IN RE MARRIAGE OF VANDENBERG

• Decision Date: 30 April 2010
• Docket Number: No. 101,745.,101
• Citation: 229 P.3d 1187
• Parties: In the Matter of the MARRIAGE OF Jeffrey A. VANDENBERG, Appellant, and Lisa Vandenberg, Appellee.
• Court: Kansas Court of Appeals

229 P.3d 1187

In the Matter of the MARRIAGE OF Jeffrey A. VANDENBERG, Appellant, and
Lisa Vandenberg, Appellee.

No. 101,745.

Court of Appeals of Kansas.

April 30, 2010.

229 P.3d 1188

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229 P.3d 1189

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Leah Gagne, of Wichita, for appellant.

David J. Brown, of The Law Office of David J. Brown, LC, of Lawrence, for appellee.

Before CAPLINGER, P.J., BUSER and STANDRIDGE, JJ.

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BUSER, J.

In this divorce action, Jeffrey Vandenberg appeals the trial court's orders relating to residential custody, maintenance, property division, and attorney fees. We affirm the trial court's orders.

In particular, we address a question of first impression in Kansas: May a trial court considering an initial divorce decree deny an award of maintenance to an ex-spouse solely because the ex-spouse is engaged in same-sex cohabitation? As discussed more fully below, we conclude that in the absence of an explicit provision to the contrary in a settlement agreement, in considering an award of maintenance to an ex-spouse in an initial divorce action, a trial court may not deny maintenance solely because that ex-spouse is engaged in cohabitation, including same-sex cohabitation. On the other hand, in considering an award of maintenance to an ex-spouse in an initial divorce action, a trial court may assess the nature and extent of the financial contribution an unrelated party (such as a cohabitant) makes or is capable of making in order to maintain a relationship with that ex-spouse.

FACTUAL AND PROCEDURAL BACKGROUND

Jeffrey and Lisa Vandenberg married on December 29, 2000. During the marriage, their young son, T.V., and Lisa's teenage son from a prior marriage, R.C., lived with them. Both Jeffrey and Lisa had been married previously and had other children who did not live in their home.

During the marriage, the Vandenberg family moved several times because Jeffrey received job promotions in the aircraft industry. In 2006, the Vandenbergs moved to Cherryvale, Kansas, and Jeffrey began a management job with Cessna, for which he was paid a salary of $79,996.86 per year plus bonuses.

Lisa had a bachelor's degree in psychology and occasionally worked during the marriage, but she primarily stayed at home to care for T.V. and R.C., who had learning and behavioral difficulties. Because of a 1990 injury Lisa sustained while in the Air Force, she developed chronic neck spasms and constant back pain. Later she was diagnosed with fibromyalgia. In 2006, she was declared 70% disabled by the Department of Veterans Affairs (VA) and was awarded a monthly disability benefit of $1249.

In September 2007, Lisa told Jeffrey she no longer wanted to be married to him. Lisa also disclosed she was a lesbian and had previously had an extramarital affair with another woman. Although Jeffrey was devastated and angry, he wanted to salvage their marital relationship. Lisa was unsure of what she wanted, but she was resolved to leave Kansas for fear of abuse from the woman with whom she had the affair. Ultimately, Jeffrey and Lisa agreed that Lisa would travel to Colorado with T.V. to allow her time to consider her marital situation. Jeffrey and Lisa also decided that during this time R.C. would remain with Jeffrey in Kansas. In the days that followed, Jeffrey encouraged Lisa to return home to Kansas. After a few weeks, however, Lisa decided not to reconcile and resolved to remain in Colorado.

On October 25, 2007, Jeffrey filed a petition for divorce in Montgomery County and obtained an ex parte temporary order awarding him sole custody of T.V. while providing Lisa with visitation. Without advising Lisa or T.V., Jeffrey promptly drove to Colorado, picked up T.V. from school, and returned to Kansas, where he enrolled T.V. in a new school. R.C. continued to live with Jeffrey but his behavior worsened. As a result, in mid-November 2007—again without telling Lisa—Jeffrey contacted R.C.'s father who traveled to Kansas, picked up R.C., and brought his son back to Ohio.

Lisa was served with the divorce petition, filed an answer, and moved to set aside the ex parte custody order. At a hearing on January 2, 2008, the district court set aside the ex parte order and granted the parties temporary joint legal custody of T.V., with Lisa having temporary residential custody and Jeffrey provided parenting time. Lisa then returned with T.V. to Colorado.

By this time, Lisa had moved into the Colorado Springs home of another woman with whom Lisa shared living expenses and had an exclusive sexual relationship. T.V.,

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R.C., and the woman's 17-year-old son also lived in the home

On October 17, 2008, a bench trial was held. Jeffrey and Lisa testified at length and submitted supporting documentation detailing their divergent requests regarding how the trial court should decide the issues of child custody, property division, and Lisa's request for maintenance. After taking the matter under advisement, on December 10, 2008, the trial court filed a comprehensive memorandum decision.

The trial court granted the parties joint legal custody of T.V., with Lisa having residential custody of T.V., and Jeffrey afforded specific periods of parenting time. Jeffrey was ordered to pay child support. The trial court divided the party's assets, and Lisa was awarded maintenance of $700 per month for 44 months. Finally, the trial court ordered Jeffrey to pay $2,000 for Lisa's attorney fees.

Jeffrey appeals the trial court's rulings relating to residential custody of T.V., maintenance, property division, and attorney fees.

RESIDENTIAL CUSTODY

Jeffrey challenges the trial court's finding that it was in T.V.'s best interests for Lisa to have primary residential custody of their son.

This court will overturn a trial court's custody determination only upon an affirmative showing by the appellant that the court abused its sound judicial discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (abuse-of-discretion standard); Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009) (burden of proof on party asserting abuse of discretion). As our Supreme Court has explained, in reviewing child custody matters for abuse of discretion:

"an appellate court's function is not to delve into the record and engage in the emotional and analytical tug of war between two good parents over their child. The district court is in a better position to evaluate the complexities of the situation and to determine the best interests of the child . Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court's decision must be affirmed." In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995).

When a trial court is called upon to determine the custody or residency of a child, K.S.A.2009 Supp. 60-1610(a)(3) requires the decision be made "in accordance with the best interests of the child." To aid in making that decision, K.S.A.2009 Supp. 60-1610(a)(3)(B) provides a nonexclusive list of 11 factors that, if relevant, the trial court must consider, including:

"(i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;

"(ii) the desires of the child's parents as to custody or residency;

"(iii) the desires of the child as to the child's custody or residency;

"(iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests;

"(v) the child's adjustment to the child's home, school and community;

"(vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent."

In its memorandum decision, the trial court made the following findings regarding residential custody:

"Lisa shall have residential custody of T.V.. The basis for this finding is that residential custody with Lisa based upon the facts of this case is in the best interest of T.V. The Court finds that Lisa has been since the birth of T.V. the primary parent for T.V.. Court finds that Lisa because of her physical disabilities is unable to work at full-time employment and is a stay-at-home mother and is better able to be a full-time parent.

"Court finds that Jeffrey works long hours as a foreman at Cessna Aircraft Company in Independence, Kansas, and consistently works more than 40 hours per week and is on call for employment duties

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at all times. Court finds that Jeffrey by his actions since the parties separated has demonstrated that he does not have the willingness or ability to respect and appreciate the bond between T.V. and Lisa and has by his actions had a negative impact upon the continuing relationship between T.V. and Lisa.

"Court further finds that making Lisa the residential parent will, because of the school schedule in Colorado Springs, promote increased parenting time for Jeffrey over and above parenting time that would be available for Lisa if T.V. were placed in the residential custody of Jeffrey in Kansas. The court finds that the Colorado school system has in place far more holidays which would provide an increased opportunity for parenting time by Jeffrey who resides in Kansas."

On appeal, Jeffrey contends the trial court failed to explicitly mention or consider the three factors found in K.S.A.2009 Supp. 60-1610(a)(3)(B)(iii) through (v). Jeffrey also contends the trial court failed to consider other important circumstances, such as the reason for the end of the marriage, Lisa's "current lifestyle," the impact of Lisa's medication requirements and physical impairments, and "the impact of a very disturbed teenage half sibling R.C. living with T.V. has on his well being."

Contrary to Jeffrey's argument, our review of the trial court's...