In re Marriage of Ruda ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,746
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
JAMES B. RUDA,
Appellant,
and
ANGELA V. RUDA,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER and SEAN M.A. HATFIELD,
judges. Opinion filed October 30, 2020. Affirmed.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Jennifer M. Hill and Katy E. Tompkins, of McDonald Tinker PA, of Wichita, for appellee.
Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.
PER CURIAM: This case is representative of those cases dreaded by divorce
attorneys—cases in which the divorce is not the end but simply a milestone in an ongoing
battle between now divorced parents. Here, as in many such cases, the object of the
dispute is control over the lives of their children.
The parties were married in August 2001. James B. Ruda commenced this divorce
action in May 2012. The parties were divorced in November 2013. The court's docket
sheet records 79 pages of pleadings, motions, briefs, hearings, and orders related to this
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family's disputes, 62 pages of which relate to disputes after their divorce was granted,
much of which related to custody, parenting time, and related matters.
At the time of their divorce James and Angela Ruda had two children, ages 8 and
10. The original parenting plan provided for joint legal custody and a schedule of shared
residency.
In September 2013, the district court appointed the first of what ultimately turned
out to be five case managers. Over the course of time James objected to and sought the
replacement of each of these case managers. The most recent case manager, Dr.
Columbus Bryant, was appointed in February 2017 and is the focus of this appeal.
Over the first few months following his appointment, Dr. Bryant issued three
temporary recommendations—all approved by the district court—to resolve short-term
disputes about what school the children would attend, what sports they would play, and
who they would stay with for Easter.
In June 2017, Dr. Bryant issued a set of recommendations addressing 29 issues
between the parties, some of which had been settled by prior case managers. Relevant to
this appeal, Dr. Bryant first recommended designating Angela's home as the children's
primary residence and reducing James' parenting time from alternating weeks to
alternating weekends plus one weekday visit each week. According to Dr. Bryant, this
reduction in parenting time was needed because James consistently started conflicts with
Angela, cast her in a negative light to the children, pressured the children to make false
reports against their mother, and distorted facts and events when confronted about his
negative behavior. Dr. Bryant cautioned that he would recommend that James have even
less parenting time—maybe even supervised visitation—if he did not shape up.
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Next, Dr. Bryant addressed education issues. Under prior court orders, the children
had attended a local Catholic school for several years. James insisted that the children
transfer to a public school. Dr. Bryant recommended that the children stay at their current
school and warned James that he was violating court orders by continuing to raise this
issue.
Dr. Bryant also discussed the Individualized Education Program (IEP) of one of
the children. James, who questioned whether this child needed an IEP, had withheld
authorization for the school to implement the plan during a semester of the prior school
year. James had since provided the necessary authorization, though he often objected to
aspects of the IEP that school officials said were improving the child's reading and
writing skills. School officials reported that the child's awareness of his parents' dispute
over his education plan had harmed his academic performance. Accordingly, Dr. Bryant
warned James against continued interference with the child's IEP.
In August 2017 the district court—over James' objections—temporarily adopted
Dr. Bryant's recommendations, subject to a later review at an evidentiary hearing that
would also deal with all other unsettled issues between the parties.
James continued to object to education issues settled by prior court orders,
including the issue of the IEP for one of the children and a summer-school program
previously approved by the court. So in September 2017, Dr. Bryant cautioned James that
if he kept raising these and other settled topics, Dr. Bryant would recommend that James'
parenting time be further limited.
In October 2017, Dr. Bryant found that James had violated the court's prior order
by trying to rehash what school the children would attend and whether one of the children
needed an IEP. Accordingly, he recommended that James' parenting time be temporarily
suspended, with the resumption of James' parenting time once he acknowledged in
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writing all court orders, agreed to follow them, and repaid Angela for case-management
fees ordered in the June recommendations. The district court approved the latest
recommendation the same day Dr. Bryant issued it.
James objected. He disputed Dr. Bryant's claim that he had violated court orders
and asked the court to replace Dr. Bryant as case manager for bias and incompetence.
In December 2017 the district court reinstated James' parenting time, which had
been suspended in late October.
In the first 10 months of 2018, Dr. Bryant issued a series of temporary
recommendations dealing with James' detrimental impact on the children and his
delinquency in paying case-management fees.
In October 2018 the court began a three-day evidentiary hearing that was
concluded in December 2018. James asked the court to:
● remove Dr. Bryant as case manager
● revisit all of Dr. Bryant's recommendations
● restore James' parenting time
● modify the cost-sharing arrangement with Angela for the children's expenses
● order Dr. Bryant to refund all fees James had paid him
● order Dr. Bryant to pay $45,000 in attorney fees to James.
Angela asked the court for sole custody of the children, to keep the current parenting time
plan, and for attorney fees.
The court heard testimony from the parties as well as the children's therapist, the
school principal, James' current wife, and Angela's longtime female friend.
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The court also heard the testimony of Dr. Bryant, who described this case as the
most contentious and time-intensive case he had ever worked on. He described James as
"one of the most conflictual parties [he] ever dealt with." According to Dr. Bryant, James
often raised issues that Dr. Bryant or previous case managers had resolved, especially
issues about the children's education and extracurricular activities. Dr. Bryant opined that
it was in the children's best interests to award Angela sole authority to decide those
issues. He recommended continuing with the current parenting plan, with Angela as the
primary residential parent and James having parenting time on alternating weekends with
one weekday visit after school each week.
Dr. Bryant explained his decision to suspend James' parenting time the year
before. James had repeatedly questioned the validity of the child's IEP and requested that
both children transfer to public school, even though prior court orders forbid him from
relitigating those topics. Dr. Bryant's last two reports before the suspension warned James
that continuing to raise these topics could lead to a reduction in parenting time. When
James continued to press these already settled issues, Dr. Bryant concluded that a
suspension of parenting time was the only meaningful consequence that could induce
James' compliance.
In March 2019, the district court issued its findings and conclusions. It found that
the statutory factors in K.S.A. 2019 Supp. 23-3203 favored maintaining joint legal
custody with two exceptions: (1) Angela should have sole authority to decide education
issues; and (2) the children should decide what sports they play. It also denied James'
motion to replace the case manager, finding no evidence of bias or ineffectiveness on Dr.
Bryant's part. The court issued its final order in April 2019.
Later that month James moved for relief based upon K.S.A. 2019 Supp. 60-
259(a)(1)(D), which provides that the court "may, on motion, grant a new trial . . . on all
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or part of the issues [if] . . . [the] decision is in whole or in part contrary to the evidence."
He also sought relief based on K.S.A. 2019 Supp. 60-259(a)(1)(E), which is predicated
upon "newly discovered evidence that is material for the moving party which it could not,
with reasonable diligence, have discovered and produced at trial."
James raised two grounds for relief in his motion: (1) the district court's decision
went against the weight of evidence; and (2) newly discovered evidence showed Dr.
Bryant's bias. The new evidence consisted of an affidavit from Liz Armstrong, the court's
Alternative Dispute Resolution Coordinator, in which she stated that she had stopped
assigning Dr. Bryant to new cases after an administrative judge found that he violated a
subpoena and had "delays in recommendations and difficulties with" case assignments.
The relief James sought was for the court to "reconsider and amend its decision to retain
Dr. Bryant as the case manager and order the removal of Dr. Bryant."
Judge Sean Hatfield heard James' motion because Judge Hoelscher, who presided
over the evidentiary hearing and issued the ruling in the case, had been reassigned to a
different division in the district court. Judge Hatfield denied relief, and this appeal
followed.
James' Motion Under K.S.A. 2019 Supp. 60-259(a)(1)(D) and (E)
James sought relief under K.S.A 2019 Supp. 60-259(a)(1)(D) and (E). These
subsections of the statute allow the district court to grant a new trial if the "decision is in
whole or in part contrary to the evidence" or if there is newly discovered evidence.
K.S.A. 2019 Supp. 60-259(a)(1)(D), (a)(1)(E). Though James' motion did not specifically
invoke the provisions of K.S.A. 2019 Supp. 60-259(f) to alter or amend the judgment, he
relies on that provision on appeal in arguing that the district court failed to reconsider
Judge Hoelscher's ruling.
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James argues that Judge Hatfield gave short shrift to James' argument in his
K.S.A. 2019 Supp. 60-259 motion that Dr. Bryant was not a neutral third party and did
not have the technical knowledge to be an effective case manager. James cites statements
from Judge Hatfield suggesting that he had a policy against overturning a decision of the
judge who originally heard and decided the matter. James points out that Judge Hatfield
stated in denying the motion that an unsuccessful litigant cannot "wait for a new judge
and try to get a second bite of the apple. That's not going to happen here."
We review the decision to deny James' motion for abuse of judicial discretion.
The district court abuses its discretion if it bases its decision on a legal or factual error, or
if no reasonable person would agree with the decision. Gannon v. State, 305 Kan. 850,
868, 390 P.3d 461 (2017).
At the outset of the hearing on James' 60-259 posttrial motion, Judge Hatfield
noted: "I appreciated the extra time to really dig into the motion . . . each party's
proposed facts, . . . as well as Judge Hoelscher's ruling. . . . I spent some considerable
time with this. I've reviewed responses, the law cited, as well [as] the motions."
Judge Hoelscher's ruling consisted of six dense, single-spaced pages reviewing all
the testimony, including testimony and other evidence about Dr. Bryant's involvement in
the case. James' motion included 45 citations to testimony elicited during the three-day
evidentiary hearing. Having reviewed these matters, Judge Hatfield denied relief, stating
that he could find "nothing presented that is so compelling" that warranted setting aside
Judge Hoelscher's decision. It is apparent that Judge Hatfield considered James' motion
before ruling on it.
James complains that Judge Hatfield did not make findings of fact and conclusions
of law to support his decision. It is true that Supreme Court Rule 165 (2020 Kan. S. Ct.
R. 215) requires the district court to provide adequate findings of fact and conclusions of
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law to explain its decision on contested matters. See K.S.A. 2019 Supp. 60-252. But
James had the duty to object to the district court's lack of findings and conclusions to give
the district court an opportunity to correct any claimed inadequacies. See McIntyre v.
State, 305 Kan. 616, 618, 385 P.3d 930 (2016). When a litigant fails to object to the
adequacy of the district court's findings and conclusions, we presume the district court
found all facts necessary to support its decision. State v. Jones, 306 Kan. 948, 959, 398
P.3d 856 (2017).
James' Motion Under K.S.A. 2019 Supp. 60-259(a)(1)(E)
The district court also rejected James' claim for relief based on newly discovered
evidence. Under K.S.A. 2019 Supp. 60-259(a)(1)(E), newly discovered evidence is
evidence "that is material for the moving party which it could not, with reasonable
diligence, have discovered and produced at trial." Judge Hatfield found that the purported
new facts set forth in an affidavit—stating that Dr. Bryant was not receiving new case
appointments—could not support reconsideration because they related to events that
occurred after the hearing on James' effort to have Dr. Bryant removed. See Geiman-
Herthel Furniture Co. v. Geiman, 160 Kan. 368, Syl., 161 P.2d 518 (1945). This is the
wrong standard for considering a motion based on newly discovered evidence. See State
v. Norton, 277 Kan. 432, 437-38, 85 P.3d 686 (2004). Nevertheless, we will uphold the
district court's decision if it reached the proper result. Gannon v. State, 302 Kan. 739,
744, 357 P.3d 873 (2015).
To justify relief James needed to show that the newly discovered evidence was "of
such materiality that it would be likely to produce a different result upon retrial." Norton,
277 Kan. at 437. Judge Hatfield found that evidence about Dr. Bryant's performance in
other cases in no way affected his neutrality and competence in this case. Thus, its
introduction at trial would not have resulted in an outcome more favorable to James.
Moreover, the evidence would have simply tended to discredit Dr. Bryant's testimony.
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Such evidence does not support a motion for a new trial based on a claim of newly
discovered evidence. State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984). The
district court did not abuse its discretion in rejecting this claim.
The Failure to Remove Dr. Bryant as Case Manager
James challenges the denial of his motion to replace Dr. Bryant as the case
manager. K.S.A. 2019 Supp. 23-3507 requires that a case manager appointed to help a
family resolve custody and visitation issues must remain neutral. Thus, under K.S.A.
2019 Supp. 23-3509(c) a party may move to replace a case manager who is no longer
objective. The moving party bears the burden of proving that removal is necessary. We
review the decision on such a motion for abuse of discretion. In re Marriage of Merrill
& Jadlow, 47 Kan. App. 2d 943, Syl. ¶¶ 5-6, 281 P.3d 559 (2012).
Abuse of judicial discretion, as James claims, occurs when the district court's
ruling is based on an error of fact or law, or is one with which no reasonable judge would
agree. Gannon, 302 Kan. at 741. James has the burden of proving that the removal of Dr.
Bryant was necessary. Here, the district court's decision not to remove Dr. Bryant
constitutes a negative finding. See Merrill, 47 Kan. App. 2d at 952-53. The district court
necessarily found that James did not meet his burden of proof on this issue. When this
happens, we will reverse the district court only when it has abused its discretion by
disregarding undisputed evidence or when it was motivated by bias, passion, prejudice, or
some other extrinsic consideration. 47 Kan. App. 2d at 953.
James bases this claim on Dr. Bryant having suspended James' parenting time in
2017. James argues that Dr. Bryant recommended a suspension to recover unpaid fees
rather than to promote the children's best interests, and that the severity of this
punishment shows Dr. Bryant's bias. James also argues that Dr. Bryant should be
removed because he is not sufficiently knowledgeable in Kansas domestic relations law
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and procedure. This argument is predicated on these same actions of Dr. Bryant in
temporarily suspending James' parenting time.
Dr. Bryant testified that he recommended a suspension in parenting time because
James repeatedly violated court orders by, among other things, relitigating settled issues.
An order a few weeks before the suspension warned James that a reduction in parenting
time would follow if he continued disputing certain education issues. When James
ignored this warning, Dr. Bryant believed that a suspension was the only way to secure
James' compliance with the court's orders. And compliance was key because the tension
James caused by raising these issues was harming the children and affecting their
academic performance.
This testimony provided a neutral explanation for Dr. Bryant's actions. It is
substantial competent evidence that a reasonable person could accept as adequate to
support the conclusion that James' parenting time should be temporarily suspended. See
Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). Viewing the evidence in the light
favoring Angela, the prevailing party, there was ample evidence to support the district
court's ruling on this issue. See Gannon v. State, 298 Kan. 1107, 1175-76, 319 P.3d 1196(2014). James has not met his burden of proof on this issue. We will reverse only when
the district court abused its discretion by disregarding undisputed evidence or when it
was motivated by bias, passion, prejudice, or some other extrinsic consideration. There is
no evidence here to support a reversal. The district court did not abuse its discretion in
denying James' motion to replace Dr. Bryant as the case manager.
Due Process
As part of his argument on the failure to discharge Dr. Bryant, James raises for the
first time a due process argument. He cites K.S.A. 2019 Supp. 23-3208(a), which grants a
parent the right to "reasonable parenting time unless the court finds, after a hearing, that
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the exercise of parenting time would seriously endanger the child's physical, mental,
moral or emotional health." James argues that the district court violated this provision—
and his constitutional right to due process—by not holding a hearing before approving
Dr. Bryant's recommendation to temporarily suspend James' parenting time until he
acknowledged his obligation to comply with the court's orders.
The document containing the case management temporary recommendations was
signed by Dr. Bryant on October 20, 2017. It recommended the temporary suspension of
James' parenting time due to his repeated failure to comply with court orders by
rehashing issues that had already been decided. That same day it was approved by the
district court, and the district court issued an order making this recommendation an order
of the court. The order was filed on October 24, 2017. James' parenting time was restored
on December 20, 2017.
We are not required to consider on appeal claims that were not raised before the
district court. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).
More specifically, constitutional grounds for reversal asserted for the first time on appeal
are not properly before us for review. Bussman v. Safeco Ins. Co. of America, 298 Kan.
700, 729, 317 P.3d 70 (2014).
An exception to this rule arises when, among other things, the newly asserted
claim involves only a question of law on proven or admitted facts and is finally
determinative of the case. James seeks to invoke this exception. But Supreme Court Rule
6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires an appellant to explain (1) why the issue was
not raised below and (2) why it should be considered for the first time on appeal. Our
Supreme Court had stated that Rule 6.02(a)(5) is to be strictly enforced. State v. Godfrey,
301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Here, James makes no attempt to explain
why the issue was not raised before the district court. Moreover, he fails to explain how
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resolution of this issue is finally determinative of the case. He has not complied with
Supreme Court Rule 6.02(a)(5). Accordingly, this claim is not before us.
The Joint Custody Order
James contends that the district court erred in ruling that the parties will remain
joint custodians of their children but that Angela will make all decisions regarding school
decisions for the children.
First, he contends that the statute governing custody arrangements, K.S.A. 2019
Supp. 23-3206, forbids awarding one parent decision-making power over a single issue.
That is, the district court may only award joint custody (shared decision-making authority
on all issues) or sole custody (one parent decides all issues). The court cannot award sole
custody on one issue and joint custody on all others.
Second, he contends that even if K.S.A. 2019 Supp. 23-3206 permits the
arrangement adopted by the district court, the statute requires specific factual findings not
made here.
James makes no argument that this modified custody arrangement was not in the
children's best interests.
We review the district court's custody decision for abuse of discretion. In re of
Marriage of Whipp, 265 Kan. 500, Syl. ¶ 4, 962 P.2d 1058 (1998). Here, James contends
the district court based its decision on an error of law. To the extent that we are called
upon to interpret the statute, that is an issue of law over which we have unlimited review.
The cardinal rule when construing a statute is that the Legislature's intent controls if
courts can discern it from the ordinary meaning of the text. In re Joint Application of
Westar Energy and Kansas Gas Electric Co., 311 Kan. 320, 328, 460 P.3d 821 (2020).
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With regard to James' first contention, he argues that K.S.A. 2019 Supp. 23-3206
provides only two permissible legal custody arrangements: joint custody and sole
custody. He argues that in joint custody both parents share decision-making authority
over every major issue affecting their child. With sole custody, on the other hand, one
parent decides every significant issue. Thus, it is improper to award one parent sole
authority to decide educational issues and to grant joint authority to the parents on all
other issues. By awarding Angela sole authority over only education decisions, the
district court imposed neither joint nor sole custody, but a hybrid arrangement not
permitted by K.S.A. 2019 Supp. 23-3206.
It is important to keep in mind that this is not a situation in which the court
ordered joint custody but placed all parental decision-making in the hands of one parent.
Here, the court designated the issue of the children's schooling a source of ongoing
conflict between the parties and directed that decisions on that one issue will be decided
by Angela, one of the joint custodians.
K.S.A. 2019 Supp. 23-3206 calls for one of two custody arrangements: joint
custody or sole custody. It also provides that the "court may make any order relating to
custodial arrangements which is in the best interests of the child." (Emphasis added.)
In joint custody "the parties shall have equal rights to make decisions in the best
interests of the child." (Emphasis added.) K.S.A. 2019 Supp. 23-3206(a). Sole custody
may be ordered when "it is not in the best interests of the child that both of the parties
have equal rights to make decisions pertaining to the child." (Emphasis added.) K.S.A.
2019 Supp. 23-3206(b).
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The default setting for decision-making in a joint custody arrangement is that both
parents participate equally in all significant parenting decisions, whereas in a sole
custody arrangement the sole custodial parent makes all significant parenting decisions.
But under either custodial arrangement, the statute simply refers to decisions. The
right to make decisions does not necessarily require that each and every decision must be
jointly made by the parents in a joint custody arrangement, or that both parents cannot
participate in some parenting decisions in a sole custody arrangement if the court finds
that such an arrangement is in the child's best interest. The statute specifically permits the
court to "make any order relating to custodial arrangements which is in the best interests
of the child." K.S.A. 2019 Supp. 23-3206. This permits the court in a case like the one
before us to maintain joint custody—the preferred custodial arrangement—but carve out
a specific parenting issue that is a source of constant and ongoing conflict between the
parties and place decision-making on that issue in the hands of one of the parents to the
exclusion of the other.
That is what happened in In re Marriage of Gerow, No. 100,930, 2009 WL
981672 (Kan. 2009) (unpublished opinion). There, the parties had joint custody of their
daughter. The parties could not agree on their child's need for a particular surgery. The
case manager recommended that the surgery proceed, and the district court adopted the
recommendation. The mother sought a restraining order to prevent the father from
scheduling the surgery, and the father filed an emergency motion for sole decision-
making authority. The court granted father sole decision-making authority over this issue
and denied the mother's restraining order. There was no motion to change custody, and
the district court did not change the custodial arrangement from joint custody to sole
custody. On appeal, our Supreme Court affirmed, characterizing the district court's ruling
as "comport[ing] with the statutory requirement for awarding sole custody—in this case,
the sole authority to make medical decisions—to [the father]." 2009 WL 981672, at *3.
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In Gerow, there was no motion to change the parties' joint custody of their
daughter and no such order was entered. Nonetheless, the Supreme Court in its
unpublished opinion affirmed the district court's authority to designate one major
parenting issue that was the subject of parental conflict and place decision-making on that
issue with one parent.
In our present case, the district court did not err in maintaining the parties' joint
custody of their children but designating Angela as the parent to make school decisions
for the children.
On James' second contention, we conclude that there was no change from joint
custody to sole custody so the district court was not required to make the findings called
for in K.S.A. 2019 Supp. 23-3206(b). Nevertheless, the district court did explain in detail
why limiting James' input over education issues was in the children's best interests. The
district court dedicated four single-spaced paragraphs to why the children should stay at
their current school over James' objection. It devoted three more paragraphs to Dr.
Bryant's and the children's therapist's testimony that James started most of the disputes
between the parties, causing the children stress and placing them in the middle of the
conflict. And it spent another paragraph noting James' adamant opposition to, and
Angela's consistent support for, the education plan of one of their children. After all that,
the district court found that "the best interests of the minor children [were] served by"
Angela making all education decisions. These findings and the evidence supporting
them—which James does not dispute—would be sufficient to satisfy the requirements of
K.S.A. 2019 Supp. 23-3206(b) if there had actually been a change from joint custody to
sole custody.
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Angela's Request for Appellate Attorney Fees
In July 2020, Angela filed a motion for appellate attorney fees together with the
affidavit of her appellate counsel and an itemization of fees under Supreme Court Rule
7.07(b)(2) (2020 Kan. S. Ct. R. 50). James has filed his response in opposition to
Angela's motion so the matter is now ripe for a decision.
Angela seeks appellate attorney fees under Rule 7.07(b) and (c). Subsection (b) of
the Rule relates to fees generally and allows an award of fees in cases in which the
district court has authority to award attorney fees. Subsection (c) of the Rule relates to the
imposition of fees for frivolous appeals or for appeals brought for the purpose of
harassment or delay. It provides for assessing fees against appellant or appellant's counsel
or both of them.
Supreme Court Rule 7.07(c)
We have the authority to award fees under Rule 7.07(c) only if we find that "an
appeal has been taken frivolously, or only for the purpose of harassment or delay." (2020
Kan. S. Ct. R. 51.) Angela argues that James' appeal is both frivolous and was taken for
the purpose of harassment or delay.
An appeal is frivolous if it presents "no justiciable question" and is "readily
recognized as devoid of merit," meaning "that there is little prospect that it can ever
succeed." Blank v. Chawla, 234 Kan. 975, Syl. ¶ 5, 678 P.2d 162 (1984). Cases applying
this definition have denied attorney fees if an appeal raised unsettled issues (234 Kan. at
982) or novel legal issues (Geiger v. Wallace, 233 Kan. 656, 662, 664 P.2d 846 [1983]).
Unsettled or novel legal issues include unresolved issues of statutory interpretation. In re
Marriage of Hoffman, 28 Kan. App. 2d 156, 160, 12 P.3d 905 (2000). Moreover, because
Rule 7.07 requires a finding that "an appeal" is frivolous, the presence of even a single
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nonfrivolous issue renders the entire appeal nonfrivolous. See Porter v. Stormont-Vail
Hospital, 228 Kan. 641, 647-48, 621 P.2d 411 (1980) (denying attorney fees for an
appeal that was not "totally without merit").
We are not persuaded that James' appeal was frivolous. In particular, James'
statutory construction argument regarding joint versus sole custody under K.S.A. 2019
Supp. 23-3206 is a novel twist on an issue not addressed in any published Kansas
appellate decision. Though we were not persuaded by James' arguments, raising this issue
was not frivolous. Blank, 234 Kan. 975, Syl. ¶ 5. Accordingly, this appeal was not
frivolous under Rule 7.07.
Angela also argues that fees are appropriate under Rule 7.07(c) because James
appealed "for the purpose of harassment or delay." For support, she points to James'
litigation tactics in the district court, including the several motions he filed to remove
different case managers and his frequent attempts to relitigate settled issues. Perhaps
tactics like those show harassment or delay in the district court, but they do not establish
that this appeal was taken for the purpose of harassment or delay.
Angela cannot recover appellate attorney fees under Rule 7.07(c) because James'
appeal was neither frivolous nor shown to have been taken for harassment or delay.
Supreme Court Rule 7.07(b)
Turning to the general provision for the assessment of appellate attorney fees
under Supreme Court Rule 7.07(b), we have the authority to assess fees on appeal under
Rule 7.07(b)(1) because, under K.S.A. 2019 Supp. 23-2715, the district court has the
authority to award attorney fees as justice and equity require. See In re Marriage of
Patterson, 22 Kan. App. 2d 522, 534, 920 P.2d 450 (1996) (applying a predecessor
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statute to motions to modify child custody and child support). Indeed, the district court
invoked this statutory provision to award Angela $5,000 in attorney fees.
Having the authority to assess fees, we need to consider whether justice and equity
require the assessment of fees. In doing so, we conclude that James' claim that the district
court abused its discretion in not removing Dr. Bryant as case manager is so lacking in
merit—given James' high burden on appeal and the extensive evidence that supports the
district court's ruling—that under the totality of the circumstances justice and equity
warrant the assessment of fees under Rule 7.07(b). Angela is entitled to an award for the
reasonable value of the work performed by her counsel in defending against this claim.
To evaluate Angela's claim for fees, we apply the reasonableness factors set out in
the Kansas Rules of Professional Conduct 1.5 (2020 Kan. S. Ct. R. 297). Angela
discusses those factors in a detailed affidavit attached to her motion. In his reply in
opposition James does not.
As to the hourly rates charged by the attorneys and legal assistant who worked on
Angela's brief—$225, $175, and $100, respectively—these rates are within the range of
hourly fee rates this court has found reasonable. See In re Marriage of Smith, No.
117,664, 2018 WL 1247164, at *3 (Kan. App. 2018) (unpublished opinion) (approving a
$200 rate and surveying cases approving rates of $275 and $225 in child custody cases).
Based on our analysis of the detailed fee statement of Angela's appellate counsel,
she incurred fees directly attributed to drafting of her responsive brief on the case
management issue of $4,802.50.
In addition, the detailed fee statement itemizes $9,405 in appellate fees related to
counsel's review of transcripts, the district court's file, the trial exhibits, and documents
needed to be added to the record on appeal.
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The record on appeal is quite extensive. It covers the period from May 2012 to
June 2019 and contains a multitude of motions, briefs, case management
recommendations, hearings, and court rulings. The court's docket sheet records 69 pages
of pleadings, motions, briefs, hearings, and orders related to this family's disputes after
the parties' divorce was granted, much of which involved issues of custody, parenting
time, and related matters. The records after February 2017, when Dr. Bryant was
appointed case manager, are the ones calling for more rigorous scrutiny. On the other
hand, James' arguments regarding the court's joint custody order and James' due process
issue are issues of law that are not heavily dependent on the record.
We calculate from the itemized fee statement provided by Angela's counsel that
5,400 pages of documents; transcripts; trial exhibits; and pleadings, motions, briefs, and
orders from the district court file were reviewed. It appears that these were all in one way
or another related to the case management issue.
Based on appellate counsel's reasonable hourly rates and reasonable amount of
time in the preparation of Angela's response to the case management issue at the heart of
this appeal, we conclude that justice and equity require the imposition of a reasonable and
appropriate award of appellate attorney fees in favor of Angela in the amount of
$14,207.50.
Affirmed. Appellate attorney fees awarded to Angela and against James in the sum
of $14,207.50.
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