In re Parentage of N.P. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,842
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Parentage of
N.P., by and through C.M., Appellee,
and T.P., Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; JACQUELYN E. ROKUSEK, judge. Opinion filed February 4,
2022. Affirmed.
T.P., appellant pro se.
No appearance by appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: This appeal arises out of district court orders regarding child
support in a paternity action in which appellant was found to be the father of the child
who was born to appellee, the Mother. We will refer to the parties hereafter as Mother
and Father.
Mother filed this paternity action pro se on July 18, 2018, alleging that Father was
the natural father of her child. She used a standard form paternity petition provided by the
Johnson County Help Center. She filed with her petition a proposed parenting plan, again
using a standard form from the Johnson County Help Center. Mother's proposed
parenting plan called for joint legal custody. In describing her proposed parenting time
schedule, she noted that "Mother is in the process of joining the military, child will stay
with father while mother attends bootcamp. Once boot camp is complete parental
schedule will be determined." She also filed her domestic relations affidavit (DRA).
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On August 27, 2018, Father filed his voluntary entry of appearance, an
acknowledgment of paternity, and his DRA.
The district court took up Mother's petition on September 24, 2018. We have no
transcript of the proceedings, but the Journal Entry of Paternity filed that day discloses
the following.
Both Mother and Father appeared pro se for the hearing that day. They used a
standard form Journal Entry of Paternity from the Help Center to memorialize the
proceedings. Both parties signed the journal entry and it was then signed by the district
court judge and filed with the court. The journal entry states that Father was found to be
the father and "owes a duty to support." The court ordered Father to pay child support of
$250 per month effective January 1, 2019. The court approved the agreed parenting plan,
which was signed by both parties and left open the issue of parenting time based on
Mother's anticipated entry into the military.
There was a bench note entered that day, but we find no authority that gives
weight to a bench note when the court has entered a journal entry to memorialize the
proceedings.
In April 2019, Father and Mother executed an Agreed Joint Parenting Plan.
Mother had retained counsel by this time. This proposed parenting plan stated that
"Mother shall pay to Father child support as set out in the Child Support Worksheet filed
herewith." The record does not disclose what worksheet the proposed parenting plan was
referring to. Moreover, there is nothing in the record to indicate that this proposed plan
was ever approved and adopted by the district court.
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On January 13, 2020, the court, noting Father's delinquency, ordered him to appear
for failing to comply with the court's child support order.
By February 2020, Father had retained counsel to represent him in this matter. On
February 5, 2020, Father moved to set aside the original September 24, 2018 journal
entry of child support. He asserted in his motion that "by mistake or inadvertence the
Journal Entry stated that [he] was to pay child support" and that his obligation "was
contrary to the facts of the case." Father requested that his support obligation and the
claimed arrearage be set aside.
That same day Father moved to modify the September 2018 child support order,
claiming that Father "was to have custody of the minor child, at least on a temporary
basis." Father asserted that he had the child most of the time and it was unjust to have
him pay child support to Mother. Father requested a modification order to "provide that
he does not owe any child support and that he never owed any child support."
On February 17, 2020, Mother, responded that she did not enlist in the military as
was contemplated in the proposed plan. Besides, she asserted, Father's motion to set aside
the support order was barred by the one-year time limit of K.S.A. 2020 Supp. 60-260(c).
She also opposed Father's motion to modify child support.
The initial hearing on Father's failure to pay child support and other motions was
held on February 18, 2020. Both parties appeared with counsel. We have no transcript in
the record for this hearing, but the journal entry stated that Father's counsel asserted that
Father had not made support payments because the child was in his custody, and it was
Father's understanding that Mother was supposed to make support payments. Mother's
counsel confirmed that Mother did not enlist in the military. The journal entry states that
"[b]oth parties [made] statements regarding the current custody arrangements," but there
is no record of what was said about the current arrangement. The matter was continued.
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On March 2, 2020, Mother moved to modify the parenting plan and the amount of
child support. She alleged that the proposed April 2019 parenting plan was filed, but "no
Journal Entry or Order of this Court was ever entered so as to make the Proposed Plan
effective or enforceable." She confirmed that she did not enlist in the military and stated
that she and Father were parenting their child "equally or nearly equally." But she asserts
that when Father's work schedule changed he left the child in the care of others, and
Father failed to properly meet the child's needs.
On November 10, 2020, according to the Register of Action maintained by the
Clerk of the Johnson County District Court, the court held a pretrial conference regarding
the various pending motions. The court scheduled a hearing on the motions for January
29, 2021. As directed by the court, Mother filed her DRA, an amended proposed
parenting plan, her witness and exhibit list, and her child support worksheet. The court
directed Father to do the same, but he failed to do so.
We have no transcript in the record of the proceedings at the January 29, 2021
hearing. The journal entry states that the court "heard the testimony of the parties." The
court denied Father's motion to set aside the September 24, 2018 child support order
based on K.S.A. 2020 Supp. 60-260(c) because Father's motion was filed more than one
year after the September 24, 2018 journal entry was filed. Moreover, the journal entry
"was done by agreement of the parties and not by mistake."
The court adopted Mother's parenting plan with modifications. The court also
adopted Mother's proposed child support worksheet and ordered Father to pay child
support of $559 per month effective April 1, 2020.
ANALYSIS
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Father appeals. Mother has not submitted an appellee brief in response. Father's
pro se appellate brief is rather disjointed and, in many respects, extremely hard to follow.
His notice of appeal indicates that he is appealing from the district court's order denying
his motions (1) to set aside the September 24, 2018 child support order and (2) to modify
the court's child support order.
The Order for Child Support
For his first claim, Father argues that the district court's September 24, 2018 child
support order ignored the agreement of the parties as to who would pay child support to
whom. The journal entry, prepared and approved by the parties and signed by the district
court judge, provides that Father will pay $250 per month to Mother as child support for
their child.
We generally review a district court's child support award for any abuse of
discretion. In re Marriage of Skoczek, 51 Kan. App. 2d 606, 607, 351 P.3d 1287 (2015).
But here, Father's notice of appeal states that he is appealing the January 28, 2021 order
denying his motion to set aside the September 24, 2018 child support order. Father bears
the burden of establishing that the district court erred in refusing to grant relief on his
motion. Our initial role is to determine whether Father has demonstrated the inadequacy
of the evidence presented to support any findings of fact made by the district court in
deciding Father's motion. Then we decide—in our de novo review—whether Father has
established that the district court erred in any conclusions of law it derived from the facts
that were established. See Gannon v. State, 305 Kan. 850, 881, 390 P.3d 461 (2017).
Father's motion was premised on the assertion that "by mistake or inadvertence the
Journal Entry stated that [Father] was to pay child support." According to the court's
journal entry, the court heard the testimony of both parties. But we do not know what
testimony and evidence Mother provided to support the district court's decision to deny
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Father's motion. We certainly cannot speculate as to what was provided. Nor can we
speculate that the evidence presented at the hearing was inadequate to establish the
district court's findings and to support the district court's conclusion. Father has the
obligation to come forward with evidence on the record that establishes error. Friedman
v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013). He has not
done so.
Father's sought relief on February 5, 2020, when he filed his motion set aside the
child support order. Father claimed in his motion that the journal entry was the product of
a "mistake or inadvertence." This is consistent with K.S.A. 2020 Supp. 60-260(b)(1),
which predicated relief on "[m]istake, inadvertence, surprise or excusable neglect." But
under K.S.A. 2020 Supp. 60-260(c), a motion on one of these grounds must be filed
within one year after "the entry of the judgment or order, or the date of the proceeding."
The district court found that there was no mistake. This left Father with his claimed
alternative that the journal entry was prepared and submitted to the district court through
"inadvertence." Of course, there is the other possibility—there being no indication that
the journal entry was the product of some surprise—that the journal entry was prepared
through excusable neglect. But either way—inadvertence or excusable neglect—Father
waited too long to raise the issue and, as a result, the district court was without statutory
authority to set aside the court's order requiring Father to pay child support. See
Wiechman v. Huddleston, 304 Kan. 80, 86-88, 370 P.3d 1194 (2016).
But Father argues that the journal entry was the product of "a clerical mistake of
oversight and omission" in order to avoid the one-year time limit of K.S.A. 2020 Supp.
60-260(c). But that is not what he claimed in his motion to set aside the court's child
support order. Father claimed in his motion that the journal entry was the product of a
"mistake or inadvertence." The parties prepared the journal entry, signed and approved it,
and only then submitted it to the court for approval. In his appellate brief Father attempts
to explain this away by stating: "Petitioner, and Respondent, appear[ed] pro se and
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inadvertently or without knowledge sign[ed] the document." This falls squarely withing
the provision in K.S.A. 2020 Supp. 60-260(b)(1) relating to inadvertence which requires
a motion for relief to be filed within one year.
Father also argues that the district court entered the order for child support without
regard to the child support guidelines and other relevant evidence. This is a new claim
that was not raised before the district court in his February 5, 2020 motions. Generally,
issues not raised before the district court cannot be raised on appeal. Gannon v. State, 303
Kan. 682, 733, 368 P.3d 1024 (2016). There are several exceptions to this rule, but Father
does not explain why we should consider this issue for the first time on appeal as required
by Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 35). See State v. Godfrey, 301
Kan. 1041, 1044, 350 P.3d 1068 (2015) (requiring strict enforcement of Rule 6.02[a][5]
and holding litigants who fail to comply risk a ruling that the issue is improperly briefed);
In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555
U.S. 1178 (2009) (delineating exceptions). Accordingly, we need not consider this newly
raised claim.
We find no error in the district court's disposition of Father's claims regarding the
September 24, 2018 order for child support.
The Child Support Arrearage
Next, Father argues the district court abused its discretion when it ordered him to
pay the child support arrearage that accumulated between January 1, 2019, and January
29, 2021.
The child support arrearage was for unpaid support from January 1, 2019, when
the child support order initially was effective. That was the order we just considered in
Father's first claim of error. That support order was never set aside, and the district court
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refused to set it aside at the January 29, 2021 hearing. We have already ruled that the
district court did not err in refusing to set aside the order upon which the arrearage was
predicated. Father ignores this fact and argues: "Upon the motion to modify child
support, arrearage should not have been awarded from 2018 through 2020 based on
Father's consistent parenting time. Child support accumulated prior to March 3, 2020 was
accumulated in error."
Father asked the district court to set aside the unpaid support that had accumulated
since the support order had first been entered. It would have been error for the district
court to do so. Kansas law provides that child support may be modified whenever
circumstances make such a change proper, "'but the modification operates prospectively
only.'" In re Marriage of Schoby, 269 Kan 114, 117, 4 P.3d 604 (2000). Under K.S.A.
2020 Supp. 23-3005(b), an order modifying child support can only be retroactive "to the
first day of the month following the filing of the motion to modify." As stated in In re
Marriage of Blagg, 13 Kan. App. 2d 530, 531, 775 P.2d 190 (1989), "Kansas follows the
general rule that, although a trial court has authority to modify a previous support order,
the new order cannot increase or decrease amounts past due." Kansas courts have noted
that they "have rarely allowed a retroactive order for child support." In re Marriage of
Bunting, 259 Kan. 404, 410, 912 P.2d 165 (1996). In Bunting, our Supreme Court
reasoned a retroactive modification was "contrary to the language of [K.S.A.] 60-
1610(a)(1) [now K.S.A. 2020 Supp. 23-3005(b)] and prior case law." 259 Kan. at 411.
The language of K.S.A. 2020 Supp. 23-3005(b), Schoby, Bunting, and Blagg,
establish that the district court may not retroactively decrease an amount due for child
support—which is what Father was seeking at the district court, and now on appeal.
Also, Father's claim regarding his consistent parenting time fails for lack of
support in the record. We have no transcript of the January 29, 2021 proceedings from
which we can determine what evidence was presented on the amount of time each parent
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spent with the child. The original parenting plan approved by the court simply called for
the child to stay with Father while Mother attended bootcamp. But, of course, she never
entered the military and never attended bootcamp.
The agreed parenting plan called for a parenting time schedule to be established
once bootcamp was over. The parties never submitted an agreed parenting schedule to the
district court once it was clear that Mother was not going to enter the military. Instead,
Father relies on a claimed de facto plan upon which the parties agreed. But we have no
way of knowing what evidence was presented on this point at the hearing. Given the
paucity of information about what transpired at the hearing, Father has failed to establish
any error by the district court.
Finally, Father apparently misunderstands the retroactivity provision in K.S.A.
2020 Supp. 23-3005(b) cited earlier. Father contends: "On January 29, 2021, district
court ordered [Father] to pay arrearage child support in the amount of ($6500.00) dollars.
Although [Mother's] motion to deviate from the Agreed Parenting Plan was not filed until
March 3, 2020."
First, the court's journal entry of the January 29, 2021 hearing does not require
respondent to pay the arrearage. The court merely modified the child support to $559 per
month "with the Trustee calculating the arrearage that remains due and owing."
Second, Father seems to believe that because Mother filed her motion to modify
child support on March 3, 2020, and because an order granting such a motion to modify
can only be retroactive to the "first day of the month following the filing of the motion to
modify," that has some effect on the arrearage in child support that accrued prior to
March 3, 2020. It does not. That arrearage is unaffected by the filing of Mother's motion.
The district court made its order for monthly child support of $559 effective April 1,
2020. Its order had no effect on the outstanding arrearage.
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We find no error in the district court's refusal to set aside the arrearage in child
support owed by Father.
Reliance on the Child Support Guidelines to the Exclusion of Other Evidence
For his final point, Father contends that the district court erred when it relied
entirely on the child support guidelines and excluded "other relevant evidence regarding
the parties['] financial and material circumstances." He contends that the district court
limited his testimony and excluded facts alleged by Father which were not "included due
to [Mother's] counsel filling out Child Support Worksheet and the court not allowing
[Father] to set the record straight."
We find no support in the record to support this contention. All of Father's
complaints relate to rulings the district court made during the course of the hearing.
Because we have no transcript in the record of these proceedings, we have nothing with
which to sort out Father's contention that the court improperly prevented Father from
presenting evidence on the parties' circumstances. Father has the burden of establishing
error based on the record before us. See Friedman, 296 Kan. at 644. Here, we have no
record of the crucial proceeding upon which Father's claim of error is founded.
Accordingly, this claim fails.
Affirmed.
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