In re Welter

• Decision Date: 11 September 2020
• Docket Number: No. 121,605,121,605
• Parties: In the MATTER OF the MARRIAGE OF Steven P. WELTER, Appellant, and Kiera J. Welter, Appellee.
• Court: Kansas Court of Appeals

474 P.3d 786

In the MATTER OF the MARRIAGE OF Steven P. WELTER, Appellant,

and

Kiera J. Welter, Appellee.

No. 121,605

Court of Appeals of Kansas.

Opinion filed September 11, 2020

Courtney J. Whiteley, of Cordell & Cordell, P.C., of Independence, MO, for appellant.

Lewanna Bell-Lloyd, of Olathe, for appellee.

Before Green, P.J., Atcheson and Gardner, JJ.

Gardner, J.:

Steven Welter appeals the district court's denial of his motion to terminate spousal maintenance to his ex-wife, Keira Welter. Steven argues that his duty to pay spousal maintenance automatically terminated in accordance with the terms of their divorce decree when Keira cohabited with another person, so the district court abused its discretion by modifying payments rather than terminating them. We agree.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2016, Steven petitioned to divorce Keira. At the divorce trial, the parties disputed how much spousal maintenance Steven would provide Keira. Steven claimed that Keira earned $48,000 a year and asked the district court to set maintenance at $500 a month for a year. Keira requested $1,457 a month for 76 months.

The divorce decree ordered Steven to provide maintenance of $781 for 73 months through income withholding. The decree, which was not the product of a settlement agreement, included these conditions of termination:

"The spousal maintenance payments shall terminate upon any of the following: the expiration of the term period set above; the death of either party; remarriage of [Keira]; or [Keira's] ‘cohabitation,’ defined as living with a non-relative adult for substantially consecutive periods of time in excess of thirty (30) days, even if said relationship does not amount to marriage-like ‘cohabitation’ under the common law of Kansas."

The decree's only other language regarding spousal maintenance stated: "Spousal maintenance shall be modifiable pursuant to K.S.A. 23-2901 through 23-2904, but may not be modified or reviewed more than one (1) occasion every two (2) years. For the [Court] to hear a motion to modify, there must exist a departure of at least ten percent (10%)."

In early 2018, contrary to a court order, Keira refused to sign closing documents for the sale of the marital home. So, on February 1, 2018, the district court temporarily suspended Steven's payment of maintenance and ordered Keira to begin making the mortgage payments. After a hearing, the district court made those orders permanent until Keira executed the necessary closing documents. But Keira never signed the documents, the buyer rescinded the contract, and the sale of the house fell through.

In June 2018, the district court found Keira in contempt of court because she had

• violated his order to execute the closing documents;

• violated his order that she make monthly mortgage payments;

• removed items from the house that were not hers; and

• trashed the house.

The district court ordered Kiera to pay Steven's attorney fees associated with her contempt, to reimburse her court-appointed attorney's fees, and to report to the county jail if she failed to sign closing documents on another offer for the house.

Keira apparently signed the closing documents, as the house later sold. The district court then decided how to distribute the proceeds. To account for money Keira owed Steven, the district court vacated Steven's monthly maintenance payments from November 2018 through March 2019.

In December 2018, Steven moved to terminate spousal support. He asserted that Keira had been cohabitating with her boyfriend, Todd McGhee, and relied on the clause in the divorce decree that "spousal maintenance payments shall terminate upon ... cohabitation." In May 2019, the district court held a hearing on the matter.

During the hearing, Keira argued that it would be inequitable to terminate spousal support. She lived with McGhee only because she was not then receiving maintenance payments and could not live on her own or with a family member. Keira was unemployed from June 2017 to December 7, 2018. She fell behind on rent in December 2017 and was evicted in May 2018. The parties stipulated that Keira had resided with McGhee from June 2018 until February 2019. For a short time, Keira lived with her mother in Joplin, Missouri but that was not a long-term option. So McGhee, whom Kiera had been dating, invited her to live with him. She did so for around nine months, then moved into an apartment in February 2019.

While living with McGhee, Keira did not pay rent or pay utilities. While McGhee was at work, Keira would babysit his minor son without compensation. She made meals for him and did household chores. She spent Independence Day and Christmas with McGhee and his son. McGhee paid for Keira's cellphone, car insurance, and gas. Keira admitted that she received a material financial gain or benefit from her relationship and residence with McGhee.

After hearing the testimony, the district court denied Steven's motion to terminate maintenance. Yet the district court found that Keira had violated the cohabitation termination condition in the divorce decree during the nine months she lived with McGhee. It also found that she cohabited in a marital-like relationship as in In re Marriage of Kuzanek , 279 Kan. 156, 158-62, 105 P.3d 1253 (2005) (applying the definition of "cohabitation" from In re Marriage of Kopac , 30 Kan. App. 2d 735, 737, 47 P.3d 425 [2002] ). Although it found that Keira met the cohabitation terms of the divorce decree, the district court decided not to terminate maintenance. Rather, it merely reduced the term of Steven's maintenance payments by nine months—the time Keira had cohabited with McGhee.

The district court styled its order as a modification of the terms of spousal maintenance to balance the equities:

"It's not escaping the Court here that wife continues to, I'm just going to say in a train wreck like fashion, make these decisions that just causes her untold consequences."

"Now, this is a decision I've made today that husband is probably going to have a long talk with his lawyer about appealing it. Because, I mean, you read these facts of Kuzanek , and I'm finding that, consistent with Kuzanek , she lived and cohabited in this marital-like relationship during the period of time. I mean, the facts you can overlay them. There are some differences and distinctions, but I think those are not significant. Husband may well—may well want to appeal it. I don't know."

"But from wife's perspective, she can't keep making the decisions that she has made postdivorce without consequence. It absolutely violates the specific language as well as the intent of the Court's orders. We can't undo the things that have been done. But I'm going to style my ruling today as a modification of the spousal maintenance orders in this case insofar as the term has been reduced as I have indicated."

....

"So, in my own verbiage, wife dodged a bullet here. She really dodged a bullet. I came very close to following exactly what Kuzanek says, but I didn't. I just reduced the term. If this comes up again, I'll be more inclined than I am today to cut it off completely. I can't emphasize this strongly enough. Wife needs to make better decisions. There's consequences. If this comes up again, the consequences will likely be more severe than they are—for her.

"I mean, I realize I have two parties here, you know. Husband is sitting over there saying, well, gees, the Judge just said she was cohabitating in violation of the 30 days, how come that doesn't end it all. I mean, he's sitting over there. I'm trying to balance the equities here, and that's my ruling."

Steven timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REDUCING SPOUSAL MAINTENANCE RATHER THAN TERMINATING IT ?

On appeal, Steven argues the district court abused its discretion by not terminating spousal maintenance after it found that Keira had cohabited with McGhee, meeting that termination condition in the divorce decree. Steven asserts his duty to pay spousal maintenance automatically terminated when Keira lived with McGhee for thirty days, citing in In re Marriage of Quint , 258 Kan. 666, Syl. ¶ 2, 907 P.2d 818 (1995) and In re Marriage of Knoll , 52 Kan. App. 2d 930, 940, 381 P.3d 490 (2016). Thus, the district court lacked the power to modify the divorce decree under K.S.A. 2019 Supp. 23-2903.

We note that neither party contends that the divorce decree retained jurisdiction under K.S.A. 2019 Supp. 23-2904 for the district court to reinstate maintenance, or that the district court reinstated maintenance after it had terminated. The parties focus their arguments on modification, not reinstatement, of maintenance. We do the same.

Steven contends that maintenance automatically terminated when Keira cohabited, as set forth in the divorce decree. Keira counters that because the district court had suspended or vacated maintenance during the time she lived with McGhee, her acts had no effect on Steven's duty to pay maintenance. In the alternative, Keira claims that under K.S.A. 2019 Supp. 23-2903, the district court can modify a maintenance obligation at any time. Lastly, she claims the district court properly exercised its equitable discretion in reducing, rather than terminating, maintenance.

STANDARD OF REVIEW

This court reviews a denial of a motion to terminate spousal support under the same standard as a review of a motion to modify maintenance, thus we apply a bifurcated standard. See Knoll , 52 Kan. App. 2d at 935, 381 P.3d 490. We review whether the trial court's factual findings are supported by substantial competent evidence and whether the trial court abused its discretion. 52 Kan. App. 2d at 935, 381 P.3d 490.

Steven does not dispute any of the district court's factual findings. And Keira does not dispute the district court's finding that she violated the cohabitation termination condition of the divorce decree by living with McGhee from June 2018 to February 2019. Thus we review this case only for an abuse of...