In re Marriage of Doney and Risley
| Decision Date | 27 February 2009 |
| Docket Number | No. 99,157.,99,157. |
| Citation | 201 P.3d 770 |
| Parties | In the Matter of the MARRIAGE OF Sherri Risley DONEY, n/k/a Goodner, Appellee, and Charles RISLEY, Appellant. |
| Court | Kansas Court of Appeals |
James M. Sheeley, of Kansas City, for appellant.
Michael E. Whitsitt, of Westwood, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
Charles Risley appeals from the district court's decision to extend his child support obligations to his disabled adult son past the age of majority. Sherri Goodner cross-appeals the district court's denial of her motion for attorney fees. For the reasons set forth below, we reverse the decision regarding the child support obligation and affirm the decision with regard to the request for attorney fees.
At the time of their divorce, the Risleys had two sons. The younger son was Darrin Risley. At around the age of 9 months, Darrin was diagnosed with cerebral palsy. Darrin's condition left him unable to speak and with only a limited ability to communicate through sign language. Darrin cannot be toilet trained and is in diapers 100% of the time. Someone must feed him, bathe him, and attend to his personal hygiene.
During the time period relevant to the issues presented on appeal, Darrin attended a high school at which he was considered to be in the 10th grade. His expected graduation date was May 2009. With that said, Darrin is considered to be a 23-month-old in terms of his chronological equivalency. Although the high school Darrin attended was not a conventional high school, it was part of the Raytown C-2 School District in Raytown, Missouri.
On July 24, 2006-approximately 30 days before Darrin was to reach the age of majority—the Wyandotte County District Court Trustee filed a pleading in the divorce case, seeking to extend child support benefits paid by Charles until Darrin's graduation from high school, which would occur well after Darrin turned 19 years old. Charles thereafter filed a pleading in which he opposed the pending motion to extend child support and requested full physical custody over Darrin. Sherri then filed a pleading in response to Charles' request to change custody and submitted argument in support of the Trustee's pending motion to extend child support.
An evidentiary hearing on the Trustee's motion to extend child support was held on October 19, 2006. The district court took the matter under advisement. On October 26, 2006, Sherri filed a supplemental motion requesting the district court not only to extend the child support obligation past the age of majority, but to extend the obligation indefinitely. In support of this motion, Sherri referenced the common-law duty of parents to support their disabled child beyond the age of majority in the event the child is unable to support and maintain himself. Sherri also requested an award of attorney fees.
On October 27, 2006, the district court signed a Memorandum Decision finding that the January 19, 1994, settlement agreement between the parties in their divorce proceeding obligated Charles to make child support payments until June 1, 2009—the year during which Darrin is scheduled to graduate from high school. Notably, the district court entered this order without considering Sherri's supplemental motion requesting child support payments continue indefinitely. With regard to the amount of support that should be paid, the district court directed in the decision that the parties must submit to the court child support worksheets that included any income received for the care of Darrin and any income Darrin received himself.
On March 9, 2007, the district court filed a journal entry and order sustaining Sherri's supplemental motion to extend child support indefinitely. In the order, the district court held that both parents remain obligated to support Darrin despite him having reached the age of majority, and that such support should continue so long as Darrin remains disabled.
On June 25, 2007, a hearing was held to determine (1) the amount of the child support that should be paid by Charles; (2) Sherri's motion for attorney fees; and (3) Charles' recently filed motion for paternity testing. With regard to an appropriate amount of child support to order, the district court openly expressed concern about using the Kansas Child Support Guidelines given the unique circumstances presented. To that end, the district court took the matter under advisement.
On July 10, 2007, the district court issued a memorandum decision that denied Charles' request for paternity testing, denied Sherri's request for attorney fees, and ordered Charles to pay child support in the amount of $900 per month until Charles' death or the death of Darrin, whichever should occur first.
On appeal, Charles asserts the district court was without statutory authority to order him to pay child support in the amount of $900 per month until Charles' death or the death of Darrin, whichever should occur first. Sherri also appeals from the court's order, asserting the district court abused its discretion in denying her request for an award of attorney fees.
Whether the district court exceeded its statutory authority is a question of law over which this court has unlimited review. Deffenbaugh Industries, Inc. v. Wilcox, 28 Kan.App.2d 19, 23, 11 P.3d 98 (2000), rev. denied 270 Kan. 897 (2001). To that end, Charles argues that the district court lacked statutory authority to order him to pay child support for his disabled son beyond the age of majority. More specifically, Charles argues the authority conferred by K.S.A.2008 Supp. 60-1610(a)(1) is extinguished when a minor child reaches the age of majority.
In response, Sherri contends the statutory provision cited by Charles is inapplicable when the child at issue is disabled. Sherri argues Kansas common law is the applicable standard and that the common law appropriately conferred authority upon the district court in this matter. See Keller v. Guernsey, 227 Kan. 480, 488, 608 P.2d 896 (1980) (). Sherri cites to three Kansas Supreme Court cases to support the proposition that common law imposes a duty upon every parent to support a disabled adult child, so long as such child remains disabled: In re Estate of Glass, 175 Kan. 246, 262 P.2d 934 (1953); Prosser v. Prosser, 159 Kan. 651, 157 P.2d 544 (1945); Sheneman v. Manring, 152 Kan. 780, 107 P.2d 741 (1940).
Contrary to Sherri's assertion, we find Kansas common law no longer requires a parent to provide support for an adult incompetent child and thus the district court did not have authority under the common law to order the referenced support. See Arche v. United States of America, 247 Kan. 276, 289-91, 798 P.2d 477 (1990) (). Although the issue in Arche was presented in the context of a wrongful birth action, the court's holding, which eliminates the common-law duty to support an adult incompetent child, is directly on point.
In its analysis, the Arche court noted that at the time Glass, Prosser, and Sheneman were decided, the Kansas Probate Code required parents to support incompetent children residing in a state hospital as patients. Arche, 247 Kan. at 288-89, 798 P.2d 477 (citing G.S. 1935, 59-2006 [1939 Supp.]). Finding such a statutory duty persuasive, the Glass, Prosser, and Sheneman courts similarly imposed upon parents a common-law duty to support an adult incompetent child, regardless of where he or she is residing. Arche, 247 Kan. at 286-90, 798 P.2d 477 (citing Glass, Prosser, and Sheneman).
When presented with the same issue almost 40 years later, the Arche court pointed out that the Kansas Legislature amended the probate code in 1967 to limit the duty of a parent to support of only incompetent minor children residing in state hospitals as patients. Arche, 247 Kan. at 289-90, 798 P.2d 477 (citing L. 1967, ch. 474, sec. 1). The Arche court then compared the duty imposed upon parents by the amended probate statute to the duty imposed by the unchanged common law and found a vital inconsistency in the state of the law:
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