Kan. 906, 910, 26 P.3d 684 (2001) (“The trial court herein had the authority to reconsider its prior findings of fact and conclusions of law and make what it deemed to be appropriate amendments and alterations thereto pursuant to K.S.A. 60–259[f].”); see Denno v. Denno, 12 Kan.App.2d 499, 501, 749 P.2d 46 (1988). In addition, a panel of this court has also found that, on a motion to alter or amend, the trial court should limit its consideration to matters that were before the court when it entered the original judgment. Antrim, Piper, Wenger, Inc. v. Lowe, 37 Kan.App.2d 932, 939–40, 159 P.3d 215 (2007) (finding trial court properly denied motion to alter or amend where issue raised in motion was not before trial court when it entered summary judgment).
Nevertheless, Donato did file a motion under K.S.A.2012 Supp. 60–259(a)(1), pursuant to which the court may grant a new trial on all or part of the issues for several reasons, including newly discovered evidence that is material which the moving party could not, with reasonable diligence, have discovered and produced at the trial. See K.S.A.2012 Supp. 60–259(a)(1)(E). Thus, Donato should have raised the newly discovered evidence as part of his motion for a new trial. Despite this procedural error, the district court considered all of the motions together at the hearing.
But even if we find the newly discovered evidence was introduced as part of his motion for a new trial, Donato has failed to satisfy his burden to establish that the newly proffered evidence could not, with reasonable diligence, have been produced at trial. Granting a new trial based on newly discovered evidence is in the trial court's discretion. Johnson, 222 Kan. at 471. The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts: (1) whether the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Fulton, 292 Kan. 642, 649, 256 P.3d 838 (2011). A new trial on grounds of newly discovered evidence is not favored and is to be viewed with caution. State v. Trammell, 278 Kan. 265, 283, 92 P.3d 1101 (2004). And a new trial is not to be granted on the basis of newly discovered evidence that merely tends to impeach or discredit the testimony of a witness. State v. Norton, 277 Kan. 432, 436–40, 85 P.3d 686 (2004).
To that end, Kansas courts repeatedly have found a district court not to have erred in declining to order a new trial under circumstances where the movant fails to provide a record upon which he or she can clear the first hurdle of establishing that the evidence was truly newly discovered. State v. Backus, 295 Kan. 1003, 1012, 287 P.3d 894 (2012); see, e.g., Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 8, 535 P.2d 865 (1975) (rejecting defendant's claim of error in part on finding no showing that evidence could not have been discovered with reasonable diligence in time to be used at trial as required by K.S.A. 60–259[a] ); Bott v. Wendler, 203 Kan. 212, 230, 453 P.2d 100 (1969) (finding no affirmative showing why evidence could not have been produced at trial under reasonable diligence); McHugh v. City of Wichita, 1 Kan.App.2d 180, 184, 563 P.2d 497 (finding no showing that proffered evidence was relevant to issue or that evidence could not have been discovered with reasonable diligence in time to be used at trial as required by K.S.A. 60–259[a] ), rev. denied 225 Kan. 845 (1977).
In this case, the district court judge noted at the hearing on Donato's posttrial motions that “the evidence now presented by [Donato] was evidence clearly within his knowledge while this case progressed on for a substantial length of time.” The judge further observed that Sandra's proposed settlement a month before trial
“clearly sets forth [Sandra] is going to be requesting the imputation of income, the division of property that they requested, noting their contention that [Donato] owned this property and was deriving income from it. That clearly put [Donato] on notice, if not before, at least a month before trial that this information may be or could be important to produce.”
The district court found no reason why Donato could not have produced the information regarding the Mexican properties earlier and thus concluded the affidavit was not newly discovered evidence under the statute. The record supports these findings. Nowhere in his motions does Donato adequately explain why he could not have discovered this “new” evidence prior to trial. At the hearing on the motions, his attorney only argued that Donato could not produce evidence that did not exist and that Donato did not have reasonable notice that he would need to present this evidence.
On appeal, Donato avers without any evidentiary support that “[t]his new evidence could not have been produced with reasonable diligence at trial.” He also again argues that he could not have anticipated that the district court would have imputed $10,000 of income to him. But Donato had plenty of notice that his Mexican properties would be an issue at trial for which he would need to produce evidence. As the district court correctly found, Sandra's proposed settlement submitted on April 26, 2011—a month before trial—clearly requested the court to impute $2,000 per month to Donato for the income earned from his business in Mexico in calculating child support and spousal maintenance. Sandra's proposed settlement also requested the court to consider Donato's properties in Mexico in its division of the parties' assets. Moreover, on July 29, 2010, Sandra filed a motion with the court to require Donato to provide documentation regarding the properties in Mexico. She filed another motion to compel discovery on September 3, 2010. In response, the district court issued an order compelling discovery on September 22, 2010 and again ordered Donato to produce that discovery on November 22, 2010.
Because Donato failed to satisfy his burden to establish that the newly proffered evidence could not, with reasonable diligence, have been produced at trial, the district court did not abuse its discretion in denying his motion for new trial or to alter or amend judgment.
Affirmed in part, vacated in part, and remanded with directions to make additional findings of fact regarding the proper amount of income to impute to Donato based on the land or the cattle he owns in Mexico for purposes of calculating child support. If the district court is unable to make the required findings on remand, the district court shall recalculate the proper amount of child support without imputing any income to Donato based on the land or the cattle he owns in Mexico.