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Evans v. Evans

May 18, 2007

IN THE MATTER OF THE MARRIAGE OF CHERYL A. EVANS, APPELLEE,
v.
JOHN W. EVANS, APPELLANT.



Appeal from Montgomery District Court; JACK L. LIVELY, judge.

SYLLABUS BY THE COURT

1. Appellate courts have plenary review when interpreting a statute.

2. A divorce decree may make future maintenance payments modifiable or terminable, and the trial court may modify maintenance retroactive to a date at least 1 month after the date that the motion to modify was filed.

3. Under K.S.A. 2006 Supp. 60-1610(b)(2) and (3), the trial court may modify maintenance payments which have been ordered by the trial court where there has been no settlement agreement between the parties. An attempt to make the maintenance payments non-modifiable is contrary tostatute and case law.

4. K.S.A. 2006 Supp. 60-1610(b)(2) allows the trial court to award maintenance in a lump sum. When a maintenance payment becomes due and unpaid, it is a final judgment. There is no meaningful distinction between court-ordered monthly maintenance payments and a lump sum maintenance award payable in monthly installments.

5. Under K.S.A. 60-1610(b), the trial court exceeded its authority when it ruled that it could never modify a maintenance obligation that was originally ordered after a trial to the court.

The opinion of the court was delivered by: Marquardt, J.

Before HILL, P.J., MARQUARDT, J., and KNUDSON, S.J.

John W. Evans appeals the trial court's denial of his motion to modify spousal maintenance. We reverse and remand with directions.

Cheryl and John married in June 1979. The parties agreed that Cheryl would work until John received his college degree, then she could cease working outside the home. The couple became foster parents and eventually adopted three children who have special needs. The daughter has cerebral palsy, epilepsy, asthma, and vision problems, and will require in-depth care for her entire life. Cheryl has always been the children's primary caregiver.

The divorce was tried to the court and a decree was filed in October 2002. The parties were granted joint custody of the children, with Cheryl designated as the primary residential parent. The trial court ordered John to pay Cheryl a lump sum maintenance award of $143,264, payable at $1,184 per month until the sum has been paid in full. The journal entry states: "The lump sum spousal maintenance is not subject to modification."

In February 2004, John filed a pro se motion to modify child support and spousal maintenance because he was unemployed. At the hearing on John's motion, the trial court denied modification of the maintenance because it is "not subject to modification."

In February 2005, John obtained counsel and filed motions to set aside the judgment and modify maintenance, arguing that only in cases where the parties entered into a separation agreement does the trial court not have jurisdiction to modify maintenance. He argued that since the case was tried to the court, the trial court's refusal to modify maintenance was erroneous.

It does not appear that there was a hearing on these new motions. Without elaboration, the trial court denied John's motions and again ruled that it did not have the authority to modify a lump sum award that is payable in installments. The trial court held that it would "honor the previous ...


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