Matter of Marriage of Whildin
| Decision Date | 05 July 2019 |
| Docket Number | No. 119,489,119,489 |
| Parties | In the MATTER OF the MARRIAGE OF Jaime L. WHILDIN, Appellant, and Thomas M. Whildin, Appellee. |
| Court | Kansas Court of Appeals |
Joseph W. Booth, of Lenexa, for appellant.
Steven A. Jensen, of Paola, for appellee.
Before Schroeder, P.J., Buser and Atcheson, JJ.
This appeal involves the enforceability of contractual provisions in a separation agreement and property settlement filed by Jaime L. Whildin and Thomas M. Whildin and incorporated into their divorce decree.
Jaime appeals the hearing officer's order modifying child support and the district court's judgment affirming that order. Jaime raises four issues on appeal. First, she contends the district court erred by refusing to enforce the parties' agreement that Thomas would maintain extensive business records and employ a certified public accountant (CPA) to establish his yearly gross domestic income for purposes of determining future child support. Second, Jaime argues the district court should have enforced the stipulation of Thomas' minimum gross domestic income when calculating child support. Third, Jaime asserts the district court erred when using the extended income formula to calculate the parties' child support obligations. Fourth, Jaime contends the district court erred by not awarding her attorney fees. Fifth, Jaime seeks attorney fees for prosecuting this appeal. Finally, Thomas, as appellee, claims error in the arbitrary imputation of a gross wage of $52,500 per year as Thomas' gross domestic income for purposes of calculating child support.
Upon our review, we affirm the rulings of the hearing officer and district court. We also dismiss Thomas' claim of error and deny Jamie's motion for appellate attorney fees.
Jaime and Thomas were married in 2003. During their marriage, the couple raised their two children together and resided in La Cygne. In October 2013, Jaime filed a petition for divorce and moved to Louisburg.
During the divorce proceedings, Jaime was employed as an air traffic control specialist with the Federal Aviation Administration earning about $124,912 per year. Thomas was a self-employed electrician who owned his own electrical business which he operated out of the marital residence. Throughout the litigation, there was disagreement regarding Thomas' income for purposes of determining child support. Jaime alleged Thomas' annual income was about $120,000, while he calculated his annual income at $14,040.
Ultimately, Jaime and Thomas entered into a separation agreement, property settlement, and parenting plan. The parenting plan called for joint legal custody and shared residential custody of the minor children. The plan also provided that the couple would share parenting time on an equal basis with the children. Under the plan, the children were to attend school in Louisburg instead of LaCygne.
The separation agreement and property settlement (Agreement) provided that Jaime was to pay Thomas $350 in spousal maintenance for a 24-month period. The Agreement also contained several provisions pertaining to child support payments. Although the couple disagreed on the methods and figures to calculate child support, they compromised with Jaime agreeing to pay Thomas $900 per month for child support. For his part, Thomas agreed to pay all direct expenses for the two children.
The Agreement also outlined the couple's stipulations for future modifications of child support payments. The couple agreed that Thomas had no right to seek an increase in child support payments until after July 1, 2016. Thomas stipulated that he would maintain proper financial records, financial reports, source documents, and employ a CPA to prepare quarterly and annual financial reports.
Finally, the couple stipulated that in any future child support modification proceedings, Thomas' gross domestic income for calculating support "shall be either [Thomas'] gross domestic income at that time or the sum of $75,000.00, whichever is greater." The Agreement provided that Thomas' gross domestic income could be less than $75,000 only if he was disabled or not gainfully employed because of serious injury or illness. The couple suggested these stipulations were necessary for the future because of the dispute over Thomas' income.
In August 2014, the district court issued a divorce decree which incorporated the Agreement. The district court ordered that Thomas should maintain appropriate record keeping to show his gross domestic income from self-employment. Additionally, the district court ordered, per the Agreement, that Thomas' gross domestic income when modifying child support would be the greater of his actual gross domestic income or $75,000.
About a year and a half later, on March 18, 2016, Thomas moved to modify child support. He argued that child support should be modified because Jaime's income had increased, the parties needed an expense sharing plan, and his receipt of spousal maintenance was set to terminate in June 2016. Thomas sought an order increasing Jaime's monthly child support obligation to $1,466 effective July 1, 2016.
In Jaime's answer to Thomas' motion for modification, she claimed he was barred from arguing that his gross domestic income was less than $75,000. Jaime also asserted that Thomas failed to produce business records and information that he agreed to maintain under the Agreement. She sought attorney fees incurred due to Thomas' motion to modify child support. Thomas responded that his record keeping requirements and stipulated minimum gross domestic income were void as against public policy and not in the children's best interests. Thomas claimed his income for 2015 was $28,353, including Jaime's maintenance payments to him.
An administrative hearing officer held a hearing on Thomas' motion to modify child support. At the hearing, the parties discussed the children's daycare situation and Thomas' work hours. Thomas claimed his work hours were limited due to transporting the children to and from school in Louisburg. This travel limited Thomas to working about 25-30 hours per week for which he could not feasibly make $75,000 a year. Jaime suggested that the children's maternal grandmother could pick up the children from school and watch them until Thomas finished work. The hearing officer noted that Thomas needed to work 40 hours per week and ordered the parties to obtain daycare for the children.
With regard to the dispute over the amount of Thomas' income, the hearing officer advised that she was "not stuck" with the parties' stipulation that Thomas had a minimum gross income of $75,000 a year. Thomas argued that, with his reduced hours, he was currently making less than $2,000 a month. With an increase to a 40-hour work week, Thomas opined that he could make about $30,000 a year.
For her part, Jaime insisted the hearing officer should use the $75,000 minimum amount that Thomas agreed should be imputed as his gross domestic income. She argued that Thomas "whittle[d]" down his income by claiming a "bunch of expenses." Jaime suggested that Thomas failed to maintain records he agreed to keep and did not provide documents to substantiate his income and expenses. Instead, Thomas produced only a profit and loss statement and bank records. Jaime asserted the Agreement's provision requiring Thomas to keep business records was not against public policy and should be enforced.
The hearing officer split the difference between the parties' disputed claims about Jaime's income and imputed a wage of $52,500 per year as Thomas' gross income for purposes of calculating child support. Next, a 15% parenting time adjustment was made to Jaime's child support obligation. The hearing officer calculated Jaime's annual income at $162,750.16 based on her most recent paystub.
At the end of the hearing, Jaime questioned why the hearing officer was not enforcing the Agreement requiring Thomas to maintain certain business records. The hearing officer responded that because Thomas was self-employed he needed to maintain financial records but due to the significant expense of hiring a CPA to maintain and analyze the records provided in the Agreement, she was not enforcing that provision.
The hearing officer filed a journal entry memorializing the hearing. The hearing officer found the Agreement's provision stipulating to a minimum gross income for Thomas of $75,000 was against public policy and unenforceable. The provision requiring Thomas to maintain business records was also deemed unenforceable. Based on Thomas' imputed income of $52,500 per year and Jaime's annual income of $162,750.16, the hearing officer ordered Jaime to pay Thomas $2,167 per month in child support and filed a child support worksheet in support. The worksheet indicates that the hearing officer used the extended income formula to calculate Jaime's child support obligation.
Jaime filed a motion for review, asking the district court to review the hearing officer's child support order. In her motion, Jaime argued: (1) The provision requiring Thomas to maintain business records was valid and nonmodifiable; (2) the stipulation that Thomas' gross income would be calculated at a minimum of $75,000 was an enforceable agreement; and (3) the hearing officer erred by using the extended income formula to calculate child support. Jaime sought the calculation of child support using the stipulation that Thomas' annual income was $75,000. She also sought attorney fees based upon her claim that Thomas breached the Agreement.
The district court affirmed the hearing officer's child support rulings. In its ruling, the district court cited In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000), for the rule that "[d]ivorced parents cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise." Relying on Schoby and three out-of-state cases, the district court adopted...
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