In re Marriage of Dean

437 P.3d 46, 56 Kan. App. 2d 770
CourtCourt of Appeals of Kansas
DecidedAugust 17, 2018
DocketNo. 118,406
StatusPublished
Cited by8 cases

This text of 437 P.3d 46 (In re Marriage of Dean) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Dean, 437 P.3d 46, 56 Kan. App. 2d 770 (kanctapp 2018).

Opinion

Gardner, J:

*47Chad and Denise Dean married in 2002 and had two children. They divorced in 2016 and the district court ordered Chad to pay child support. Denise timely appeals, arguing that the district court erred in not following the definition of income in the Kansas Child Support Guidelines (Guidelines). Agreeing with Denise, we vacate the child support order and remand with instructions.

Factual and procedural background

During their marriage, the parties acquired over 50 rental properties and amassed a joint estate with a net value of more than $1,000,000. Both were self-employed. Denise worked as a real estate agent. Chad was the sole owner of three real estate management companies that generated income from purchasing, managing, leasing, and selling real estate. Chad also held a majority ownership interest in a roofing company.

The evidentiary hearing for the divorce proceedings lasted 10 days. During that time, the district court heard from different experts about how to calculate Chad's income for child support purposes. It found that Denise's expert, Dr. Jeff Quirin, provided the most reliable indication of Chad's income. The parties do not challenge that decision.

Both Quirin and the district court conceded the difficulty of accurately calculating Chad's income. That difficulty was caused in part by the parties' failures to file true, complete, and accurate Domestic Relations Affidavits, tax returns, and profit and loss statements. Quirin examined profit and loss statements and income tax filings to calculate Chad's income.

*772Denise challenges only the method that the district court used to determine Chad's income. Quirin offered two different methods of determining Chad's income: the net income method and the cash flow method. The net income method deducts depreciation and interest payments but does not deduct amounts paid to reduce the principal owed on mortgages. Under that method, Chad's income from his four businesses was $336,672. In contrast, the cash flow method does not deduct depreciation but does deduct payments of principal on the mortgages. Under that method, Chad's income was $233,863, and, after removing earnings from Denise's real estate sales, was $152,024. The district court used the cash flow method. Denise contends it should have used the net income method instead.

Using the cash flow method, the district court excluded "non-liquid capital gains" from both parties' income. It defined these gains as "the principal reductions that occur by virtue of monthly, quarterly, or otherwise regular payments of the mortgages ... [that] increase[ ] a party's net worth." The district *48court granted Chad most of the couple's properties, transferred 16 properties to Denise, and reasoned that because each party owned some properties, each could benefit from such capital gains.

The district court reasoned that use of the cash flow method would create fewer opportunities for continued litigation. It highlighted the contentious nature of the case-the record reflects 135 hearings and 600 entries in the first 3 years. It explained that including the principal reduction payments in income would require tedious calculations that would provide fodder for further arguments about the amounts.

Denise appeals but has not included in the record on appeal any transcript from the 10-day trial. Chad contends that this precludes her from prevailing on appeal. But the effect of not providing a transcript is not necessarily preclusive. Instead, when a party provides no transcript, we presume the district court's factual findings were correct. King v. Stephens , 113 Kan. 558, 560, 215 P. 311 (1923). Because Denise has provided no transcript or adequate substitute, we will not review any action of the trial court requiring us to examine the evidence.

*773First Nat'l Bank & Trust Co. v. Lygrisse , 231 Kan. 595, 603, 647 P.2d 1268 (1982) (citing Osborne v. Fakes , 178 Kan. 373, 376, 286 P.2d 156 [1955] ).

Denise does not dispute the district court's factual findings but challenges its method of deriving a gross income figure for Chad. She styles the sole issue on appeal as one of law: Did the district court properly exclude "non-liquid capital gains" from Chad's income for purposes of calculating his child support payment. We restrict our review to that question.

Standard of review

We review a district court's interpretation and application of the Guidelines de novo. In re Marriage of Branch , 37 Kan. App. 2d 334, 336, 152 P.3d 1265 (2007). Because this appeal turns on interpreting "gross income" under the Guidelines, we apply de novo review.

Analysis

Kansas relies on gross income, not net income, in calculating child support. Gross income for self-employed parents is defined as "income from self-employment and all other income including that which is regularly and periodically received from any source." Kansas Child Support Guidelines §§ II.E.1., II.E.3. (2018 Kan. S. Ct. R. 82). The Child Support Worksheet (Worksheet) (2018 Kan. S. Ct. R. 112) guides the calculation of the child support obligation. Self-employment gross income is recorded on Line B.1. and is then reduced by the "reasonable business expenses" recorded on Line B.2. to yield the "domestic gross income." This method is much like the net income method described by the expert and rejected by the district court.

The Worksheet then lists adjustments to the domestic gross income in Section C to yield the "child support income" amount recorded on Line C.5. The "basic parental child support obligation" is based on that income and is recorded on Line D.9. A rebuttable presumption arises that the amount on Line D.9. is a reasonable amount of child support. Kansas Child Support Guidelines § I. (2018 Kan. S. Ct. R. 79).

A court may deviate from the Line D.9. child support amount *774if it finds, from relevant evidence, that a deviation would serve the best interests of the child, but it must make written findings explaining the deviation. Kansas Child Support Guidelines § I. (2018 Kan. S. Ct. R. 79).

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437 P.3d 46, 56 Kan. App. 2d 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-dean-kanctapp-2018.