In re Marriage of Vandenberg, No. 101,745 (Kan. App. 4/30/2010)
| Decision Date | 30 April 2010 |
| Docket Number | No. 101,745.,101,745. |
| Parties | IN THE MATTER OF THE MARRIAGE OF JEFFREY A. VANDENBERG, <I>Appellant,</I> and, LISA VANDENBERG, <I>Appellee.</I> |
| Court | Kansas Court of Appeals |
SYLLABUS BY THE COURT
1. When a child custody issue arises between parents, the paramount consideration of the trial court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination and, in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal.
2. In the determination of the custody or residency of the child, 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: 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; the desires of the child's parents as to custody or residency; the desires of the child as to the child's custody or residency; the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests; the child's adjustment to the child's home, school, and community; and 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.
3. When an appellant challenges the sufficiency of the evidence to support a trial court's findings regarding a child's best interests, 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.
4. An appellate court generally reviews a trial court's award of maintenance for an abuse of discretion. The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. A trial court by definition abuses its discretion when it makes an error of law. Moreover, because the trial court is required to comply with statutes authorizing payment of support and maintenance, where it fails to do so, this court will find reversible error.
5. The purpose of maintenance is to provide for the future support of the divorced spouse. K.S.A. 2009 Supp. 60-1610(b)(2) provides that a "decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances."
6. In the determination of maintenance, the trial court may consider: the age of the parties; their present and prospective earning capacities; the parties' needs; the time, source, and manner of acquisition of property; family ties and obligations; and the parties' overall financial situation.
7. 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.
8. 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.
9. The fault of either party to a marriage is not to be considered in determining the financial aspects of the dissolution of the marriage unless the conduct is so gross and extreme that the failure to penalize therefore would, itself, be inequitable.
10. A trial court has broad discretion in adjusting the property rights of parties involved in a divorce action, and its exercise of that discretion will not be disturbed on appeal absent a clear showing the court abused that discretion.
11. K.S.A. 2009 Supp. 60-1610(b) governs the trial court's division of property. Property division in a divorce proceeding must be just and reasonable but need not be equal.
Appeal from Montgomery District Court; ROGER L. GOSSARD, judge. Opinion filed April 30, 2010. Affirmed.
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.
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.
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., 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.
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...
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