Lank v. Florez (In re Paternity of A.L.)
| Decision Date | 01 June 2012 |
| Docket Number | No. 106,336.,106,336. |
| Citation | 277 P.3d 448 |
| Parties | In the Matter of the PATERNITY OF A.L., a Minor, by her Natural Mother and Next Friend, Lesa LANK, Appellee, and Pantaleon Florez, Jr., Appellant. |
| Court | Kansas Court of Appeals |
In the Matter of the PATERNITY OF A.L., a Minor, by her Natural Mother and Next Friend, Lesa LANK, Appellee,
and
Pantaleon Florez, Jr., Appellant.
No. 106,336.
Court of Appeals of Kansas.
June 1, 2012.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.
Pantaleon Florez, Jr., appellant pro se.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
PER CURIAM.
Pantaleon Florez, Jr., appeals the district court's decision denying his motion to modify child support and ordering him to pay attorney fees incurred by the petitioner, Lesa Lank, in responding to that motion. Florez claims the district court erred in finding that he failed to show a material change in circumstances warranting a modification of child support. He also claims the district court erred in awarding attorney fees and in denying his motion to alter or amend the judgment. For the reasons set forth herein, we affirm in part, reverse in part, and remand with directions.
This appeal concerns the same parties and involves many of the same facts that were addressed in a prior appeal, In re Paternity of A.L. v. Florez, No. 104,684, 2011 WL 2801080 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. –––– (2011). We will review the lengthy factual and procedural history of this case.
In 2008, Lank and Florez had a baby girl, A.L. During their relationship, Lank split her time between Wichita and Topeka. Florez, a solo law practitioner in Topeka, saw Lank during the week in Topeka. Their relationship ended before A.L.'s birth. Florez remarried his former wife, and Lank stayed in Wichita. Although Florez initially disputed his paternity of A.L., genetic testing proved that he was the father. Lank filed a paternity action against Florez, seeking child support and costs for maternity and genetic testing expenses.
As early as October 2008, and in any case no later than December 2, 2008, Florez was first ordered to provide his income information. In May 2009, the district court noted that Florez “ha[d] not yet provided his 2006, 2007 and 2008 tax returns, contrary to Court order.” On June 16, 2009, Florez was again ordered to provide his 2006–08 tax returns.
On September 17, 2009, the district court held an evidentiary hearing on the paternity action. By that time, Florez had evidently provided a copy of his 2006 tax return, which showed his gross business income as $62,464. While Florez did not provide his 2007 or 2008 tax returns to the district court, he testified that he earned $30,000 in 2007 and $14,000 in 2008. Florez claimed his income averaged around $31,000 per year for 2006–08.
Lank disagreed with Florez' reported income and called Kurt James, an attorney who had previously worked for Florez, to testify as to what Florez might be earning. James testified that Florez should be earning around $115,000 per year, taking into account Florez' 29 years of experience as an attorney, his areas of practice, his potential overhead costs, his hourly rate of $200, and nonpayment by some clients. Based on James' testimony and Florez' failure to provide his actual income data, the district judge imputed Florez with a yearly income of $80,000:
“I will impute your income—and I will be conservative on that—I will impute it at $80,000 based upon the testimony and [Florez'] refusal to provide his current year to date income figures. At the very least, Mr. Florez, you could have had the decency to bring your accountant down here to testify why he was not able to comply with my order and the previous judge's orders.”
On November 12, 2009, after the evidentiary hearing on the paternity action but before the district court's oral rulings were journalized, Florez filed a motion to alter or amend judgment, to which he appended his 2007 and 2008 tax returns. On November 17, 2009, the district court held a hearing on the motion and declined to reconsider Florez' imputed income.
On February 22, 2010, the written journal entry of the district court's oral rulings in the paternity action was finally filed. The district court granted Lank a judgment for one-half of maternity and genetic testing expenses and an award for attorney fees. The district court also denied any parenting time for Florez due to his refusal to provide a smoke-free environment for A.L. Based on Florez' imputed income, the district court ordered him to pay $918 per month in child support.
On or about March 4, 2010, Florez filed another motion to alter or amend judgment, again asking the district court to reconsider his imputed income. Lank opposed the motion, arguing that the issues raised were substantially similar to those raised in Florez' previous motion to alter or amend, which had already been denied by the district court. On April 27, 2010, the district court held a hearing and overruled the motion, noting in part that it had already addressed the issues raised in the motion.
On May 10, 2010, Florez filed a motion to modify parenting time because his wife had quit smoking. The district court granted Florez parenting time for 6 hours every Saturday in Wichita and further ordered the parties into case management to decide on an expansion of the parenting time.
On June 24, 2010, Florez filed a notice of appeal to this court. On appeal, Florez challenged the district court's determination of the income imputed to him for child support purposes as well as the district court's denial of his motions to alter or amend judgment. This court upheld both the imputed income and the denial of Florez' motions to alter or amend. 2011 WL 2801080, at *5–6. This court's decision was entered on July 15, 2011, and review was denied by our Supreme Court on November 4, 2011.
On September 30, 2010, while Florez' first appeal was pending before this court, Florez filed in the district court a motion to modify child support, which is the subject of the present appeal. Florez asserted that he had sustained a substantial change in income from the amount the district court had imputed to him in the original child support determination. He argued that this constituted a material change in circumstances warranting a modification of child support.
The district court held a hearing on Florez' motion on February 4, 2011. The hearing was presided over by a different judge than the judge who presided over the earlier hearings. At the February 4, 2011, hearing, Florez sought to admit his 2007, 2008, and 2009 tax returns in support of a new 3–year income average which would be lower than the imputed income and thus lower his child support obligation. Florez further argued that adjustments should be made to his child support obligation based on changed day care costs, which would actually increase his obligation, and long-distance parenting time and child tax exemption credit, which would decrease his obligation.
Lank opposed the motion, arguing that the evidence of Florez' 2007 and 2008 tax returns had in fact been provided to the district court during the original child support...
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