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Survey of Kansas Law: Family Law

37 Kan. L. Rev. 801 (1989)

Nancy G. Maxwell^(*)

The prophecies of what the courts will do in fact and nothing more pretentious, are what I mean by the law.

Oliver Wendell Holmes

I. INTRODUCTION

Kansas family law has changed significantly in the last three years.⁽¹⁾ Many of these changes were statutory. For example, the 1982 legislature substantially amended⁽²⁾ the divorce code,⁽³⁾ which includes provisions that reduced the grounds for divorce from eight to three,⁽⁴⁾ established a preference for joint custody of children,⁽⁵⁾ and granted visitation rights to grandparents and step‑parents.⁽⁶⁾ The lawmakers also changed the term “alimony” to "maintenance" and restricted the power of the court to award maintenance for more than 121 months at one time.⁽⁷⁾ In addition, the legislature has abolished actions for alienation of affections⁽⁸⁾ and established guidelines for determining whether the consent of an unwed father is necessary in adoption proceedings.⁽⁹⁾

Court decisions have also contributed to new developments in family law principles. Among the recent cases is a holding that recognizes blood tests that include, as well as exclude, a man as the possible father in a paternity action⁽¹⁰⁾ and a ruling that good will is not divisible property in a divorce action.⁽¹¹⁾

This article will review and comment on the developments in Kansas family law within the last three years. Because of the diversity of family law issues, an analysis of the recent changes and developments is most productive by separating the changes under broad topics of marriage, divorce, paternity and adoption.

II. MARRIAGE

A. Statutory Changes

The 1982 legislature enacted a statute that states “[t]here shall be no right to bring an action in this state to recover damages⁽¹²⁾ for alienation of affections based on any act done on or after July 1, 1982.”⁽¹³⁾ This legislative action follows a national trend in which courts or legislatures have either severely limited the cause of action or abolished it enthely.⁽¹⁴⁾ These actions have been restricted be­cause the damages are based on the outmoded theory that “the wife is one of the husband’s chattels, and that her companionship, her services and her affections are his property.”⁽¹⁵⁾

B. Court Decisions

The case of In re Estate of Loughmiller⁽¹⁶⁾ involved the question of whether a Colorado marriage between first cousins is valid in Kansas. Under Kansas Stat­utes Annotated section 23‑102, a marriage in Kansas between first cousins is in­cestuous and thus void. Colorado, however, does not prohibit first cousin marriages. At the time of the Loughmiller wedding, the husband was a resident of Kansas and the wife was a resident of Oklahoma. Immediately following the marriage, the couple began residing in Parsons, Kansas. When the husband died, the executor of his estate denied the wife's claim to the estate because the marriage was void in Kansas.

The supreme court disagreed with the executor and found that the marriage was valid for several reasons. First, the court applied section 23‑115, which states that marriages contracted outside Kansas will be recognized as valid if the mar­riage complies with the laws of the jurisdiction⁽¹⁷⁾ where it is contracted. How­ever, the court stated that this statute does not apply if the marriage violates the public policy of Kansas. To determine whether first cousin marriages violate public policy, the court examined common law and biblical authorities, finding that, historically, first cousin marriages were not incestuous. The court also noted that the legislature eliminated sexual intercourse between first cousins from the Kansas criminal incest statute.⁽¹⁸⁾ Consequently, the court ruled that first cousin marriages validly contracted outside Kansas do not violate public policy and will be recognized as valid marriages in Kansas.⁽¹⁹⁾

III. DIVORCE

A major change in divorce law in Kansas was the 1982 revision of the divorce code.⁽²⁰⁾ The new provisions were drafted by the Family Law Advisory Committee (FLAG) of the Kansas Judicial Council⁽²¹⁾ and submitted to the 1982 legislature.⁽²²⁾ The FLAG drafted these amendments for three reasons: to codify case law,⁽²³⁾ to reduce the adversial nature of domestic relations cases,⁽²⁴⁾ and to limit the use of fault concepts.⁽²⁵⁾

A. Grounds for Divorce and Separate Maintenance

The 1982 amendments to the Kansas divorce code reduced from eight⁽²⁶⁾ to three the grounds for divorce and separate maintenance. These three grounds are incompatibility, failure to perform a material marital duty or obligation, and incompatibility by reason of mental illness or mental incapacity.

The drafters of' the new code listed incompatibility first so “there would be a tacit recognition that in most cases the ground of incompatibility most realistically summarizes the 'cause' of the failure of the marriage.”⁽²⁷⁾ Consequently, most petitions for divorce or separate maintenance should list incompatibility as the basis for the action. The second ground, failure to perform a material marital duty of obligation, is the only one that assigns fault. Although it is a new ground for divorce in Kansas, this was not the intent of the drafters of the new code.⁽²⁸⁾ It is merely a summarization of the previous fault grounds in the old code,⁽²⁹⁾ which included adultery, extreme cruelty, habitual drunkenness, gross neglect of duty, and conviction of a felony that results in imprisonment subsequent to the marriage. Consequently, when the petitioner alleges the respondent failed to perform a material marital duty or obligation, the petitioner must prove the respondent committed one of the fault grounds found in the old code.

The last ground under section 60‑1601 is incompatibility by reason of mental illness or mental incapacity of one or both spouses. This provision is almost identical to the previous mental illness ground.⁽³⁰⁾ However, a significant change in this section is the provision that allows a guardian to petition in a divorce on behalf of an incompetent person if both spouses are confined to an institution. The legislature added this change because of the Kansas Court of Appeals decision in Brice-Nash v. Brice-Nash.⁽³¹⁾ In this case the husband had been adjudged a mental incompetent in an action filed by his wife. Shortly thereafter, the husband filed an action for divorce. The trial court dismissed the divorce action because the husband lacked legal capacity to verify the petition. On appeal, the husband argued that the divorce court was not bound by the prior determination of incompetency. According to the husband's argument, the judge should determine, in any action filed by an incompetent, whether the plaintiff has the necessary capacity to understand the nature of the proceeding. In addition, the husband requested the appellate court to overrule precedent that forbade the filing of a divorce by the incompetent's guardian on the incompetent's behalf.

The court of appeals rejected both arguments by reviewing the procedure for determining incapacity under Kansas Statutes Annotated sections 59‑3001 to ‑3038. Because this code provision established a specific procedure for the termination of incapacity and restoration to capacity, the appellate court held “this is a strong indication of legislative intent that it be the exclusive procedure to be used for restoration to capacity.”⁽³²⁾ Consequently, the divorce court was bound by the probate court determination of incapacity and could not independently determine whether the husband understood the nature of the divorce proceedings. Also, the appellate court reaffirmed prior case law that forbade the guardian from filing a divorce action on behalf of an incapacitated person. The court accepted the rationale of prior case law that the decision to divorce was highly personal and could not be made by a third person on behalf of the incapacitated person.

In 1982 the legislature abrogated this last portion of the Brice-Nash decision.⁽³³⁾ Under the amended section 60‑1601, a guardian has the power to file a petition for divorce if both parties are confined to mental institutions. The legislature also amended sections 60-1604 and -1605, giving the guardian the power to verify a petition, or file an answer, on behalf of an incapacitated person. Although it was the intent of the legislature to grant this power to guardians only in the situation described in section 60-1601, that is, when both spouses are incapacitated and institutionalized, the language of sections 60-1604 and ‑1605 is not restricted.⁽³⁴⁾ Therefore, it appears that a guardian can verify a petition or file an answer in any action brought under article 16.

The final amendment to section 60‑1601 changed the first part of the statute from the "court may grant a decree . . ." to the "court shall grant a decree . . ." if one of the three grounds exists. This change repeals the discretionary power of the court to deny the divorce or separate maintenance. Now the court is required to grant the requested relief it the grounds arc present.⁽³⁵⁾ However, the court retains discretionary power in granting a divorce or separate maintenance if the petition is filed by a guardian on behalf of an incapacitated person, pursuant to section 60-1601(b).

B. Grounds for Annulment

The amendments to the annulment statute⁽³⁶⁾ list three general types of annulment grounds. Annulments will be granted if the marriage is 1) void for any reason, 2) voidable because it was induced by fraud, or 3) voidable because the marriage was indued by mistake of fact, lack of knowledge of a material fact, or any other reason justifying rescission of a marriage contract. The first two grounds for annulment incorporate the common law definitions of void⁽³⁷⁾ and voidable⁽³⁸⁾ marriages. The mandatory language of the amendment requires the court to grant the annulmant if either of these grounds exists. The third ground for annulment, however, was perceived by the legislature as broadening the traditional grounds for annulment of voidable marriages.⁽³⁹⁾ Thus, the legislature allowed the court discretionary powers to grant an annulment bascd on this ground.

C. Petition, Answer, and Counterpetition

The 1982 legislativc amendments to sections 60-1603 to ‑1605 resulted in few substantive changes. Generally, these amendments reduce the adversarial nature of the proceedings. In section 60-1603 the parties are now defined as petitioner and respondent. Also, the legislature amended the residency provision to allow a spouse to bring a divorce action if cither the petitioner or the respondent has been a Kansas resident for sixty days. Previously, the court had jurisdiction over the divorce only if the petitioner was a Kansas resident.

The amendments in section 60‑1604 changed the caption of the action to read "In the matter of the marriage of ----- (petitioner’s name) and ----- (respon­dent's name)." The new law directs judges to destroy the bill of particulars when the court enters a final judgment. This reduces fault by requiring destruction of the document that details the fault behavior relied upon in the action. It also alleviates the accumulation of unnecessary papers.⁽⁴⁰⁾ Finally, section 60‑1605 changes the misnomer “cross petition” to the correct term “counterpetition.”

D. Authorized Orders

The amendment to Kansas Statutes Annotated section 60‑1606 limits the power of the court to refuse the requested divorce, separate maintenance, or an­nulment. Under the old code, the court could refuse the requested relief if the parties were in equal fault.⁽⁴¹⁾ The new provision requires the court to grant the decree unless a statute expressly authorizes the court’s discretionary power or no grounds exist for the requested relief. The court has discretionary power to refuse the requested relief in two circumstances: first, where the guardian files a peti­tion on behalf of an incapacitated spouse if both spouses are institutionalized;⁽⁴²⁾ and second, in annulment actions based on “mistake of fact, lack of knowledge of a material fact or any other reason justifying recission [sic] of a contract of marriage.”⁽⁴³⁾

Although the court may refuse the requested decree if no grounds exist, the court must determine issues of child support, child custody, maintenance, and division of property if a party requests the resolution of these issues.⁽⁴⁴⁾

E. Interlocutory Orders

Section 60‑1607 now forbids the court from restraining the parties from dispos­ing of assets or front interfering with the privacy or rights of each other unless the ­court restrains both parties. The drafters made this change because they believed that restraining both parties was more equitable and reduced the feelings of un­fairness that resulted if the order restrained only one of the parties.⁽⁴⁵⁾ Furthering this end, the lawmakers also adopted a provision that forbids ex parte orders ex­cept in cases where a party is requesting a joint restraining order or an order providing for child custody, child support, or maintenance. In addition, a court cannot issue an ex parte order concerning child custody if it has “the effect of changing the custody of a minor child from the parent who has had sole de facto custody of the child to the other parent unless there is sworn testimony to support extraordinary circumstances.”⁽⁴⁶⁾ Even if an ex parte order is issued, the respon­dent has the right to request a hearing within ten days; thus the respondent has an opportunity to object to the necessity for the temporary order. Also, parties cannot request attorneys’ fees by an ex parte order. Under the new code the court may award attorneys’ fees in a temporary order only if there is a hearing on the issue. Under the prior code an ex parte order for attorneys' fees was gcnerally ignored, “thus breeding disrespect for the judicial process.”⁽⁴⁷⁾

Another change in section 60‑1607 is the extension of the time limit for an­swering a garnishment notice. The previous time limitation was five days. How­ever, the drafters believed this was not sufficient time to answer the garnishment notice, so the time limit was extended to ten days.⁽⁴⁸⁾

F. Pretrial Conferences

The most significant change in section 60-1608 is the requirement for a pretrial conference if a party requests one. The drafters included this provision be­cause they believed pretrial conferences may result in fewer contested cases, thereby reducing court time and fostering more amicable resolutions of family disputes.⁽⁴⁹⁾ Also, the legislature deleted the counseling provision from this section because section 60‑1617 is more thorough and effective in ordering counseling.⁽⁵⁰⁾

G. Child Support and Education

1. Statutory Changes

The amendments to section 60‑1610(a)(1) either clarify or codily existing law. For example, the new statute specifically states changed circumstances are neces­sary to modify child support awards. Also, under the new law it is clear that a change in domicile does not affect the court’s power to hear subsequent motions to modify child support if the court exercised original jurisdiction in the matter.⁽⁵¹⁾

The most significant amendment in the child support and education section requires the court to “consider all relevant factors, without regard to marital misconduct, including the financial resources and needs of both parents, the financial resources and needs of the child and the physical and emotional condi­tion of the child.”⁽⁵²⁾ These factors codify present case law, and guide courts in making child support awards.⁽⁵³⁾

2. Court Decisions

Several recent decisions have reviewed the question of when child support ceases because of changed circumstances. Although the statute terminates court ordered support when the child becomes eighteen years old, there is no statutory guidance when a minor is otherwise emancipated or adopted. In Kraus v. Kraus⁽⁵⁴⁾ the ex‑husband contented that adoption of a child by the mother's present husband automatically terminated support obligations for that child. According to the facts in this case, Mr. Kraus adopted Eric, a child from Mrs. Kraus’ prior marriage. Another child, Todd, was born of the marriage. Upon divorce, the court ordered Mr. Kraus to pay forty dollars per week in child support for the two boys. When Mrs. Kraus married a third time, her present husband adopted Eric, but not Todd. Mr. Kraus argued that the adoption of Eric automatically terminated his support obligation for Eric and the child support should have been automatically reduced to twenty dollars per week. Mr. Kraus based his argument on the logic of Brady v. Brady,⁽⁵⁵⁾ which held that when a child reaches age eighteen or begins to live with the parent paying child support, then the child support order is automatically reduced proportionately without further court order. According to Mr. Kraus, because adoption is similar to the circumstances in Brady, the reasoning and rule of Brady should be controlling.

The court of appeals agreed with Mr. Kraus in part. Relying on the Brady decision, the court held that adoption automatically terminates any support obli­gation for that child, reducing support payments proportionately. However, prior to the Brady decision, this was not the law in Kansas. Under prior law, the obligor must request a modification of the child support based on changed cir­curnstances. Because Eric’s adoption was three years prior to the Brady decision, those three years of support arrearages were due and owing because Mr. Kraus never requested a modification of the court order. However, after the date of the Brady decision, April 1, 1979, Mr. Kraus’ support obligation reduced by one‑half.

Mr. Kraus also claimed the trial court erred because it did not enforce a post­divorce agreement concerning child support.⁽⁵⁶⁾ The appellate court disagreed. The agreement was not binding because parents cannot enter binding contracts concerning the child’s right to support. Only an agreement approved by the court and rnade a part of the judgment can bind the parties.

Another case that applied the Brady doctrine is Patrzykont v. Patrzykont.⁽⁵⁷⁾ Three children werc involved in the Patrzykont case; one child had obtained majority, another was emancipated when he became self‑supporting before his eighteenth birthday, and the third child was institutionalized as a ward of the state of Kansas before she began to live with her father. The father argued that all these circumstances automatically terminated his support obligation under the Brady rationale.

Clearly, under Brady, when a child turns eighteen or begins to live with the obligor, the support obligation ceases and the payment is reduced proportionately. But the court of appeals did not agree that emancipation or institutionalization as a state ward automatically terminated support. Even though a child is emancipated and self‑supporting, cases have held that support coming from other sources does not reduce the obligation of a parent to support the child.⁽⁵⁸⁾ Also, the court noted that section 38‑827 obligates a parent to support a child even though the child becomes a ward of the state.⁽⁵⁹⁾ Therefore, neither emanci­pation nor institutionalization of the child automatically terminates an obliga­tion of support. The only way a parent can seek termination of support based on these reasons is filing a motion with the court and demonstrating changed circumstances.

The court of appeals discussed the question of the appropriateness of an educational fund in Ferguson v. Ferguson.⁽⁶⁰⁾ The trial court had ordered the father to convert life insurance policies and mutual funds to cash, and invest the money in an interest‑bearing account for the educational expenses of his two daughters. In addition, the court ordered the father to contribute $6,000 more to the fund. If the daughters did not attend college, or chose not to finish their education, then the funds were to be divided equally between the father and mother. The amount in the college fund was between $15,400 and $18,800, depending on the true value of the stock.⁽⁶¹⁾

The father appealed the trial court order, contending that the fund could not continue after the childrenreached eighteen and that the court erred in dividing the remainder of the trust fund between the parties rather than returning the assets to him. The court of appeals agreed that the educational expenses could not be paid out of the fund once the daughters reached eighteen. According to section 60‑160l(a)(1), all support and educational obligations cease when a child reaches eighteen.⁽⁶²⁾ But the court held it was appropriate to divide the unused proceeds from the life insurance and mutual funds between both parents when the fund terminated. Because the trial court divided the other marital property equally, the court of appeals reasoned that these assets also would have been divided equally between the parties if the trial court had not set up the educational fund.

The appellate court questioned the rationale of the trial court in requiring the father to contribute an additional $6,000 from his personal assets or income. The appellate court reasoned that it would be inequitable to give the mother a share of the $6,000 if this amount was not used for college, because the $6,000 was derived from the father’s separate assets. If, however, the court intended the $6,000 to be used first, thus placing a heavier financial burden on the husband because of his higher income level, then there would be no error in ordering this additional $6,000. The court of appeals remanded the case to the trial court to determine the trial court’s intention regarding the allocation of the $6,000.

The Kansas appellate courts have decided three other child support cases since 1980. In Dipman v. Dipman⁽⁶³⁾ the court of appeals held that the Kansas court had jurisdiction to hear a motion to reduce child support in a Georgia decree. The Kansas court had personal jurisdiction over all the parties, as well as parens patriae jurisdiction resulting from the “authority to enforce the common law parental duty of support of minor children.”⁽⁶⁴⁾ In applying the full faith and credit clause of the Constitution, the appellate court cited Georgia cases that recognized out‑of‑state modifications of Georgia child support orders if the modifying state had personal jurisdiction over the parties.

In Mossburg v. Coffman,⁽⁶⁵⁾ the court of appeals interpreted the application of the Uniform Reciprocal Enforcement of Support Act (URESA).⁽⁶⁶⁾ The Kansas court received a petition and certificate from the Utah trial court alleging Coffman owed $1,387 in child support. This sum had been provided to his ex‑wife by the state of Utah and she had assigned her rights to child support to Utah. The Kansas trial court precluded Coffman from presenting evidence on his behalf concerning this obligation and entered summary judgment against him for $1,387.

The court of appeals reversed. Apparently the Kansas trial court had misun­derstood the significance of the Utah petition and certificate, which consisted merely of allegations of the obligation, not findings on the merits. Thus, the court held that absent evidence of the obligation of support, either by the regis­tration of a foreign support decree or by testimony taken from the parties con­cerning the support obligation, no trial court may enter a judgment in a URESA case.

The most recent child support case concerned the assignment of rights to child support by a parent receiving aid to dependent children (ADC). In Grassi v. Grassi⁽⁶⁷⁾ the mother assigned her rights to any accrued, present, or future child support to the Secretary of Social and Rehabilitation Services (SRS) when she obtained ADC, pursuant to section 39‑709(c). Fifteen months later, in May of 1981, the mother discontinued the ADC benefits and the SRS assignment was no longer in effect. For approximately a year the mother did not receive ADC. However, in April of 1982, she resumed receiving ADC benefits and, as before, assigned her rights to any accrued, present, or future child support.

Because the father failed to pay any child support during the year Mrs. Grassi did not receive ADC, she filed a contempt proceeding against him one month before she resumed ADC payments. The contempt trial was held after Mrs. Grassi began receiving the ADC benefits a second time. The trial court held the arrearages in child support were to be paid directly to Mrs. Grassi and these payments “will not be subject to attachment, garnishment or assignment by SRS…”⁽⁶⁸⁾

However, SRS contended that when Mrs. Grassi signed the second assign­ment, the agency was entitled to the arrearages. The court of appeals agreed, relying on the language of the assignment statute. The statute provides that the recipient of ADC must assign to SRS “any accrued, present or future rights to support…”⁽⁶⁹⁾ Because the arrearages were “accrued” support payments as­signed to SRS in Mrs. Grassi’s second assignment, SRS was entitled to receive these payments.

H. Child Custody

1. Changcs in Custody

The first subsection⁽⁷⁰⁾ under the new child custody provision merely codifies case law cconcerning modification of child custody decrees. It states that the court may change child custody orders if a party demonstrates a change in circumstances and the court has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA).

Although ordinarily a showing of changed circumstances will be necessary to support a motion to change custody, the Kansas courts have recognized an ex­ception to this rule. In Hill v. Hill⁽⁷¹⁾ the supreme court held that a showing of changed circumstances is not required if the trial court entered the original de­cree in a default hearing and the facts concerning custody were not developed or presented to the court.⁽⁷²⁾ The Hill case involved a father who filed a motion to modify custody two months after he obtained a default divorce that incorporated an agreememt giving custody of the child to the mother. The father sought a change in custody becausc the mother was living with her paramour. The trial court granted the motion, but the court of appeals reversed, finding the father had known, or at least suspected, that the mother was living with her paramour at the time of the divorce. Thus, there had been no change in circumstances at the time the father sought to modify the original custody decree. Also, in apply­ing the doctrine of res judicata, the appeals court held the father was forbiden from introducing evidence about the mother’s living arrangement because he failed to do so at the time of the original decree.

The supreme court reversed the court of appeals.⁽⁷³⁾ In reaching its decision, the supreme court balanced the best interest of the child with the policy supporting res judicata, i.e., that litigation must end and that once parties have had the opportunity to litigate the issues, they are forbiden from raising the issues again. According to the court, child custody cases are never final until the child reaches majority; thus the policy supporting res judicata, in a strict sense, does not apply. Also, in default hearings, it is common that evidence concerning custody is never fully developed. The supreme court believed it was in the best interests of the child to limit res judicata in that situation, allowing the judge in his or her discretion to consider facts that occurred prior to the default decree, thus giving a more complete picture of the best custody arrangement for the child.⁽⁷⁴⁾ Consequently, the party seeking a change in custody would not be required to show that there was a change in circumstances since the original decree, but rather the court would make the custody determination solely based on the best interests of the child.⁽⁷⁵⁾

In Anhalt v. Fesler⁽⁷⁶⁾ the court of appeals applied the rationale of Hill to cases in which the original custody decree was based on the stipulation of the parties.⁽⁷⁷⁾ As in default cases, there is little or no evidence presented on the custody issue if the parties have agreed to a custody arrangement. Consequently, in a later con­tested motion to change custody, the best interests of the child weigh heavily in favor of the court considering facts that occurred prior to the original decree because the judge can make a better informed custody decision if all the evidence is before the court.

2. Examination of Parties

The second subsection in the child custody provision restates present law.⁽⁷⁸⁾ It incorporates the statutory discovery rules of Kansas Statutes Annotated section 60-235, which permits the physical and mental examination of the parties. The drafters included this provision provision because they wanted a clear application of the statute to custody cases.⁽⁷⁹⁾

3. Waiver of Privilege

The 1982 amendments contained a subsection that waived all physician-pa­tient, psychologist‑client privileges in child custody cases. However, the 1983 leg­islature repealed this provision because of the intense lobbying efforts by psychologists and psychiatrists.⁽⁸⁰⁾ Arguably, this legislative action does not change the status of the law. The purpose of this waiver provision in the 1982 amendments was to clarify that sections 60-427(d) and 74‑5323 apply to custody cases.⁽⁸¹⁾ The deletion of the clarifying language does not change the status of these statutes; they remain applicable in all civil actions including child custody cases.

4. Child Custody Criteria

The new provision on child custody criteria⁽⁸²⁾ sets out the well‑known standard for determining custody cases---the hest interests of the child. However, a 1983 amendment to the code created a presumption regarding this standard.⁽⁸³⁾ If the parties have a written custody agreement, there is a prcsumption that the agree­ment is in the child’s best interests. The drafters added this provision because they “believed that, generally, the parents are in a bettcr position than the dis­trict court to consider the best interests of the child when determining custodial arrangements.”⁽⁸⁴⁾ This provision encourages parents to reach an agreement on custody, because the court cannot reject the agreement unless the court makes specific findings that state that the child’s best interests would not be served by the agreement.

The new code also lists five factors the court is required to consider when ordering custody: 1) the length of time the child has been in the actual care and control of a nonparent; 2) the desires of the parties; 3) the desires of the child; 4) the interaction of the child with parents, siblings and others; and 5) the child’s adjustment to the home, school and community.⁽⁸⁵⁾ The drafters incorporated these factors to not only codify case law but also to serve as a guide for trial judges to prevent the use of personal bias or morals.⁽⁸⁶⁾

The last paragraph in the child custody criteria provision restates previous language that abolished the maternal preference doctrine, also known as the tender years doctrine.⁽⁸⁷⁾ The tender years doctrine also was considered in Grubbs v. Grubbs.⁽⁸⁸⁾ In that case the court of appeals stated that “maternal preference could be a ‘tie‑breaker’ in a custody case, all things being equal. (In essence, the state of Kansas law today as we perceive it).”⁽⁸⁹⁾ In making this statement the appellate court relied on the language of the 1976 statute and an article by Pro­fessor John Peck,⁽⁹⁰⁾ which reached the conclusion that the maternal preference was still a viable factor in determining child ctrstody cases.

The approval of the maternal preference in the Grubbs case should not be re­lied on as the present status of Kansas law for several reasons. First, Professor Peck based his article on the 1976 statute which said “neither parent shall be considered to have a vested interest in the custody of any such child as against the other parent, regardless of the age of the child.”⁽⁹¹⁾ According to Professor Peck’s analysis, this language was ineffective in abolishing the tender years doc­trine. However, he did note that legislation pending before the 1980 legislature would correct the vagueness of the statute⁽⁹²⁾ and would effectively abolish the maternal preference doctrine. This legislation passed, adding the following Ilanguage to the statute: “there shall be no presumption that it is in the best interest of an infant or young child to give custody to the mother.”⁽⁹³⁾

The maternal preference doctrine should not be relied on for a second reason. Professor Peck supported the maternal preference doctrine because, in many cases involving young children, the mother remained in the home.⁽⁹⁴⁾ Clearly, in this situation, “all things” are not equal because the mother would be present to care for the children if the court grants her custody. However, if both parents work, the rationale for the maternal preference is inapplicable.

There is a third reason why one should not rely on the Grubbs decision. Like Professor Peck’s article, the court of appeals appears to rely on the 1976 statute. In fact, the Grubbs opinion stated that legislation in Maryland, which was similar to the 1980 amendment, would abolish “any preference for the mother.”⁽⁹⁵⁾ Consequently, because the Kansas legislature has abolished the maternal preference, sex cannot be the tie‑breaker in custody cases. As the Grubbs court recognized “the trial court through its own resources should be able to garner sufficient information to make a custody choice without relying on sex‑based factors.”⁽⁹⁶⁾

One filial case examined the question of what factors are appropriate in child custody decisions. In Anhalt v. Fester⁽⁹⁷⁾ the trial court expressed great concern about the children not attending church after they moved to Florida with their mother.⁽⁹⁸⁾ Although the trial court’s order did not specifically list the reasons for changing custody, the court of appeals found “there is no indication that the trial judge considered anything beyond the matter of religious training for the chil­dren”⁽⁹⁹⁾ The appellate court remanded the case, instructing the trial court that although the judge may consider religion and church attendance, these factors “are not alone sufficient to determine the best interests of minor children.”⁽¹⁰⁰⁾

5. Types of Custodial Arrangements

The new code defines four types of custodial arrangements and lists the arrangements in order of preference.⁽¹⁰¹⁾ Joint custody is preferred, followed by sole custody, divided custody and nonparental custody. The statute provides, how­ever, that the court is not limited to these four arrangements.

a. Joint Custody

The new code defines joint custody as each parent having “equal rights to make decisions in the best interests of the child under their custody.”⁽¹⁰²⁾ This definition is referred to by legal writers as joint legal custody.⁽¹⁰³⁾ This means the parents continue to have equal rights in decisions concerning the child’s educa­tion, religion, medical treatment and other factors affecting the best interest of the child.⁽¹⁰⁴⁾ Joint legal custody should not be confused with joint physical cus­tody. Joint physical custody means the child also equally shares the residence of each parent. The new code addresses joint physical custody by stating that the court can award equal time between residences or designate a primary residence for the child. Based on this language, if the court grants joint custody, it is not required that the child spend equal time in each parent’s home; joint custody does not necessarily mean a shared residence for the child.

The new joint custody section gives the court the power to require a joint custody plan from the parents. Also, the parents, either individually or together, may submit a joint custody plan to the court. Finally, to insure the court applies the preference for joint custody, the statute provides that if the court does not award joint custody, the record must contain “specific findings of fact upon which the order for custody other than joint custody is based.”⁽¹⁰⁵⁾

b. Sole Custody

The provision concerning sole custody⁽¹⁰⁶⁾ merely codifies the definition of sole custody, i.e., the custodial parent has the right to make the decisions concerning the child, subject to the noncustodial parent’s visitation rights.

One of the decisions usually considered to be within the province of the custo­dial parent is determining the child’s domicile. However, recent cases have lim­ited this right because a change in domicile may adversely affect the noncustodial parent’s visitation rights.⁽¹⁰⁷⁾ In Carlson v. Carlson⁽¹⁰⁸⁾ the mother ap­pealed the trial court’s prohibition against her moving the children outside Mc­Pherson County, alleging a violation of her constitutional right to travel and denial of equal protection. The court of appeals found that there was a legiti­mate state interest in restricting the residence of a custodial parent if that restric­tion was in the best interests of the child. The court noted that the mother’s right to travel was limited only because she desired to be the custodial parent and she “may be required to forego or forfeit some rights to custody . . . consistent with the best interests and welfare of the children and the rights of the other parent.”⁽¹⁰⁹⁾

The mother also alleged a denial of equal protection because the father’s right to travel was not restricted. The court rejected this contention for two reasons. First, the court found that there was no dissimilar trreatment between the parents because the overriding standard, best interests of the child, applied to both parents. The trial court was not favoring one party over the other party, but making a determination that it was in the children’s best interests to remain in McPherson County. Also the appellate court said that although the father’s right to travel had not been restricted, it was unnecessary to do so because the he did not have custody, nor did he express any intention to remove the children from McPherson County even if he were granted custody.⁽¹¹⁰⁾

c. Divided Custody

The code dcfines divided custody as dividing “the custody of two or more ­children between the parrents.”⁽¹¹¹⁾ An example of divided custody is the court granting sole custody of one child to the mother and sole custody of another child to the father, thereby dividing the siblings between the parents. The statute au­thorizes this arrangement in only exceptional cases⁽¹¹²⁾ because the drafters be­lieved dividing siblings is not in the children’s best interest.⁽¹¹³⁾

d. Nonparental Custody

i. Statutory Changes

The new code provision on nonparental custody⁽¹¹⁴⁾ has substantially changed the power of the divorce court to award custody of children to nonpatents. Under the new statute the divorce court cannot place children with notrparents on a permant basis. The new procedure provides for only temporary placement of children with nonparents if the court finds thcre is probable cause to believe the parents are unfit or the child is “a child in need of care” pursuant to the new juvenile code. After the court grants the temporary custody, the divorce court must forward the tratrscript of the divorce proceedings to the county or district attorney, who files a petition in juvenile court for a determination of whether the child is in need of care under the juvenile code.

The reason for this new procedure is to establish uniformity in judicial determinations of unfitness and to protect the due process rights of the parents.⁽¹¹⁵⁾ Under the old code, the divorce court could determine not only if the parents were unfit and place the child with nonparents, but the divorce court could also sever parental rights.⁽¹¹⁶⁾ The drafters of the new code believed the juvenile court, not the divorce court, was a more appropriate forum to determine unfitness because the juvenile court was specifically designed for that purpose.⁽¹¹⁷⁾ The juvenile court has personal available to evaluate the parents and determine the needs of the child and the juvenile court is familiar with programs for treatment and care of the child and the parents. Also, the protection of the parents’ rights is more comprehensivc in the juvenile code. When the case is filed in juvenile court, the parents are given proper notice of the intentions of the state to place the child outside the home and the parents have an opportunity to obtain counsel to defend against the action.⁽¹¹⁸⁾ Unlike the divorce court, the juvenile court also must attempt to reunite the parents and children and provide services di­rected toward that goal.⁽¹¹⁹⁾ Therefore, the juvenile court is a more appropriate court to determine alternatives to nonparental placement. If, however, the juvenile court does not find the patents unfit, then the case is referred back to the divorce court for a determination on custody as between the two parents.

ii. Court Decision

The parents’ right to custody of their children, as against a third party seeking custody, was given constitutional protection in Sheppard v. Sheppard.⁽¹²⁰⁾ This case involved a 1980 statute.⁽¹²¹⁾ This statute permitted the court to award custody to a nonparent, without a finding of unfitness, if the custodial parent had volunta­rily placed the child with the nonparent more than six months and the order was in the best interests of the child. Mrs. Sheppard had placed her son with her parents, who had cared for the boy for three years before they filed for custody. The trial court determined that Mrs. Sheppard was a fit parent but, pursuant to the new statute, the court awarded custody to the grandparents based on the best interests of the child.

The Kansas Supreme Court reversed the custody award, finding the 1980 statute violated the due process rights of the parent. The court interpreted the United States Supreme Court cases of Stanley v. Illinois⁽¹²²⁾ and Quilloin v. Walcott,⁽¹²³⁾ stating that parents have a fundamental right, protected by the fourteenth amendment, to the custody of their children. Consequently, the state can overcome this fundamental right only by showing unfitness. In reaching its deci­sion, the court ruled as follows:

What we hold here is simply this: that a parent who is not found to be unfit, has a fundamental right, protected by the Due Process Clause of the United States Constitution, to the care, custody and control of his or her child, and that the right… cannot be taken away in favor of a third person, absent a finding of unfitness on the part of the parent.⁽¹²⁴⁾

The Kansas Supreme Court is correct in stating that the Stanley and Quilloin cases consider the right to raise a child an “essential" right; however, the Kansas court goes beyond these opinions when it holds that the fourteenth amendment requires a finding of unfitness before a child can be placed with a nonparent. Although the Court in the Stanley case required a fitness hearing before the children could be taken from their father’s custody, the Court imposed this requirement in the context of juvenile court proceeding based on neglect.⁽¹²⁵⁾ Clearly, a juvenile case, brought on behalf of the state, is a materially differentprocedure than a motion to modify a custody decree based on the moving party having actual physical custody.⁽¹²⁶⁾ In fact, many states do not require a finding of unfit­ness to place a child with a nonparent if the custody decision is not a juvenile court matter.⁽¹²⁷⁾ However, because of the new Kansas statutory amendments, there is no longer any distinction between juvenile court proceedings to remove the child from the home and a custody proceeding in which a nonparent is seek­ing custody. Now both cases must be handled pursuant to the standards of the juvenile court.

6. Decisions Under the Uniform Child Custody Jurisdiction Act

There are five cases interpreting and applying the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA),⁽¹²⁸⁾ which the state legislature enacted in 1979. In Johnson v. Melback,⁽¹²⁹⁾ although the UCCJA was not enacted at the time of the trial court decision, the court of appeals used the Act as a guide in deciding the case. This custody dispute involved a natural father, Johnson, and his sister and her husband, the Melbacks. At the time of the Kansas custody proceeding, the Melbacks had legal custody of Johnson’s two boys in California. They originally ohtained custody when Johnson gave them the children in April of 1976, several months after his wife lapsed into a coma as a result of a head injury. Early in 1977, Johnson moved from Texas to Kansas and he attempted to regain custody by filing a habeas corpus action in California. In response, the Melbacks filed a guardianship proceeding. The California court awarded the Melbacks the custody of the children and Johnson was given visitation rights for one month in the summer of 1978. When the children visited their father in July of 1978, he filed a motion in Kansas to change custody. The Melbacks chal­lenged the jurisdiction of the Kansas court but the trial court ruled against them, granting custody to Johnson.

The court of appeals, reversed, finding the trial court abused its discretion in exercising jurisdiction.⁽¹³⁰⁾ The appeals court relied on prior cases⁽¹³¹⁾ that held that the court should not cxercise jurisdiction, absent unusual circumstances, if the child is in Kansas on a temporary visit. “To hold otherwise would create chaos in child custody proceedings, discourage the granting of visitation privi­leges to nonresidents, aggravate relationships between [the parties], and, most importantly, would adversely affect the children involved.”⁽¹³²⁾ The appellate court also looked to the UCCJA, which stated that unless there is an emergency or the child is abandoned, the mere presence of the child is not sufficient to confer jurisdiction on the Kansas court.⁽¹³³⁾ Further, if a court in one state is exercis­ing jurisdiction, then all other states should decline to hear the custody case.⁽¹³⁴⁾ Consequently, because the children were under a California guardianship order, it was improper for the Kansas court to exercise jurisdiction in this case.

The Larsen v. Larsen case⁽¹³⁵⁾ involved a mother filing a motion to change cus­tody while the children, who lived in Minnesota, were visiting her in Kansas for the summmer. Unlike the Johnson case, the court of appeals found the Kansas trial court acted properly to exercising jurisdiction to change custody. Several factors distinguish the Larsen case, however. One important distinction was that Kansas was the marital domicile of the parties and custody was originally ordered by the Kansas court. Also, the mother had filed two prior motions in Kansas to change custody, so the Kansas court was well acquainted with the facts of the case and had acquired substantial evidence concerning the best interests of the children.

Because of these factors, Kansas had jurisdiction to hear the motion to change custody under Kansas Statutes Annotated section 38‑1303. The provision lists several situations that establish jurisdiction under the UCCJA. The first subsec­tion⁽¹³⁶⁾ of the statute states that a Kansas court court exercise jurisdiction in a custody case if Kansas is the home state of the child, i.e., the place the child has resided for at lesat six months prior to the custody hearing.⁽¹³⁷⁾ In the Larsen case, this provision did not apply because the children had been living in Minnesota for four years. Howevcr, the second part of that section states that Kansas courts can exercise jurisdiction in a custody case if the child and at least one of the parties has “a significant connection with th[e] state and there is available in this state substantial evidence concerning the child’s present or future care, protec­tion, training and personal relationships.”⁽¹³⁸⁾ The court relied on this portion of the statute to exercise jurisdiction. Kansas had significant connections and substantial evidence concerning the children because the children had originally re­sided in Kansas, the mother continued to reside in Kansas and all prior custody decisions were handled in Kansas.

The father argued that even though Kansas had jurisdiction the Kansas court should decline to exercise jurisdiction under the inconvenient forum provision⁽¹³⁹⁾ of the statute. In answering this argument, the appellate court noted the UCCJA had a preference⁽¹⁴⁰⁾ for the state that made the original decree--‑in this case, Kansas. Also, although it appeared Minnesota had more connections with the children thus making Minnesota the more convenient forum, the court of appeals could not find the trial court abused its discretion by deciding to hear the mo­tion. In reaching this conclusion, the opinion cited the purpose section of the UCCJA,⁽¹⁴¹⁾ which stated that the UCCJA was enacted to prevent jurisdiction competition and forum shopping. Because those factors were not present in the Larsen case, the Kansas court acted properly in exercising jurisdiction.

The Bills v. Murdock case⁽¹⁴²⁾ also involved the issue of whether Kansas had significant connections and substantial evidence to obtain jurisdiction to hear a custody case. In the Bills case the mother and father were divorced in Wyoming and the mother was granted custody. After the divorce the father moved to Maryland and then to Topeka. The mother and child also left Wyoming and at the time of the custody motion, they had been living in Texas for three years. While the child was visiting the father in the summer of 1981, the father filed a motion to change custody and refused to send the child back to Texas. The mother responded by filing a habeas corpus action and the court consolidated both cases. At a hearing on August 31^st, the trial judge gave full faith and credit to the Wyoming decree and returned the child to the mother. However, the court also ordered a custody hearing, based on the father’s claim of changed circumstances, for September 22nd.

At the custody hearing the court found that Wyoming no longer had jurisdiction over the custody issue. The court reached this conclusion because Wyoming was no longer the home state and did not continue to have significant connections of substantial evidence concerning the custody of the child. Although Texas had become the home state of the child, the trial court declared Kansas also had jurisdiction because the child had significant connections with the state of Kansas. The court reached this conclusion based on the evidence that the father resided in Kansas, the child visited Kansas for several weeks in the summer and the child was present in the state when the custody motion was filed. After ­the trial court determined it had jurisdiction to hear the custody matter, the judge heard evidence on the merits of the case and ultimately awarded custody to the father.

The Kansas Supreme Court reversed the trial court decision that Kansas had jurisdiction to handle the custody dispute.⁽¹⁴³⁾ In interpreting the “significant connections” provisions of the statute, the supreme court noted that other provi­sions of the UCCJA state that the presence of the child and a parent within a state is not sufficient, in itself, to establish jurisdiction.⁽¹⁴⁴⁾ The court also stated that if it upheld the finding of significant connections by the trial court, any Kansas resident could file a motion to modify an out‑of‑state custody decree any time the child was in Kansas for visitation.⁽¹⁴⁵⁾ This result would contravene the purposes of the Act to prevent proliferation of custody cases and to keep custody cases in the state with the closest connections to the child. The court also cited the clean hands section of the Act,⁽¹⁴⁶⁾ which states that courts should not exercise jurisdiction if a parent is improperly retaining the child after a visit. Based on these provisions, the court found that Texas was a more appropriate forum to hear, the custody dispute because it was the home state and the father acted im­properly in his attempts to change custody.⁽¹⁴⁷⁾

In Guye v. Guye,⁽¹⁴⁸⁾ the parties obtained a court ordered legal separation in Illinois which gave the mother custody of the child. The Mother then moved to Kansas and ten months later filed for a divorce. In the divorce action the court granted the mother custody, but the terms of the Kansas decree differed from the Illinois custody decree. The father appealed, arguing that the Kansas court did not apply the UCCJA properly because 1) the Illinois judgment was not recog­nized and enforced; 2) the court did not obtain records of the Illinois proceeding; and 3) the mother violated the clean hands provision because she did not comply with the visitation provisions of the Illinois decree. The court of appeals dis­agreed, however, and found that the trial court did not err in modifying the Illinois custody decree.

In answering the father’s first contention the appellate court stated that it was unnecessary for the trial court to enforce the Illinois judgment because the father did not request enforcement of the Illinois decree prior to the hearing on the modification. Also, the Kansas court had jurisdiction to modify the decree be­cause it was the home state. The court of appeals agreed with the father’s second argument that the trial court should have requested the record of the Illinois custody proceedings.⁽¹⁴⁹⁾ Nevertheless, the court of appeals found that this failure may have been justified since the Illinois custody decree was based on an agree­ment by the parties and the trial court assumed no record existed.

Finally, the court stated that the trial court, in its discretion, could exercise jurisdiction under the UCCJA even though the mother was violating a prior custody order. The trial court did not abuse its discretion because the mother refused visitation only after the father threatened to abduct the child. Based on all these factors, the court of appeals found the Kansas court acted properly in modifying the lllinois decree.

Kaiser v. McClendon⁽¹⁵⁰⁾ is the last case involving the UCCJA. In this case a California court divorced the parties and granted custody to the mother. According to the custody ordcr, the mother could not move the children outside California without prior court authorization. The mother remarried and moved to Kansas with the children but without obtaining the court's approval. The father filed a motion to show cause in California, requesting custody. At the time of the hearing, the mother’s attorney sought a continuance because one of the children was ill and required the mother’s care. The trial court denied the continuance and ordered “the temporary care, custody and control”⁽¹⁵¹⁾ of the chil­dren to the father.

The father then filed an action in Kansas requesting enforcement of the Cali­fornia order. The Kansas trial court refused to enforce the California order, holding that the modification decree was merely a temporary order and UCCJA does not specifically cover temporary orders. Although the court of ap­peals found the UCCJA did apply to temporary orders, the appellate court detcr­mined that the order should not be enforced if the enforcement would cause serious harm the child. Because one of the children was ill at the time of the California decree, the court of appeals decided enforcement of the decree would seriously harm the child and thus, refused to enforce the California court order.

The Kansas Supreme Court reversed the court of appeals.⁽¹⁵²⁾ The court found no evidence before the trial court indicating that the child would be seriously harmed if the Kansas courts enforced the California order. The supreme court also found that the California order was enfolceable under the UCCJA even if it was merely a temporary order. The supreme court noted that the UCCJA ap­plied to all initial custody decrees and all subsequent modifications. Therefore, because the California decree was, in essence, a modification of an initial order, it was enforceable under the UCCJA even though it awarded temporary custody.

I. Division of Property

1. Statutory Changes

The 1982 amendments to the divorce code added a list of factors the court must consider in dividing marital property. These factors include the following: the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of mainte­nance; dissipation of assets; and any other factors the court considers necessary to make a just and reasonable division of property.⁽¹⁵³⁾ The statute does not signifi­cantly change the law of property division because courts have applied these factors through case law.⁽¹⁵⁴⁾ However, unlike the case law, fault is not specifically listed as a relevant factor in dividing marital property. Although the original proposal of the 1982 amendments specifically stated that fault was not a consideration in property division,⁽¹⁵⁵⁾ the members of the House of Representatives be­lievcd that serious spousal abuse should be considered in dividing the property.⁽¹⁵⁶⁾ Consequently, fault may be considered in dividing the property as a factor “the court considers necessary to make a just and reasonable division of property”⁽¹⁵⁷⁾ in cases of severe spousal abuse.

2. Court Decisions

There have been several important cases involving questions of property divi­sion. In Gronquist v. Gronquist⁽¹⁵⁸⁾ the trial court awarded the wife one‑third of the husband’s military retirement pay. The court of appeals reversed, based on the United States Supreme Court case of McCarty v. McCarty.⁽¹⁵⁹⁾ In McCarty the Court held that the military retirement pay was intended as a personal entitle­ment and state law could not interfere with this federal purpose by awarding part of the pay to someone other than the retired person. As a result, the trial court erred in Gronquist when it awarded part of the retirement pay to someone other than the intended beneficiary. However, the court of appeals also stated that the retirement pay could be considered either as income for the purposes of awarding maintenance or as unalienable property “the value of which may bc considered in dividing the…property.”⁽¹⁶⁰⁾ Consequently, the trial court can consider the retirement pay as an asset in dividing the property, but it cannot award the pay directly to the nonrecipient spouse.

In Powell v. Powell⁽¹⁶¹⁾ the wife contended that the good will in her husband’s medical practice should have been valued and taken into consideration in divid­ing the marital property. The Kansas Supreme Court recognized that, generally, good will is considered a form of property that has ascertainable value. How­ever, the Court found that professioal practices were an exception to this gen­eral role.

The practice is personal to the practitioner. When he or she dies or retires nothing remains. The professional's files and lists of clients are of no use to others. The very nature of a professional practice is that it is totally dependent upon the professional. We refuse to adopt the theory that good will in a professional practice is an asset subject to division in a divorce action.⁽¹⁶²⁾

The Smith v. Smith case⁽¹⁶³⁾ involved two allegations of error. First, the wife contended that the trial court should have granted her a new trial based on newly discovered evidence. This evidence was the sale of the husband’s interest in a company for $202,200 more than the value listed in his exhibits. The husband argued that the wife could have discovered this evidence because he had answered interrogatories stating the company was on the market for $250,000. The court of appeals disagreed because the husband had a duty to supplement his interrogatories.⁽¹⁶⁴⁾ At the time of the trial, the husband was closing the sale of the company. Consequently, he had a duty to supplement the answers to the interrogatories because his initial information was no longer accurate. Because he failed to inform the wife or the court of his intended sale of the property, the court of appeals found the husband knowingly concealed the information, resulting in grounds for a new trial.

The second error the wife alleged in the Smith case involved the method the trial court used to divide the property The trial court only divided the net increase of the parties’ assets during the marriage. The court of appeals found the trial court abused its discretion because it did not consider all of the property of the marriage. The appellate court remanded the case to permit the trial court to consider “all property owned by the parties, whether owned by either spouse in his or her own right after marriage or acquired by their joint efforts.”⁽¹⁶⁵⁾

In Bohl v. Bohl⁽¹⁶⁶⁾ the husband contended that the trial court erred by relying on accounting textbooks aml law review articles in order to place a value on the husband’s interest in a construction company. The husband said this was all abuse of discretion because the court relied on evidence outside the record. The Kansas Supreme Court disagreed. In examining the opinion of the trial court, the supreme court found that the trial court only used the outside material to validate the valuation methods of the expert witnesses. Based on the information from the outside material, the trial court decided the valuation techniques of one expert, Mr. Rice, were more accurate in determining the value of the company. Consequently, the court employed Mr. Rice’s methodology to value the company. Because the trial judge employed a valuation method presented at trial, he did not abuse his discretion in relying on outside sources to decide that one particular valuation method was more reliable than other methods introduced at trial.

Mr. Bohl also claimed the trial court erred by not considering the tax consequences of the judgment. According to the husband, he would have to liquidate his interest in the company in order to satisfy his wife’s share of the property division.⁽¹⁶⁷⁾ The supreme court agreed that Mr. Bohl should not be required to sell his interests to satisfy the judgment. Although the Court felt the amount of the judgment in favor of the wife was appropriate, the court remanded the case to the trial court “for the limited purpose of receiving evidence and making findings on alternative methods of payment giving consideration to tax consequences, interest on the security for the unpaid balance.”⁽¹⁶⁸⁾

J. Maintenance

1. Statutory Changes

The 1982 amendments⁽¹⁶⁹⁾ changed the term “alimony” to “maintenance.”⁽¹⁷⁰⁾ Also, the new provision limits the length of time a court can award maintenance at any one time to 121 months.⁽¹⁷¹⁾ The court may reinstate maintenance payments only if it reserved that power in its original decree and the recipient files a motion for reinstatement prior to the expiration of the maintenance period.

The drafters restricted maintenance awards to 121 months because they believed a person should not be dependent on a former spouse once the marriage has ended.⁽¹⁷²⁾ Thus, the purpose of maintenance is to rehabilitate person so they can begin independent living.⁽¹⁷³⁾ One hundred twenty‑one months was selected as cut off time for maintenance⁽¹⁷⁴⁾ because maintenance paid periodically for more than ten years is presumed to be alimony by the Internal Revenue Code and is deductible by the payer and is income to the payee.⁽¹⁷⁵⁾

2. Court Decision

In Beard v. Beard⁽¹⁷⁶⁾ the parties were divorced in 1972. In the property settle­ment agreement the parties agreed that the wife should receive alimony based on a percentage of the husband’s adjusted gross income. Four years later, Congress amended the Internal Revenue Code to allow taxpayers to deduct alimony pay­ments from their adjusted gross income. Pursuant to this amendment, the husband deducted the alimony he paid in 1977, thereby reducing his adjusted gross income. Because of his deduction, the wife received less alimony because the husband’s adjusted gross income was substantially less. The wife filed an action, alleging the term “adjusted gross income” should be defined according to the 1977 Internal Revenue Code because the parties relied on that definition at the time of the divorce. The court of appeals disagreed. The language of the agree­ment stated that the husband’s alimony obligation was “based upon the previous year’s Federal income tax return.”⁽¹⁷⁷⁾ Thus, the husband had complied with the terms of the agreement by paying the percentage of his adjusted gross income based on his 1977 tax return.⁽¹⁷⁸⁾

The alimony issue in the Bohl v. Bohl⁽¹⁷⁹⁾ case was whether the court could order support retroactively. The trial court issued its original order stating that, in dividing the property, it had taken into consideration that the husband had continued to send his salarly check to the wife every month since the filing of the divorce. Based on this information, the court awarded her these payments. However, the wife filed a motion to amend the judgment because the husband had not forwarded his paycheck for several months prior to the decision of the court. The trial court amended the original court order, granting the wife a monthly alimony for those months the husband did not send support.

The husband appealed, alleging the trial court abused its discretion by retroactively ordering support. However, the Kansas Supreme Court found no abuse of discretion, stating that a monthly “award for temporary support also falls within the sound discretion of the trial court.”⁽¹⁸⁰⁾

K. Separation Agreements

There are no statutory changes in the separation agreement section of the divorce code. However, there are several cases that involved the interpretation of separation agreements. The question in In re Loughmiller⁽¹⁸¹⁾ was whether a prop­erty settlement agreement entered into in contemplation of divorce was enforcea­ble if one of the parties dies before the divorce is final. The Loughmillers signed a property settlement agreement in January of 1979. In March, the husband executed a will that did not mention the wife. One month later the husband filed for divorce, however, the husband died before the divorce was granted. When the husband’s will was admitted to probate, the wife filed an election as the surviving widow, claiming one‑half of the husband’s estate by intestate succession. The probate court granted the wife’s requested election because the property settlement agreement did not comply with the statutory requirements for a consent to a will. Also, the probate court found that the contract was not a valid post‑nuptial agreement because it was entered into in contemplation of a divorce, which never occurred. As a result, the divorce court did not have an opportunity to approve the agreement as fair, just and equitable.

The supreme court reversed the finding that the agreement was not a valid contract. The court said that post‑nuptial contracts are valid in Kansas if they are fair and understandable even though no divorce is contemplated by the par­ties. The court also cited an earlier Kansas case⁽¹⁸²⁾ holding that once the contract is executed and each party has received the benefits under the contract, the courts should not set it aside. Because the Loughmillers had complied with the terms of the contract and Mrs. Laughmiller had received the property and other benefits under the contract, she was now estopped from challenging the con­tract.⁽¹⁸³⁾ The supreme court upheld the agreernent and, because the parties agreed to waive all rights to the estate of the other, the wife had no legal claim to the husband’s estate.

In Libel v. Libel⁽¹⁸⁴⁾ the husband alleged that an agreement to extend alimony payments for two more years was obtained by duress and thus, invalid. The husband claimed that he signed the agreement because his wife threatened to withhold visitation with the children. However, the court of appeals rejected any finding of duress for several reasons. First, the parties had been involved in two prior hearings concerning visitation. Therefore, the husband knew he could seek court enforcement of visitation if the wife refused visitation with the children. Also, there was a legitimate reason for the extension of the alimony. The wife had two years of college education and she wanted to resume her studies to be­come a school techer. The parties agreed to two years of alimony so the wife could return to school for her degree. But because the wife did not receive credit for some of her prior coursework, she had to take more classes than anticipated. The purpose of the subsequent alimony agreement was to pay for books and tuition for the remainder of the wife’s education. Consequently, the new agree­ment was merely effectuating the original intent of the parties. The final reason the appellate court upheld the validity of the agreement was because the parties had consulted an attorney in drafting the agreement.⁽¹⁸⁵⁾

The Cook v. Cook⁽¹⁸⁶⁾ case also involved an allegation of duress in the signing of a property settlement agrecment. The Cooks had a substantial amount of property that had not been specifically valued prior to the trial. Because the parties could not reach an agreement on how the property should be divided, the trial court appointed an appraiser to assist the court in dividing the property. However, the day before the appraisal, the parties, with the assistance of a third attorney, the negotiated a property settlement. Although the parties’ attorneys acquiesced in the meeting with the third attorney, the wife’s attorney told her that the resulting agreement was unfair to her. At the divorce hearing the next day, the trial court asked the wife if she agreed with the tertns of the property settlement. The wife      claimed she had many reservations about the agreement but she wanted to get the matter resolved because her mother was ill and her children were pressuring her to have the divorce finalized. Based on this testimony the trial court approved the agrecment. The wife then moved for a new trial, alleging duress in the signing of the agreement. The court denied the motion ffor a new trial.

The court of appeals reversed the trial court, finding the agreement was not fair, just and equitable. Although there was no finding of duress, the court of appeals believed the trial court should have refused to approve the agreement because of the repeated reservations of the wife, the pressure from her family and the lack of knowledge by the court of the value of the property. The supreme court disagreed, however, and reinstated the trial couirt’s ruling.⁽¹⁸⁷⁾ Absent a finding of duress, the supreme court ruled the agreement was valid. The supreme court also found that the trial court asked the wife several times if she wanted the court to approve the agreement and, although she equivocated, she finally asked the court to approve the agreement. Consequently, the supreme court could not find that the trial court abused its discretion in approving the agreememt.⁽¹⁸⁸⁾

The last case involving property settlement agreements is Miller v. Miller.⁽¹⁸⁹⁾ In this case the attorneys for the parties and the trial judgc met in chambers prior to the trial. When they returned to the courtroom, the judge announced that the attorneys agreed on property settlement. However, the court failed to ask the parties if they also approved of the property settlement. In addition, no evidence concerning the property’s value was presented during the trial. The trial court instructed the husband’s attorney to draft the journal entry according to the agreement reached in chambers. The trial judge approved this journal entry even though the wife’s attorney never signed it. Fourteen days later the husband requested a modification of the property settlement, which the trial court approved.

The court of appeals reversed on several grounds.⁽¹⁹⁰⁾ First, the court ruled that the attorneys had no authority to settle the property dispute without their clients’ approval. Also, the trial court cited because neither attorney presented evidence at the trial that supported the property division. Finally, the appellate court held that the trial court was without authority to modify the property division because property divisions are final judgments. The court stated that the only permissible method to alter a judgment is by filing the motion to modify the judgment wihtin ten days of trial.⁽¹⁹¹⁾ Because the husband filed his motion four days late, the trial court could not hear the motion to modify the property settle­ment.⁽¹⁹²⁾ The appellate court remanded the case for a new trial to determine property division and alimony.

L. Costs and Fees

1. Statutory Changes

The 1982 legislature amended this section⁽¹⁹³⁾ to allow the court to order attor­ney fees to be paid directly to the attorneys. Also, the statute provides that an attorney can enforce the order to pay attorney fees by suing in his or her name, under original actiont. This amendment allows attorneys to sue for attorney fees on their own behalf without involving their clients in the lawsuit.

2. Court Decisions

In Olsen v. Olsen⁽¹⁹⁴⁾ the wife made a motion in the trial court requesting that the husband pay her for attorney fees that were incurred because of the hus­band’s various appeals concerning the divorce. The wife claimed the appeals were frivolous and unreasonable. The trial court denied the motion, holding that it did not have jurisdiction to award attorney fees for an appeal. The wife ap­pealed this determination, arguing that although the appellate court has jurisdic­tion to determine the award of attorney fees in an appeal, this was not the exclusive procedure for awarding attorney fees. Consequently, she claimed that the district court also has jurisdiction to determine this issue.

The court of appeals rejected the wife's argument, finding her suggested proce­dure unpratical and inefficient because the trial court could not adequately determine whether the appeal was frivilous; the appellate court was in the best position to make that decision.⁽¹⁹⁵⁾ Also, the court of appeals noted that “the proc­esure suggested by [the wife] would put the trial court in the tenuous position of deciding whether an appeal from one of its own decisions was meritless or frivo­lolls.”⁽¹⁹⁶⁾ Consequently, the trial court does not and should not have the authoritive to award attorney fees for an appeal.

In Bohl v. Bohl⁽¹⁹⁷⁾ the supreme court reversed air award of attorney fees to the wife. This result is surprising, considering the great latitude the appellate courts have traditionally given trial judges in awarding attorney fees. According to Dunn v. Dunn⁽¹⁹⁸⁾ the trial court is considered an expert in determining attorney fees and the award will not be reversed if it is supported by substantial competent evidence. In Bohl, though, the supreme court did not review the record to see if evidence supported the award, but instead held that “[i]n view of the trial court’s stated goal to makc an equal division of property, we find the parties should share the court and discovery costs equally and each party should pay his of her witnesses and attorneys.”⁽¹⁹⁹⁾ This reasoning appears to be a shift from the previous cases that have “rejected the argument hat when the other party is able to pay, [he or she] should pay at least a portion of the fees.”⁽²⁰⁰⁾

The result of the Bohl case is even more anomalous when compared to the Powell⁽²⁰¹⁾ and Cook⁽²⁰²⁾ cases. In both these cases, the husband appealed an order to pay the wife’s attorney fees. Although the wife had received substantial prop­erty⁽²⁰³⁾ in these cases and the trial court had made an equitable division to the property, the supreme court upheld the award of attorney fees, deferring to the trial court's discretion in ordering attorney fees.

In Davis v. Davis⁽²⁰⁴⁾ the trial judge assessed court costs against the petitioner when the court granted a default divorce. The petitioner alleged this was error because she had filed her petition with an affidavit of poverty, pursuant to Kan­sas Statutes Annotated section 60‑2001(b)(1). This statute provides that “[in] any case where a plaintiff by reason of poverty is unable to pay a docket fee and an affidavit so stating is filed, … no fee will be required.”⁽²⁰⁵⁾ The court of appeals interpreted the rationale of the statute as allowing all persons access to the courts, regardless of financial ability. However, the appellate cuort found that the statute “is neither a waiver nor a forgiveness of the liability for the fee.”⁽²⁰⁶⁾ Consequently, if the court taxes a party with the docket fee at the end of the trial, the court is not interfering with the party's access to the court.⁽²⁰⁷⁾

M. Miscellaneous Matters Under Kansas Statutes Annotated Section 60-1610

1. Restoration of Name⁽²⁰⁸⁾

In May v. May⁽²⁰⁹⁾ the wife requested that she be restorcd her birthname in her petition for divorce, pursuant to section 60‑1610(c)(1). The trial court denied the request, findilig that it would not be in the best interests of the child for the mother to have a last name different than the child. The court of appeals reversed the trial court, finding that the intent of the legislature was to give the right to the wife to have her name restored upon request and the trial court had no discretion to deny that request.⁽²¹⁰⁾

2. Effective Date Permitting Remarriage

The legislature amended this section⁽²¹¹⁾ by deleting the language that prohibited remarriage “until 30 days after the entry of the decree, and if an appeal is taken, until the receipt of the mandate issued in accordance with subsection (c) of section 60‑2106.”⁽²¹²⁾ The purpose of this prior language was to prevent remarriage during the time for appeal from the judgment, i.e., thirty days, or if an appeal is taken, to prevent remarriage before the appeal had ended in a final judgment. Also, under the former code, if persons married during this time period, the marriage was considered void.⁽²¹³⁾ The drafters amended this section by stating that “[any] marriage contracted by a party, within or outside this state, with any other person before a judgment of divorce becomes final shall be voidable until the decree of divorce becomes final.”⁽²¹⁴⁾

The new language makes two important changes. First, the new statute does not mention that marriages contracted during the thirty days after the entry of the decree are prohibited nor does it refer to section 60‑2106. Instead, the statute refers to marriages contracted “before a judgment for divorce becomes final.”⁽²¹⁵⁾ This new language, however, in effect incorporates both the thirty‑day prohibition (i.e., the time period for an appeal), and the reference to section 60‑2106, because a divorce decree is not final until the time for appeal has expired, or until there is a mandate issued pursuant to section 60‑2106.

The second change in this section provides that any marriages contracted before final judgment are voidable rather than void. The drafters changed this language because void marriages can be challenged by anyone, at any time.⁽²¹⁶⁾ Thus, under prior law, if a party married another person before the judgment became final, the new marriage never would be valid, even though no appeal was taken and the judgment eventually became final. However, the new language classifies the subsequent marriage as voidable only during the time period before the judgment becomes final. After that time, the marriage becomes valid and cannot be challenged.

N. Effect of a Decree in Another State

In Johnson v. Johnson⁽²¹⁸⁾ the supreme court applied section 60‑1611 to determine whether a Texas divorce decree should be given full faith and credit. The Texas divorce proceedings were initiated by the husband two days after the wife filed for divorce in Kansas. The wife responded to the Texas procedding by filing an answer objecting to the personal jurisdiction of the Texas court. Whey the wife filed a subsequent motion requesting attorney fees, she not follow the special appearance statute in Texas to avoid personal jurisdiction. Consequently, the Texas court obtained personal jurisdiction over the wife. The Texas court proceeded with the divorce, granting custody to the mother, awarding $200 in child support and dividing the property. The wife requested a new trial on all the issues except the divorce itself. The Texas court granted a new trial, setting aside its original order. The wife, however, never appeared on the date set for the new trial and the Texas court dismissed the motion to a new trial and ordered “the judgment heretofore entered is hereby reaffirmed.”⁽²¹⁹⁾

Several months later, the Kansas divorce case came to trial. It appeared from the record that the Kansas trial court did not know that the original Texas judgment had been reinstated, but rather the Kansas judge believed the last action by the Texas court was the order setting aside the original judgment. Consequently, the Kansas court divided the property, granted custody to the wife and ordered $400 per month as child support. The husband filed a motion requesting the Kansas court to set aside the Kansas judgment.

In deciding the Kansas judgment should be set aside the supreme court relied on section 60‑1611.⁽²²⁰⁾ The statute allows the Kansas court to determine matters relating to maintenance, property division, child custody and support within two years after a divorce is granted in another state if the defendant in the out‑of-state action was a resident of Kansas and did not personally appear or defend the action. However, if the defendant did personally appeal, then the Kansas court must give full faith and credit to the out‑of‑state judgment. Because the wife in Johnson personally appeared in the Texas case and there was a valid Texas decree in effect at the time the Kansas court issued its decree, the Kansas decree violated the principles of full faith and credit and the supreme court accordingly set aside the decree.

0. Self-Help

This new section, section 60‑1612, codifies case law by pioviding that parties cannot use self‑help, such as withholding visitation of support payments, if the other party violates a provision in the court order. Yhe proper procedure under this statute is bringing the violation before the court for resolution.

P. Assignments

Under this provision,⁽²²¹⁾ the Court can order the party obligated to pay support or maintenance to execute all assignment of wages or trust income. The obligor's employer is bound by the assignment two weeks after being served with the as­signinent and the employer must withhold the income, paying it to the district court trustee or the person specified in the court order. To reimburse the employer for the cost of the assignment, the employer may deduct two dollors from the employee’s paycheck.⁽²²²⁾ Also, an employer cannot use the assignment as grounds for discipline or discharge of an employee.

The legislature added this new provision in the divorce code because a sub­stantial number of persons were defying court orders to pay support or maintenance.⁽²²³⁾ By using the assignment provision, the court can guarantee payment of support of maintenance in those situations in which the obligor is employed or receives trust income.⁽²²⁴⁾

Q. Interview with the Child

The court may interview children in chambers for the purpose of determining custody and visitation pursuant to section 60‑1614.⁽²²⁵⁾ The drafters of this section believed the interview was preferable to calling the children as witnesses and subjecting them to the adversarial process.⁽²²⁶⁾ To protect the due process rights of the parents, the attorneys can request to be present during the interview and also request the court to make a record of the interview. The court can deny the attorney’s request to be present, but the court cannot deny the request for a rec­ord of the interview.

R. Investigations and Reports

The new section governing child custody investigations establishes a procedure in contested custody cases for the appointment of an investigator who obtains information about the best interests of the child.⁽²²⁷⁾ The investigator's report must be made available to the attorneys prior to the custody hearing, thereby giving the attorneys sufficient notice of the contents of the report. Also, at the hearing the attorneys can cross‑examine the investigator or any person consulted by the investigator. Finally, the court can approve a stipulation that the inter­view records not be divulged to the parties⁽²²⁸⁾ if the stipulation is in the best interests of the child.

The case of Eastman v. Eastman⁽²²⁹⁾ involved the question of whether the home study investigative report must be disclosed to the parties. The trial court or­dered a home investigation, but refused to allow the parties access to the report based of the best interests of the children. Instead, the trial court stated the parties could cross‑examine the investigator and discover any of the evidence in the report through independent investigation.

The court of appeals reversed the trial court, finding an abuse of discretion.⁽²³⁰⁾ The appellate court held that the report was relevant evidence and subject to discovery under section 60-226. Also, because the court relied on the report, it should have allowed the parties an opportunity to review the report for errors or misstatements. Consequently, a trial court must disclose the contents of home studies unless it is stipulated that the report not be divulged to the parties, pursuant to section 60-1615.

S. Visitation

The statute governing visitation contains three substantive provisions.⁽²³¹⁾ The first codifies case laws by granting reasonable visitation rights to the noncustodial parent.⁽²³²⁾ However, the court can refuse visitation rights if the court determines “after a hearing, that visitation would endanger seriously the child’s physical, mental, moral of emotional health.”⁽²³³⁾

The second section in the visitation statute enables the court to grant visitation rights to grandparents and stepparents.⁽²³⁴⁾ This is a substantial change from prior law which generally did not recognize visitation rights in third parties. Pre­viously, section 38-129 was the only section that allowed grandparents to be granted visitation rights. Under this provision, if either the father or mother of a child is deceased, the parents of such deceased person may be granted visitation rights.⁽²³⁵⁾ This provision was also amended to allow the grandparent visitation rights even though the grandchild had been adopted by a stepparent.⁽²³⁶⁾ Consequently, grandparents may receive significant visitation rights if visitation is in the best interests of the child.⁽²³⁷⁾

The last part of section 60-1616 adopts present case law by providing for court modification of vvisitation rights, based on the best interests of the child.⁽²³⁸⁾

T. Family Counseling

The new section on family counseling⁽²³⁹⁾ allows the court to order counseling before and after final judgment. This statute is significant because it specifically authorizes counseling after the court grants the divorce. The drafters added this provision because they believed counseling may provide a better opportunity to resolve custody disputes than the previous method of filing subsequent motions to modify the decree.⁽²⁴⁰⁾ If counseling is successful, the number of motions and hearings would be reduced because the counseling is more likely to resolve the parents' power struggle over the control of the child.

The procedure under the counseling section allows the court to order the par­ties and the children to be interviewed by a psychiatrist, certified psychologist or a trained professional family counselor, either upon motion of one of the parties or on the court own motion. The counselor determines whether family counsel­ing concerning custody and visitation would be in the best interests of the child. The counselor's determination must be available to the parents’ attorneys, who can cross‑examine the counselor about the written report. The court can order the parents and any of the children to receive counseling if the report finds that counseling is in the best interests of the children.

U. Miscellaneous Court Decisions and Statutory Changes

1. Jurisdiction

The Krumme v. Krumme⁽²⁴¹⁾ case involved a challenge to the court's jurisdiction based on the Soldiers’ and Sailors’ Relief Act.⁽²⁴²⁾ The father in this case obtained custody of the child and when the mother joined the Navy, he filed a motion seeking child support. The motion was served on the mother’s former attorney, who forwarded the motion to the mother. Neither the mother nor her attorney appeared at the hearing and the court ordered the child support. The mother alleged that this order violated the Soldiers’ and Sailors’ Relief Act, which re­quires that an attorney be appointed to represent the interests of the absent sol­dier or sailor. The mother claimed her former attorney was not representing her at the time she was served, and therefore, the trial court failed to comply with the requirements of the Act. The trial court, however, refused the mother’s request to set aside the judgment.

The court of appeals upheld the lower court's ruling on two grounds. First, the court found that before the judgment could be set aside, the mother must show that she was prejudiced because of her military service and, also, that she had a meritorious defense.⁽²⁴³⁾ Because the mother presented no evidence on either of these factors nor did she claim that she did not receive actual notice of the hearing, the trial court was correct in refusing to set aside the child support order.

Second, the appellate court found that because the mother’s attorney had never withdrawn from the case pursuant to Supreme Court Rule 117, the mother was represented by counsel at the time of the hearing.⁽²⁴⁴⁾ In addition, the mother's attorney had represented her in a request for visitation shortly after the hearing on the child support request. This evidence supported the trial court's conclusion that the mothcr had counsel at the time of the child support hearing. Consequently, the appellate court affirmed the trial court's refusal to set aside the child support order.

In Perry v. Perry,⁽²⁴⁵⁾ the husband filed a petition for divorce while he was in the service and stationed in Japan. The trial court granted the divorce and awarded child custody, child support, property division, and alimony. The wife filed a motion to set aside the judgment, claiming the husband was not a resident of Kansas and the court did not have personal jurisdiction over her because she had never resided in Kansas.

The court of appeals found that the husband was a Kansas resident when he enlisted in the Navy in 1955. The appellate court also determined that the hus­hand had maintained his Kansas residency by claiming Kansas as his residence when he reenlisted, by voting in Kansas and by carrying a Kansas driver's li­cense. Because the husband always intended Kansas to be his residence, his physical presence was unnecessary to establish domicile. Consequently, the Kan­sas court had jurisdiction to hear the divorce.

The second issue on appeal was whether the trial court had personal jurisdiction over the wife, thus allowing the court to award child custody, child support, alimony, and divide the property. The husband argued that the wife submitted to the jurisdiction of the Kansas court under the long‑arm statute because she had “lived in [a] marital relationship”⁽²⁴⁶⁾ in Kansas. However, the only factors supporting this contention were two brief visits in Kansas by the wife. The ap­pellate court interpreted the language of the long‑arm statute “lived in [a] mari­tal relationship" to require the parties to establish their marital domicile in Kansas. Since Kansas was not the marital domicile of the parties, the Kansas court did not have personal jurisdiction over the wife.⁽²⁴⁷⁾ The court only had in rem jurisdiction, the res being the marriage status of the parties. Consequently, the trial court had jurisdiction to grant the divorce, but did not have the authority to decide custody, child support, property division, or alimony.⁽²⁴⁸⁾

The court of appeals also interpreted the long-arm statute in Guye v. Guye.⁽²⁴⁹⁾ In this case the parties had lived in Kansas as husband and wife, but later moved to Illinois. The wife returned to Kansas, where she eventually filed for divorce. The hushand filed a motion to dismiss the action, but the trial court found it had personal jurisdiction over the parties pursuant to the long‑arm statute.⁽²⁵⁰⁾ Ac­cordingly, the trial court ordered custody, child support, maintenance, and attorney fees.

The appellate court reversed the trial court's determination that there was personal jurisdiction over the parties. The statute provides that parties have submitted to the state's jurisdiction if the parties are “living in the marital relation­ship within the state notwithstanding subsequent departure from the state . . . if the other party to the marital relationship continues to reside in the state.”⁽²⁵¹⁾ The court of appeals, construing this language, stated that the wife “did not continue to reside in this state but rather returned to Kansas after having left for a new domicile.”⁽²⁵²⁾ Consequently, the trial court did not have personal jurisdiction over the parties and only could grant the divorce, but it could not issue orders concerning child custody, support, maintenance, and attorney fees.

2. Judgments

In Long v. Brooks,⁽²⁵³⁾ the parties signed a property settlement agreement in which the wife agreed to pay several debts. The trial court incorporated the agreement into the decree and granted the divorce. Six years later the husband filed an action in contempt, alleging the wife had failed to pay the judgment. The trial court found the wife in contempt and required her to pay the judgment to avoid being jailed.

On appeal, the wife alleged that the terms of the agreement became a judg­ment when the court incorporated the agreement into the final decree and this jjudgment became dormant because it was not enforced within five years. Conse­quently, the court could not issue a contempt on an extinguished judgment. The court of appeals agreed, based on prior case law, that the agreement became a judgment at the time of the decree, and, after five years, the judgment became dormant.⁽²⁵⁴⁾ However, the appellate court found no authority on the question of whether a person can be held in contempt for failing to comply with an extin­guished judgment. The court of appeals decided that if the contempt older was allowed to stand, the husband would acquire “by indirection that which the law, because of his own neglect, would deny him directly. Such a result is neither logical, reasonable nor fair, especially when it is compelled solely by means of a threat of incarceration.”⁽²⁵⁵⁾ Consequently, the appellate court held that the contempt order enforcing an extinguished judgment was unlawful and the order of the trial court was reversed.

The Carlson v. Carlson⁽²⁵⁶⁾ case also involved the question of the appropriateness of a contempt order. In Carlson the trial court found the mother in contempt for failing to have the children available for the father’s visitation. The trial court sentenced her to forty-eight hours in the county jail and required her to pay the father’s attorney fees. The court of appeals reversed the contempt order based on Goetz v. Goetz.⁽²⁵⁷⁾ In that case the Kansas Supreme Court held that civil contempt could not be imposed as a punishment, but can only be used to force a person to comply with a court order. Based on this precedent, the appellate court reversed the contempt order against the mother in Carlson because the trial court imposed an unqualified jail sentence and did not provide for the mother's release if she purged herself of the contempt.

In Sharma v. Sharma,⁽²⁵⁸⁾ the parties were citizens of India who were living in Kansas. The husband was granted a divorce and the wife appealed, claiming the divorce violated her right of religious freedom. According to her argument, the Hindu religion does not recognize divorce and she would be considered a social outcast if she returned to India.

The court of appeals rejected the wife's argument for two reasons. First, the appellate court found that the divorce dissolved the civil contract of marriage, not the religious contract. “The wife may take such view of their relationship after the decree as her religion requires, but as a matter of law the civil contract has been dissolved.”⁽²⁵⁹⁾ The court of appeals also decided there was no violation of religious freedom because the divorce court was not preferring one religion over another. If the divorce court had refused to grant the divorce, the husband's rights to religious freedom would have been violated because “to compel him to remain married because of his wife's religious beliefs would be to prefer her be­liefs over his. Any such preference is prohibited by the Establishment Clause of the First Amendment.”⁽²⁶⁰⁾

3. Appeals

In Powell v. Powell⁽²⁶¹⁾ the trial court granted the divorce, but did not determine the division of property or alimony until a later date. When the trial court ruled on these issues, the wife appealed, attacking not only the property division and alimony award, but also the propriety of the divorce. The husband claimed the wife could not raise the issue of the propriety of the divorce because she did not appeal the initial ruling of the court granting the divorce within the thirty-day time period for filing an appeal. The supreme court rejected this argument, stat­ing that under section 60-2103(1), if the appeal on the property division and alimony was filed within the thirty days, any ruling by the trial court in the di­vorce action can be raised on appeal.⁽²⁶²⁾ Consequently, the supreme court had jurisdiction over all issues in the divorce case.

The Martin v. Martin⁽²⁶³⁾ case involved several questions concerning appeal procedure. In this case the husband appealed the trial court award of alimony and division of property. After the husband filed his appeal, he filed a motion in the trial court to amend the judgment because of newly discovered evidence.⁽²⁶⁴⁾ The husband also filed a motion to terminate alimony because of changed circumstances.

The first question before the court of appeals was the wife's contention that the husband was estopped from appealing because he married another woman, and therefore he had acquiesced in the judgment. The appellate court disagreed with this argument because the husband did not contest the divorce itself, but rather he was contesting only property issues. Thus, his subsequent marriage was not inconsistent with his appeal concerning the financial aspects of the judgment.

The second question on appeal was whether the trial court could amend the judgment if the case had been docketed in the appellate court. The court of appeals stated that once the case had been docketed on appeal, the trial court lost jutisdiction to amend the judgment. However, the court of appeals noted that other courts have recognized a procedure in which the trial court could request the appellate court to remand the case to the trial court if the trial court wanted to amend the judgrnent.⁽²⁶⁵⁾ In applying this procedure to the Martin case, the court stated that the trial court probably would not grant the motion to amend the judgment because the evidence presented by the husband did not appear to be newly discovered.

The last question before the court of appeals was whether the motion in the trial court to amend the alimony award also was improper because the case had been docketed in the appellate court. The court held that this motion was proper under section 60‑1610 because the trial court has the authority to amend an ali­mony award at any time if there is a showing of changed circumstances. This statutory authorization is an exception to the general rule that a trial court can­not modify a judgment that has been docketed in the appellate court. Therefore, the trial court had jurisdiction to hear the husband's motion to modify the alimony decree.

IV. PATERNITY

A. Blood Tests

Until recently, blood tests in paternity actions were admissible only to prove the defendant was not the father of a child. In other words, blood tests were used to exclude the putative father, but were not admissible if the test failed to exclude the defendant. However, in Tice v. Richardson⁽²⁶⁶⁾ the trial court allowed the plain­tiff to present the results of the human leucocyte antigen (HLA) blood test to prove paternity. The alleged father objected to the use of the blood test to in­clude him as the father and he also claimed that the HLA tests had not received unqualified acceptance by the scientific commrmity.

The court of appeals rejected the defendant's argument that the evidence should not be introduced until the blood test had been accepted, without reserva­tion, by the scientific community. The appellate court stated that the proper standard⁽²⁶⁷⁾ for admitting the evidence was whether the blood test is generally accepted by the scientific community as reliable.⁽²⁶⁸⁾ A review of the medical and legal literature resulted in the conclusion that the HLA test was an acceptable blood test and, if properly administered,⁽²⁶⁹⁾ could be relied upon to prove, as well as disprove, paternity. The court of appeals accordingly held that the test was admissible to prove the possibility that the defendant was the father of the child.⁽²⁷⁰⁾

In State ex rel. Hausner v. Blackman⁽²⁷¹⁾ the trial court admitted blood test evi­dence that had an exclusion rate of seventy percent. In other words, if ten men were falsely accused of paternity, only seven of them could be excluded as the father. The other three would not be excluded by the blood test used, even though these three men were not the father of child. The blood tests used in this case differed from the HLA blood test because these tests did not show a probability of paternity, but could only show a probability of excluding the man as the father. The appellate court found the “[l]ikelihood of paternity cannot be extrapolated, inferred, projected of predicted from probability of exclusion.”⁽²⁷²⁾ Consequently, because juries are usually misled by such evidence, it was prejudicial error to admit it.⁽²⁷³⁾

To guide the courts in future cases involving blood tests, the supreme court determined that the standards for admission of blood tests evidence, when given by a qualified expert in the field, are as follows:

Another issue before the court in the Hausner case was the constitutionality in the Kansas statute⁽²⁷⁵⁾ that allows blood test information to be used as evidence. In finding the statute constitutional, the court stated that the statute does not require the admission of evidence that is not reliable or probative. The blood test testimony is considered by the court in the same light as other expert testimony and is admissible if the blood test conforms with the standards of admissibility set out above.⁽²⁷⁶⁾

In State ex rel. S.R.S. v. Vollmer,⁽²⁷⁷⁾ the court of appeals considered the admissibility of blood test results without expert testimony. Under section 23-131 “ex­perts shall be called by the court as witnesses to testify as to their finding and shall be subject to cross‑examination by the parties.”⁽²⁷⁸⁾ Without a valid waiver or a stipulation, the appellate court found it reversible error to admit blood test results without expert testimony over the defendant’s objection.⁽²⁷⁹⁾

B. Other Kansas Court Decisions

In Carty v. Martin⁽²⁸⁰⁾ the putative father sought a determination of his paternity and enforcement of his right to visit his son. The mother had contended that the father was without authority to bring an action to establish paternity. The court agreed that “there is no statutory or common-law action available to the putative father of an illegitimate child to have paternity adjudicated.”⁽²⁸¹⁾ Kansas only recognizes a statutory action,⁽²⁸²⁾ available to the mother, which must be brought within one year after the birth of the child, and a nonstatutory action,⁽²⁸³⁾ which is brought in the name of the child. However, the supreme court did not decide whether the father had a right to judicially establish paternity because the fattier in Carty had acknowledged his paternity. Consequently, the court held that “once paternity is established, whether by adjudication or acknowledgment, the unwed father, absent unfitness and subject to the best 'interests of the child, has a right to visitation with respect to that child.”⁽²⁸⁴⁾ The court also stated that a putative father should not be awarded visitation rights automatically without the consideration of the best interests of the child.⁽²⁸⁵⁾

Gross v. VanLerberg⁽²⁸⁶⁾ involved the question of whet