In re the Marriage of Hutchison

281 P.3d 1126, 2012 WL 2498864, 47 Kan. App. 2d 851, 2012 Kan. App. LEXIS 66
CourtCourt of Appeals of Kansas
DecidedJune 29, 2012
DocketNo. 106,292
StatusPublished
Cited by1 cases

This text of 281 P.3d 1126 (In re the Marriage of Hutchison) 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 Hutchison, 281 P.3d 1126, 2012 WL 2498864, 47 Kan. App. 2d 851, 2012 Kan. App. LEXIS 66 (kanctapp 2012).

Opinion

Arnold-Burger, J.:

Based upon a case manager s recommendations to the court, Karen L. Wray lost residential custody of her minor child without a hearing. She asserts that the district court’s actions deprived her of due process of law. We agree. Accordingly, we reverse the district court’s decision and remand the case to it with directions to conduct an evidentiary hearing on the case manager’s recommendations.

Factual and Procedural History

This appeal involves an on-going dispute over child custody between former spouses Jeffrey Hutchison and Karen Wray. Hutch[852]*852ison and Wray were married in 2000. During the marriage, the parties had one child, E.H, who was bom in 2001.

In 2002, Hutchison filed a petition for divorce in the District Court of Douglas County, Kansas. The district court found that Hutchison and Wray were irreconcilably incompatible and entered a decree of divorce. The court’s divorce decree provided that issues regarding child custody, parenting time, and support would be resolved at subsequent hearings.

The parties eventually submitted an agreed-upon parenting plan which was approved by the district court. Under that agreement, they were awarded joint legal custody of E.H. Wray was granted residential custody, and Hutchison was granted weekly parenting time. The parenting plan also enumerated a shared custody schedule for holidays, birthdays, and vacations. Finally, the parenting plan provided that Hutchison and Wray would mediate any future disputes involving custody, visitation, or other matters involving E.H. should the parties be unable to come to a mutually satisfactory agreement. The district court appointed Susan Kraus as mediator.

In 2004, Hutchison filed a motion requesting that the district court appoint a case manager and order the parties to participate in case management. The district court ordered the parties to participate in further mediation with Susan Kraus. The district court also provided that it would order Hutchison and Wray to participate in case management should Kraus recommend such action to the court.

In 2007, Kraus notified the district court that mediation was not working, that the continued conflict was damaging to E.H., and that the parties should participate in case management. The court accepted Kraus’ recommendations and ordered Hutchison and Wray to participate in case management. The court appointed Cheryl Powers as the case manager.

Over the next 4 years, motions were filed by Wray seeking the removal of Powers as the case manager, requesting that the court rescind its previous order authorizing case management, and objecting to Powers’ recommendations. The court denied Wray’s motions and adopted Powers’ recommendations.

[853]*853On February 7,2011, prompted by notice that Wray was getting married and planned to move to Marion, Kansas, with E.H., Powers set up a meeting with Wray, her fiancé, and Hutchison. No agreement was reached as to the residential custody of E.H. subsequent to the move. Accordingly, Powers submitted recommendations for consideration by the district court. Powers recommended that the district court change primary residential custody of E.H. from Wray to Hutchison, with both parents retaining joint legal custody. Powers noted that due to Wray’s relocation, it would be in E.H.’s best interest to remain with Hutchison because this would provide her with more stability and consistency. She reasoned that Wray has had a history of alienating E.H. from Hutchison and this alienation would only increase if she were allowed to move away with the child. Powers also recommended that Wray receive the parenting time that the district court awarded Hutchison under its March 2009 order. Powers recommended that the change of residential placement take place in 10 days.

In response to Powers’ February 2011 recommendations, Wray filed a written notice objecting to those recommendations and requesting that the trial court remove Powers as case manger. Wray also filed a motion for change of custody and a proposed parenting plan. Finally, Wray filed motions requesting an ex parte injunction and the appointment of a guardian ad litem (GAL) for E.H. Wray requested a hearing and in regard to her motion for an injunction, she requested that the district court refrain from ruling on Powers’ recommendations until it held a hearing on the issues of custody, parenting time, and removal of Powers as case manager. Wray’s objections challenged as untruthful and incomplete numerous statements made by Powers in her recommendations. Powers replied to Wray’s motions by filing a follow-up report that responded to the assertions and requests made in Wray’s motions. Powers also submitted an amended report which proposed that the trial court order the implementation of her February 7 recommendations effective March 10, 2011 (instead of February 17, as she had previously recommended). Powers also noted her objection to her own removal and to the appointment of a GAL.

[854]*854On March 8, 2011, without a hearing, but with the case manager’s recommendations and written report before it, as well as the specific objections raised by Wray, the district court entered its decision. The district court addressed several of Wray’s stated concerns in its order. The court focused on the fact that Wray was getting married and moving from Lawrence to Marion, Kansas. It found this to be a significant and substantial change in circumstances. The court noted the case manager’s concern that Hutchison would be more likely to allow tire child to maintain a relationship with Wray, than Wray would be to allow the child to maintain a relationship with Plutchison “due to [Wray’s] continuing anger at [Hutchison],” concerns the court noted were shared by the child’s psychologist. The court ordered that Hutchison and Wray continue to share joint legal custody and awarded Hutchison primary residential custody of E.H. However, the court made no rulings as to Wray’s motions requesting the appointment of a GAL or the removal of Powers as case manager.

Wray subsequently filed a motion to reconsider, requesting that the court rescind its March 8 adoption of the case manager’s recommendations, schedule a hearing on Wray’s motions, and appoint a GAL for E.H.

Wray’s motion to reconsider was initially set for a hearing to be held on May 3, 2011. However, approximately 1 week before the hearing, the district court entered a written order denying Wray’s motion and cancelling the hearing scheduled for May 3. Wray appeals from the order denying her motion for reconsideration and denial of a hearing. Although in her appellate brief, Wray raises several concerns alleging retaliatory conduct associated with Powers’ subsequent recommendations after residential custody had been changed, those recommendations and associated orders were not appealed and therefore will not be addressed herein.

Wray raises two arguments on appeal. First, she contends that the district court violated her due process rights under the Fifth and Fourteenth Amendments to the United States Constitution by declining to hold an evidentiary hearing on her motion to remove the case manager, her objections to the case manager’s recommendations, and her motion to reconsider. See also Kan. Const. [855]*855Bill of Rights, § 18. Next, she argues that Judge Pokorny was required to recuse herself from hearing the case. We will address each issue and include additional factual background as necessaiy.

Wray’s Due Process Claim

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Cite This Page — Counsel Stack

Bluebook (online)
281 P.3d 1126, 2012 WL 2498864, 47 Kan. App. 2d 851, 2012 Kan. App. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hutchison-kanctapp-2012.