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April 5, 2019 Digest

Posted By Administration, Monday, April 8, 2019

Kansas Court of Appeals

 

CIVIL

 

CHILD CUSTODY
IN RE MARRIAGE OF BAHLMANN
RILEY DISTRICT COURT—AFFIRMED
NO. 120,019—APRIL 5, 2019

FACTS: When Rebecca Bahlmann filed for divorce, she received ex-parte temporary orders for custody and parenting time. After an extensive hearing, the district court adopted Rebecca's parenting plan. Bruce later filed several motions including the one at issue here—a motion to modify child custody in which he claimed that Rebecca had become physically and emotionally abusive to the children. Rebecca moved to dismiss these motions, denying any material change in circumstances. The parties filed a joint motion for mediation, and Bruce's attorney filed a motion for hearing on that motion. Rebecca appeared at the hearing with counsel and Bruce appeared only through counsel. At the hearing, the district court addressed Bruce's motion to modify and Rebecca's motion to dismiss that motion. Finding that Bruce's motion lacked specificity, the district court granted Rebecca's motion to dismiss the motion to modify. Bruce appealed.

ISSUES: (1) Standard to evaluate motion to dismiss; (2) merits of Bruce's motion to modify; (3) notice requirement

HELD: The district court had a good reason to not assume the truth of Bruce's factual allegations. Unlike a regular civil case, a motion to modify child support is different and the district court has the benefit of much more information. A child custody decree is res judicata with respect to facts existing at the time of the decree. A change is made only if there is a material change in circumstances. K.S.A. 2018 Supp. 23-3219(a) requires that allegations must be made with specificity, and that the moving party must file a verification or accompanying affidavit. Bruce's motion was not accompanied by an affidavit, although it purports to be a verified motion. Because there was never an agreed parenting plan between Rebecca and Bruce, he had the burden to show a material change of circumstances. The claims that Bruce put forward were not verified factual assertions and they lacked specificity as to time and place. If neither party requests oral argument, a district court may either set the matter for hearing or rule on the motion without a hearing. After Bruce and Rebecca filed their motions, the district court waited the requisite seven-day response time. Although ruling on the motion at a hearing that was ostensibly being held to consider the parties' motion for mediation is not ideal, it is also not error.

STATUTES: K.S.A. 2018 Supp. 23-3218, -3218(a), -3219(a), 60-206(c)(1), -207(a); K.S.A. 53-502(c)

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