In re the Marriage of Fuller

371 P.3d 964, 52 Kan. App. 2d 721, 2016 WL 1729374, 2016 Kan. App. LEXIS 30
CourtCourt of Appeals of Kansas
DecidedApril 29, 2016
DocketNo. 113,948
StatusPublished
Cited by5 cases

This text of 371 P.3d 964 (In re the Marriage of Fuller) 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 the Marriage of Fuller, 371 P.3d 964, 52 Kan. App. 2d 721, 2016 WL 1729374, 2016 Kan. App. LEXIS 30 (kanctapp 2016).

Opinion

Powell, J.:

Christina Fuller appeals the district court’s order granting her former husband, Brian Fuller, a long-distance parenting time cost adjustment at a child support modification hearing she requested. Christina asserts two errors on appeal. First, she argues her procedural due process rights were violated because Brian had not given notice he was seeking a long-distance parenting time cost adjustment. Second, Christina argues the district court abused its discretion when it granted Brian tire adjustment. We agree with Christina that her due process rights to adequate notice were violated when Brian failed to give any notice in advance of his intention to seek a long-distance parenting time cost adjustment and, therefore, vacate the district court’s adjustment order and remand for further proceedings.

Factual and Procedural History

Christina and Brian Fuller contentiously divorced in 2008. Christina was granted sole legal custody of the parties’ five minor children, but Brian was granted supervised parenting time. Because the parties were having a difficult time reaching any agreement concerning their children, the case was assigned to case management. The case manager was tasked with making recommendations on parenting time schedules and supervision, among other things.

After the divorce, Christina relocated herself and the children to an undisclosed location in Missouri. Christina has refused to disclose the exact address to the case manager or the court because of her fears surrounding Brian’s alleged verbal abuse and potential for physical violence. This move was permitted by the court; however, the divorce decree required Christina to keep Brian advised at all times of where the children lived. She has failed to do this.

Christina’s move required her and Brian to travel to a supervised parenting time site in Leavenworth, Kansas, so Brian could exercise his parenting time. Relations between the Leavenworth facility and Christina became severely strained, however, because the [723]*723facility’s staff had serious concerns that Christina was negatively influencing the children regarding their relationship with Brian. Due to this dysfunction, the case manager changed the location of the supervised parenting time in June 2009 to a facility in Lawrence, Kansas. From December 2008 to September 2009, Brian exercised his parenting time approximately every other weekend.

From a thorough review of the record, it appears that in September 2009 the case manager suspended the visits in Lawrence because “the children had gotten to a point where they would not even get out of the car for the visits.” The facility’s staff in Lawrence also expressed concerns to the case manager about “the extent to which tire visits between [Brian] and the children were impeded because of a lack of cooperation from both the older children and their home.” Unfortunately, the case manager’s recommendation regarding parenting time is not included in the record on appeal and does not appear to have been entered with the court, contrary to the district court’s original order appointing the case manager.

On June 14, 2011, once Brian’s spousal maintenance obligations to Christina ended, the court trustee filed a motion to modify child support on Christina’s behalf. That same day, signed domestic relations affidavits (DRAs) from both Christina and Brian were filed as well. No proposed child support worksheet was filed contemporaneously with the motion. There was nothing contained in Brian’s DRA to indicate that a long-distance parenting time cost adjustment was being requested.

A hearing on Christinas motion to modify child support was held on July 27, 2011, before a magistrate judge. Christina did not appear personally but was represented by the court trustee. Brian was present with his counsel. At the beginning of the hearing, the court trustee advised tire court that he had spoken with Brian’s counsel just prior to the hearing and that the parties were in agreement with all of the figures on the worksheet except that Brian was requesting a parenting time cost adjustment. Brians counsel then orally requested the adjustment and presented to the court a proposed child support worksheet reflecting a long-distance parenting time cost adjustment of $324 per month. In support of this figure, counsel proffered the miles between Brian’s home in [724]*724McPherson, Kansas, and the visitation facility in Lawrence, totaling 158 miles, and the Internal Revenue Service’s then-current mileage reimbursement rate of 51 cents per mile, to arrive at the $324 adjustment for Brian’s bimonthly trips to Lawrence to exercise his court-ordered parenting time.

Through the proffer, however, Brian’s counsel notified the court that he had only successfully exercised his parenting time once in the past calendar year; moreover, he did not indicate that the visitation had apparently been suspended by the case manager, although the case manager’s recommendation had not become the order of the court. While the magistrate judge was conflicted in awarding tire adjustment for parenting time that was not regularly occurring, based upon the proffer he found that Brian was not voluntarily failing to exercise his parenting time. Instead, it was Christina’s bad acts—namely her interference with the parenting time, negative influence on the children, and refusal to follow the court order for Brian’s parenting time—that prevented Brian from regularly exercising parenting time. The court made it clear to Brian that if he was not exercising his parenting time voluntarily then he was not entitled to the adjustment. The court set Brian’s monthly child support obligation at $1,974, which included the long-distance parenting time cost adjustment. Christina appealed this modification to the district court.

For reasons unknown to us, the appeal languished in the district court for some 4 years without resolution until April 27, 2015. Before the district court, Christina argued she was denied procedural due process by not having advance notice that Brian would be asking for a long-distance parenting time cost adjustment at the hearing and that the magistrate court abused its discretion when giving Brian such an adjustment.

Specifically concerning Christina’s due process claims, the district court stated that the modification of child support was invoked by Christina when the court trustee filed a motion to modify support per her request. Moreover, the court observed that since Christina was the one who had created an issue of travel expenses by moving to Missouri, it should not have been unanticipated or surprising to her that they might have been raised at a hearing dealing with potential modification of child support. The court held [725]*725that by not personally appearing at the hearing she in effect waived her right to be heard on a normal and expectable consideration in setting child support. The district court rejected Christinas due process claim and affirmed the magistrates order granting Brian tire long-distance parenting time adjustment.

Curiously, as a result of Brian becoming unemployed and prior to tíre district court considering Christinas appeal of the magistrates order, Brian filed a separate motion to modify child support on April 14, 2015. Surprisingly, the proposed child support worksheet attached to his motion did not include a long-distance parenting time cost adjustment, but it did reduce Brian’s child support obligation roughly in half. The district court approved this modification on the same day it affirmed the magistrate’s order.

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Cite This Page — Counsel Stack

Bluebook (online)
371 P.3d 964, 52 Kan. App. 2d 721, 2016 WL 1729374, 2016 Kan. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-fuller-kanctapp-2016.