Marriage of Patterson, Matter of

Decision Date21 June 1996
Docket NumberNo. 73569,73569
Citation920 P.2d 450,22 Kan.App.2d 522
PartiesIn the Matter of the MARRIAGE OF Jerry PATTERSON, Appellee, and Lucy Patterson (now Cunningham), Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. The extrapolation formula contained in the Kansas Child Support Guidelines § IV.C. (1995 Kan. Ct. R. Annot. 88) for income beyond the child support schedules is discretionary and does not establish a rebuttable presumption as to the level of appropriate support.

2. Although discretionary, the Kansas Child Support Guidelines extrapolation formula must be considered by the trial court when income exceeds the child support schedules.

3. K.S.A. 60-1610(b)(3) gives the trial court the jurisdiction to modify child support and education provisions of minor children, even if they were provided for in a property settlement agreement.

4. Departures from the child support guidelines must be explained by the trial court.

5. Child support worksheets approved by the court shall be filed in every case where an order of child support is entered.

Jennifer A. Wagle, of Arn, Mullins, Unruh, Kuhn, & Wilson, LLP, Wichita, for appellant.

Sheila J. Floodman, of Alexander, Floodman & Casey, Chartered, Wichita, for appellee.

Before PIERRON, P.J., MARQUARDT, J., and JAMES J. SMITH, District Judge, Assigned.

PIERRON, Presiding Judge:

Lucy Cunningham, formerly Patterson, appeals the district court's failure to utilize the formula in the Kansas Child Support Guidelines (KCSG) for computing a child support payment for a combined gross monthly income exceeding the highest amount shown in the child support schedules. She also raises issues concerning payment of past private education costs, payment of uninsured medical expenses, and the district court's denial of her request for attorney fees.

Jerry Patterson and Cunningham were divorced on November 14, 1985. They had two children, Jennifer, born April 10, 1980, and Stephanie, born March 6, 1985. The divorce decree incorporated a property settlement agreement between Patterson and Cunningham. The district court granted joint legal custody of the two children, with primary residential custody with Cunningham. Pursuant to the property settlement agreement, Patterson agreed to pay $750 per month in child support and the cost of private schooling of the two children, including college.

On September 11, 1989, Cunningham sought a child support increase based on Patterson's increased income and an increase in the expenses of raising the two children. At the time, Patterson had a monthly income between $7,500 and $8,000. He filed a list of proposed supplemental considerations where he reaffirmed his agreement to pay the private school tuition and expenses of the two children. The district court granted Cunningham's request and increased Patterson's child support payment, in accordance with the KCSG, to $1,500 per month. However, the order stated that Cunningham would be responsible for any private schooling expenses of the two children prior to college. Cunningham did not appeal the decision.

On November 17, 1992, Patterson filed a motion to decrease child support because he was now supporting another child born during his subsequent marriage. His proposed child support worksheet stated he had a monthly income of $12,500. In computing the child support, he used the number corresponding to support of two children, ages 7-15, in the highest gross monthly income ($8,400) on the three-child family schedule. Cunningham filed a motion seeking to enforce the September 11, 1989, order granting child support in the amount of $1,500 per month based on Patterson's income and his ability to pay. In an order dated November 30, 1992, the district court, utilizing Patterson's worksheet, granted the motion and decreased his child support payment to $1,224 per month. No appeal was taken.

On July 14, 1994, Cunningham filed a motion for an order increasing child support commensurate with the updated child support guidelines effective August 1, 1994. Patterson's monthly income was now in excess of $26,000--over $300,000 a year. Cunningham also sought a qualified medical support order and reimbursement for private schooling expenses of the two children pursuant to the property settlement agreement and divorce decree. Cunningham alleged that Patterson had failed and refused to pay any of the private schooling expenses since the divorce.

In response, Patterson filed a motion which requested the court to set his child support payment at the top of the child support schedules. Patterson's motion also stated that his request had historically been the practice in Sedgwick County; that there were no extraordinary needs in this case justifying child support beyond the highest amount on the guidelines; and that to hold otherwise would result in a windfall to Cunningham.

On August 30, 1994, the district court increased Patterson's child support obligation to $1,721 per month, consistent with the highest monthly income on the child support guidelines. Patterson and Cunningham were ordered to execute a qualified medical child support order. For uninsured medical expenses, Patterson was responsible for the first $1,000 and after that he would pay 75% and Cunningham would pay 25%. The district court ordered Patterson to pay all private schooling expenses as agreed upon in the divorce decree, bringing his monthly support obligation to $1,981, and to reimburse Cunningham for the private schooling expenses for the past 5 years.

Patterson filed a motion for clarification of ruling and/or reconsideration of the district court's order. He requested that the district court modify its order requiring him to reimburse Cunningham for the previous 5 years of private schooling expenses. Patterson argued the September 11, 1989, order specifically ordered Cunningham to pay these expenses.

Cunningham requested that the district court enforce the parties' property settlement agreement incorporated in the divorce decree and reconsider its ruling not to extrapolate the amount of child support beyond the top of the child support schedules. She also filed a motion to set aside the portion of the September 11, 1989, order modifying the property settlement agreement and the payment of private schooling expenses. Cunningham argued the district court lacked subject matter jurisdiction and therefore the judgment was void.

The district court set aside the August 30, 1994, judgment awarding Cunningham past private schooling expenses. The court based its decision upon the September 11, 1989, order which provided that Patterson was not responsible for such costs. However, the court ordered Patterson to pay the private schooling expenses from the 1994-95 school year forward. The court also declined to reconsider a child support payment in excess of the highest amount in the child support schedules, but offered to reconsider its decision if Cunningham could prove at an evidentiary hearing that there were extraordinary expenses or special needs in raising the two children.

Cunningham's motion to set aside the September 11, 1989, judgment was also denied. The court found the judgment modified Patterson's child support payment and relieved him of his obligation to pay the private schooling expenses. The court pointed out that Cunningham did not appeal that judgment, and child support and educational expenses are subject to modification by the court during the child's minority.

This appeal presents a question of first impression. Cunningham contends the district court abused its discretion in failing to follow the child support guidelines by not using the extrapolation formula to figure the child support payment since the combined monthly income was beyond the highest amount in the child support schedules. Cunningham contends the amount computed by this formula presents a rebuttable presumption of the child support payment. Therefore, a person requesting an increase or decrease from that amount, in this case Patterson, would have the burden of coming forward and rebutting the presumed payment in order to obtain a reduction.

The standard of appellate review of a district court's order determining the amount of child support is abuse of discretion. In re Marriage of Schletzbaum, 15 Kan.App.2d 504, 505, 809 P.2d 1251 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. In re Marriage of Wade, 20 Kan.App.2d 159, 168, 884 P.2d 736 (1994) rev. denied 256 Kan. 995 (1995).

The 1994 KCSG, Administrative Order No. 90 (1995 Kan. Ct. R. Annot. 83), were adopted by the Kansas Supreme Court and became effective August 1, 1994. The underlying intent of the child support guidelines is explained in § II.A. as follows:

"The purpose of child support is to provide for the needs of the child. The needs of the child are not limited to direct needs for food, clothing, school, and entertainment. The child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day-to-day care and well-being of the child." 1995 Kan. Ct. R. Annot. 84.

The child support guidelines clearly address the situation presented in the case at bar. Section IV.C., entitled "Income Beyond the Child Support Schedule," provides:

"If the Combined Child Support Income exceeds the highest amount shown on the schedules, the Court should exercise its discretion by considering what amount of child support should be set in addition to the highest amount on the Child Support Schedule. For the convenience of the parties, a formula is contained at the end of each child support schedule to compute the amount that is not set forth on the schedules." 1995 Kan. Ct. R. Annot. 88.

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