In re Marriage of Calvert ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,724
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
DEBRA CALVERT,
Appellee,
and
JOHN CALVERT,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court, KEVIN P. MORIARTY, judge. Opinion filed June 12, 2020.
Affirmed.
Weston R. Moore, of Moore Law Center, of Olathe, for appellant.
Christopher C. Barnds, of Barnds Law, LLC, of Lenexa, for appellee.
Before POWELL, P.J., GARDNER, J., and WALKER, S.J.
PER CURIAM: In April 2018, Debra Calvert obtained a default divorce from her
husband John and was awarded spousal maintenance as part of the divorce decree in the
amount of $2,400 per month for 121 months. In December 2018, John sought to
terminate his spousal maintenance payments because he was unemployed. After hearing
evidence, the district court refused to terminate maintenance and instead temporarily
reduced John's monthly payment to $1,050 until May 1, 2020. On appeal, John claims the
district court abused its discretion as insufficient evidence supports its findings. We
disagree and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2018, Debra petitioned to divorce John, her husband of nearly 40
years, and personally served him with the petition, summons, and an ex parte temporary
order a week later. However, John never answered the petition nor did he appear at the
trial scheduled for April 11. The district court issued its default divorce decree on April
16, and John received a copy.
Based upon facts presented by Debra, the district court found Debra had been a
homemaker for most of the marriage, while John worked for various companies as a
chemical engineer, making over $170,000 in 2013 and 2014 before retiring at the age of
58. It also found John was likely to reenter the work force soon. The district court
assigned Debra an annual income of $15,000 and John an annual income of $160,000. As
a result, the district court concluded Debra had the financial need necessary to warrant an
award of maintenance and ordered John to pay Debra spousal maintenance of $2,400 per
month for a total term of 121 months. It found this maintenance award to be fair, just, and
equitable.
Several months later John sought, pro se, to modify the maintenance order.
Although John's motion is not in the record on appeal, the district court's subsequent
order states it was filed on September 21, 2018. John then failed to appear at the hearing
on his motion or pursue his motion further, prompting the district court to dismiss John's
motion and grant attorney fees to Debra for John's failure to respond to discovery and
appear at the hearing.
Later, John sought to terminate spousal maintenance, but again his motion is not in
the record on appeal. Unlike his first motion, the district court does not inform us when
the motion was filed. John and Debra's briefs agree it was sometime in December 2018.
The district court held an evidentiary hearing on John's motion on April 26, 2019. John
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testified in support of his motion and stated his only job in 2018 paid him $19,700—or
$100 per hour. According to John, he could not find a job because companies now
require chemical engineers to be licensed and most of his professional connections were
retired. John had a bachelor's degree in chemical engineering but no license. John
believed his odds of getting a job as a chemical engineer were "50-50." When asked by
the court to explain how he arrived at the 50-50 calculation, John stated he could get
hired to work at $40 per hour but not for a job that pays $160,000 per year.
Debra testified against the motion. She testified her only income derives from
doing house-sitting and pet-sitting work, as well as social security. Debra stated she was
living with her daughter.
The district court did not grant John's motion. While it found John could not
currently earn $160,000 per year—based upon John's own testimony that he could find a
job making $40 per hour, which the district court calculated to be roughly $83,000 per
year based upon a 40-hour work week—the district court temporarily reduced John's
monthly spousal maintenance payment to $1,050 per month from April 15, 2019, until
May 1, 2020. The remaining $1,350 per month would not have to be paid. The district
court expressly stated it was not modifying its original maintenance order and the original
monthly spousal maintenance payment of $2,400 would be reinstated on May 1, 2020,
unless John filed a new motion seeking a reduction in spousal maintenance and presented
evidence that he could not find a job that paid $160,000 per year. The hearing was set for
April 26, 2020. The district court later issued a written journal entry reiterating its
findings at the hearing.
John timely appeals.
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DID THE DISTRICT COURT ABUSE ITS DISCRETION BY
NOT MODIFYING ITS MAINTENANCE ORDER?
On appeal, John argues the district court did not consider his ability to pay and
claims there is insufficient evidence that he could find employment paying him $40 per
hour or $83,000 per year. Instead, John claims the evidence shows he is not employable
because he has been unable to find a job despite looking for a year. John also asserts the
district court erroneously took judicial notice of the fact there were plenty of chemical
engineering jobs available, even though John's undisputed testimony showed he could not
find a job. Debra counters there is substantial competent evidence in the record to support
the district court's findings.
Standard of Review
"When reviewing a motion to modify maintenance, this court examines the record
to determine if there is substantial competent evidence to support the ruling of the trial
court and whether the trial court abused its discretion." In re Marriage of Evans, 37 Kan.
App. 2d 803, 804, 157 P.3d 666 (2007). Substantial competent evidence is any "'legal and
relevant evidence as a reasonable person might accept as sufficient to support a
conclusion.'" Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). Appellate courts do
not weigh conflicting evidence, address witness credibility, or redetermine questions of
fact. 309 Kan. at 190.
A district court abuses its discretion when its action (1) is one where no reasonable
person would take the view adopted by the district court, (2) is based on an error of law,
or (3) is based on an error of fact. Cheney v. Poore, 301 Kan. 120, 128, 339 P.3d 1220(2014). The party alleging an abuse of discretion bears the burden to establish an abuse of
discretion occurred. In re P.J., 56 Kan. App. 2d 461, 466, 430 P.3d 988 (2018).
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Analysis
A district court may award maintenance to a party "in an amount the court finds to
be fair, just and equitable under all of the circumstances." K.S.A. 2019 Supp. 23-2902(a).
The amount of maintenance is to be based on the need of one of the parties and the ability
of the other party to pay. In determining whether to award maintenance, the district court
is to consider:
"(1) the age of the parties; (2) the parties' present and prospective earning capabilities; (3)
the length of the marriage; (4) the property owned by the parties; (5) the parties' needs;
(6) the time, source, and manner of acquisition of property; (7) family ties and
obligations; and (8) the parties' overall financial situation." In re Marriage of Hair, 40
Kan. App. 2d 475, 484, 193 P.3d 504 (2008), rev. denied April 7, 2009.
A district court "may modify the amounts or other conditions for the payment of
any portion of the maintenance originally awarded that has not already become due" with
reasonable notice given to the affected party. K.S.A. 2019 Supp. 23-2903. Typically,
"'[m]aintenance may be reduced upon a showing of a material change in circumstances.'"
In re Marriage of Ehinger, 34 Kan. App. 2d 583, 587, 121 P.3d 467 (2005), rev. denied
February 14, 2006. However, in this instance, we are not concerned with whether a
material change of circumstances exists because the district court's original maintenance
order was not granted as a result of a trial of the facts but by default after considering
only evidence from Debra. See Johnson v. Stephenson, 28 Kan. App. 2d 275, 281-82, 15
P.3d 359 (2000) (when support order entered by default, court may consider evidence
from first proceeding and enter order regardless of whether material change in
circumstances exists). As a result, we will only evaluate the district court's maintenance
order for an abuse of discretion.
At the conclusion of the hearing on John's motion to terminate maintenance, the
district court stated it believed John was not currently able to earn $160,000 per year.
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Instead, the district court credited John's own testimony that he could make $40 per
hour—which the district court annualized at $83,000 per year based on a 40-hour work
week—and temporarily reduced John's spousal maintenance payment to $1,050 per
month while staying the remaining $1,350 monthly payment until May 1, 2020. The
district court specifically stated it was not modifying the award and the original amount
would resume unless John filed a new motion to modify maintenance and provided
additional evidence that he could not find a job at $160,000 per year.
Substantial competent evidence presented at the hearing supports the district
court's findings. Although we are inclined to agree with John that the district court's
statements regarding the availability of work in the chemical engineering field are
unsupported by the evidence, there is evidence John could earn income beyond his Social
Security. While the district court did find John was unable at the present time to find
employment at $160,000 per year, John also testified he could get a job paying $40 per
hour. In making that finding, the district court recognized the difficulties of reentering the
job market and relied on this testimony to issue its temporary reduction in maintenance
payments.
The district court also balanced John's ability to find employment with Debra's
financial needs and her ability to get a job. John presented only his testimony about the
job market and the required qualifications for chemical engineers. But John failed to
present any evidence regarding the extent of his job search. Considering John's admission
concerning his ability to make $40 per hour, it cannot be said no reasonable person would
take the view adopted by the district court. We see no abuse of discretion in the record
before us.
Affirmed.
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