Marriage of Stockham, Matter of

• Decision Date: 13 December 1996
• Docket Number: No. 75032,75032
• Parties: In the MATTER OF the MARRIAGE OF Kevin STOCKHAM, Appellee, and Kimberly K. Ramirez (formerly Kimberly K. Stockham), Appellant, and John M. Burnett, Appellant.
• Court: Kansas Court of Appeals

Page 104

928 P.2d 104

23 Kan.App.2d 197

In the MATTER OF the MARRIAGE OF Kevin STOCKHAM, Appellee,

and

Kimberly K. Ramirez (formerly Kimberly K. Stockham), Appellant,

and

John M. Burnett, Appellant.

No. 75032.

Court of Appeals of Kansas.

Dec. 13, 1996.

Review Denied Feb. 4, 1997.

Syllabus by the Court.

1. In reviewing a district court's decision to impose sanctions under K.S.A. 60-211 and K.S.A. 60-2007, an appellate court's function is to determine whether substantial competent evidence supports the trial court's findings of fact that the statutory requirements for sanctions are present.

2. Under K.S.A. 60-211, the claims of the party subject to sanctions must be in "[a] pleading, motion or other paper." Similarly, K.S.A. 60-2007 refers to claims, defenses or denials "in a pleading, motion or response thereto." Under these provisions, sanctions are available only with regard to papers filed with the court.

David N. Johnson, Wichita, for appellants.

Brett A. Reber and Casey R. Law, of Bremyer & Wise, McPherson, for appellee.

Before MARQUARDT, P.J., ROYSE, J., and CHARLES E. WORDEN, District Judge, Assigned.

ROYSE, Judge:

Kimberly K. Ramirez (formerly Kimberly K. Stockham) and her attorney John M. Burnett appeal from an order of the district court assessing $6,392 in attorney fees against them, jointly and severally.

The order which is the subject of this appeal arises out of a series of postjudgment proceedings in a divorce case. Highly summarized, those proceedings are as follows:

The McPherson District Court granted a divorce to Kimberly K. Ramirez and Kyle Stockham on June 9, 1993. The divorce decree granted the parties joint custody of their two children, with Stockham named the primary residential parent of their son, K.T. The decree left the residential arrangement for their daughter, K.L., subject to an agreement of the parties, which called for K.L. to split her time between the two households through November 1, 1993. The divorce decree recites that Ramirez' attorney was Stan Juhnke.

Ramirez, now represented by Robert S. Jones, filed a motion on November 15, 1993, indicating the parties had been unable to agree on continuing custody arrangements for K.L. She asked the court to grant her custody or substantial visitation until the matter was resolved. Stockham responded on November 30, 1993, by filing his own motion for residential custody and asking the court to determine the amount of child support to be paid by Ramirez.

Matters escalated in December 1993, when Ramirez filed a Chapter 38 petition in Cowley County. She alleged Stockham was not the biological father of K.L. and asked the court to order that blood tests be performed. The Chapter 38 action was transferred to McPherson County and consolidated with the divorce action.

During the course of the child custody investigation which followed, Ramirez alleged that Stockham was engaging in inappropriate behavior with K.L. No purpose would be served by detailing those allegations in this opinion. The child custody investigator concluded her report by recommending that the parties continue to have joint custody of the children, with Stockham as the primary residential parent.

Following a series of continuances, a hearing on the paternity matter was scheduled for September 16, 1994. On September 9, 1994, Robert Jones, Ramirez' second attorney, filed a motion to withdraw. The district court granted that motion. On September 13, 1994, John Burnett, an Arkansas attorney, participated in a telephone hearing on behalf of Ramirez. A later order admitted Burnett to practice in this action, pursuant to Supreme Court Rule 116 (1996 Kan.Ct.R.Annot. 146), with William S. Mills as Kansas attorney of record.

Burnett asked for a continuance of the paternity matter, telling the court he needed time to discuss the case with his client and to investigate whether she should pursue the paternity matter. The district court continued the paternity matter until October 28, 1994.

Sometime prior to the scheduled hearing date, Burnett reported to the court and other parties that Ramirez had made additional allegations of sexual misconduct by Stockham. Burnett apparently reported these allegations orally; the record on appeal contains no motion or other paper filed with the court which recited these allegations. No purpose would be served by detailing those allegations in this opinion.

The district court directed that Ramirez' allegations be investigated by the Menninger Clinic, with the investigation also to address the advisability of informing K.L. about the paternity issue and to include custody recommendations. After conducting interviews with all parties involved, a Menninger investigator determined there was no evidence of abuse and concluded that pursuing the paternity issue would by harmful to K.L. The investigator recommended the custody arrangement remain the same--joint custody, with Stockham as the primary residential parent for both children.

Stockham filed a motion for sanctions, asking that attorney fees be assessed against Ramirez and her attorney, Burnett. In the motion Stockham contended Ramirez' allegations of abuse and request for a paternity determination were frivolous claims, subject to sanctions under both K.S.A. 60-211 and K.S.A. 60-2007.

The district court entered an order for joint custody, with Stockham having primary residential custody of both children. The district court granted Stockham's request for sanctions on the basis of the following findings:

"12. At the time the paternity proceedings were filed herein, no reasonable person would have believed the District Court would find the paternity testing with respect to [K.L.] was in [K.L.'s] best interest under the Ross decision of the Kansas Supreme Court. A strong bond exists between [K.L.] and Mr. Stockham and a strong father/daughter relationship is established.

"13. The timing and circumstances of the filing of the paternity proceedings suggest that the paternity proceeding was filed in order to avoid returning the child to Mr. Stockham and gaining an advantage in the child custody litigation.

"14. The timing and circumstances of Respondent's allegations of sexual abuse or sexual misconduct against the Petitioner herein lead the Court to conclude that such allegations were ill-founded and were brought out of a desire to obtain an advantage for Respondent in the parties' child custody battle. The Menninger evaluation, which the Respondent does not challenge, found no basis for any belief that the Petitioner has engaged in sexual abuse or sexual misconduct. That the Respondent had been previously advised by two attorneys not to pursue these allegations and the Menninger report strongly suggests that Respondent's motivations were driven by third-party intervention."

The district court entered an order assessing $6,392 in attorney fees against Ramirez and Burnett, jointly and severally.

Ramirez and Burnett appeal, arguing the district court abused its discretion by assessing fees against Ramirez and her attorney.

The two statutes relied on to authorize sanctions in this case are 60-211 and 60-2007. K.S.A. 60-211 provides in pertinent part:

"Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, and the attorney's address and telephone number shall be stated ... The signature of a person constitutes a certificate by the person that the person has read the pleading; that to the best of the person's knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not imposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees."

K.S.A. 60-2007 provides in pertinent part:

"(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or...