Marriage of Thurmond, Matter of

• Decision Date: 10 July 1998
• Docket Number: No. 79731,79731
• Citation: Marriage of Thurmond, Matter of, 962 P.2d 1064, 265 Kan. 715 (Kan. 1998)
• Parties: In the Matter of the MARRIAGE OF Kathy THURMOND, Appellant, and Elliott Thurmond, Appellee.
• Court: Kansas Supreme Court

Page 1064

962 P.2d 1064

265 Kan. 715

In the Matter of the MARRIAGE OF Kathy THURMOND, Appellant and Elliott Thurmond, Appellee.

No. 79731.

Supreme Court of Kansas.

July 10, 1998.

Syllabus by the Court

The legal effect of the incarceration of a parent in a correctional facility on his or her child support obligation is considered and, as a matter of law, it is held: The fact of incarceration, standing alone, is not legal justification for the suspension or modification of the parent's child support obligation previously determined under the Kansas Child Support Guidelines.

Amy L. Durkin, of Legal Aid Society of Topeka, argued the cause and Lowell C. Paul, of Kansas Legal Services, Inc., was with her on the brief, for Appellant.

No appearance by Appellee.

McFARLAND, Chief Judge.

The district court entered an order suspending Elliott Thurmond's child support obligation during his period of incarceration in the federal penal system for two convictions of bank robbery.Kathy Thurmond, respondent's ex-wife, appeals therefrom.The single issue before us is whether the incarceration of a parent, standing alone, is legal justification for the suspension or modification of that parent's child support obligation as previously judicially determined pursuant to the Kansas Child Support Guidelines.Supreme Court Administrative OrderNo. 107 (1997 Kan.Ct.R.Annot. 89).This question of law is one of first impression in Kansas.

In a divorce action, K.S.A.1997 Supp. 60-1610 allows the district court to "make provisions for the support and education of the minor children."Further,

"the court may modify or change any prior order, including any order issued in a title IV-D case, within three years of the date of the original order or a modification order, when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents.If more than three years has passed since the date of the original order or modification order, a material change in circumstances need not be shown.The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court."

The Kansas Supreme Court was given the mandate in K.S.A. 20-165 to adopt rules establishing guidelines for the amount of child support to be ordered in any action in this state and has done so.The Child Support Advisory Committee, appointed by the Supreme Court, reviews the statewide child support guidelines, solicits public input regarding the guidelines, and makes recommendations to address new federal mandates such as the Family Support Act of 1988(Pub.L. No. 100-485,102 Stat. 2343[codified in scattered sections of 42 U.S.C.]).

The Kansas Child Support Guidelines are the basis for establishing and reviewing child support orders in the district courts in Kansas.Judges and hearing officers must follow the guidelines.Child support obligations are calculated by completing the Child Support Worksheets.Kansas Child Support Guidelines, § 1 (1997 Kan.Ct.R.Annot. 89).Use of the guidelines is mandatory and failure to follow the guidelines is reversible error.In re Marriage of Schwien, 17 Kan.App.2d 498, Syl. p 5, 839 P.2d 541(1992);In re Marriage of Schletzbaum, 15 Kan.App.2d 504, Syl. p 4, 809 P.2d 1251(1991).Any deviation from the amount of child support determined by the use of the guidelines must be justified by written findings in the journal entry.Schwien, 17 Kan.App.2d at 511, 839 P.2d 541;Schletzbaum, 15 Kan.App.2d at 507, 809 P.2d 1251.Failure to justify deviations by written findings is reversible error.In re Marriage of Emerson, 18 Kan.App.2d 277, 279, 850 P.2d 942(1993).

The Kansas Child Support Guidelines § VI(1997 Kan.Ct.R.Annot. 105-06) provide in pertinent part:

"Courts have continuing jurisdiction to modify child support orders to advance the welfare of the child when there is a material change in circumstance.In addition to changes of circumstance, which have traditionally been considered by courts, any of the following constitute a material change of circumstance to warrant judicial review of existing support orders:

"A.Change in financial circumstances of the parents or the guidelines which would increase or decrease by 10% or more the Net Parental Child Support Obligation shown on LineD.9. of the worksheet."

As initially stated, the sole issue on appeal is whether the incarceration of a parent, standing alone, is legal justification for the suspension or modification of that parent's child support obligation as previously judicially determined pursuant to the Kansas Child Support Guidelines.As this is a question of law, our scope of review is unlimited.Farris v. McKune, 259 Kan. 181, Syl. p 1, 911 P.2d 177(1996).See alsoScruggs v. Chandlee, 20 Kan.App.2d 956, Syl. p 1, 894 P.2d 239(1995)("Interpretation of the child support guidelines is a question of law; therefore, this court's standard of review is de novo.").

Only three Kansas cases have touched even peripherally on the issue before us.

In In re Marriage of Johnson, 24 Kan.App.2d 631, 950 P.2d 267(1997), the father was earning between $30,000 and $33,000 annually as an employee at Exide Battery Corporation.The father had been employed at Exide for about 6 1/2 years.He was ordered to provide health insurance and to pay $231 per month in child support.Three years after this support order, the father was terminated from Exide because he tested positive for marijuana.There were no criminal charges filed nor was the father incarcerated for this illegal conduct.Two days later, the father found a job paying $6 per hour.Approximately 1 month later, the father took a better paying job.Nonetheless, he earned about half the amount he was making at Exide.

The father filed a motion to modify his child support obligation based on his reduction in income.The mother opposed the motion, arguing that the father's voluntary conduct caused his reduction in income and, therefore, his previous income should be imputed to him in calculating the amount of child support.The district court disagreed, finding that a significant change in the father's financial circumstances due to an involuntary job loss and reduced income warranted a modification of child support.The obligation was lowered to $148 per month.

On appeal, the mother argued that the father's loss of income was the result of his voluntary conduct of smoking marijuana and that it should, therefore, be considered a voluntary reduction in income and his prior income should be imputed to him.The Court of Appeals disagreed.24 Kan.App.2d at 633, 950 P.2d 267.

The Court of Appeals interpreted language in section II.E.1.d. of the Kansas Child Support Guidelines, which provides that "[w]hen there is evidence that a parent is deliberately underemployed for the purpose of avoiding child support, the Court may evaluate the circumstances to determine whether actual or potential earnings should be used."(1997 Kan.Ct.R.Annot. 91.)

The Johnson court found there was no evidence that the father's job loss was the result of an attempt to reduce his child support.Further the court held that the father had not been charged or convicted of any crime as a result of the incident, thus nullifying the mother's attempt to use the clean hands doctrine to bar the motion.

In Emerson, 18 Kan.App.2d 277, 850 P.2d 942, Brad and Michelle were the parents of a disabled child who was receiving a supplemental security income benefit.Brad was incarcerated at the time the divorce hearing was held, had little or no income, and was liable for a restitution payment possibly exceeding $25,000.In light of this evidence the trial court refused to order Brad to pay child support, indicating that it would review this order at a later date.Among other issues, Michelle appealed the trial court's failure to order child support.

With little discussion, the Court of Appeals reversed and remanded for a calculation of child support in the manner required by the guidelines.Because the trial court had made no calculations using the guidelines, the Emerson court found this was reversible error.In so holding, the court noted:

"We would point out that we are not compelling any specific award of child support in this case.We do, however, require compliance with the guidelines.If the trial court desires to deviate from the presumed amount called for by the guidelines, it must do so in an appropriate manner.It appears to us from reading the record that the trial court reacted in the manner in which it did due to Brad's incarceration, his lack of income, and the heavy restitution required to be paid.We are not holding that those are not appropriate factors that may be considered in deviating from the guidelines.We reverse because the trial court failed to consider those factors within the framework of the guidelines."18 Kan.App.2d at 279, 850 P.2d 942.

Modification of a child support obligation was not involved.

In another case, Brown v. Maloney, 24 Kan.App.2d 424, 945 P.2d 424(1997), a father, incarcerated for an unspecified crime, filed a motion to abate child support payments during this incarceration.He also requested that he be allowed to appear and argue his case.The district court dismissed the motion for failure to prosecute, finding that father had failed to appear.Father appealed the district court's denial of his motion to transport.

The Court of Appeals reversed and remanded for consideration of the motion to abate.While the district court was not required to grant the petitioner's request to be present at the hearing, its summary dismissal of the motion was in error.24 Kan.App.2d at 426, 945 P.2d 424.

None of these Kansas cases is persuasive herein.No claim was made that incarceration of the obligor, standing alone, was legally sufficient justification for the suspension or modification of the...