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Atchison v. Atchison

February 8, 2008

IN THE MATTER OF THE MARRIAGE OF BRENDA L. ATCHISON, APPELLEE,
v.
TRACY L. ATCHISON, APPELLANT.



Appeal from Phillips District Court; WILLIAM B. ELLIOTT, judge.

SYLLABUS BY THE COURT

1. On a motion to modify child support, a party who fails to raise the issue of a material change in circumstances in district court is precluded from arguing the issue on appeal.

2. The standard of review of a district court's order determining the amount of child support is whether the district court abused its discretion. However, interpretation and application of the Kansas Child Support Guidelines (Guidelines) is subject to unlimited review.

3. An appellate court reviews the district court's findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law.

4. An appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.

5. Shared residency is the regular sharing of residential custody on an equal or nearly equal basis. To qualify for shared residency treatment under the Guidelines, two components must be met. First, the parents must share time with the children on an equal or nearly equal basis. Second, the parents must share payment of direct expenses on an equal or nearly equal basis. Without both shared time and shared expenses, a shared residency arrangement cannot succeed.

6. Child support adjustments are discretionary with the court, and the party seeking the adjustment has the burden of proof to show that an adjustment should apply.

7. The Guidelines provide for a parenting time adjustment in favor of the parent not having primary residency of the child depending on the amount of time the child spends with the nonresidential parent.

8. As a general rule, use of the Guidelines is mandatory and failure to follow the Guidelines is considered reversible error. Any deviation from the amount of child support determined by use of the Guidelines must be justified by written findings in the journal entry. Failure to justify deviations by written findings constitutes reversible error.

9. In calculating an appropriate parenting time adjustment, the court may deviate from the figures included in the Guidelines table provided that the deviation is justified by written findings in the journal entry.

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

Affirmed in part, reversed in part, and remanded with directions.

Before CAPLINGER, P.J., MALONE, J., and LARSON, S.J.

Tracy L. Atchison appeals the district court's order terminating shared residency, granting primary residency of the minor children to Brenda L. Atchison, and ordering Tracy to pay child support with a 15% parenting time adjustment. Tracy raises three issues on appeal: (1) the district court erred when it modified child support without a material change in circumstances; (2) the district court erroneously applied the Kansas Child Support Guidelines (Guidelines) regarding shared residency; and (3) the district court erred by finding that 15% was the maximum parenting time adjustment it could apply to Tracy's child support obligation.

Brenda and Tracy were divorced on April 14, 2005. There were three minor children of the marriage. In a separate order filed on April 21, 2005, the district court approved a shared residency arrangement, finding that Brenda and Tracy regularly shared the residency of the children on an equal or nearly equal basis. The district court ordered Brenda and Tracy to share the direct expenses set forth in the parenting plan on an equal basis. The district court further instructed the parties as follows:

"In order to accomplish the required sharing, which will be on an equal basis, each party is required to submit a schedule of direct expenses paid during the previous calendar month. That schedule must particularly identify the expenditure to be shared, the amount of the expenditure, the date the services were incurred or goods purchased, the date payment was made and the payee. That schedule must be presented before the 10th day of each ...


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