Child Custody - Injunction - International Abduction
Evidence did not support finding that child was at risk of international abduction by mother, who was from Russia, such that trial court could, pursuant to statute, impose abduction‑prevention measures in the parties' divorce decree barring child from traveling to any country that was not a party to the Hague Convention and requiring either parent traveling with child to Russia to post a bond in an unspecified amount. The mother had not taken or withheld child from father in violations of his rights, mother testified that father was a good parent and did not request to limit his access to child, mother was employed in the United States and had not returned to Russia since emigrating, and father's concerns were largely based on the ongoing war in Russia.
Child Custody - Proceedings - Report - Daubert Standard
L.F. (Mother) and M.F. (Father), parents of three children, divorced in 2018 and agreed to a parenting plan. They each moved to modify the parenting plan in 2019, accusing each other of multiple types of abuse and poor parenting. At one point, the district court ordered an investigator to conduct psychological evaluations and parenting assessments of the parents under K.S.A. 23‑3210. After an evidentiary hearing, the district court issued orders on parenting time and child support, Held: (1) That psychological evaluation is a “report” under K.S.A. 23-3210. That statute permits reports by a neutral investigator which removes the child custody question from an adversarial fact‑finding process. As such, it is not subject to a Daubert analysis. (2) Mother’s income includes realized capital gains, even if she spent that money at paying her attorneys.
Child Custody - Proceedings - Open Court
Following entry of divorce, the father moved to modify custody of the parties' two children. The trial court granted a press organization's request for camera access to the proceedings and, subsequently, denied the mother's motion for reconsideration, in which she requested the District Court close the hearing on father's motion to modify custody. Mother then filed petition for writ of mandamus directing the District Court to vacate its order denying the motion to close the hearing and to reconsider that motion. Held: First, the mother would not have a plain, speedy, and adequate legal remedy in the absence of a writ of mandamus directing the District Court to vacate its order denying her motion that it reconsider its prior decision, which granted press organization's request for camera access to hearing on divorced father's motion to modify custody of the parties' two children, and close the hearing. Second, the trial court was required to consider the factors laid out in Falconi v. Eighth Judicial District Court in and for County of Clark, 543 P.3d 92, for deciding whether a family law proceeding may be closed, but instead it erroneously concluded no such circumstances or interests could outweigh the public's right of access to family law proceedings and granted press organization's request for camera access to hearing on divorced father's motion to modify custody of his two children with divorced mother. Petition granted.
Child Support - Credit – Adoption Assistance
In the chancellor's amended opinion, he awarded the husband a “credit” for the adoption assistance payment that the State pays for the benefit of their child. Specifically, the chancery court stated, “The Court finds that one‑half of the $700.00 monthly adoption supplement received by [Michelle] is attributable to [Jamie] and he should receive credit for it.” The chancellor ordered Jamie to pay Michelle child support in the amount of $581 per month rather than the statutorily recommended $931 per month because of the “credit.” No. The adoption assistance payment from the State is for the benefit of K.B. and is based on K.B.’s needs. The payment is not “attributable to” Jamie and he is not entitled to “credit for it.”
Cohabitation - Partition - Unjust Enrichment
Former girlfriend brought action against former boyfriend for partition, conversion, promissory estoppel, and unjust enrichment, alleging that parties were in relationship for approximately ten years but never married, and requesting that real and personal property they accumulated during relationship be equitably divided or, in the alternative, monetary damages. Held: Trial court, in partitioning shared real property following end of parties' long‑term relationship, clearly erred by awarding 100% of property to former girlfriend, thereby disregarding and effectively eliminating former boyfriend's ownership interest; after determining that property was jointly owned and subject to partition, trial court should have considered parties’ respective ownership rights and how to equitably divide property. Further, tthe Supreme Court was unable to determine whether trial court clearly erred by awarding former girlfriend $64,000 under doctrine of unjust enrichment for contributions she purportedly made to former boyfriend's properties, and thus Supreme Court would reverse award and remand for trial court to complete analysis. The trial court failed to analyze fourth unjust‑enrichment element, i.e., absence of justification for enrichment and impoverishment, and failed to adequately explain basis for amount awarded.
Property Division - Classification - Firefighter Pension
Former wife was entitled to 50% of former husband's firefighter pension benefits under traditional retirement option that were deposited into his account under deferred retirement option that he elected upon retirement, even though divorce decree was silent as to benefits under deferred option. Former wife acquired property right to her portion of benefits under traditional option once decree was entered, such pension benefits did not lose their character as vested marital benefits simply because they were moved to new deferred option account, deferred account was alternative option in pension program, not separate program, and former husband could not unilaterally change nature of pension benefits, creating new post‑divorce asset that was not subject to distribution in divorce.
Property Division - Classification - Pension - Inchoate Right
“We recognize a lack of consistency in our law regarding whether, in assessing what weight should be given to a third party's unilateral authority to revoke or modify a right to a future interest, a trial court should consider the likelihood that the third party will ever exercise that authority.... We take this opportunity to clarify that, because the second prong of the Bender inquiry focuses on the likelihood that a party will eventually obtain an enforceable legal right, the likelihood that a third party will exercise its right to unilaterally revoke or modify a party's right to a future interest is relevant to the analysis.” Under this analysis, the wife’s interest in a potential stream of retirement payments pursuant to the partnership agreement of her law firm did not constitute “marital property” subject to equitable distribution: wife did not have legally enforceable present right to receive payments, wife would never have an enforceable right to receive payments, given that at any time, before or after wife began to receive payments, firm had contractual right under partnership agreement to unilaterally reduce or cancel payments, changes in partner compensation structure and ratio of retired partners to active partners supported conclusion that firm's exercise of its authority to terminate or amend payments was more than a theoretical possibility, and equitable considerations weighed in favor of not treating interest as property.
Dissent
Property Division - Classification – Restricted Stock Units
Any cash or equity consideration received by former husband in connection with restricted stock units (RSUs) granted by his former employer was marital property subject to equitable distribution provisions set forth in parties' stipulation of settlement, which was incorporated but not merged into judgment of divorce, warranting reversal of trial court's denial of former wife's motion to, in effect, enforce provisions of a stipulation of settlement pertaining to equitable distribution of the RSUs and remittal for further proceedings. The RSUs were form of deferred compensation derived from husband's employment and contemplated to be enjoyed by both spouses at future date, stipulation of settlement indicated that RSUs were marital property subject to equitable distribution, and stipulation did not require RSUs to vest to become marital property.
Property Division - Classification - Student Debt
Record supported trial court's conclusion that wife's student‑loan debt from advanced degree was not marital debt to be divided equally, in dissolution action; although some of the funds had been used for family expenses, mother had begun to “reap her rewards” in terms of career opportunities and current, as well as potential future, income, and loan funds also assisted mother to later develop a nonprofit in which mother applied her advanced‑degree expertise.
Property Division - Enforcement - Federal Employees’ Retirement System Act
Pursuant to the divorce judgment which incorporated by did not merge the parties’ settlement agreement, the husband waived and agreed to disclaim all rights in wife's Federal Employees’ Retirement Account. When wife died, husband received, as designated beneficiary, proceeds from the wife's federal retirement account. The estate of the wife filed a breach of contract action against former husband seeking to enforce divorce property settlement agreement. The trial court denied husband's motion to dismiss on ground of preemption under Federal Employees’ Retirement System Act of 1986 (FERSA), and granted summary judgment for the estate. Husband appealed. Held: (1) beneficiary and order of precedence provisions of FERSA did not preempt, on conflict grounds, the estate's action, and (2) FERSA's anti‑assignment clause did not preempt the estate's action.
Property Division - Enforcement - Improper Modification of Decree
Provision of order requiring former husband to transfer 289 additional shares of stock in a specific company from his individual retirement account (IRA) to former wife impermissibly modified divorce decree, which had provided only that husband would transfer $375,000, consisting of a pro‑rata share of stocks, bonds, and other non‑cash assets, in proceedings on parties’ cross‑motions for contempt, despite wife's argument that she received inferior shares because IRA holdings changed while husband delayed making transfer, and even though shares were to compensate wife for appreciation during such delay. Since nothing in decree prohibited husband from buying, selling, or changing share allocations within IRA prior to transfer date, the order effectively added a prohibition on stock trading.
