In re McKinley

Decision Date23 January 2015
Docket Number110,882.
Citation342 P.3d 2 (Table)
PartiesIn the Matter of Trayce D. McKINLEY, Appellee, and Michael K. McKinley, Appellant.
CourtKansas Court of Appeals

Rebekah A. Phelps–Davis, of Phelps–Chartered, of Topeka, for appellant Michael K. McKinley.

Pantaleon Florez, Jr., of Topeka, for appellee Trayce McKinley.

Casey E. Forsyth, of Young Williams Child Support Services, of Topeka, for appellee State of Kansas.

Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Michael K. McKinley appeals the district court's order denying his motion to modify child support based on a material change of circumstances. He contends this court should review the district's court finding that (1) he was deliberately unemployed; (2) he presented no evidence that he was forced to resign for medical reasons or otherwise; and (3) his reduction in income due to retirement was not a material change in circumstances warranting a reduction in his child support obligation. However, we find the district court possessed substantial competent evidence based on the evidence and testimony presented to conclude Michael was deliberately unemployed. Therefore, we affirm.

Trayce D. McKinley and Michael were married in 2000. They had two children, born in 2001 and 2006. On August 13, 2008, Trayce filed a petition for divorce. At the time of divorce, both parties were employed full time. The district court temporarily granted the parties joint custody of the children, with Michael being awarded primary residency. The court ordered Michael and Trayce to attend conciliation and alternative dispute resolution.

The district court granted the divorce on January 6, 2009, but reserved for a later determination the issues of custody, child support, maintenance, and division of the parties' property and debt. The parties subsequently filed financial disclosures and child support worksheets along with their proposals for the division of assets and liabilities. The court again ordered the parties to attend conciliation to address financial matters of the divorce. The parties attended and were largely successful in resolving issues; however, there was a continuing conflict regarding parenting time exchanges.

On September 4, 2009, the conciliator issued reports regarding division of property, parenting time exchanges, and appointment of a case manager. On October 14, 2009, the district court adopted those recommendations. The court allocated the child support responsibilities based on the parties' earnings from full-time employment as well as the cost of health insurance, daycare, and related expenses. Michael was ordered to pay child support in the amount of $52 per month beginning October 1, 2009. The court ordered the Kansas Department of Social and Rehabilitation Services (SRS), now known as the Kansas Department for Children and Families (DCF), to monitor and enforce the payments.

On December 14, 2010, the district court issued its agreed temporary support order, which instructed Michael to pay Trayce $872 per month in support beginning June 1, 2010. On January 25, 2011, SRS filed an affidavit alleging Michael was delinquent in child support payments, and it filed a motion requesting the district court modify the income withholding.

On March 29, 2011, the district court issued a new order requiring Michael to pay Trayce $1,040 each month in child support plus $60 per month for child support arrearages. Michael received a full-time salary from his employment as a security guard for Blue Cross Blue Shield (BCBS) in addition to a pension from the State of Kansas Retirement System for Public Employees (KPERS) from his previous career with the Topeka Police Department. On July 19, 2011, SRS again filed a motion to modify the income withholding from Michael because he had continued to be in arrears. On September 29, 2011, Trayce and Michael again appeared before an administrative hearing officer (AHO) to present their new agreed child support payment of $1,000, which included the arrearage. On October 3, 2011, Michael prepared a child support worksheet indicating his gross monthly income was $5,271.

On January 6, 2012, Michael retired from BCBS. Then, on January 9, 2012, Michael filed a pro se motion to modify the child support order based on a material change of circumstances. Michael cited a drastic change in his financial status due to retirement from his security guard job at BCBS. He claimed he retired due to medical reasons. He reported his monthly income had dropped to $2,531. At that time, his current child support payment was $1,000 per month, including the arrearage. Michael had fallen behind by over $5,000 in support payments. He requested the court eliminate his payment altogether.

On April 18, 2012, an AHO heard Michael's motion. On May 9, 2012, the AHO filed its order denying Michael's motion, finding no material change of circumstances. On May 23, 2012, Michael filed a motion for judicial review of the AHO's order denying his motion for modification.

On August 23, 2012, the district court granted Michael's motion for review. Because the court found the record insufficient for review, it set the case for a hearing. On November 2, 2012, the court heard evidence on the issue of whether Michael's retirement was a material change in circumstances warranting a modification in child support. No representative for BCBS testified.

Michael testified his annual income had drastically changed due to his retirement from BCBS. While employed at BCBS full time, Michael earned $2,100 per month and received $2,840.54 from his KPERS retirement account for a total monthly income of nearly $5,000. His child support payment was $1,000. After retirement, he testified his monthly income was $2,840.54 from KPERS in addition to $130 per month from his VA pension. He testified he did not receive any monthly pension payment from BCBS because he had chosen to roll the money into an IRA. He testified the basis for his retirement was medical reasons, including two previous injuries, which he felt affected his ability to serve as a security guard.

Prior to working as a security guard at BCBS, Michael was in the military and then worked for the Topeka Police Department. Michael testified he had suffered a knee injury

while in the military that limited his mobility. He also testified about an ear injury he sustained while working for the police department that affected the hearing in his right ear. Michael stated he also suffered from tinnitus in his ear, which resulted in constant ringing. He stated he reinjured his knee while working for the police department. He testified his hearing had worsened since first suffering the injury. Although Michael had both injuries the entire time he worked for BCBS, upon retirement, he felt these physical limitations made him a “liability” at work. He stated he retired due to a concern for the safety of himself and others. Michael testified he was no longer able to perform the sort of duties he did at the police department and BCBS because he could not hear people yelling for assistance and was unable to run or make sudden stops due to his knee injury. Michael also testified his pension with BCBS vested after 5 years. After working at BCBS for 6 years, he made a personal decision to retire based on his concerns about his physical status with his hearing loss and knee condition. Michael had not been advised by a doctor to retire.

Michael testified he felt that if he continued to work and BCBS felt he was unable to perform his duties they would release him and he would miss out on BCBS's contributions to his 401K account. Michael decided to approach his supervisor about retiring before BCBS felt he was a liability and let him go.

After his retirement from BCBS, Michael applied for other security work, including positions with USD 501, the Kansas Fish and Game Department, and St. Francis Hospital. He received a job offer from St. Francis but was unable to accept the position because the hours conflicted with the time he had his two young children. After that, Michael was unable to secure a position with the other two employers. Michael's testimony indicated he only applied for additional work as a security guard. Although he had retired from security work due to a self-diagnosed inability to perform the work, he continued to apply for security work because he was trying to find employment, whatever it was.

Michael also testified he lost his home to foreclosure after his retirement. He then moved to Altamont, Missouri, with his girlfriend. Trayce testified she believed Michael was working for his girlfriend's company because his truck had decals for the company on it and their children mentioned he worked for his girlfriend. Michael responded he has a decal for the company on his truck to help advertise it, not because he worked there. He also claimed he answered phones and took down phone messages for her but was never paid for this work. Michael stated he was helping out his girlfriend because she had suffered a back injury.

Rick Ediger, owner of Ediger Hearing Aid Service, testified at the hearing as well. Ediger is certified to test hearing and dispense hearing aids and other ear protection. Michael had been a customer of Ediger's for several years, and Ediger had performed hearing tests on Michael. Ediger testified Michael's ear injury caused a constant ringing sound in his ear. However, he testified the test results of the damage to Michael's ear in July 2012 were the same as his test results from 1996. Ediger further testified Michael could carry on his activities of daily living even with the damage and tinnitus.

The district court noted Michael's gross income after retirement was $34,086.48.

The district court heard final arguments from the parties. Michael argued the modification was appropriate because of a material change in circumstances and his income had changed by greater than 10 percent. Trayce argued Michael was voluntarily...

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