In re Marriage of Bahlmann
| Decision Date | 05 April 2019 |
| Docket Number | No. 120,019,120,019 |
| Citation | 440 P.3d 597 |
| Parties | In the MATTER OF the MARRIAGE OF Rebecca E. BAHLMANN, Appellee, and Bruce F. Bahlmann, Appellant. |
| Court | Kansas Court of Appeals |
Trey McGrew-Bryant, of Seaton, Seaton & Dierks, LLP, of Manhattan, for appellant.
Kitra R. Schartz, of Morrison, Frost, Olsen, Irvine & Schartz, LLP, of Manhattan, for appellee.
Before Bruns, P.J., Schroeder and Gardner, JJ.
Bruce F. Bahlmann appeals the district court's dismissal of his motion to modify child custody. He contends that the court failed to consider the facts alleged in his motion as true and failed to give him adequate notice of a hearing on Rebecca Bahlmann's motion to dismiss his motion. Finding no error, we affirm.
When Rebecca filed for divorce from Bruce she received ex-parte temporary orders for custody and parenting time. Bruce then filed several motions seeking to modify the ex-parte orders. The court heard those motions, held a final hearing on the divorce and custody matters, and then adopted Rebecca's parenting plan. After the court's written decision, the parties remained contentious and continued to litigate custody.
Two motions underlie this appeal. First, Bruce moved to modify child custody and for custody evaluation a little over a year after the court's written decision. He claimed a material change in circumstances warranted a change in their parenting plan and custody. He alleged that Rebecca had become physically and emotionally abusive toward the children since custody was last determined and that both children's grades had suffered since the parenting plan began, making their daughter academically ineligible to participate on the cross-country team.
Second, Rebecca moved to dismiss Bruce's motion. Rebecca denied any material change in circumstances and alleged it would not be in the children's best interests to live with Bruce. She denied Bruce's allegations of physical and emotional abuse, asserted that the children's grades had not suffered, and stated that their daughter was on the honor roll. Rebecca also alleged that the court had heard Bruce's complaints before and that the parties had already litigated these issues.
The parties were set to mediate Bruce's motion, but the court sua sponte changed the order from mediation to conciliation. This prompted the parties to file a joint motion for mediation, and Bruce's attorney filed a notice of hearing for that motion.
Rebecca appeared at that hearing in person with her attorney, but Bruce appeared only through his attorney. The first issue the court addressed in the hearing, however, was not the joint motion for mediation but Bruce's motion to modify custody and Rebecca's motion to dismiss that motion. The court discussed Bruce's allegations and Rebecca's responses to them, noting that Bruce's allegations lacked specific times and dates. Bruce's attorney noted that although the motion lacked specific dates, it alleged that the changes had occurred since the last custody determination. He asserted that the court should consider the alleged facts in the light most favorable to Bruce. The district court dismissed Bruce's motion, finding it failed to state facts with specificity and did not show a material change in circumstances. That ruling mooted the parties' joint motion for mediation. Bruce appeals.
The district court dismissed Bruce's motion to modify child custody and motion for custody evaluation, finding that the motion failed to state with specificity facts that rose to the level of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3218. Bruce argues that the district court erred by considering opposing allegations in Rebecca's motion to dismiss and by failing to accept his factual allegations as true.
Given the district court's unique vantage point of what is often an emotionally charged situation in child custody disputes, an appellate court generally will not overturn such decisions unless the court abused its discretion. See Harrison v. Tauheed , 292 Kan. 663, 672, 256 P.3d 851 (2011). When a party challenges the evidence underlying the district court's decision regarding custody, "this court reviews the evidence in a light most favorable to the prevailing party below to determine if the court's factual findings are supported by substantial competent evidence and whether those findings support the court's legal conclusion." In re Marriage of Vandenberg , 43 Kan.App.2d 697, 704, 229 P.3d 1187 (2010). This court cannot reweigh evidence, pass on witness credibility, or redetermine questions of fact. 43 Kan.App.2d at 705, 229 P.3d 1187.
Here, however, the district court did not hold an evidentiary hearing on Bruce's motion to modify child custody and instead granted Rebecca's motion to dismiss that motion. Bruce contends that under these circumstances, the district court and this court on review must assume all factual allegations in Bruce's motion are true. In support of that proposition, however, Bruce cites only to civil cases dismissed for failure to state a claim at the pleading stage before any evidence was presented, namely Cohen v. Battaglia , 296 Kan. 542, 546, 293 P.3d 752 (2013) ; Campbell v. Husky Hogs , 292 Kan. 225, 227, 255 P.3d 1 (2011) ; and Halley v. Barnabe , 271 Kan. 652, 656, 24 P.3d 140 (2001).
We have applied that pleading standard to a motion to modify child custody at least once. See In re Marriage of Uehling , No. 116466, 2017 WL 1369958, at * 2 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1318 (2017) ().
But we do not do so here. As we discuss below, the district court had good reason not to assume the truth of all the factual allegations in Bruce's motion. And a motion is not a pleading. See K.S.A. 2018 Supp. 60-207(a) (); (b) (listing requirements for motions and other papers). Bruce has not shown why we should apply the same standard to Rebecca's motion to dismiss his posttrial motion to modify that we apply to a pretrial motion to dismiss a pleading. We assume the factual allegations in a motion to dismiss a pleading are true because no evidence has been presented, the case has just begun, and generally, the only issue is the legal sufficiency of the pleading in stating a claim upon which relief may be granted. See, e.g., Platt v. Kansas State University , 305 Kan. 122, 126, 379 P.3d 362 (2016). Yet the procedural posture of a motion to modify child custody is significantly different. Bruce and Rebecca filed their pleadings long ago and then presented evidence at trial. The district court weighed that evidence, made credibility calls, and issued a final order in the case. Bruce later moved to modify that final order, Rebecca responded by seeking to dismiss Bruce's motion, and the district court dismissed the motion. What happened here is more akin to the court dismissing Bruce's posttrial motion for a new trial based on newly discovered evidence than it is to a court dismissing a pleading before any evidence has been presented. See K.S.A. 2018 Supp. 60-259(g) (); State v. Laurel , 299 Kan. 668, 676, 325 P.3d 1154 (2014) (); State v. Warren , 302 Kan. 601, 615, 356 P.3d 396 (2015) ().
We exercise unlimited review in determining whether a plaintiff has presented a prima facie case. See Becker v. Knoll , 291 Kan. 204, 206, 239 P.3d 830 (2010) ; In re Marriage of Novacek , No. 118628, 2018 WL 3320195, at *8 (Kan. App. 2018) (unpublished opinion) (); In re Marriage of Uehling , 2017 WL 1369958, at *2 (same). We apply this standard here. Accordingly, we exercise de novo review of Bruce's motion. A prima facie showing is one "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it [may] later be proved to be untrue." Black's Law Dictionary 1382 (10th ed. 2014). Cf. Frick Farm Properties v. Kansas Dept. of Agriculture , 289 Kan. 690, Syl. ¶ 1, 216 P.3d 170 (2009) (). This is similar but not identical to the pleading standard Bruce suggests.
The foremost consideration in any custody determination is a placement that is in the best interests of the child. In re Marriage of Vandenberg , 43 Kan.App.2d at 701, 229 P.3d 1187. A decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. Simmons v. Simmons , 223 Kan. 639, 642, 576 P.2d 589 (1978). Yet a district court "may change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown." K.S.A 2018 Supp. 23-3218(a).
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