Fox v. Ozkan

• Decision Date: 17 June 2022
• Docket Number: 123,643
• Citation: 511 P.3d 986 (Table)
• Parties: In the Matter of the Marriage of Sarah FOX (f/k/a Ozkan), Appellee, v. Gurkan OZKAN, Appellant.
• Court: Kansas Court of Appeals

511 P.3d 986 (Table)

In the Matter of the Marriage of Sarah FOX (f/k/a Ozkan), Appellee,

v.Gurkan OZKAN, Appellant.

No. 123,643

Court of Appeals of Kansas.

Opinion filed June 17, 2022.

Gurkan Ozkan, appellant pro se.

Joseph W. Booth, of Lenexa, for appellee.

Before Atcheson, P.J., Hill and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

A divorced father appeals an order to pay a share of his children's medical expenses and an award of attorney fees to his former wife. She raises two procedural bars to the appeal: we lack jurisdiction due to his defective notice of appeal, and he has acquiesced in the judgment since he has already paid the full amount through an income withholding order. She is not correct on the first but is correct on the second.

The case history

Gurkan Ozkan and Sarah Fox divorced in 2012. Since then, they have returned to court with different child support and parenting time disputes. They have two children. Fox lives in Kansas and Ozkan lives in Virginia. The children reside mainly with Fox.

The district court issued the current child support order in June 2019. It is relevant to this appeal that the court ordered that Ozkan and Fox share the children's medical expenses that were not covered by insurance in proportion to their incomes.

In March 2020, Ozkan, without benefit of counsel, asked for reimbursement of $6,985 in medical expenses for the children. In response, Fox contended she did not owe reimbursement to Ozkan because insurance premiums were supposed to be paid by him. In turn, Fox sought reimbursement from Ozkan for a share of what she had paid for medical expenses for the children that totaled $4,961.96. She requested Ozkan pay 47 percent, or $2,332.12, according to the child support worksheet adopted by the court.

Their motions were heard by a hearing officer. The hearing officer ruled that insurance premiums were addressed by prior orders and included in the last child support worksheet resulting in an adjustment downward in Ozkan's favor in owed child support. Thus, he was not due any reimbursement for the premiums from Fox. The hearing officer ruled Ozkan was entitled to reimbursement of $294.00 in other medical expenses. For Fox's claim, the hearing officer reviewed the invoices and receipts presented by Fox and found the expenses were appropriate and reasonable. The hearing officer entered judgment against Ozkan for the claimed $2,332.12. The hearing officer ordered the District Court Trustee to issue an immediate income withholding order to Ozkan's employer.

Ozkan filed a motion requesting a rehearing and reimbursement for time and legal expenses he had incurred. He claimed he did not have enough opportunity to review and verify Fox's claims for reimbursement before the hearing and, upon thorough review, he had found many of Fox's claimed expenses lacked a corresponding invoice or receipt. He also claimed Fox spent too much on medical care for the children, requested that she be ordered to provide an Excel spreadsheet listing each expense paid, along with proof of payment of each expense, and requested reconsideration of his request for reimbursement of health insurance premiums. The hearing officer denied this motion.

Ozkan appealed the hearing officer's decisions to the district court. At the district court hearings on the issues, Ozkan argued that Fox should have to provide proof of payment for every expense. In turn, Fox argued that the court's order and the Kansas Child Support Guidelines required only proof of an expense, not proof of payment of that expense. The order was for the parents to share in the medical expenses. Ozkan further sought payment for the cost of the children's medical insurance premiums from 2016 to 2019. He argued Fox got credit for paying the insurance premiums during that time and the court overlooked this in its 2019 order. But he said he first raised this issue in his March 2020 motion. Fox argued that the court did address insurance premiums for that period in the 2019 ruling and that the court could not retroactively modify the amount of child support owed before Ozkan filed his current motion, citing K.S.A. 2020 Supp. 23-3005. Fox also sought an award of attorney fees under 2020 Supp. K.S.A. 23-2715.

The court denied Ozkan's request for reimbursement of time and legal expenses. The court ruled Fox was not required to provide receipts showing payment of medical expenses for which she sought reimbursement. The court did acknowledge a mistake of $7.40 in the hearing officer's ruling and awarded that amount to Ozkan. Otherwise, the court affirmed the award in favor of Fox. The court denied Ozkan's request that Fox provide him an Excel spreadsheet of expenses noting that Fox already provided exhaustive documentation to Ozkan. The court denied Ozkan's request for reimbursement of health insurance premiums. The court found that health insurance premiums were a line item on the existing child support worksheet and ruled it could not make a retroactive modification to child support under K.S.A. 2020 Supp. 23-3005(b). The court also ruled that the issue had been already litigated and ruled on in the 2019 order and therefore res judicata barred reconsideration. The court granted Fox's request for attorney fees in part, noting some of Ozkan's requests "border on frivolous."

A motion to reconsider denied by the court affects one of our rulings.

In a combined motion, Ozkan moved to reconsider or grant relief from judgment under K.S.A. 2020 Supp. 60-259 and K.S.A. 2020 Supp. 60-260. He again argued there were discrepancies between Fox's claimed expenses and the documentation to support the expenses. He argued the Guidelines require proof of payment of medical expenses sought for reimbursement and that the court "misled all participants" by stating otherwise.

He again requested that Fox be ordered to provide a detailed breakdown of claimed expenses in an Excel spreadsheet. He also requested reimbursement for health insurance premiums. He claimed Fox's attorney tried to influence the court by stating, "You do not have the authority" to retroactively modify child support. He argued that the court's statement that some of his requests " ‘border[ed] on frivolous’ " showed bias toward Fox. He requested reconsideration of the attorney fee award. And he asked the court to revisit his request for an award of time and legal fees. Fox argued the 2020 Guidelines did not apply to enforcement of the 2019 child support order.

The court ruled that Kansas law on motions to reconsider do not allow a "second bite at the apple" for the movant to simply reassert the same arguments to persuade the court to rule differently. Ozkan presented no new evidence. As for Ozkan's claim that the new Guidelines required proof of payment of medical expenses before reimbursement, the court ruled:

• the Guidelines in effect when the child support order was made control;

• even if the 2020 Guidelines applied, they do not require that a parent pay a medical expense before the other parent is assessed liability; and

• the court has discretion under the Guidelines to enforce the claim for reimbursement.

The court denied Ozkan's motion.

Ozkan filed a timely notice of appeal stating he "appeals from this judgment or order, Order Denying Ozkan's Motion to Reconsider and/or Relief from Judgment, Case No. 11CV2258, Division 14, to the Court of Appeals of the State of Kansas."

While this appeal was pending, Fox filed a Johnson County District Court Trustee Pay Record showing Ozkan had satisfied the judgment here from his payments made through an income withholding order by the hearing officer.

In this appeal, Ozkan contends that the facts do not support the court's decision. In his view, the court abused its discretion when it said his requests "border on frivolous." He argues that opposing counsel improperly influenced the judge when he argued that the court lacked authority to order a retroactive payment of an expense. He also claims the court erred when it granted Fox attorney fees. Finally, he argues the court erred when it held that a party does not have to present proof of payment to obtain reimbursement under the Guidelines.

Fox responds by arguing that because of the very specific wording of Ozkan's notice of appeal, we lack jurisdiction. She contends that Ozkan has abandoned any claim of error in denying his K.S.A. 2020 Supp. 60-260 motion because he failed to brief the issue. Nor did the court err when it refused to grant him relief under K.S.A 2020 Supp. 60-259. She contends that the award of attorney fees was proper. And, finally, while not conceding jurisdiction, Fox argues that Ozkan has paid the disputed amount through an income withholding order and, thus, we have no jurisdiction through the doctrine of acquiescence.

We must first deal with Fox's arguments that we lack jurisdiction. We begin with her claims about the notice of appeal.

Notices of appeal are important.

Fox contends this court lacks jurisdiction over the order for Ozkan to pay medical expenses and attorney fees because his notice of appeal only covered the denial of his motion to reconsider.

The right to appeal is created by statute and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Wiechman v. Huddleston , 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). The Kansas statute states that a notice of appeal "shall designate the judgment or part thereof appealed from." K.S.A. 2020 Supp. 60-2103(b). It is a fundamental proposition of Kansas appellate procedure that " ‘an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal.’ [Citation omitted.]" (Emphasis added.) Associated Wholesale Grocers, Inc. v. Americold Corporation , 293 Kan. 633, 637, 270 P.3d 1074 (2011), cert. denied 133 S. Ct. 158 (2012) ; In re N.U. , 52 Kan. App. 2d 561, 567, ...