In re Marriage of Clark

NOT DESIGNATED FOR PUBLICATION
No. 123,233
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
KENNETH M. CLARK,
Appellee,
and
NANCY BLUM CLARK,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed March 25,
2022. Reversed and remanded with directions.
M. Kathryn Webb, of Law Office of M. Kathryn Webb, LLC, of Wichita, for appellant.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before ATCHESON, P.J., HILL and GARDNER, JJ.
PER CURIAM: For reasons that remain mysterious, this divorce action languished
mostly unattended in the Sedgwick County District Court for well over a decade. As a
result, temporary orders continued in place, and the district court ultimately divided the
parties' assets and liabilities some 17 years after the petition had been filed. Nancy Blum
Clark, the ex-wife of Kenneth M. Clark, has appealed. Because the district court made
substantive legal mistakes and short-circuited the hearing process in arriving at the
property division, we reverse that order and remand for further proceedings. We do so
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with some regret, given the extraordinary lifespan of this case. But a district court's
understandable alacrity in closing out protracted litigation cannot excuse material errors
undercutting the legal propriety of the result.
FACTUAL AND PROCEDURAL HISTORY
Kenneth, who has been licensed to practice law in Kansas for 40 years, filed a
divorce petition in January 2002 and obtained an order requiring him to pay $1,247 a
month in temporary child support and $1,600 a month in temporary maintenance. The
order gave Nancy primary physical custody of the couple's five children and possession
of the family residence, along with the obligation to pay the mortgage. At Kenneth's
request, the district court entered a decree of divorce dissolving the marriage later in 2002
but reserved rulings on permanent support and maintenance and the division of the
couple's assets and liabilities. Nancy did not hire a lawyer to represent her until 2015.
Nothing of substance happened between the filing of the divorce decree and
Nancy's lawyer entering the case. Several years after the divorce decree was filed, Nancy
wrote to the district court inquiring about the status of the proceedings. A district court
judge apparently held an informal meeting with Kenneth and Nancy after receiving the
letter, but the case did not progress.
The record on appeal shows that Kenneth never paid temporary child support or
temporary maintenance and instead made the mortgage payments on the family home and
covered other expenses. Kenneth has described the switch as an "agreement" with Nancy.
She has disputed that characterization and contends she neither so agreed nor intended to
relieve Kenneth of his obligation to pay temporary support and maintenance. During the
time the case lay fallow in the district court, the children became adults, effectively
reducing the temporary support as each turned 18 years old.
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Nancy's lawyer pressed for payment of the accrued and unpaid temporary support
and temporary maintenance. The parties exchanged documents, including information
about what expenses Kenneth asserted he had paid. Some of those materials were
produced on the eve of a nonevidentiary hearing in the district court, and Nancy
unsuccessfully objected to their consideration. The district court also turned aside
Nancy's request for an evidentiary hearing to address, among other things, the
circumstances surrounding the purported agreement related to Kenneth's payment of the
mortgage in place of the temporary support and maintenance.
The district court entered what it termed a memorandum and preliminary orders in
June 2019 and a final journal entry in June 2020. The upshot was the district court found
Kenneth had no present liability for the unpaid temporary maintenance and was entitled
to a setoff against the unpaid temporary child support for the mortgage payments he had
made. The district court concluded Kenneth had no unsatisfied financial obligation to
Nancy. The district court divided the net proceeds from the December 2018 sale of the
family residence—the only remaining marital asset—with just over $103,000 going to
Nancy and just under $69,000 going to Kenneth. Nancy has appealed those rulings. The
district court also ordered that Kenneth and Nancy should retain the personal property
each had in their possession and would be responsible for various personal debts. Those
rulings have not been disputed on appeal.
LEGAL ANALYSIS
Broadly, a district court acts with judicial discretion in allocating marital property
and otherwise settling a divorcing couple's financial affairs, including matters of child
support and maintenance. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734(2002); In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 715, 229 P.3d 1187 (2010).
The allocation should be "equitable" and "just." See K.S.A. 2020 Supp. 23-2711(a)(2)
(final decree to include order for "equitable division of . . . property"); K.S.A. 2020 Supp.
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23-2802(c) (court "to make a just and reasonable division of property"). A district court
exceeds that discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Biglow v. Eidenberg,
308 Kan 873, 893, 424 P.3d 515 (2018); Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
We find the district court made a substantial error deviating from the governing
legal framework in concluding the unpaid temporary maintenance Kenneth had been
ordered to pay Nancy was subject to the dormancy and discharge rules for judgments. In
turn, the district court mistakenly disregarded that obligation in fashioning an equitable
allocation of marital property. That mistake alone substantially eroded the legal and
factual foundations for the district court's final order. As a result, the final order amounts
to an abuse of discretion—a conclusion requiring us to reverse and remand for further
proceedings.
We have concerns about the legal underpinnings of other aspects of the final
disposition of the parties' assets and liabilities and about the lack of an evidentiary
hearing. To provide some guidance to the parties and the district court on remand, we
outline what we see as difficulties in how the case was wrapped up.
⦁ The district court ruled that the monthly temporary maintenance payments
Kenneth was ordered to pay Nancy became dormant and then unenforceable under
K.S.A. 2020 Supp. 60-2403(a)(1) because she took no steps to collect or otherwise
preserve those delinquencies. The ruling wiped out any obligation Kenneth had for
unpaid temporary maintenance. The district court erred. The statutory dormancy and
cancellation provisions apply to final money judgments. The payments Kenneth owed
Nancy were temporary—they continued until modified or until a final judgment settling
the couple's property rights and fixing permanent maintenance (if any) was entered—and,
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as such, they were interlocutory. K.S.A. 2020 Supp. 23-2707(a)(3); see 2 Elrod, Kansas
Law and Practice: Family Law § 10.25 (2022).
The statutory language of K.S.A. 2020 Supp. 23-2707(a)(3) clearly differentiates
temporary maintenance orders from permanent maintenance included in a final decree
under K.S.A. 2020 Supp. 23-2711(a)(3). Periodic permanent maintenance payments
become judgments after they are delinquent; unpaid temporary maintenance payments do
not. Krogen v. Collins, 21 Kan. App. 2d 723, 727, 907 P.2d 909 (1995); 2 Elrod, Kansas
Law and Practice: Family Law § 10.25 (2022). In turn, a divorcing spouse's obligation
for temporary maintenance does not become dormant or dischargeable under K.S.A. 2020
Supp. 60-2403(a)(1).
To the extent the district court relied on dormancy of final judgments as a partial
or alternative ground for adjusting Kenneth's obligation for unpaid temporary child
support, it likewise erred. See Dube v. Dube, 15 Kan. App. 2d 511, 514-15, 809 P.2d
1245 (1991).
As a corollary, we mention that Kenneth submitted an expert report on his
potential liability for unpaid temporary maintenance and support that capped the
maintenance at 121 months. We do not understand the report's author to be providing a
legal opinion—he is identified as an economist and not a lawyer. Rather, he appeared to
use the cap as an assumption given him to calculate interest on the delinquencies. We
separately address interest momentarily. By statute, permanent maintenance payments
generally are limited to 121 months, although district courts often order shorter periods
and may, in some circumstances, extend the payments beyond 121 months. K.S.A. 2020
Supp. 23-2904. The limitation appears in article 29 of Chapter 23 governing maintenance
in final decrees. K.S.A. 2020 Supp. 23-2902 (referring to K.S.A. 23-2711 that outlines
content of final decree). There is no comparable limitation on temporary support and
maintenance orders in K.S.A. 2020 Supp. 23-2707.
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In sum, the district court erred in categorically discarding the delinquent
temporary maintenance payments Kenneth had been ordered to make to Nancy at the
outset of the divorce action. And those payments are not subject to the 121-month
limitation in K.S.A. 2020 Supp. 23-2904.
⦁ The district court approached the unpaid temporary child support from a couple
of directions. First, the district court concluded there must have been some sort of
agreement between Kenneth and Nancy that his payment of the mortgage constituted a
substitute for the support. The district court relied heavily on the passage of time and the
absence of any formal objection from Nancy to Kenneth personally or in papers
submitted in the divorce action until 2015. But the district court declined to hold an
evidentiary hearing to explore the contours of any purported agreement, despite Nancy's
request. And that's a problem.
The record evidence not surprisingly shows Nancy was aware Kenneth made the
monthly mortgage payments on the home they owned—where she and the children
continued to live after he filed for divorce—but did not pay the temporary maintenance
and support the district court had ordered. We suppose, too, Nancy knew she had been
ordered to pay the mortgage. Although Nancy may have acquiesced in the switch by not
formally objecting in some fashion, the fragmentary record evidence at the very least
suggests the absence of an actual agreement. The district court could not have fairly
concluded Nancy accepted the mortgage payments as a complete substitute for the
maintenance and support, meaning she had waived her right to pursue any delinquency.
While we appreciate the district court's stated concern about memories faded with the
passage of years and possibly shaded by self-interest, those potential limitations did not
relieve the district court of the obligation to hear testimony and receive other evidence
Nancy wished to present in support of her effort to recover the unpaid temporary
maintenance and support.
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On remand, the district court should hold an evidentiary hearing to determine if
the parties had an agreement about Kenneth substituting mortgage payments for his
obligation to pay temporary maintenance and support and, if so, the scope of the
agreement. The parties, of course, remain free to stipulate to either specific facts or the
nature of any agreement, thereby curtailing the hearing or (perhaps) dispensing with it.
The district court's approach also suffers from a legal error regarding the child
support. A divorcing husband and wife cannot agree between themselves to reduce or
eliminate with court-ordered child support. The support entails a legal obligation due the
child, and the district court must direct any change in payment, consistent with the child's
interests. See In re Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000); In re
Marriage of Moler, No. 119,113, 2019 WL 3367994, at *8 (Kan. App. 2019)
(unpublished opinion). Although Schoby and Moler concerned permanent child support,
the rule and the reasoning behind the rule are equally applicable to temporary support. So
the district court could not have given legal effect to any purported agreement Kenneth
and Nancy struck to substitute the mortgage payments for the temporary child support.
Invoking the equitable doctrine of setoff, the district court credited Kenneth's
mortgage payments against the unpaid temporary support and concluded he had no
remaining obligation. Setoff permits a district court to apply A's established debt or
money judgment owed B to reduce B's separate debt or judgment owed A. In effect, the
smaller obligation is treated as a credit against the larger without an exchange of money
between the parties. Setoff is entirely discretionary; a district court need not adjust
parties' mutual indebtedness that way. Mynatt v. Collis, 274 Kan. 869, 881, 57 P.3d 513(2002). The doctrine may be applied to interlocking financial obligations of divorcing
spouses, including delinquencies in maintenance or support payments. See In re Henson,
58 Kan. App. 2d 167, 184, 464 P.3d 963, rev. denied 312 Kan. 892 (2020) (recognizing
setoff may be applicable to disputed arrearage in child support); see 24A Am. Jur. 2d,
Divorce and Separation § 932.
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The district court, therefore, had the authority to consider setoff here, especially
since the offsetting obligations—the mortgage payments for Nancy and the support and
maintenance payments for Kenneth—were imposed in the temporary order entered at the
outset of the divorce action. Based on documents Kenneth submitted, the district court
concluded he had made about $339,693 in mortgage payments after the divorce action
had been filed and credited that amount against the unpaid temporary support. That
amount exceeded what the parties presumed any delinquency would have been. In
addition to arguing setoff should not apply, Nancy contends Kenneth should not get
credit for the mortgage payments he made after she moved out of the marital residence.
One of the children apparently lived there for a time after becoming an adult, and the
house may have been vacant for some period, although the record isn't immediately clear.
In any event, Nancy's argument is misplaced because the mortgage payments increased
the equity in the house, and the equity was a marital asset that accrued to her benefit.
Because we are substantially reconfiguring how those obligations should be
treated on remand, the district court may, likewise, reexamine its exercise of
discretionary authority to order a setoff. To be clear, we merely suggest the issue may be
revisited; we offer no opinion on weighing the equities for and against setoff.
⦁ The parties have presumed interest accrued on the unpaid temporary
maintenance and support. Kenneth's expert assumed interest on those amounts should be
computed using the fluctuating annual rate for judgments set out in K.S.A. 16-204(e)(1).
The parties did not question that assumption, and the district court did not directly
address interest because it ultimately found no delinquencies. We raised the matter of
interest during oral argument and invited the parties to provide supplemental written
submissions if they wished. Nancy has done so.
Consistent with our discussion of the district court's error in applying dormancy to
the delinquent maintenance payments because they are not judgments, we fail to see how
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they can be subject to statutory provisions governing interest on judgments. If they are
not judgments that go dormant, it is hard to make a reasoned argument they are
judgments that accrue interest under K.S.A. 16-204(e). Even if they were, the controlling
subsection likely would be K.S.A. 16-204(e)(3) that regulates interest on "judgments . . .
arising from a person's duty to support another person" by imposing a presumptive 10
percent annual rate unless a party can show a different rate should apply. The subsection
suggests divorcing parties could agree to some other "reasonable interest rate" with
district court approval.
In her supplemental submission, Nancy suggests K.S.A. 16-201 applies. But
K.S.A. 16-201 governs interest due creditors or on an account when the parties have not
agreed upon a rate of interest and for employees for money due from their employers. By
its terms, the statute doesn't seem to govern temporary support or maintenance. Nancy
cites no cases in which it has been applied to those sorts of obligations, whether
temporary or permanent. We are disinclined to take that step, given the more
particularized provision for interest on amounts due on legal duties of support found in
K.S.A. 16-204(e)(3). See Merryfield v. Sullivan, 301 Kan. 397, 398, 343 P.3d 515 (2015)
(absent compelling indicators otherwise, specific statute controls over general statute);
see also In re Marriage of Lee-Guiher-White, No. 102,167, 2010 WL 1253716, at *3
(Kan. App. 2010) (unpublished opinion) (applying K.S.A. 16-204[e][3] to delinquent
permanent maintenance payments that had become judgments and declining to consider
prejudgment interest under K.S.A. 16-201).
If on remand Kenneth remains responsible for delinquent temporary support or
maintenance, the parties and the district court should consider whether interest may be
appropriately added to the delinquency. Our discussion should guide rather than control
that consideration. We have not independently explored the issue in detail, especially in
the absence of full briefing from the parties. There may be statutory or common-law
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sources arguably entitling Nancy to interest that we have overlooked. To be clear, we are
not offering the final word on the subject.
⦁ The district court divided the equity from the sale of the marital residence
between Kenneth and Nancy as their sole remaining asset. Nancy has challenged that
division. A district court should marshal the divorcing parties' assets and liabilities and
make "an equitable division" of their property. K.S.A. 2020 Supp. 23-2711(a)(2). An
array of statutory factors guides the division, including an award of maintenance to one
spouse. K.S.A. 2020 Supp. 23-2802(c)(7). As we have explained, we review a district
court's allocation of marital property for abuse of judicial discretion. In re Marriage of
Wherrell, 274 Kan. at 986.
Here, the district court deviated from the governing legal rules when it relied on
dormancy to erase Kenneth's obligation for temporary maintenance. And the district court
arguably relied on unproven facts in assessing whether Kenneth and Nancy had some
"agreement" about who was to pay what in contravention of the temporary order. The
significance of those determinations in this case necessarily calls into question the district
court's ultimate conclusions under an abuse of discretion standard.
We have directed the district court both to determine whether the parties had some
agreement about Kenneth's forbearance in paying temporary maintenance and support
and to reconsider his liability for the unpaid amounts. Given the myriad possible results
of that endeavor, the district court should again look at the allocation of the proceeds
from the sale of the marital residence to insure "an equitable division" consistent with
K.S.A. 2020 Supp. 23-2711(a)(2). We are not suggesting the division necessarily should
be different—only that the district court ought to double-check its conclusion.
⦁ Nancy has relied on In re Marriage of Brown, 295 Kan. 966, Syl., 291 P.3d 55(2012), for the proposition the district court lacked the authority to modify or set aside the
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orders for temporary maintenance and support and, thus, to wipe out Kenneth's
delinquencies. Given the statutory changes to K.S.A. 23-2707, governing temporary
orders, made after Brown, we are unpersuaded the decision aids Nancy's cause.
To be sure, Brown held that under the predecessor to K.S.A. 23-2707, a district
court could not simply modify or retroactively terminate temporary orders for child
support to excuse or void one spouse's arrearage for failing to pay as required. 295 Kan.
at 976-77. The court specifically construed K.S.A. 60-1610(a)(1), covering support of
minor children. We suppose the court's rationale would have extended to spousal
maintenance covered in K.S.A. 60-1610(b)(2), given the comparable language in that
subsection. We do not wade into the detailed historical review of the applicable statutes
and their judicial construction set out in Brown.
In 2011, the Legislature transferred the statutes governing divorce from Chapter
60 to Chapter 23 and reconfigured some of them. In doing so, the Legislature adopted
K.S.A. 2011 Supp. 23-2707 to govern interlocutory orders, including those for temporary
maintenance and support. As enacted in 2011, K.S.A. 23-2707(a) provided that after a
divorce petition had been filed, the district court could "make and enforce by attachment"
interlocutory orders for, among other things, spousal maintenance and child support until
a final judgment was entered. K.S.A. 2011 Supp. 23-2707(a). The language, by negative
implication, preserved the rule in Brown precluding a district court from vacating or
otherwise altering those temporary orders to eliminate any arrearages. But in 2014, the
Legislature amended K.S.A. 23-2707(a) to provide that a district court may "make,
modify, vacate, and enforce by attachment" those temporary orders. L. 2014, ch. 116, § 6.
The expansion of a district court's authority to "modify" and "vacate" temporary orders
before entry of a final judgment essentially amounted to a legislative overruling of
Brown. The relevant statutory language has not changed since then.
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Nancy did not take any action in the district court to enforce the temporary orders
until 2015. Accordingly, the amended version of K.S.A. 2020 Supp. 23-2707(a) applies.
Typically, amended statutes that are procedural or remedial apply to pending cases. See
Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 460-62, 264 P.3d 102(2011) (remedial legislation); Dester v. Dester, 50 Kan. App. 2d 914, 918-20, 335 P.3d
119 (2014). Here, the 2014 amendment of K.S.A. 23-2707(a) may not have been purely
procedural, but it was plainly remedial. The change overruled Brown and afforded district
courts expanded authority to fashion equitable orders addressing divorcing parties' assets,
liabilities, comparative earning capacity and other factors in allocating their financial
resources during and following the judicial termination of their marriage. District courts
now exercise a broad—almost unfettered—right to adjust temporary orders and the
amounts due under them during a divorce proceeding to maintain a fair and equitable
financial balance. So, for example, a district court has the authority to reduce or eliminate
temporary maintenance if the recipient experiences a sharp and unexpected increase in
income or wealth during the divorce.
It's not apparent that Nancy had a vested right in the temporary orders or the
arrearage in support or maintenance, especially absent an ongoing legal effort to collect
the delinquencies. Moreover, even under Brown and the earlier version of K.S.A. 23-
2707, a district court could set the amount of permanent maintenance or divide property
in the final judgment to account for delinquencies in paying under temporary orders. See
In re Marriage of Colgan, No. 109,430, 2014 WL 4080072, at *4 (Kan. App. 2014)
(unpublished opinion) (recognizing authority of district court to "merge" temporary
maintenance into permanent maintenance awarded in final judgment); Waller v. Waller,
No. 108,151, 2013 WL 2991299, at *6 (Kan. App. 2013) (unpublished opinion) (rather
than reduce arrearage in temporary maintenance by granting credit for mortgage
payments made, district court granted credit against permanent maintenance, effectively
reducing overall amount of maintenance). That could be done by giving the party owed
temporary maintenance more, effectively making up for the delinquency, or by giving
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that party the same or less than he or she otherwise would have gotten, effectively
voiding the delinquency.
Although we can reasonably assume the Legislature did not contemplate
temporary orders for maintenance and support remaining in effect for upward of a decade
and a half in divorce action, the expansive authority outlined in K.S.A. 2020 Supp. 23-
2707(a) affords district courts the ability to equitably address unusual circumstances
arising in particular and peculiar cases. That is in keeping with the overarching principle
directing district courts to adjust the divorcing parties' financial affairs in a fundamentally
fair and equitable manner. See In re Marriage of Hair, 40 Kan. App. 2d 475, 480-81, 193
P.3d 504 (2008); In re Marriage of Peffly and McClanahan, No. 118,736, 2019 WL
2399474, at *5 (Kan. App. 2019) (unpublished opinion); see also 2 Elrod, Kansas Law
and Practice: Family Law § 10:3 (2022). We do not nor have we intended to suggest
what ultimately may be fair and equitable here on a fully developed record examined in
light of the applicable law. But the district court wields an exceptionally flexible judicial
prerogative under K.S.A. 2020 Supp. 23-2707 in fashioning an appropriate outcome in
this decidedly unusual case.
Reversed and remanded with directions.
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