In re the Marriage of Bradley

899 P.2d 471, 258 Kan. 39, 1995 Kan. LEXIS 111
CourtSupreme Court of Kansas
DecidedJuly 14, 1995
DocketNo. 70,861
StatusPublished
Cited by26 cases

This text of 899 P.2d 471 (In re the Marriage of Bradley) is published on Counsel Stack Legal Research, covering Supreme Court 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 the Marriage of Bradley, 899 P.2d 471, 258 Kan. 39, 1995 Kan. LEXIS 111 (kan 1995).

Opinion

The opinion of the court was delivered by

Six, J.:

This case involves a post-divorce change of primary residential custody. Barbara Bradley-Copple objects to the transfer of the parties’ two minor children to Dean Bradley, the children’s father. The change resulted from Barbara’s move from the Wichita [40]*40area, where the children and both parents lived, to Washington, D.C.

In an unpublished opinion filed November 10, 1994, the Court of Appeals affirmed the change of custody but declined to address some of Barbara’s contentions because she failed to object to the district court’s findings. The Court of Appeals invited us to review apparently conflicting precedents regarding district court findings and the necessity of objecting in the district court to preserve the issue on appeal. The invitation focuses on the proper application of K.S.A. 60-252 and Supreme Court Rule 165 (1994 Kan. Ct. R. Annot. 169). A similar invitation was extended by Judge (now Justice) Abbott in 1982. See In re Lett & Jackson, 7 Kan. App. 2d 329, 337, 640 P.2d 1294, rev. denied 231 Kan. 800 (1982) (Abbott, J., concurring). Our jurisdiction is under K.S.A. 20-3018(b). We granted Barbara’s petition for review.

THE ISSUES

The Court of Appeals’ invitation leads us to consider whether, in actions covered by K.S.A. 60-252 and Rule 165, a party must object to the district court’s findings to allege deficiencies in such findings on appeal, and if so, whether there are any exceptions to that rule.

We also consider whether: (1) Barbara was entitled to a statutory presumption in favor of retaining custody under K.S.A. 60-1610(a)(3)(A); (2) the district court’s findings were supported by sufficient evidence; (3) the district court abused its discretion in giving Dean primary custody; and (4) Barbara’s “refusal” to sign the journal entry was a sufficient “objection” to the district court’s findings to preserve a challenge to the findings on appeal.

We find no error and affirm.

FACTS

Barbara and Dean divorced in 1988. They had two children, Boone and Brittany, who then were 8 and 4. Both parents stipulated that the other was a fit and proper parent, capable of sharing in a joint-custody arrangement. They could not, however, initially agree on who would have primary residential custody of the chil[41]*41dren. The divorce decree awarded primary residential custody to Barbara, in a joint-custody arrangement. The joint-custody arrangement worked well from 1988 to early 1993, while both parents lived in the Wichita area.

Barbara gave notice to Dean in March 1993 that she intended to move with the children .to Washington, D.C. She had accepted a new job and was involved in a relationship, which later resulted in marriage. Dean responded by fifing a motion to change primary residential custody of the children under K.S.A. 60-1610(a)(2). He alleged that Barbara’s move out of state was a material change of circumstances, see K.S.A. 60-1620(c), and that the best interests of the children would be served by staying with him in Wichita.

Barbara and Dean agreed to have a licensed psychologist interview all family members and make a recommendation as to the best interests of the children. The psychologist recommended that the children remain in Wichita with their father. Both parents were described as good parents, and the children’s loyalty to both parents was noted. The psychologist based his conclusion mainly on “the picture of proven stability” for the children in Wichita with their schools, friends, and relatives.

Barbara rejected the recommendation. The district court heard testimony from Barbara and Dean and considered the report. At the conclusion of the hearing, primary residential custody of the children was transferred to Dean. The district court later filed a journal entry setting forth its findings and conclusions.

Barbara, in the Court of Appeals, challenged the adequacy of the district court’s findings and the sufficiency of the evidence supporting the findings. She also argued that a statutory presumption under K.S.A. 60-1610(a)(3)(A) applies, favoring a finding that the children should remain with her because of the “agreement” in the divorce decree giving her primary custody.

The Court of Appeals, in affirming, held: (1) the statutory presumption of K.S.A. 60-1610(a)(3)(A) did not apply, and (2) the district court “implicitly” made the required finding of a material change of circumstances.

The Court of Appeals then turned to apparent ambiguities in the law regarding the need to object to findings under K.S.A. 60-[42]*42252 to raise inadequacies in the findings on appeal. Upon concluding that we require objections to findings at the district court level, the Court of Appeals held that it “cannot consider [Barbara’s] arguments on appeal” and “need not consider other issues raised.” Consequently, the Court of Appeals did not reach Barbara’s contention that the evidence was insufficient to support the district court’s findings.

DISCUSSION

We are reviewing an order involving the custody of children. Certain basic principles guide our analysis. “The trial court is in the most advantageous position to judge how the interests of the children may best be served. [Citations omitted.] . . . The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion.” Simmons v. Simmons, 223 Kan. 639, 643, 576 P.2d 589 (1978).

Barbara’s petition for review also raises several questions of law. We have unlimited review of any conclusions of law reached by the district court or the Court of Appeals. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

Statutory Presumption

Barbara questions the Court of Appeals’ conclusion that she was not entitled to a presumption under K.S.A. 60-1610(a)(3)(A) in favor of retaining custody. In order for the presumption to apply, the parties must “have a written agreement concerning the custody or residency of their minor child.” K.S.A. 60-1610(a)(3)(A).

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Bluebook (online)
899 P.2d 471, 258 Kan. 39, 1995 Kan. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bradley-kan-1995.