In re the Marriage of Grippin

186 P.3d 852, 39 Kan. App. 2d 1029, 2008 Kan. App. LEXIS 109
CourtCourt of Appeals of Kansas
DecidedJuly 3, 2008
DocketNo. 99,311
StatusPublished
Cited by2 cases

This text of 186 P.3d 852 (In re the Marriage of Grippin) 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 Grippin, 186 P.3d 852, 39 Kan. App. 2d 1029, 2008 Kan. App. LEXIS 109 (kanctapp 2008).

Opinion

McAnany, J.:

Sonya Renee Pruett appeals the district court’s order granting primary residential custody of her son to her former husband, Michael William Grippin. Since the district court improperly imposed the búrden of proof on Pruett in entering its placement order, we reverse and remand for further proceedings consistent with this opinion.

Sonya’s and Michael’s son was bom in September 1996. Sonya and Michael married the following February. Their marriage was short-lived. Sonya filed for divorce 5 months later, in July 1997. The divorce was granted in October 1997, and Sonya was granted the primary residential placement of their son, subject to Michael’s reasonable parenting time. We need not recount the events of the decade that followed other than to note that the parties remained in the Atchison area, Sonya remarried,-and her husband was offered a job in Arizona in early 2007.

Sonya traveled to Arizona in March 2007 to investigate the housing and school situations. She called Michael from Arizona to advise him of the anticipated move. According to Sonya, Michael objected to the move, but he eventually consented and orally agreed to the parenting schedule she proposed.-Michael asserted [1031]*1031that he told Sonya that he did not want his son moving away and that he would need to have his attorney review any proposed parenting schedule.

Sonya did not consult with counsel until shortly before her move. She provided Michael with written notice of her intention to move with their son to Arizona, but not 30 days in advance of the move as required by K.S.A. 60-1620(a)(2).

Michael promptly moved to change the residential placement of their son, claiming the move to Arizona constituted a material change in circumstances. The evidentiary hearing on the motion occurred on April 2, 2007, after Sonya and her son had completed the move. Following the hearing, the court ordered Michael to serve as the primary residential parent. Sonya moved to set aside the order or, in the alternative, to reconsider. Following another evidentiary hearing, the court denied Sonya’s motion. Sonya appeals.

In considering the district court’s ruling, we apply the abuse of discretion standard. In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998). Judicial discretion is abused when the decision is based upon inapplicable legal standards or when no reasonable person could have reached a similar determination under the facts presented. See State v. Adams, 284 Kan. 109, 114, 159 P.3d 977 (2007). Our concern is with the first of these alternatives.

A district court’s exercise of discretion is abused when its ruling is not reasonably made within the confines of the applicable rules of law. 284 Kan. at 114. The burden of proof to be applied in a given case is a rule of law. See In re Estate of Farr, 274 Kan. 51, 62, 49 P.3d 415 (2002). Consequently, the district court abuses its discretion when it misapplies the burden of proof in arriving at its placement decision.

The district court is not required to entertain needlessly repetitive hearings on the custody or residential placement of a minor child of divorced parents. Accordingly, as the threshold issue in such a postdivorce proceeding, K.S.A. 2007 Supp. 60-1610(a)(2)(A) requires a showing of a material change in circumstances. Michael, as the movant, bore the burden of establishing such a material change in circumstances. See Simmons v. Simmons, 223 Kan. 639, [1032]*1032642, 576 P.3d 589 (1978); Kimbell v. Kimbell, 190 Kan. 488, 490, 376 P.2d 881 (1962). K.S.A. 60-1620(c) permitted the court to consider Sonya moving her son to Arizona to be a material change in circumstances. Since there is no dispute about the fact of the move, Michael clearly met that burden. While this satisfied the threshold requirement for the court to consider the merits of Michael’s motion, it did not end the inquiry. In deciding whether the child should live with Sonya in Arizona or with Michael in Atchison, K.S.A. 60-1620(c) required the court to consider all appropriate factors, including:

“(1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having rights granted pursuant to K.S.A. 60-1610, and amendments thereto; and (3) the increased cost to move will impose on any party seeking to exercise rights granted under K.S.A. 60-1610, and amendments thereto.”

Michael, as the movant, bore the burden of proving that consideration of these and any other appropriate factors established that it was in his son’s best interest that the boy remain in Atchison with his father. However, in ruling on Michael’s motion, tire judge stated:

“I cannot believe it’s in this child’s best interest.
“It’s the mother’s job, if she’s going to move, to put on evidence that that is a fact. She has failed.
“Accordingly, the Court is denying the request of the mother to simply pick up the child and go without giving notice, without giving any warning to the father.”

This is consistent with the journal entry memorializing this ruling, in which the district court stated: “Petitioner [Sonya] has failed to meet her burden to show that it is in the best interest of the child to move to Arizona.”

The outcome of any fact-driven proceeding is determined by the ability of the party bearing the burden of proof to persuasively carry that burden. See Miller v. Kruggel, 165 Kan. 435, 439, 195 P.2d 597 (1948); Piper v. Matkins, 8 Kan. App. 215, 217, 55 Pac. 487 (1898). Here, the district court clearly placed that burden on the wrong party. Michael had the burden of proving that a change in the residential placement of his son was warranted. The district court placed that burden on Sonya.

[1033]*1033Nevertheless, Michael argues:

“It is plain to see in the context of the evidence that the court merely stated the obvious — that father made a prima facie showing that there was a material change in circumstances and that it was in the best interest of the child to be placed in the custody of the father.”

We must decline Michael’s invitation to have us reweigh the conflicting evidence and conclude that he met his burden of proof. That is a task the district court is uniquely qualified to do. We, on tire other hand, are not.

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Bluebook (online)
186 P.3d 852, 39 Kan. App. 2d 1029, 2008 Kan. App. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-grippin-kanctapp-2008.