In the Matter of the Marriage of Rebecca E. Bahlmann, Appellee, and Bruce F. Bahlmann, Appellant.
BY THE COURT
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
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.
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
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.
from Riley District Court; Meryl D. Wilson, judge.
McGrew-Bryant, of Seaton, Seaton & Dierks, LLP, of
Manhattan, for appellant.
R. Schartz, of Morrison, Frost, Olsen, Irvine & Schartz,
LLP, of Manhattan, for appellee.
Bruns, P.J., Schroeder and Gardner, JJ.
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.
and Procedural Background
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
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
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.
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.
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.
District Court Use the Wrong Standard in Evaluating
Rebecca's Motion to Dismiss?
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 ...