Wornkey v. Wornkey

• Decision Date: 04 February 1988
• Docket Number: No. 60155,60155
• Citation: 749 P.2d 1045,12 Kan.App.2d 506
• Parties: Sherry WORNKEY, Appellee, v. Steven R. WORNKEY, Appellant.
• Court: Kansas Court of Appeals

Page 1045

749 P.2d 1045

12 Kan.App.2d 506

Sherry WORNKEY, Appellee, v. Steven R. WORNKEY, Appellant.

No. 60155.

Court of Appeals of Kansas.

Feb. 4, 1988.

Review Denied May 16, 1988.

Syllabus by the Court

1. Rules relating to the granting of summary judgment are reviewed and applied.

2. A proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), K.S.A. 23-451 et seq., is an independent action to determine and enforce a duty of support.

3. A litigant must object to inadequate findings and conclusions at the trial court level in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal.

4. A URESA action may be used if both the obligee and the obligor are in this state but in different counties.

5. As a general rule, the responding court in a URESA action may make its own determination as to the proper amount of support and enter an order awarding the obligee an award less than, greater than, or equal to a prior support order. However, the responding court must conform its support order to the amount allowed in the prior support action if the URESA petition makes a demand for the support awarded in the prior proceeding and the actions involved are contemporaneous or nearly contemporaneous.

6. Under the express provisions of K.S.A. 23-480, a URESA order does not nullify a previous support order unless the URESA order specifically so provides.

7. The doctrines of laches and estoppel, as they apply to child support orders, are reviewed and held not to be applicable under the fact situation of this case.

Robert E. North of Watkins, Calcara & Rondeau, P.A., Great Bend, for appellant.

Morgan Wright, Larned, for appellee.

Before BRAZIL, P.J., SIX, J., and JACK L. BURR, District Judge, assigned.

SIX, Judge:

Plaintiff Sherry Wornkey brought this action to recover past due child support and to obtain a declaratory judgment. Sherry requested the trial court to determine that a 1975 Geary County order entered pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) did not nullify a prior Pawnee County support order from the parties' divorce. The trial court held that the Geary County URESA order did not nullify the Pawnee County support order and ordered the defendant, Steven Wornkey, to pay past due support totalling $11,158.08.

Steven appeals. He contends the trial court erred (1) in granting summary judgment, (2) in refusing to estop Sherry from asserting the predominance of the Pawnee County divorce decree order awarding child support, and (3) in computing the amount of past due child support.

This court finds no error in the trial court granting summary judgment enforcing the Pawnee County order and affirms that ruling. However, we find the trial court erred in determining the amount of past due child support. We remand for a determination of the proper amount of child support arrearages.

This case presents issues of first impression concerning the relationship between a URESA child support order and a prior divorce decree child support award.

On June 5, 1972, Sherry and Steven were divorced by the Pawnee County District Court. Sherry was granted custody of the couple's son Shawn (born August 4, 1971). Steven was ordered to pay child support in the amount of $125 per month or the full amount of Steven's dependency allotment available to Steven during his military service, whichever was greater.

In 1975, Steven was stationed at Fort Riley in Geary County and by March of that year was eight months behind on child support. On March 20, 1975, Sherry initiated an intrastate proceeding under URESA, K.S.A. 23-451 et seq., in Pawnee County. The petition and the court certification were sent to the District Court of Geary County, Kansas, which heard the matter on April 29, 1975.

At the Geary County hearing, Sherry did not appear but was represented by the assistant county attorney. Steven appeared pro se. Sherry's verified URESA petition was presented as evidence of Steven's duty of support. Steven orally moved for a reduction of child support. The court found that Steven owed $1,000 in back child support and ordered him to pay $75 per month child support, $25 to apply towards the arrearages and $50 to apply to present support. Once the arrearage was paid off, the child support would be $75. Steven has paid the $75 per month to Sherry for child support since the Geary County order was entered on April 29, 1975.

On May 2, 1986, Sherry filed this action in the Pawnee County District Court, seeking a declaratory judgment that the Geary County District Court's URESA order did not nullify the Pawnee County District Court's prior support order in the divorce decree. Sherry further requested the court award her the arrearages for the difference between the Geary County and Pawnee County orders.

Sherry moved for summary judgment. The trial court granted Sherry's motion, ruling that the Geary County order did not nullify or supersede the Pawnee County order. The trial court also granted Sherry's motion to revive the child support judgments dating back to August 31, 1979, and requested counsel to submit their calculations on the amount of arrearages. The court accepted Sherry's calculations and awarded her $11,158.08 in back child support.

SUMMARY JUDGMENT

Steven first contends the trial court erred in granting summary judgment because there remained genuine issues of material fact.

Summary judgment should be entered only if there is no genuine issue as to any material fact after the party against whom the motion was filed has failed to controvert a showing by affidavit, deposition, or otherwise that the moving party is entitled to judgment. Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979).

Steven contends two facts remain controverted: (1) whether Sherry's URESA petition mentioned the Pawnee County divorce decree; and (2) whether and when Sherry had notice of Steven's oral motion to reduce the amount of Pawnee County child support at the Geary County URESA hearing.

As to Steven's first alleged controverted fact, we have examined Sherry's URESA petition and concluded that it does not mention the Pawnee County decree. Steven's contention that this is a controverted fact is without merit.

Steven also contends the issue of whether and when Sherry had notice of the oral motion to reduce child support involves controverted facts and is relevant to his estoppel defense. Steven's estoppel defense relates to Sherry's claim that the Geary County order was void because she did not have notice of Steven's oral motion to reduce child support. Steven claimed that Sherry should be estopped to claim the Geary County order was void because she had notice, either constructive or actual, of the oral motion.

Whether Sherry had notice of Steven's oral motion to reduce child support is irrelevant to the authority of the Geary County court to issue its order. As a general rule, a proceeding under URESA is an independent action to determine and enforce a duty of support. K.S.A. 23-453. Thompson v. Kite, 214 Kan. 700, 703, 522 P.2d 327 (1974). A responding court must "conform its support order to the amount allowed in the other action" only if the URESA petition makes a demand for the support awarded in a prior proceeding and the actions involved are contemporaneous or nearly contemporaneous. K.S.A. 23-479; In re Marriage of Straeck, 156 Cal.App.3d 617, 624, 203 Cal.Rptr. 69 (1984); State on Behalf of McDonnell v. McCutcheon, 337 N.W.2d 645, 649 (Minn.1983); Bjugan v. Bjugan, 710 P.2d 213, 215-16 (Wyo.1985). In this case, Sherry did not specifically request the $125 per month awarded by the Pawnee County District Court. Rather, Sherry merely requested a "fair and reasonable" amount of support. The authorities are legion that a responding court in a URESA action may enter a valid support order different from the order entered in a prior support action. See Annot., 31 A.L.R.4th 347, 356-57.

Because the Geary County District Court had the authority to enter an order of support different from that awarded in the divorce decree, and because Sherry merely requested a "fair and reasonable" award (as opposed to the $125 per month), her lack of notice of Steven's oral motion to reduce the amount of child support does not render the Geary County District Court's order void. There is nothing to suggest that the amount awarded by the Geary County court was not "fair and reasonable." Sherry invoked the jurisdiction of the Geary County District Court to issue a "fair and reasonable" order of support. This is exactly what she received. The Geary County order is not void due to Sherry's lack of notice of Steven's oral motion to reduce support.

Steven contends that the trial court failed to make adequate findings of fact and conclusions of law to support its decision because it incorporates by reference the law as set out in Sherry's motion and brief for summary judgment.

There is no objection in the record to the trial court's findings and conclusions. A litigant must object to inadequate findings and conclusions at the trial court level in order to give the trial court an opportunity to correct them. Burch v. Dodge, 4 Kan.App.2d 503, 507, 608 P.2d 1032 (1980). "In the absence of an objection, omissions in findings will not be considered on appeal." Green v. Geer, 239 Kan. 305, 311, 720 P.2d 656 (1986).

EFFECT OF URESA ORDER

Steven contends the trial court erred in concluding that the Geary County District Court's URESA order did not modify the Pawnee County District Court's prior support order in the divorce decree. We disagree.

An initial question that must be addressed is whether one district court of this state may, in a URESA action, supersede another district court's support order issued under K.S.A. 60-1610(a) (Weeks). The trial court concluded that the Geary County court could not and...