Marriage of Hedrick, Matter of, 72,954

• Decision Date: 02 February 1996
• Docket Number: No. 72,954,72,954
• Citation: 21 Kan.App.2d 964,911 P.2d 192
• Parties: In the Matter of the MARRIAGE OF Bruce C. HEDRICK, Appellee, and Judith B. Hedrick, Appellant.
• Court: Kansas Court of Appeals

Page 192

911 P.2d 192

21 Kan.App.2d 964

In the Matter of the MARRIAGE OF Bruce C. HEDRICK, Appellee and Judith B. Hedrick, Appellant.

No. 72,954.

Court of Appeals of Kansas.

Feb. 2, 1996.

Syllabus by the Court

1. Maintenance settled by a separation agreement that is incorporated into the divorce decree is not subject to subsequent modification by the court except as prescribed by the agreement or as subsequently consented to by the parties.

2. The standard of review for modification of maintenance is the same whether the district court has the statutory authority to modify maintenance or whether a district court is granted continuing jurisdiction to modify maintenance in a separation agreement that is incorporated into a decree of divorce.

3. The standard of review in modifying maintenance is whether there is substantial competent evidence to support the holding of the district court.

4. Substantial competent evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved.

5. A determination of whether a material change in circumstances has occurred is fact specific.

6. The district court has wide discretion when it comes to matters relating to maintenance, and its judgment will not be disturbed absent a clear abuse of discretion.

7. Discretion is abused if no reasonable person would take the view adopted by the court.

Appeal from Johnson District Court; Lawrence E. Sheppard, Judge.

Judith B. Hedrick, appellant pro se.

Joseph R. Horgan, of Olathe, for appellee.

Before GERNON, P.J., MARQUARDT, J., and JAMES W. PADDOCK, District Judge Retired, assigned.

MARQUARDT, Judge:

Judith B. Hedrick appeals from the district court's order reducing maintenance from $1,325 per month to $500 per month.

On January 2, 1991, after 17 years of marriage, Judith and Bruce Hedrick were divorced. The decree incorporated a separation and property settlement agreement (PSA), which the parties executed on November 29, 1990. Bruce, an attorney, drafted the PSA. Judith was in law school when she signed the PSA.

The PSA provided:

"The HUSBAND shall pay maintenance to the WIFE in the sum of $1,325.00 per month, commencing December 1, 1990. Said payments continue each following month thereafter and shall terminate after sixty (60) months. Said payments shall terminate on the earlier occurrence of the following contingencies:

A. The death of either HUSBAND or WIFE.

B. WIFE's remarriage or her cohabitation with an unrelated male for more than thirty (30) consecutive days, or the equivolent [sic ] thereof.

"The parties further agree that the HUSBAND shall have the right and the Court shall retain the jurisdiction to revise or modify the term or the amount of maintenance as a result of a material change in circumstances." (Emphasis added.)

In May 1993, Judith received her JD. Judith received her license to practice in September 1993 and began working Saturdays only for a law firm in November of that year. Judith's work hours gradually increased and by March 1994, she was earning $2,075 per month. In early May 1994, Bruce filed a motion to terminate or reduce maintenance. On August 1, 1994, Judith was hired as a staff attorney for Social and Rehabilitation Services (SRS), earning an annual salary of $32,800 ($2,733 per month). From the time of the divorce to the time of the modification hearing, Bruce's annual income had increased from $32,000 to $51,000.

The district court held that "[a] significant change in circumstances has occurred" and reduced the monthly maintenance payments, beginning October 1, 1994, from $1,325 to $500 for the balance of the term specified in the PSA.

Judith argues that her employment is not a material change in circumstances, that the term "material change in circumstances" is vague, that the court erred in not admitting parol evidence, and that the court's finding was not supported by substantial competent evidence.

Judith's counsel attempted to elicit testimony that her eventual employment was contemplated at the time the parties executed the PSA. In response to an objection, Judith's counsel stated, "I mean to show the change in circumstances ... of her getting a job was obviously contemplated by the parties at that time and the fact that Mrs. Hedrick has a law job is not a material change in circumstances." The district court sustained the objections of Bruce's counsel to questions on this subject.

Notwithstanding the foregoing, Judith's counsel stated:

"The decree speaks for itself. We cannot bring in [parol] evidence about this decree and why it was made the way it was. The only issue before the Court is has there been a material change in either Mr. Hedrick['s] or Mrs. Hedrick's circumstances, and I think [parol] evidence about why the decree was worded like it was and why the figures were figured like they were is irrelevant....

....

"This is a case of has there been a material change in circumstances."

To the extent that these statements raised the parol evidence issue, it appears that Judith's counsel waived it at the hearing.

"The general rule is that a point not presented to the trial court will not be considered for the first time on appeal. [Citation omitted.]" University of Kansas v. Department of Human Resources, 20 Kan.App.2d 354, 356, 887 P.2d 1147 (1995); see also State ex rel. Dix v. Plank, 14 Kan.App.2d 12, 14, 780 P.2d 171 (1989) (refusing to examine the issue of material change of circumstances in appeal of child support modification where the record did not contain any reference to a timely objection on the issue).

Judith argues on appeal that the term "material change in circumstances" is "vague and ambiguous." Bruce argues that Judith raises the vague and ambiguous issue for the first time on appeal.

The district court stated that the agreement was not ambiguous. "There's no alleged ambiguity.... There's no alleged mutual mistake that would allow [parol] evidence.... [T]he issue ... is not that the agreement is a result of fraud or overreaching." Judith made no objection at the time of the district court's ruling, and she did not file a motion to reconsider.

Judith raised the vague and ambiguous issue in her motion for declaratory judgment and motion to dismiss. The district court denied Judith's motion, holding that it was "procedurally incorrect." Judith did not present the ambiguity argument in any other motion, and it was not raised in any proceeding. Judith did nothing to preserve the vague and ambiguous issue for appeal; therefore, it is not properly before the court. The issue concerning Judith's employment, as it relates to a material change in circumstances, is properly before this court.

Maintenance settled by a separation agreement that is incorporated into the divorce decree is not "subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties." K.S.A. 60-1610(b)(3); cf. Spaulding v. Spaulding, 221 Kan. 574, 576-77, 561 P.2d 420 (1977) (construing predecessor statute).

Bruce and Judith settled the maintenance issue in their PSA, and the PSA was incorporated into the divorce decree. The PSA empowered the district court with continuing jurisdiction to modify the maintenance "as a result of a material change in circumstances," upon Bruce's request. The question on appeal is whether there was a material change in circumstances sufficient to justify a modification in maintenance (referred to as alimony in prior statutes and appellate court opinions interpreting those statutes).

"The trial court has wide discretion when it comes to matters relating to alimony, and its judgment in awarding alimony will not be disturbed absent a clear abuse of discretion. [Citation omitted.]" Martin v. Martin, 5 Kan.App.2d 670, 676, 623 P.2d 527, rev. denied 229 Kan. 670 (1981); see In re Marriage of Cline, 17 Kan.App.2d 230, 234, 840 P.2d 1198 (1992).

This court will reverse a district court's ruling on an action to modify maintenance only if the district court abused its discretion. Jarvis v. Jarvis, 218 Kan. 679, 683-84, 544 P.2d 1384 (1976); Lambright v. Lambright, 12 Kan.App.2d 211, 213-14, 740 P.2d 92 (1987). Discretion is abused if no reasonable person would take the view adopted by the trial court. See Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984).

Jarvis and Lambright set forth both the abuse of discretion and substantial competent evidence standards, stating: "[The appellate court's] review of a modification of an original alimony judgment is limited to a determination of whether there is substantial competent evidence to support the holding of the trial court." 218 Kan. at 684, 544 P.2d 1384; see 12 Kan.App.2d at 213, 740 P.2d 92. "Substantial competent evidence is 'evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved.' [Citation omitted.]" Lambright, 12 Kan.App.2d at 213, 740 P.2d 92.

Cases utilizing the substantial competent evidence standard appear to be limited to situations in which the parties did not agree to the maintenance amount in a separation agreement. See Jarvis, 218 Kan. at 683-84 544 P.2d 1384; Carlton v. Carlton, 217 Kan. 681, 681-82, 538 P.2d 727 (1975); Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966). Because the district court has the statutory authority to modify maintenance, as opposed to where the parties set maintenance by agreement (Lambright, 12 Kan.App.2d at 213, 740 P.2d 92; K.S.A. 60-1610[b] and ), the same standard of review logically applies where the court is granted continuing jurisdiction to modify maintenance. See K.S.A. 60-1610(b)(3)(A).

Judith's argument for de novo review is contrary to established law and principles of appellate review. See Lambright, 12 Kan.App.2d at 213, 740 P.2d 92.

Judith argues...