Dipman v. Dipman, 53202
| Decision Date | 13 November 1981 |
| Docket Number | No. 53202,53202 |
| Citation | 635 P.2d 1279,6 Kan.App.2d 844 |
| Parties | David A. DIPMAN, Plaintiff-Appellant, v. Sheryl K. DIPMAN, Defendant-Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
In an action seeking the reduction of child support ordered in a Georgia divorce decree, it is held : the district court, having in personam jurisdiction over the parties and subject matter jurisdiction under the common-law doctrine of parens patriae, erred in dismissing the action for lack of jurisdiction.
John C. Tillotson, of Murray & Tillotson, Chartered, Leavenworth, for appellant.
No appearance by appellee.
Before FOTH, C. J., Presiding, TERRY L. BULLOCK, District Judge, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.
David A. Dipman filed an action in the district court seeking a reduction in his child support obligation for the minor child of the divorced parties. That court dismissed Dipman's petition upon a determination that it lacked jurisdiction. This appeal followed.
The pertinent facts are these. A final decree of divorce based on a stipulation of the parties was entered November 13, 1979, in DeKalb County, Georgia, providing for child custody and support in favor of the wife. The husband remained in Georgia; the wife and child moved to Leavenworth, Kansas. On August 19, 1980, the husband filed his petition in the Leavenworth County District Court, requesting an order reducing child support payments on the grounds of changed circumstances. Personal service was obtained on the wife in Leavenworth County.
On the wife's motion to dismiss, the trial court found it had jurisdiction under K.S.A.1980 Supp. 60-1610 to modify or change child support provisions "provided such modification or change is to advance the welfare of a minor child." The court, however, found itself without jurisdiction to reduce child support because such would not advance the welfare of the child.
A single issue is raised on appeal: whether a Kansas court of general jurisdiction, having personal jurisdiction of divorced parents and their minor child, has authority to enter an order reducing the provisions for support of that minor child previously entered by a court of a foreign state?
Jurisdiction to determine a parent's duty to support a minor child has been held to proceed in Kansas from three sources: (1) K.S.A.1980 Supp. 60-1610(a) (pertaining to Kansas divorces); (2) K.S.A. 23-451 et seq. (Uniform Reciprocal Enforcement of Support Act); and (3) common law concepts of parens patriae. Keller v. Guernsey, 227 Kan. 480, 608 P.2d 896 (1980).
Support orders under K.S.A.1980 Supp. 60-1610(a) are limited by the terms of that statute to "a decree in an action under this article." The term "this article," of course, refers to Kansas judgments ordering divorce, separate maintenance or annulment. Inasmuch as the decree in the instant action was rendered not in Kansas but in Georgia, the trial court's reference to K.S.A.1980 Supp. 60-1610(a) was inappropriate. In passing, however, we are constrained to note that the trial court also misconstrued its authority to modify child support orders under that statute when it held modification was limited to increases only. In our view, a decrease in child support, under proper circumstances, can "advance the welfare of a minor child" just as effectively as would an increase in support under other circumstances. For example, the psychological effect of unrealistically high support orders on some obligors is well known: in the frustration born of the hopeless arrearage, they pay nothing. In situations such as these, a reduction in support, resulting in an appropriate order which is actually and regularly paid thereafter, clearly advances the welfare of the minor child. K.S.A.1980 Supp. 60-1610(a), as we view it, permits both increases and decreases in child support in appropriate cases involving...
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