In re Marriage of McNutt and Gates ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,507
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of:
RANDALL J. MCNUTT,
Appellant,
and
SAMANTHA S. GATES,
Appellee.
MEMORANDUM OPINION
Appeal from Geary District Court; COURTNEY D. BOEHM, judge. Opinion filed September 17,
2021. Affirmed.
V. Linnea Alt, of Law Office of V. Linnea Alt, Chartered, of Junction City, for appellant.
Gabriela A. Vega, of Addair Thurston, Chtd., of Manhattan, for appellee.
Before MALONE, P.J., WARNER and HURST, JJ.
PER CURIAM: Randall J. McNutt (Father) appeals the district court's decision to
grant Samantha Gates' (Mother's) motion for residential placement of the parties' twin
daughters. Father argues that the trial court erred in finding that his move to Alaska
constituted a material change in circumstances permitting evaluation and modification of
the parenting plan. Father also argues that the trial court improperly relied on outdated
allegations and evidence in its residential placement decision. The district court is
affirmed.
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PROCEDURAL BACKGROUND AND FACTUAL ALLEGATIONS
Mother and Father met in late 2008 when Mother was 17 and Father was 24 years
old. Mother became pregnant and Mother and Father married in February 2009. Mother
gave birth to twin daughters in July 2009 (the Children). Father is a member of the
United States Army, requiring him to relocate for work from time to time. Father and
Mother lived in Georgia for Father's work, and Father eventually filed for divorce. The
Georgia court granted the divorce and Mother and Father entered into an agreed co-
parenting plan in September 2012.
From approximately May 2013 until March 2015, Father prevented Mother from
exercising parenting time under the agreed co-parenting plan. Mother and Father went to
court several times between March 2015 and October 2016 to establish and enforce
Mother's parenting time. In October 2016, the Georgia court created a parenting plan
giving Mother and Father joint legal custody, Father residential custody, establishing
Mother's parenting time, and designating Father as the tie-breaker for disagreements (the
2016 Parenting Plan Order).
In January 2016, Father relocated with the Children to Junction City, Kansas and
later registered the 2016 Parenting Plan Order in Kansas. From approximately October
2016 until the current proceedings began, Father did not prevent Mother's minimum
parenting time. In January 2019, Father moved the district court to order that the Children
remain at Father's residence with stepmother during Father's extended deployment.
Mother opposed this request and moved that the Children reside with her in Illinois
during Father's deployment. The Kansas district court ruled the Children to remain at
Father's residence with their stepmother during Father's deployment. During Father's
deployment, which lasted from approximately February 2019 until June 2019, the
Children remained with stepmother, and Mother and stepmother had multiple conflicts.
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In May 2019, while Father was deployed, Mother exercised parenting time in
Junction City, Kansas for Mother's Day for the first time since Mother's Day of 2013.
During Mother's parenting time, an incident occurred with one of the Children at the
hotel pool that Mother wanted to discuss with stepmother. Mother also wanted to speak
directly with Father regarding the incident. After taking the Children to school on
Monday morning, Mother went to Father's residence to speak to stepmother and see if
stepmother could contact Father. The stepmother refused to answer the door, and texted
Mother - stating that anything Mother needed discussed could be texted. Mother and
stepmother also disagreed about stepmother's plans to take the Children to Maine to visit
stepmother's family. Mother moved the district court to restrict stepmother's travel plans,
which was denied. Stepmother refused to provide Mother with all the addresses where the
Children would be staying in Maine. Mother received all telephone time required in the
2016 Parenting Plan Order during the Maine trip.
The district court appointed Dr. Columbus Bryant as a custody evaluator (the
Evaluator). In October 2019, Father notified the district court and Mother of his intent to
relocate with the Children to Alaska. Father moved the Children to Alaska and in
December 2019, Mother moved the district court to return the children to Kansas and
award Mother residential placement. In April 2020, Mother amended her motion and
asked the district court to modify custody, residential placement, parenting time, and
award her sole legal custody. Father opposed Mother's motion, seeking to maintain the
existing custody plan and the Children's residential placement.
Mother and Father tried their case in August 2020, each appearing with counsel
and presenting witnesses. The Evaluator submitted reports to the district court containing
his observations of Mother and Father and recommended residential placement of the
Children with Mother. In August 2020, the district court issued its Final Order Regarding
Child Custody, Residential Placement, and Parenting (Final Custody Order) and awarded
joint legal custody to both parents, with primary residential placement with Mother.
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Father filed a motion to reconsider which the district court denied, and Father filed this
appeal. In March 2021, Mother filed a motion for attorney fees and costs under Supreme
Court Rule 5.01 (2021 Kan. S. Ct. R. 31) and Rule 7.07(b), (c). (2021 Kan. S. Ct. R. 52.)
DISCUSSION
This court reviews the district court's modification of a custody order, including
residential custody, for an abuse of discretion. See In re Marriage of Rayman, 273 Kan.
996, 1001, 47 P.3d 413 (2002). The district court abuses its discretion in a child custody
case
"(1) when no reasonable person would take the view adopted by the district court; (2)
when a ruling is based on an error of law; or (3) when substantial competent evidence
does not support a district court's finding of fact on which the exercise of discretion is
based." Cheney v. Poore, 301 Kan. 120, 128, 339 P.3d 1220 (2014).
A court may modify an existing custody, residency, child support, or parenting
time order anytime when the court finds a "material change of circumstances." See
K.S.A. 2020 Supp. 23-3222(c). Once the court determines a material change exists, the
district court will consider the bests interests of the child in modifying custody, residence,
visitation, or parenting time. See Cheney, 301 Kan. at 128-29; K.S.A. 2020 Supp. 23-
3203. "'When the custody issue lies only between the parents, the paramount
consideration of the court is the welfare and best interests of the child.'" Harrison v.
Tauheed, 292 Kan. 663, 672, 256 P.3d 851 (2011). Because the trial court reviews all the
facts and hears all the testimony, it "is in the best position to make the inquiry and
determination" regarding the best interests of the child. 292 Kan. 663, Syl. ⁋ 1. This court
will only disturb the district court's decision when it finds an abuse of that court's sound
discretion. 292 Kan. at 672.
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I. Father's Relocation to Alaska is a Material Change
Father argues that moving to Alaska from Kansas, when Mother already lived in a
different state from him, was not a material change of circumstances permitting the court
to modify the existing residential custody placement. Father's primary argument is that
Mother already exercised distance parenting time from Illinois and his move to Alaska
would allow Mother to have the same holiday and parenting time. Father's argument is
illogical and unsupported by existing caselaw. A change of residence of one parent,
depending on the circumstances, could constitute a "material change of circumstances"
justifying modification of a custody or residency order. See, e.g., K.S.A. 2020 Supp. 23-
3222(c). Additionally, a panel of this court reviewed a similar issue and permitted
modification of a custody order when a parent residing outside Kansas relocated to
another state. See In re Marriage of Shockman and Stockman, No. 121,818, 2020 WL
1814470, at *3. (Kan. App. 2020) (unpublished opinion).
In In re Shockman, shortly after the divorce the mother moved to Oregon with the
child and later moved to Alaska. The father, who was still residing in Kansas, sought to
modify the custody agreement arguing mother's move from Oregon to Alaska constituted
a material change. The district court found a material change in circumstance existed and
issued a new custody order reducing child support, setting residential custody with the
mother, and outlining the father's visitation schedule. On appeal, a panel of this court
analyzed the district court's new order for an abuse of discretion. 2020 WL 1814470, at
*2. The panel did not review whether the mother's move from Oregon to Alaska
constituted a material change in circumstance permitting the order. Neither the parties nor
the panel disputed that the mother's move constituted a material change.
The district court may consider any factors it deems appropriate when determining
whether a parent's change in residence creates a "material change in circumstance." See
K.S.A. 2020 Supp. 23-3222(c). Among those factors, the court should also consider how
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the move impacts the best interests of the child, how the move impacts the rights of the
other parent, and any increased costs on the nonmoving parent. See K.S.A. 2020 Supp.
23-3222(c). While it is true that Mother does not live in Kansas—that does not
presuppose that any move by Father is immaterial. A material change in circumstance is
one "of a substantial and continuing nature to make the terms of the initial decree
unreasonable." In re Marriage of Whipp, 265 Kan. 500, Syl. ¶ 3, 962 P.2d 1058 (1998).
Father's move more than 3,000 miles from Kansas to Alaska is substantial—not
merely because of the distance from his original residence, but because of the increase in
distance from Mother. Before Father's move to Alaska, Mother lived in Illinois where she
remains. While not an ideal co-parenting arrangement, the distance between Illinois and
Kansas allowed Mother to drive to Father's residence within a day. Mother or the
Children could also fly direct in less than two hours between Chicago, Illinois and
Topeka, Kansas or Kansas City, Missouri. The drive from Father's Kansas residence to
either airport was about one or two hours, depending on the airport.
Mother would have to drive for almost a week straight to reach Father's new
residence in Alaska. Alternatively, Mother would have to fly between 7 to 12 hours from
Chicago, likely with one or two connecting flights. Father stated that he did not believe it
was safe for the Children to fly alone from Alaska to Chicago—requiring Mother to
either only visit the Children in Alaska or fly to Alaska and fly with them back to
Chicago and do the same when returning them. Conversely, the direct flights from
Topeka, Kansas to Chicago were less than two hours—likely a flight the Children could
make on their own. Father's move substantially increased Mother's travel time and
expense to see the Children.
Father's move also increased the likelihood that the Children would be unable to
spend time at Mother's residence or that Mother would miss parenting time. The
increased travel time and expense could cause Mother to stay in Alaska for her visits,
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something suggested by Father, which would decrease the time the Children are at
Mother's residence. Such an arrangement would decrease the Children's time with their
extended family because Mother's family is in Illinois. Father's move also increased the
likelihood of Mother missing parenting time due to the heightened possibility that
inclement weather could prevent travel altogether.
Father intends to stay in Alaska until at least 2023, making the move continuing in
nature. Father's move increased the travel time and expense for Mother, increased the
likelihood of Mother missing parenting time, increased the likelihood of the Children
missing time with their extended family, and increased the travel burden on the Children.
The district court did not abuse its discretion in finding Father's move from Kansas to
Alaska constituted a material change in circumstances permitting the court to evaluate the
custody order.
Because the district court correctly found Father's move was a material change in
circumstance, this court need not determine whether the prolonged gaps in Mother's
parenting time also constituted a material change in circumstance.
II. The District Court Did Not Err in Determining Residential Placement with Mother
Was in the Best Interests of the Children
Father argues that the district court erroneously considered evidence from before
the 2016 Parenting Plan Order to determine the Children's residential placement. Father
failed to cite any relevant caselaw for his proposition. Father contends that the Kansas
district court cannot consider any pre-2016 evidence because the Georgia court
previously considered it to create the 2016 Parenting Plan Order. Father's argument lacks
merit and legal support. See McCain Foods USA, Inc. v. Central Processors, Inc., 275
Kan. 1, 14-15, 61 P.3d 68 (2002) ("Simply pressing a point without pertinent authority, or
without showing why it is sound despite a lack of supporting authority, is akin to failing
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to brief an issue."). Additionally, the district court did not solely rely on pre-2016
evidence.
Father alleges that the district court's following findings stemmed from pre-2016
evidence already considered by the Georgia court:
1. Father alienated Mother;
2. Father made decisions for the minor children over Mother's objection;
3. Father was unwilling to share information and collaborate with Mother;
4. Father made allegations against Mother of a criminal nature;
5. Father was unwilling to communicate with Mother; and
6. Stepmother refused to communicate with Mother and was attempting to take
over Mother's role.
Father's factual contentions are inaccurate because several of the district court's
findings, including numbers one, three, four, five, and six above, are supported by post-
2016 evidence. Father's behavior regarding findings numbered one, two, three, and five
was far worse before the 2016 Parenting Plan Order—but his improvement in these areas
does not mean the objectionable behavior stopped entirely.
All the evidence relating to stepmother occurred after 2017. Father admits that the
Children first met stepmother in 2017 and that she moved into Father's residence in 2018.
The district court specifically cited concerns about Father's proposal to stepmother which
occurred after the 2016 Parenting Plan Order, and the Children were present. The district
court also cited concerns with stepmother's 2019 interactions with Mother. All evidence
and associated findings related to stepmother, including Father's proposal where he asked
stepmother to be the Children's mother, occurred post-2016.
The court's findings that Father alienated the children from Mother and was
unwilling to communicate or collaborate with Mother were all supported by 2017-2019
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evidence presented at trial. For example, the district court heard evidence about Father's
failure to respond to Mother's texts regarding parenting time, including in the spring of
2017, and Father's reluctance or refusal to permit the Children to call Mother on their
own or answer Mother's calls in 2018. The district court's finding regarding Father's
criminal allegations were supported by post-2016 evidence because Father testified at
trial that he was currently concerned with Mother's alleged use of marijuana. While it is
true that after the 2016 Parenting Plan Order Father ceased preventing Mother from
exercising parenting time—Father's reluctant acquiescence to Mother's minimum
parenting time does not mean he stopped undermining and impeding Mother's
relationship with the Children.
The district court reviewed extensive briefing and held an evidentiary hearing on
August 3 and 11, 2020, where Mother and Father were both represented by counsel and
presented evidence. The evidence also included the Evaluator's reports and testimony.
The Evaluator interviewed the parties, conducted psychological evaluations, and
provided reports and an opinion that the Children's best interests were served by living
with Mother in Illinois, rather than moving with Father to Alaska. After evaluating all the
evidence, the district court determined that Father's move from Kansas to Alaska
constituted a "material change of circumstance" permitting a modification, and that a
modification of the 2016 parenting plan was in the Children's best interests.
The district court is in the best position to determine the custody and residency of
the Children. See, e.g., Tauheed, 292 Kan. 663, Syl. ¶ 1. In deciding custody and
residential placement, the district court "shall consider all relevant factors" in determining
the best interests of the child. K.S.A. 2020 Supp. 23-3203; see also Cheney, 301 Kan. at
128-29. This court determines whether the district court abused its discretion by acting
arbitrarily, applying the law incorrectly, or basing its decision on erroneous facts. The
district court clearly applied the correct law, explaining that it "looked at the relevant
factors contained within K.S.A. 23-3203" to determine the Children's best interests. The
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district court did not act arbitrarily or unreasonably, and identified several factors that
supported residential placement with Mother, explaining:
"Throughout his children's lives Father has acted like his rights, positions and therefore
decisions were superior to that of Mother. . . . Due to his behavior, the Court believes that
Father will continue to hinder Mother's access to her Children going forward. . . . It does
not appear to the Court that Father is approaching co-parenting with the spirit of
cooperation and collaboration."
Furthermore, the district court's decision is consistent with the Evaluator's opinion—
demonstrating that a reasonable person could agree. See Cheney, 301 Kan. at 128 (an
abuse of discretion can be shown when no reasonable person would agree with the
district court).
Although not entirely clear, Father apparently alleges the district court relied on
erroneous or mistaken facts in its decision. A district court can abuse its discretion "when
substantial competent evidence does not support a district court's finding of fact on which
the exercise of discretion is based." See Cheney, 301 Kan. at 128. Father's primary
argument, as explained above, is that the district court wrongly relied on evidence from
before the 2016 Parenting Plan Order. Father does not provide any citation for his
argument, and this court finds it unpersuasive. In custody proceedings, the district court
must determine the best interests of the Children and that necessarily requires evaluating
the totality of the circumstances. Even if the district court erred in relying on some
evidence from before the 2016 Parenting Plan Order, such error was harmless because the
district court relied on substantial post-2016 evidence supporting its findings. See, e.g.,
City of Mission Hills v. Sexton, 284 Kan. 414, 434, 160 P.3d 812 (2007) ("If the error
does not prejudice the substantial rights of a party, the error is harmless, must be
disregarded, and does not afford a basis for reversal of a judgment."); see also K.S.A
2020 Supp. 60-261 (error in admission of evidence is harmless unless it affects
substantial rights).
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The district court did not abuse its discretion.
III. Mother is Not Entitled to Attorney Fees
Mother seeks appellate attorney fees and costs alleging Father's appeal was
frivolous and failed to demonstrate an abuse of discretion. This court may award attorney
fees if it finds "that an appeal has been taken frivolously, or only for the purpose of
harassment or delay." Rule 7.07(c). A frivolous appeal is one where "no justiciable
question has been presented" and is without merit. See Blank v. Chawla, 234 Kan. 975,
982, 678 P.2d 162 (1984). Father's appeal does not meet this standard.
Although this court disagrees with Father's claims, it cannot be said the appeal was
frivolous or taken for the purpose of harassment. A residential parent's relocation does
not always constitute a material change in circumstances. See, e.g., K.S.A. 2020 Supp.
23-3222(c) (explaining that change of a child's residence might constitute a material
change in circumstance in some cases); In re Marriage of Shockman, 2020 WL 1814470,
at *2-3 (analyzing material change of circumstance when residential parent moved from
Oregon to Alaska); In re Marriage of Novacek, No. 118, 628, 2018 WL 3320195, at *9
(Kan. App. 2018) (unpublished opinion) (finding that both parents lived outside Kansas
and the mother's move to Kansas did not constitute a material change because it would
only result in a "shorter drive"). Thus, Father presented a justiciable question and his
appeal was not frivolous.
CONCLUSION
The district court did not abuse its discretion in finding that Father's move from
Kansas to Alaska constituted a material change in circumstances permitting the court to
modify the existing custody order. Additionally, when determining the best interests of
the Children regarding residential placement, the court did not err in relying on evidence
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that predated the 2016 Parenting Plan Order. Finally, any error was harmless because the
court also relied on post-2016 evidence.
The district court's final custody order is affirmed. Mother's motion for attorney
fees and costs is denied.
Affirmed.
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