In re Brown

• Decision Date: 26 October 2012
• Docket Number: No. 103,758.,103,758.
• Parties: In the Matter of the MARRIAGE OF Kristin L. BROWN, Appellant, and John Jared Brown, Appellee.
• Court: Kansas Supreme Court

295 Kan. 966

291 P.3d 55

In the Matter of the MARRIAGE OF Kristin L. BROWN, Appellant, and John Jared Brown, Appellee.

No. 103,758.

Supreme Court of Kansas.

Oct. 26, 2012.

Syllabus by the Court

A district court's authority to discharge or vacate child support that was due under an interlocutory order, other than an ex parte order, is limited. If a motion for modification has not been filed, any court-ordered modification operates prospectively only, and the district court is not authorized to vacate or discharge past-due child support.

Stephen P. Weir, of Stephen P. Weir, P.A., of Topeka, argued the cause, and Donald Lambdin, of Law Offices of Lambdin, Lambdin & Fraser, Chartered, of Wichita, was with him on the brief for appellant.

John Jared Brown, appellee pro se, argued the cause and was on the brief.

The opinion of the court was delivered by LUCKERT, J.:

More than 50 years ago, in Edwards v. Edwards, 182 Kan. 737, Syl. ¶ 2, 324 P.2d 150 (1958), this court stated that a child support order entered during the pendency of a divorce action is interlocutory and may be modified at any time and in any manner, even to the extent of discharging accrued and unpaid installments. This appeal raises the issue of whether that holding remains valid in light of statutory changes that have occurred over that 50–year period. After reviewing the statutory changes, we hold that the Kansas Legislature has limited a district court's authority to discharge past-due child support in a final decree of divorce; specifically, a court's authority is limited by the provision in K.S.A. 60–1610(a)(1) that limits the retroactivity of a modification to a date at least 1 month after the date that a motion to modify was filed.

Based on this conclusion, we reverse the district court's order entered at the final divorce hearing that discharged all unpaid child support that had accrued under the court's interlocutory child support orders. We also reverse the Court of Appeals' decision to affirm the order discharging the past-due amounts and remand to the district court for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

In February 2006, Kristin L. Brown petitioned for a divorce from her husband, John Jared Brown. The couple had two young daughters at that time. Soon after the filing, the district court entered temporary orders, one of which required Jared to pay monthly child support. Jared fell behind in these payments, and eventually his wages were garnished.

Despite the garnishments and several modifications to the child support order brought about by motions, by the time of the final divorce hearing in November 2009, Jared owed $15,524 in unpaid child support. At the hearing, Kristin requested a judgment against Jared for the child support arrearage and for other monies she claimed Jared owed her, including $15,000 Kristin had provided to erase spousal maintenance and child support obligations that Jared owed to his previous spouse. Jared countered with a number of arguments, including the contention that Kristin was trying to get him to pay her separate bills. Jared also claimed a right to the proceeds from the sale of the parties' home. After hearing the parties' arguments, the district judge made the following rulings on the record:

“I've heard enough.... I think it's in both parties['] best interest to make a clean break on this thing, and so here's what we are going to do. I'm calling it good. [Kristin] can keep all of the money from the proceeds from the sale of the house.... And so I'm calling it clean as of December 1 of 2009. There are no arrearages. All of the $19,000 [leftover from the home-equity proceeds] can go to satisfy whatever arrearages there exist. The $15,000 on the [child support for Jared's first wife] I construe as a gift, and I'm calling it good as of December 1, 2009....

....

“... There were lots of monies paid from that equity for debts that I'm not sure were [Jared's] debts, and we haven't—the parties didn't present evidence on all of this stuff. And I just really do not think it's the way to handle this, to go duke it out over [$5,000] to $10,000, I just don't think it's worth it.... It's just not worth the fight, so that's why I'm calling it good. I think it's better for these parties to move forward without having any outstanding financial issues going at each other over. Let's just move on with this thing. She can have the $20,000, we are calling it good. I'm now going to expect [Jared] is going to pay his child support in full every month on a timely basis; and if he doesn't, he's going to have to answer to me. But that's the way we are going to do that and that's the order of the Court.”

On direct appeal, Kristin raised two issues before the Court of Appeals: (1) The district court abused its discretion in setting the conditions and terms of the parenting-time order and (2) the district court erred in disposing of the child support arrearage. See In re Marriage of Brown, No. 103,758, 2010 WL 4157111 (Kan.App.2010) (unpublished opinion).

The Court of Appeals affirmed the district court's orders. Regarding the order discharging the unpaid child support, the Court of Appeals rejected Kristin's reliance on In re Marriage of Schoby, 269 Kan. 114, 120–21, 4 P.3d 604 (2000), a case involving a modification of child support after a divorce was final. The Court of Appeals concluded that the holding did not apply to child support obligations under an interlocutory or pendente lite—meaning during the pendency of litigation—child support order. The Court of Appeals reasoned:

“Installments of temporary support pendente lite do not become a final judgment on their due date. They are subject to review and modification by the district court and do not automatically become a final judgment. See Edwards v. Edwards, 182 Kan. 737, 324 P.2d 150 (1958). The district court's temporary order for support, for which an arrearage of $15,524 had accumulated before the final hearing, did not mature into a judgment.” Marriage of Brown, 2010 WL 4157111, at *6.

Kristin filed a petition seeking this court's review of the Court of Appeals' decision. Review was granted only as to the child support arrearage issue. This court has jurisdiction under K.S.A. 20–3018(b) (petition for review).

ANALYSIS

Kristin argues the Court of Appeals erred in relying on Edwards because statutory changes have effectively overruled the portion of the decision relating to a district court's authority to modify or vacate an interlocutory child support order. Because of the effect of these changes, she argues the statute applied in Marriage of Schoby—K.S.A. 60–1610(a)(1)—also applies to interlocutory child support orders. As a result, according to Kristin, rather than distinguish Marriage of Schoby, the Court of Appeals should have applied the Marriage of Schoby court's holding that under K.S.A. 60–1610(a)(1) child support modifications operate prospectively only. Marriage of Schoby, 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604.

Kristin's arguments require us to interpret various statutes relating to child support. Questions of statutory interpretation are issues of law over which this court exercises unlimited review. As in any situation in which a court is called upon to interpret or construe statutory language, the touchstone is legislative intent. To divine legislative intent, a court begins by examining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history, background considerations that speak to legislative purpose, or canons of statutory construction. When a statute is plain and unambiguous, a court merely interprets the language as it appears; a court is not free to speculate and cannot read into the statute language not readily found there. State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977 (2012); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).

These rules of statutory interpretation apply to our analysis and comparison of the statutes that were in effect at the time of the decision in Edwards, those statutes that applied in Marriage of Schoby, and those statutes that controlled the district court's orders in this case. To facilitate this analysis and comparison, we begin with a discussion of Edwards and then examine the changes to the statutes that have occurred after that decision.

In Edwards, the wife filed a divorce action against her husband and obtained an ex parte order for temporary child support and alimony. The husband failed to comply with the ex parte order. Later, the district court vacated the child support obligation that had become due under the ex parte order. The wife appealed, and the husband sought to have the appeal dismissed because the district court's order was not final and, therefore, not appealable. In arguing that the order could be appealed, the wife urged the court to find that her husband's past-due payments for child support and alimony became final judgments even though the divorce was not yet final. She further argued that the husband's property should be “taken on execution” and sold to satisfy the arrearages. Edwards, 182 Kan. at 738, 324 P.2d 150.

At the time of Edwards, an interlocutory child support order was authorized by section 60–1507 of General Statutes of Kansas of 1949. Further, the statute allowed the court to “modify or vacate such order from time to time as may be proper.” (Emphasis added.) G.S.1949, 60–1507. Applying this statute, the Edwards court concluded that “[a]n allowance of support ... pendente lite ... does not become a final judgment on which execution can issue, but is merely a temporary or ad interim provision for their support until the final determination of the action.” Edwards, 182 Kan. 737, Syl. ¶ 1, 324 P.2d 150. The Edwards court distinguished between support decreed upon dissolution of the marriage and a temporary support order,...