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In re Marriage of Bahlmann

Court of Appeals of Kansas

April 5, 2019

In the Matter of the Marriage of Rebecca E. Bahlmann, Appellee, and Bruce F. Bahlmann, Appellant.

         SYLLABUS BY THE COURT

         1. We exercise unlimited review of a district court's order dismissing a motion to modify child custody for failing to present a prima facie case of a material change of circumstances.

         2. A decree awarding child custody is res judicata with respect to the facts existing at the time of the decree. But a district court may modify any prior order of custody when the movant shows a material change of circumstances.

         3. K.S.A. 2018 Supp. 23-3219(a) requires a party who moves to modify a child custody order to make specific and known factual allegations either in a verified motion or in an affidavit accompanying an unverified motion. The statute requires both sworn testimony and specificity. The statutory requirement that a motion be supported by affidavit or verification not only assures the court that the affiant is willing to swear to the truthfulness of the facts stated in the motion, but also discourages unmeritorious claims. Matters stated on information and belief do not rise to the level of evidence but are mere unsupported allegations. A district court should base its decision about a prima facie case on the sworn facts in the movant's verified motion or affidavit.

         4. When neither party requests oral argument of a motion, a district court has the authority under Supreme Court Rule 133(c)(2)(B) (2019 Kan. S.Ct. R. 204), after waiting the seven-day response time, to rule on that motion without a hearing.

          Appeal from Riley District Court; Meryl D. Wilson, judge.

          Trey McGrew-Bryant, of Seaton, Seaton & Dierks, LLP, of Manhattan, for appellant.

          Kitra R. Schartz, of Morrison, Frost, Olsen, Irvine & Schartz, LLP, of Manhattan, for appellee.

          Before Bruns, P.J., Schroeder and Gardner, JJ.

          GARDNER, J.

         Bruce F. Bahlmann appeals the district court's dismissal of his motion to modify child custody. He contends that the court failed to consider the facts alleged in his motion as true and failed to give him adequate notice of a hearing on Rebecca Bahlmann's motion to dismiss his motion. Finding no error, we affirm.

         Factual and Procedural Background

         When Rebecca filed for divorce from Bruce she received ex-parte temporary orders for custody and parenting time. Bruce then filed several motions seeking to modify the ex-parte orders. The court heard those motions, held a final hearing on the divorce and custody matters, and then adopted Rebecca's parenting plan. After the court's written decision, the parties remained contentious and continued to litigate custody.

         Two motions underlie this appeal. First, Bruce moved to modify child custody and for custody evaluation a little over a year after the court's written decision. He claimed a material change in circumstances warranted a change in their parenting plan and custody. He alleged that Rebecca had become physically and emotionally abusive toward the children since custody was last determined and that both children's grades had suffered since the parenting plan began, making their daughter academically ineligible to participate on the cross-country team.

         Second, Rebecca moved to dismiss Bruce's motion. Rebecca denied any material change in circumstances and alleged it would not be in the children's best interests to live with Bruce. She denied Bruce's allegations of physical and emotional abuse, asserted that the children's grades had not suffered, and stated that their daughter was on the honor roll. Rebecca also alleged that the court had heard Bruce's complaints before and that the parties had already litigated these issues.

         The parties were set to mediate Bruce's motion, but the court sua sponte changed the order from mediation to conciliation. This prompted the parties to file a joint motion for mediation, and Bruce's attorney filed a notice of hearing for that motion.

         Rebecca appeared at that hearing in person with her attorney, but Bruce appeared only through his attorney. The first issue the court addressed in the hearing, however, was not the joint motion for mediation but Bruce's motion to modify custody and Rebecca's motion to dismiss that motion. The court discussed Bruce's allegations and Rebecca's responses to them, noting that Bruce's allegations lacked specific times and dates. Bruce's attorney noted that although the motion lacked specific dates, it alleged that the changes had occurred since the last custody determination. He asserted that the court should consider the alleged facts in the light most favorable to Bruce. The district court dismissed Bruce's motion, finding it failed to state facts with specificity and did not show a material change in circumstances. That ruling mooted the parties' joint motion for mediation. Bruce appeals.

         Did the District Court Use the Wrong Standard in Evaluating Rebecca's Motion to Dismiss?

         The district court dismissed Bruce's motion to modify child custody and motion for custody evaluation, finding that the motion failed to state with specificity facts that rose to the level of a material change in circumstances as required by K.S.A. 2018 Supp. 23-3218. Bruce argues that the district court erred by considering opposing ...


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