In re Marriage of Boles ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,330
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
STEVI L. BOLES,
Appellee,
and
WOODROW BOLES JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Thomas District Court; KEVIN BERENS, judge. Opinion filed February 26, 2021.
Affirmed.
Jeffrey Leiker, of Overland Park, for appellant.
Charles A. Peckham, of Brown, Creighton & Peckham, of Atwood, for appellee.
Before GARDNER, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Woodrow Boles, Jr. (Father) and Stevi Strick (f/k/a Stevi Boles)
(Mother) married in 2011 and divorced in 2017. They were the natural parents of a boy
and girl. In this appeal, Father argues the district court erred in denying his motion for a
change in residential custody. The district court's denial was based on its determination
that Father failed to establish a prima facie case of a material change of circumstances for
the parties' children. But because the district court considered the appropriate statutory
factors in coming to its conclusion, we find the district court did not abuse its discretion
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when it dismissed Father's motion for a change of residential custody. Accordingly, we
affirm the district court's dismissal of the motion.
FACTS
Father and Mother married in September 2011 and divorced in December 2016.
Though the district court granted the decree of divorce in December 2016, it was not filed
until February 2017. Mother and Father had two minor children when they divorced: one
boy and one girl. Under the terms of the divorce decree, the parents had joint legal
custody of the children with Mother being the residential custodian.
After the parties' divorce, Father bought a house and moved to Warrensburg,
Missouri, sometime around June 2017. Hannah Marsh, Father's fiancée and later wife,
lived with him in the house. At first, Mother lived in Colby, Kansas. Mother also had two
other children, one boy and one girl, but Father was not the natural parent of either.
On September 12, 2017, Mother notified Father that she was moving from Colby
to St. Francis, Kansas, because the rental property she lived in changed owners. Mother
told Father she was told to vacate the premises by October 15, 2017. As a result of the
move, the parties' meeting place to exchange the children would be approximately 90
miles further from the original meeting place.
On September 25, 2017, Father filed a motion objecting to Mother's proposed
move and asked the district court to modify residential custody of the children. In the
motion, Father alleged that Mother's planned move to St. Francis would not be in the best
interests of the children because it would impact his parenting time with the children.
Father also alleged the proposed move would increase the costs he would incur to
exercise his right to parent the children. Father contended this would be Mother's seventh
move since the two separated in April 2014, which he believed showed a continuing
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instability in residences for the children. He asked the district court to modify the
residential custody of the children because of a material change in circumstances. The
district court subsequently held a two-day trial on the motion on August 29-30, 2018.
At the hearing, Father explained that, before the two separated, the family moved
from Colby to Oregon because he found a higher paying job. While in Oregon, the two
separated, and Mother returned to Kansas with the children. Father testified that Mother's
move in October was her fifth move since the two separated. The first four moves
consisted of Mother moving to different locations within Colby, but the fifth move was
when she decided to move to St. Francis. Father also said that after returning from
Oregon in 2015, he lived Overland Park, Kansas, then Lenexa, Kansas, before ultimately
moving to Warrensburg in 2017. Despite his own moves, Father did not believe Mother's
move to St. Francis was in the best interests of the children.
Father argued the move was not in the best interests of the children for multiple
reasons. One of the issues was schooling. Father did not want the children pulled from
the school they were attending in Colby. Father also argued that St. Francis, which is
smaller than Colby, was further away from basic needs, like medical care, food, and
schooling. Furthermore, Father was concerned with Mother's financial stability because
he was not completely sure what she did for work. But Father was particularly concerned
with the person he believed Mother was in a relationship with. Father did not know the
exact nature of the relationship, but he alleged that the individual had an extensive
criminal past and did not want the individual around the children because of that.
Mother testified that she lived in St. Francis and rented a home from Blake
Feikert, who was the individual Father was concerned about. Mother lived in the house
with her and Father's two children and her other daughter. Mother said her other son had
lived with her previously but decided to go live with his father at the end of the school
year in 2016. Her other son was 15 or 16 years old when he moved in with his father.
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Mother testified that Feikert lived on the same property as she did but in a
different house. Mother characterized Feikert as her landlord at the time of the hearing.
She said that once she discovered his criminal history, she decided it was in the best
interests of herself and her children to step back from the romantic relationship the two
were in previously. When asked about what she discovered, Mother said she discovered
allegations against Feikert, but she did not know if they were true. She also said she did a
background check and did not discover anything wrong but still decided to step back
from the relationship. Prior to learning about those allegations, Mother and Feikert had
been in a relationship for approximately two years.
Mother testified she was not concerned about the safety of herself or her children
because Feikert was hardly ever around. She estimated that she had only seen him four
times between February 2018, when she ended the relationship, and the time of the
hearing. Mother also spoke with Feikert's ex-wife about the allegations, and Feikert's ex-
wife told Mother the allegations were not anything substantial. Mother said that Feikert
was never alone with the children, and when he had seen them it was always in a group
setting. She later clarified that Feikert had spent the night with her at her previous home
but not at the one in St. Francis.
When asked why she moved in October 2017, Mother said she needed to get out
of the house she was in previously because the roof leaked, there was mold, and the
basement filled with water when it rained. She said she constantly contacted the landlords
about the problems with the house but nothing ever got fixed. She said at the time, she
ran a daycare and did not want to put her children or the other children in any risk.
Mother also stated that part of the reason for her move was to find a more affordable
house. After she moved to St. Francis, Mother stopped working as a daycare provider
because she broke bones in her wrist, which prevented her from working. At the time of
the hearing, Mother was self-employed as a dog groomer.
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Between her job as a daycare provider and dog groomer, Mother also worked at a
Dollar General store for about a month-and-a-half, but she stopped working there because
she was not making enough money to support her and her children. She stated that she
made substantially more money at her dog grooming business and planned to continue
operating the business long-term. She also stated the dog grooming business afforded her
far more flexibility in terms of scheduling than her previous job, which benefited her and
her children.
Mother also addressed the schooling issue at the hearing. She testified that their
son was enrolled in kindergarten in St. Francis. Prior to kindergarten, Mother planned on
enrolling their son in Head Start, which was a preschool. However, that did not happen,
partly due to the spot that was at one time available becoming unavailable. Instead,
Mother decided to homeschool the children, including their daughter who was four years
old at the time of the hearing, after she broke her wrist. Mother did not have a formal
curriculum when teaching the children, but she worked on teaching the children reading
and writing. When Mother eventually learned a spot opened at Head Start, she made the
decision to continue teaching their children at home. Just before the hearing took place,
Mother learned that their daughter had been waitlisted at Head Start. Mother planned on
enrolling her if another spot became available.
Furthermore, Mother testified that the children still interacted with the friends they
made in Colby despite having moved to St. Francis. She said they periodically went back
to Colby to visit, or other people drove from Colby to St. Francis. Mother did not believe
the travel distance impacted any of the children's friendships or activities in which they
participated.
Mother also reiterated her belief that her move to St. Francis was a semi-
permanent move. She said she hoped to be there for five years or potentially longer but
did not elaborate on her reasoning for the five-year estimate. She did say she never felt
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any of her moves to different residences in Colby were permanent because of bad rentals
and bad landlords, which she believed was common in Colby. She felt that her rental in
St. Francis was different because Feikert was a better landlord who would fix any issues
that arose.
When asked more about Feikert, Mother stated he would only be around in group
settings going forward. Mother explained that she and Feikert share some of the same
friends, and the group of friends often went to the lake or camping. However, Mother did
not plan on allowing Feikert to come to her residence to see the children. Mother was
also notified about previous findings from the Kansas Department for Children and
Families (DCF) concerning Feikert and his own children. When asked about the findings,
Mother said she was concerned, but she also said she never had seen him exhibit any
signs of dangerous behavior towards her or her children. She reiterated her belief that
living on his property would not be unsafe after being asked about a shooting incident
that took place at his house. Mother contended Feikert acted in self-defense when he shot
an intruder and said the event took place more than a year before she moved into her
residence. Mother said she still would have considered moving to the house she lived in
even if she knew about Feikert's criminal history before moving there. At the time of the
hearing, she said she had not finished reading through everything about his criminal
history, but she did not think she would move after finishing because the two had a clear
understanding about where they stood.
Mother later discussed the background report she got from the Kansas Bureau of
Investigation (KBI). She ran the report in January 2017, after the two had been dating for
a while, and it did not indicate Feikert had any records with the KBI. After being asked
specifically about any previous charges or convictions Feikert had, Mother again said she
relied on the KBI report, which did not reflect anything. Mother said Feikert did not have
any criminal charges when the two were in a relationship.
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Mother disagreed with Father's assertion that the children's best interests would be
served by giving Father residential custody. She said the children had lived with her since
they were born and would be taken out of their network if they moved, especially because
their son had already started school and made friends. She also reiterated her belief that
moving to St. Francis did not have a substantial impact on the children's normal activities
in which they participated in Colby.
At the conclusion of the hearing, the district court concluded the evidence showed
that both parents were good parents. However, the district court told both parents they
had to do a better job of communicating with each other moving forward, reasoning that
most of the problems in the case stemmed from a lack of conversation between them. The
only individual the district court expressed any concern about with respect to being
involved in the children's lives was Feikert. The district court also noted that both parents
wished to be residential custodians and that the minor children were not of sufficient age
or maturity to express their desires.
Later the same day, the district court entered an order regarding the hearing on
Father's motion. The district court found that Mother's move from Colby to St. Francis
did not substantially impact Father's parenting time and did not negatively impact the
children's relationships with the parents, grandparents, friends, or other significant
persons in their lives. Regarding Feikert, the district court concluded that Mother was not
currently in a relationship with him and had shown a willingness to adjust her personal
relationships to meet the best interests of the children. The district court also found that
both parents would reliably meet the needs of the children going forward. Based on its
findings, the district court denied Father's motion and ordered that Mother would retain
primary residential custody of the children going forward.
In January 2019, Father filed a motion under K.S.A. 2019 Supp. 60-260(b)(2) and
(b)(3) to reconsider the district court's order regarding his motion to modify. Specifically,
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Father argued that Mother intentionally misled the district court about her relationship
with Feikert. Father alleged that Mother and Feikert resumed their relationship and he
had reassumed a parental role. Father also alleged that Mother falsely reported how their
son broke his arm, that the children told Father that Mother and Feikert were physically
disciplining them, that Mother told the children to lie to Father about Feikert's role in
their lives, that their daughter was still not enrolled in preschool, and that Father had seen
Feikert with his children on multiple occasions since the trial.
In response to Father's motion, the district court appointed Heather Alwin to serve
as the guardian ad litem for the children. In May 2019 Alwin submitted her confidential
report to the district court. In the report, Alwin concluded that Mother misrepresented her
reasons for moving from Colby to St. Francis at the hearing in August 2018. While
Mother told the district court she moved because the residence in St. Francis was cheaper
than her residence in Colby, Alwin concluded that Mother moved to St. Francis to be
with Feikert. Alwin also concluded that Mother did not have a job waiting for her at Head
Start when she moved to St. Francis, which meant that Mother moved there without a
source of income to provide for her and the children.
Alwin found that Mother also misled the district court about the extent of Feikert's
involvement with the family while living in the residence on his property, stating that
Feikert had a significant impact on the family for at least part of the time Mother and the
children lived in her residence on the property. Alwin explained that Feikert's house had
no running water, which meant that he often utilized the kitchen and other facilities in
Mother's rental house when he was around. Alwin also believed that Mother's other
daughter moved away, in part because she did not get along with Feikert.
Regarding the relationship between Feikert and Mother, Alwin determined that
Mother did not tell Feikert she was taking a step back from the relationship. Instead,
Feikert left the St. Francis area in the spring of 2018 and was gone for months. Alwin
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found that Mother's "'step back'" from the relationship was the result of Feikert's absence
instead of a decision by Mother to pause or end the relationship as she told the district
court. As a result, Feikert was unaware the relationship between himself and Mother had
ended until October 2018, when Mother ended the relationship. When Mother decided to
end the relationship, she did so in the car after dropping the children off at the exchange
location. Mother told Alwin she broke up with Feikert in the car because she wanted to
talk to him in a neutral location about ending the relationship, in part because Feikert had
started acting odd around Mother. This concerned Alwin because either Mother brought a
dangerous person along on the ride to the exchange with her and her children, or Mother
and Feikert resumed their relationship after Mother told the district court she was not
planning to do so. After she broke up with Feikert, Mother told Alwin that she felt
uncomfortable around Feikert because he did not handle it well.
Furthermore, Alwin concluded that Mother's living situation was not nearly as
stable as she presented to the district court. As evidence, Alwin indicated that Mother
began looking for new residences in May 2018 and had already moved in January 2019,
but Mother also told Alwin she did not plan on staying in the residence she moved to in
January. Alwin believed that Mother's reasons for moving from one house to another
often varied, depending on who she was speaking with. Alwin also believed Mother's
reasons were sometimes illogical. For instance, Mother told Alwin she moved from the
residence on Feikert's property because her older daughter did not want to live in St.
Francis, but when Mother looked for alternative residences, they were all located in St.
Francis. Further, in October 2018 Mother told Alwin she planned to move away from the
residence on Feikert's property but did not know where she would move to. At one point,
Mother told Alwin she was considering moving to Goodland, Kansas, but she later told
Alwin she planned on moving back to Colby.
Alwin ultimately recommended that the district court should designate Father as
the primary residential custodian of the children because it was in the children's best
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interests. Alwin believed that both Mother and Father were good parents who had strong
bonds with the children. However, Alwin determined that Father's situation was more
stable. Father had recently purchased a larger house down the street from his previous
home in Warrensburg, but in contrast Mother's living situation was in constant turmoil.
Father also had a stable job and income, whereas Mother indicated to Alwin on multiple
occasions that she needed money, despite maintaining that her dog grooming business
was doing well.
As a result of the report, the district court held another lengthy hearing in June
2019. At that time, Father had only filed his original motion for reconsideration. Thus,
the only concern at the hearing was whether there was new evidence and whether Mother
misrepresented the facts to the district court at the prior hearing.
After withdrawing from her role as guardian ad litem, Alwin testified at the
hearing. Alwin testified that the district court appointed her primarily to investigate the
issue of fraud or misrepresentation. Specifically, Alwin was to prepare a report outlining
her findings about whether there were misrepresentations made at the hearing the district
court held in August 2018.
When asked about Feikert, Alwin stated that she was somewhat familiar with his
criminal history, including a substantiated DCF report about emotional abuse concerning
his own children. She also spoke with Feikert during her investigation. She said that
Feikert was not completely antagonistic, but he also told her that certain things were not
her business, including his whereabouts when he left the St. Francis area in the spring of
2018 for a few months. Alwin's testimony concerning Feikert largely coincided with the
findings in her report, as did her other testimony on the conclusions in her report.
However, as Mother points out in her brief, when asked specifically about her
conclusions on cross-examination, Alwin testified she did not have any information about
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whether Mother and Father's son lied about how he broke his arm, had no evidence that
Mother or Feikert physically disciplined the children, no evidence that Feikert played a
consistent role in the children's lives, and no evidence that Mother directed the children to
lie to Father about Feikert's involvement in their lives. On the day of the hearing, not all
the witnesses had a chance to testify before the end of the day. As a result, the district
court continued the rest of the hearing until August.
Before the next scheduled hearing took place, Father filed an amended motion to
reconsider in July. Father alleged that Mother was moving once again and had already
purchased a home at the new location. Thus, Father alleged another material change in
circumstances pursuant to K.S.A. 2019 Supp. 23-3222(c) and incorporated by reference
the allegations he made in his earlier motion to reconsider. Later that month, the district
court entered a pretrial order concerning the second hearing. The pretrial order stated that
both parties agreed the trial concerned Father's allegations about the material change in
circumstances. On August 12, the second day of testimony before the district court
commenced.
Father testified that Mother had moved twice since the hearing in August 2018 and
resided in Colby at the time of the hearing. Father believed her move from St. Francis to
Colby negatively impacted their son's schooling situation because he was leaving the
friends he made in St. Francis. Father stated that Mother informed him their daughter
would be starting preschool that year.
Father also testified that when Mother moved back to Colby, she bought a mobile
home instead of continuing to rent housing. The children shared a room, while Mother
and her other daughter, who recently moved back in with Mother, each had their own
room. Although Father expressed some concern about how much utilities would cost, he
did not seem concerned about the children living in the mobile home. He did, however,
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express concern surrounding the number of moves that occurred throughout the case
because he felt the constant moving had a negative impact on the children.
Father also indicated that he moved in July of that year to a house down the street.
Father's new house was larger than his other house and had rooms for each of the
children. Father's parents moved into his old house, and they agreed to leave the
children's old room, which they shared, exactly the way it was. Father testified that his
parents played a large role in the children's lives whenever they were in town.
On cross-examination, Father was asked about his motion where he alleged a
material change in circumstances. When asked about the effect of the move on the
children, Father admitted that his son had friends in both St. Francis and Colby. Father
also admitted that the move did not result in any increased costs for him to exercise his
parenting time. It also did not negatively impact Father's parenting time. Furthermore,
Father agreed that Mother's move away from Feikert's property in St. Francis was a good
thing for the children. Father also admitted that Mother had worked as a dog groomer for
approximately two years. Nonetheless, Father believed Mother's constant moving and
financial instability negatively impacted the children.
Alwin also testified at the second hearing. Near the beginning of her testimony,
Alwin testified about Mother's alleged misrepresentations, which was similar to what she
previously testified to at the prior hearing in June. At this point Mother objected, arguing
that Father had abandoned the issue of fraud and misrepresentation. The district court
agreed, reasoning that any testimony about Mother's misrepresentations had been
abandoned.
Alwin then testified once again about her conclusions in the report she prepared
for the district court. Alwin reiterated her concerns with Mother's moves, and Mother's
lack of planning before the moves. Alwin did not believe Mother's recent move back to
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Colby seemed like a permanent solution. However, Alwin believed the children benefited
from being reunited with Mother's older daughter because the daughter and children
seemed to have a good relationship. Alwin also said she was concerned with Mother's
financial stability because multiple witnesses told her Mother struggled with finances.
On cross-examination, Alwin admitted that Mother's financial situation improved
from the time Mother originally moved to St. Francis to the time when Alwin completed
her report. When asked about Mother moving residences, Alwin said that she did not
believe Mother's moves were as justified as she led the district court to believe. Despite
the district court previously finding that the moves were justified, Alwin maintained her
belief that Mother often moved as a reaction to other things in her life without adequate
planning. At the conclusion of her cross-examination, Alwin said that she was more
concerned with the number of moves than with Mother moving the children back to
Colby.
After Father rested his case, Mother argued the case should be dismissed because
Father failed to demonstrate a prima facie case of a material change in circumstances.
Mother contended that her move back to Colby did not make the prior custody decree
unreasonable. She also argued that Father's motion lacked specificity and materiality. She
believed that Father's motion was inadequate under K.S.A. 2019 Supp. 23-3222 and
related caselaw, and she asked the district court to dismiss his motion as a result. Father
stood on the testimony and arguments made in his motion, but he also reiterated facts
concerning Mother's financial and residential instability. He asked the district court to
allow the case to proceed so it could consider the guardian ad litem's recommendation.
Ultimately, the district court did not believe Father presented clear and convincing
evidence that Mother perpetrated a fraud or intentionally misled the district court with her
testimony in August 2018. With regard to the best interests of the children, the district
court found that Mother's move away from Feikert's property in January 2019 benefited
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all the parties involved, including Father. The move reunited the children with their half-
sibling, returned the children to an area they were familiar with, and did not increase
Father's expenses for visitation purposes. In sum, the district court did not believe
Mother's move negatively affected the children's best interests. Accordingly, the district
court dismissed Father's motion because he failed to demonstrate a prima facie case of a
material change in circumstances. The district court also kept in place the previous
parenting time arrangements because Father failed to demonstrate a material change in
circumstances.
Father has timely appealed from the district court's denial of his motion to
reconsider its earlier ruling and order a change of residential custody.
ANALYSIS
On appeal, Father argues the district court erred when it concluded he failed to
present a prima facie case demonstrating a material change in circumstances and
dismissed his motion. Father also argues the district court erred by failing to accept his
factual allegations as true.
"Given the district court's unique vantage point of what is often an emotionally
charged situation in child custody disputes, an appellate court generally will not overturn
such decisions unless the court abused its discretion." In re Marriage of Bahlmann, 56
Kan. App. 2d 901, 903, 440 P.3d 597 (2019). In deciding whether the district court
abused its discretion, appellate courts do not reweigh evidence, redetermine questions of
fact, or pass on witness credibility. 56 Kan. App. 2d at 903-04.
To support his argument that the district court erred by failing to consider his
factual allegations as true, Father cites the same cases as the appellant in Bahlmann. But
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Father fails to acknowledge that the Bahlmann panel decided the issue adversely to his
position. See 56 Kan. App. 2d at 904-05.
In Bahlmann, the parties divorced, and the district court issued temporary ex-parte
orders for custody and parenting time in favor of the mother. The father later filed
motions seeking to modify the ex-parte orders. After hearing arguments on the motion,
the district court adopted the mother's parenting plan. Nevertheless, the parties continued
to litigate custody after the district court issued its written decision. After more than a
year from the date the district court issued its order, the father filed a motion to modify
child custody, claiming a material change in circumstances. The mother filed a motion to
dismiss the father's motion and denied that it would be in the children's best interests to
live with the father. The district court ultimately dismissed the father's motion, finding
that father failed to state specific facts and failed to show a material change in
circumstances. The father appealed, arguing the district court erred when it failed to
consider the factual allegations contained in his motion as true.
The Bahlmann panel disagreed with the father and concluded the district court had
good reason not to consider the factual allegations in his motion to modify custody as
true. Relying on K.S.A. 2019 Supp. 60-207(a) and (b), our court acknowledged that a
motion is not a pleading. It also explained that the procedural posture of a posttrial
motion to modify is different than a pretrial motion to dismiss because the district court
had the opportunity to review the parties' pleadings and evidence presented at trial. Since
there was a trial, the district court had the opportunity to weigh the evidence presented,
make credibility determinations, and issue a final order. 56 Kan. App. 2d at 904-05. Thus,
this court concluded that the posttrial motion was "more akin to the court dismissing [the
appellant's] posttrial motion for a new trial based on newly discovered evidence than it is
to a court dismissing a pleading before any evidence has been presented." 56 Kan. App.
2d at 905.
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The situation here is very similar. After the hearing in August 2018, the district
court ordered that Mother would retain primary residential custody of the children going
forward. Father later filed two motions to modify, one in January 2019 and one in July
2019. After hearing two days of testimony related to Father's motions, the district court
found that he failed to demonstrate a prima facie case for a material change in
circumstances and granted Mother's motion to dismiss the case.
As previously mentioned, Father cites to the same civil cases as the appellant in
Bahlmann to support his claim the district court applied the incorrect standard when
evaluating the motion to dismiss. But those civil cases, where the court applied the
standard Father asks for here, were "dismissed for failure to state a claim at the pleading
stage before any evidence was presented." 56 Kan. App. 2d at 904. That is not the
situation here. Accordingly, the district court did not err when it did not consider the
factual allegations contained in Father's motion as true.
In Bahlmann, the panel went on to say that appellate courts exercise an unlimited
review in determining whether a plaintiff presented a prima facie case. 56 Kan. App. 2d
at 905. Thus, we exercise a de novo review of Father's motion. "A prima facie showing is
one '[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted;
based on what seems to be true on first examination, even though it [may] later be proved
to be untrue.'" 56 Kan. App. 2d at 905 (quoting Black's Law Dictionary 1382 [10th ed.
2014]).
The best interests of the children are the foremost concern in any custody
determination. 56 Kan. App. 2d at 905-06. Under K.S.A. 2019 Supp. 23-3218(a), a
district court "may change or modify any prior order of custody, residency, visitation and
parenting time, when a material change of circumstances is shown." Any alleged change
must be of a substantial and continuing nature to be considered a material change in
circumstances. Bahlmann, 56 Kan. App. 2d at 907 (citing In re Marriage of Whipp, 265
16
Kan. 500, Syl. ¶ 3, 962 P.2d 1058 [1998]). "'A twofold policy underlies the material
change in circumstance rule. First, a reasonable degree of stability in a child's important
relationships contributes to the emotional, intellectual, and moral development of the
child. Second, the court generally favors one-time adjudication of matters and opposes
repetitive actions.' [Citations omitted.]" 56 Kan. App. 2d at 908.
In his July 2019 motion, Father asserted a material change in circumstances based
on Mother's two relocations since the August 2018 hearing. On appeal, he again argues
that Mother's relocations demonstrated a prima facie case for a material change in
circumstances under K.S.A. 2019 Supp. 23-3222(c).
K.S.A. 2019 Supp. 23-3222(c) states:
"A change of the residence or the removal of a child as described in subsection
(a) may be considered a material change of circumstances which justifies modification of
a prior order of legal custody, residency, child support or parenting time. In determining
any motion seeking a modification of a prior order based on change of residence or
removal as described in (a), the court shall consider all factors the court deems
appropriate including, but not limited to: (1) The effect of the move on the best interests
of the child; (2) the effect of the move on any party having rights granted under this
article; and (3) the increased cost the move will impose on any party seeking to exercise
rights granted under this article."
Father asserts the district court did not adequately consider the factors outlined in
the statute. He also asserts the district court ignored the findings of the guardian ad litem
appointed in the case. But we are not persuaded by Father's argument.
Father devotes a large portion of his brief talking about Alwin's findings and the
testimony she provided to the district court at the hearings. But her testimony and the
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conclusions in her report primarily focused on whether Mother misled the court at the
August 2018 hearing.
At the August 2019 hearing, Alwin began by testifying again about the
conclusions in her report and the issue of misrepresentation, much like she did at the June
2019 hearing. At that point Mother objected, arguing that the issue of misrepresentation
had been abandoned by Father. The district court agreed the issue had been abandoned
and told Father to ask Alwin about how the moves constituted a material change in
circumstances. It is unclear from the record on appeal exactly when Father abandoned
that issue, but he acknowledged the issue of misrepresentation was either abandoned or
mooted directly after the district court sustained Mother's objection. Presumably, Father's
abandonment of the issue was agreed upon when the district court issued its pretrial order
in July, after Father filed his amended motion to modify but before the second hearing,
since the pretrial order stated that both parties agreed the upcoming trial concerned
Father's allegations about the material change in circumstances.
Thus, the district court's lack of regard for some of Alwin's testimony was
understandable, especially considering that Alwin testified multiple times to many of the
same facts. Moreover, regarding the change of circumstances at the second hearing,
Alwin admitted that Mother's financial situation improved from the time Mother
originally moved to St. Francis to the time when Alwin completed her report. Alwin also
said she was more concerned with the number of moves than with Mother moving the
children back to Colby.
Father's own testimony at the second hearing in June 2019 also supports the
district court's conclusion. Father testified that his son had friends in both St. Francis and
Colby. Father also admitted that the move did not result in any increased costs for him to
exercise his parenting time or negatively impact his parenting time. Furthermore, Father
agreed that Mother's move away from Feikert's property in St. Francis was a good thing
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for the children. Thus, under the second and third factors outlined in K.S.A. 2019 Supp.
23-3222(c), Father's own testimony demonstrates a lack of a prima facie case for a
material change in circumstances. Put simply, Mother's relocations did not create any
new hardship for Father, as he seems to acknowledge in his brief. In fact, Mother's
relocation back to Colby shortened the distance between her and Father, meaning the
children would have to spend less time in the car going to exchanges.
Regarding the first factor outlined in K.S.A. 2019 Supp. 23-3222(c), Father failed
to make a prima facie case that the relocations negatively impacted the children. As the
district court concluded, Mother's move away from Feikert's property in January 2019
benefited all the parties involved, including Father. The move also reunited the children
with Mother's older daughter and returned the children to an area they were familiar with.
In addition, Mother bought her newest residence instead of renting. In the past, the moves
were often the result of a rent increase or problems with a rental house. By purchasing a
home, Mother would no longer be faced with some of those problems.
Without question, most of the issues in the case stemmed from Mother and
Father's inability to communicate with one another. At the conclusion of the August 2018
hearing, the district court told Mother and Father that they needed to communicate better.
The district court also told them neither child was a reliable source of information based
on their age and lack of maturity. However, both parents disregarded the district court's
statements because they failed to improve their communication and continued to rely on
their children as sources of information throughout the entire case, which greatly
contributed to a general feeling of distrust among the parties.
But Father's contention that Mother's relocations demonstrated a material change
in circumstances is not supported by the record on appeal. Since the district court relied
on the statutory considerations outlined in K.S.A. 2019 Supp. 23-3222, it did not abuse
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its discretion or err when it dismissed Father's motion. Accordingly, we affirm the district
court's judgment.
Affirmed.
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