In re Marriage of Barua & Hamidjaja

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NOT DESIGNATED FOR PUBLICATION

No. 119,120


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of
RAJAT BARUA,
Appellee,

and

LINDA HAMIDJAJA,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; NEIL B. FOTH, judge. Opinion filed July 26, 2019. Affirmed.

Joseph W. Booth, of Lenexa, for appellant.

Patrick Copley, of Overland Park, for appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Rajat Barua (Father) and Linda Hamidjaja (Mother) divorced in
2015. After the divorce they shared custody of their daughter S.B. In 2017, Mother
moved the district court for an order allowing her to move S.B. with her to the state of
California. The district court denied Mother's motion. Mother appeals, raising multiple
arguments. For reasons set forth below, we affirm the district court.

Mother and Father married in September 2010. They are both doctors. Their
daughter, S.B., was born in 2011. Father filed for divorce in April 2013. The divorce was
finalized in April 2015. Mother and Father retained joint legal custody of S.B.; Mother
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had primary residential custody. The divorce order incorporated a stipulated parenting
plan that gave both Mother and Father residential time with S.B. Both Mother and Father
continued to live in Johnson County after the divorce. Mother's parents, the Maternal
Grandmother and Grandfather, live with her. Father's mother, the Paternal Grandmother,
lives with him.

In January 2017, Father filed a "Motion to Modify Parenting Plan and . . . Enforce
Co-parenting Therapy Provision of Parties' Decree of Divorce." Mother responded,
asking that the district court dismiss Father's motion.

In March 2017, the district court reappointed Christopher Reecht as S.B.'s
Guardian Ad Litem (GAL). Reecht previously served as S.B.'s GAL during Mother's and
Father's divorce litigation. The order reappointing Reecht included a clause stating: "The
parties agree to waive any ex-parte communications between the Guardian Ad Litem and
the Court. Counsel for the parties agrees to allow the Guardian Ad Litem to have direct
contact/communications with their client(s)."

On July 12, 2017, Father moved for an "Order Commanding Mother to Not Move
Out of State with the Parties' Minor Daughter." Mother opposed this motion, arguing that
she did not intend to move without first receiving a court order allowing her to do so. On
August 4, 2017, the district court denied Father's motion; it found no indication that
Mother intended to move without giving appropriate written notice.

On August 21, 2017, Mother moved to "Modify Child Custody, Parenting Time
and for an Order Allowing Respondent and the Minor Children [sic] to Relocate." Mother
explained that she received a job offer in the Los Angeles, California, area, she had
purchased a house there as well. She sought the court's permission to move S.B. with her
to California and amend the parenting plan so that Father's parenting time was primarily
over long holidays and summer breaks, as well as occasional weekends. Mother argued
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that this was a better arrangement for S.B. than the current plan that required S.B. to
transition between Mother's and Father's homes multiple times per week. Mother argued
that she and S.B. had more family and friends in Los Angeles than in Johnson County,
Kansas, that S.B. would attend better schools in California, and that S.B. would enjoy
greater exposure to her family's Asian cultures in Los Angeles. Further, Mother alleged
that S.B. was afraid of Father and was not well bonded to him. Moreover, she asserted
that Father and the Paternal Grandmother were abusive.

Father opposed Mother's motion. The district court held a series of hearings on the
motions in September 2017.

At the September 12, 2017 hearing, the Paternal Grandmother, the Maternal
Grandmother, the Maternal Grandfather, and the director of the Kansas Board of Healing
Arts, Kathleen Selzler Lippert, testified.

The Paternal Grandmother testified that S.B. had a good relationship with her as
well as with Father. She testified that in 2015, DCF investigated allegations that she had
abused S.B., but that DCF found no abuse. She further testified that before Mother and
Father divorced, she had observed Mother hit Father. She also stated that she thought
Mother told S.B. lies to discourage S.B. from feeling close to her Father and her.

The Maternal Grandfather testified that a move to Los Angeles would be
beneficial for S.B. because she has extended family in the area. He stated that when
Father came to pick S.B. up from Mother's home, Father would be angry and have a
temper "about 75 percent" of the time. He further stated that often S.B. did not want to go
with Father. He also testified that S.B. complained that her Paternal Grandmother yanked
her ear, spanked her, or hit her. He stated that S.B. was afraid of Father and her Paternal
Grandmother. He stated that Father did not ensure S.B. bathed and practiced good
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hygiene while in his care. He testified that with the frequent custody changes under the
current custody plan, S.B. was often tired at school.

The Maternal Grandmother testified that Mother's boyfriend lived with the family
for about a year before breaking up in the spring of 2017. She testified that S.B. often had
nightmares after she came back from Father's house. She testified that S.B. complained
about her Paternal Grandmother hitting her and pulling her ear as punishment.

Selzler Lippert testified that as of September 5, 2017, Mother had not applied for a
license to practice medicine in Kansas. She stated that once an applicant has submitted all
the necessary materials to apply for a medical license, it usually takes the Board about
three to seven days to issue the license. She testified that being board certified was not a
requirement for medical licensure. She stated that it can take two months or more for
applicants to complete their application, however, because they have to submit a
substantial amount of documentation.

The next day, Father testified, as did S.B.'s therapist, Elizabeth Miranda. Father
stated that the current plan required him to pick up S.B. from Mother's house and that
S.B. was frequently not ready on time. He testified that Mother unilaterally decided what
activities S.B. could participate in and kept him from being listed as an authorized
parental contact at S.B.'s school. He stated that Mother tried to isolate him from S.B. as
much as possible. He pointed out that he accommodated Mother's requests, for example,
by allowing S.B. to attend a Chinese school on Sundays that cut into his parenting time.
He further testified that Mother accused him of trying to kidnap S.B., even when he was
abiding by the confines of the parenting plan. He stated that his relationship with S.B.
was "excellent." He also testified that neither he nor his mother ever abused S.B. He
proposed that an "every-other-day parenting schedule" was in S.B.'s best interests.

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Father maintained that if S.B. were to move to California with her mother, his
relationship with his daughter would suffer. He testified that the move was not in S.B.'s
best interests because she would miss out on the bond with him and her Paternal
Grandmother. He admitted that he made enough money to afford to travel to California to
visit S.B. He admitted that he had not exercised all of his parenting time under the current
plan, but he explained that was because he tried to compromise with Mother and
accommodate her requests for activities and parenting time. He admitted that he never
met with S.B.'s therapist between 2013 and 2017, and that the full extent of his
communication with the therapist was four or five e-mails.

Miranda testified that she served as S.B.'s therapist from 2013 until the time of the
hearing with about a year-long gap for most of 2014. She testified that she introduced
herself to Father via e-mail in 2013 but that she did not hear anything from Father until
he e-mailed her in June 2015. She stated that she met with Father in June 2015 to discuss
concerns about how to handle S.B.'s transitions from one parent's home to the other with
as little stress for S.B. as possible. She testified she next met with Father in May 2017 to
discuss Father's concerns that the GAL had spoken with her and to address purported
concerns about his mother's relationship with S.B. She testified that Father also e-mailed
her again in December 2015 expressing concerns about parental alienation by Mother.
Finally, she stated that although she had reached out to Father about doing joint therapy
sessions with S.B., Father did not do so until the week before the hearings.

Miranda testified that she called the DCF hotline in 2015 because S.B. had
expressed that her Paternal Grandmother yelled at her, hit her, and pulled her hair, but
that Father protected her. Miranda testified that at times, S.B. confided that she thought
her Paternal Grandmother was grumpy or mean and that "daddy [didn't] like [S.B.]"
Nevertheless, Miranda testified that as S.B. got older, her perspective shifted and she
began to say things like "daddy is nice." She testified that Mother and Father engaged in
significant conflict during transitions, and this caused anxiety for S.B. She testified that
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as recently as the summer of 2017, S.B. indicated that she felt happy and loved at
Mother's home, but she was scared at Father's home. She also stated that S.B. "does not
like going back and forth" between her parents' homes and "does not like going to
daddy's house." Miranda testified that S.B. expressed excitement about the possible move
to California, in part because she thought she would no longer have to go back and forth
between Mother and Father.

On September 28, 2017, Mother took the stand. Mother testified that S.B. is
strongly bonded with her. She stated that when she first came to the United States in
2004, she lived in Los Angeles for three and a half years and she still had family and
friends in the area. She testified that she frequently attended S.B.'s school events and
extracurricular activities, and that Father rarely did. She stated that Father frequently
missed large blocks of his parenting time because he traveled internationally. She
testified that beginning in the spring of 2016, Father requested that Mother cede her
parenting time to him and threatened to not allow S.B. to participate in Chinese school
unless she did so.

Mother's proposed move was animated largely by the prospect of a new and better
paying job in California. Until April 2017, Mother worked at the Leavenworth VA
Hospital; Mother lost that job because she was not a citizen. Mother testified that she did
try to keep working at the VA so that she could stay in Kansas. Nevertheless, the only
option she was given was to work in Topeka with a schedule that would barely allow her
to see S.B. She stated that many other local jobs required board certification, which she
did not have. She testified that she was moving to California for a job opportunity and a
stronger support system of friends and family. Mother admitted that she did take S.B. to
see the house she purchased in California before obtaining permission to move S.B. to
California.

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Mother stated she believed that moving to California would help alleviate S.B.'s
stress and the physical symptoms of her stress like her eczema. Specifically, Mother
testified that a parenting plan with longer periods of time with each parent and fewer
transitions would be better for S.B. Mother argued that even if S.B. moved to California,
Father would still enjoy about the same amount of parenting time that he did under the
current plan. She also testified that the city she wanted to move to has a better school
district than the one S.B. currently attended.

Mother also requested an amendment to the parenting plan such that the Paternal
Grandmother could not be left alone with S.B.; Mother stated that this was necessary
because the Paternal Grandmother inappropriately used physical discipline.

During cross-examination, Father's attorney highlighted that Mother, not S.B., was
the first person to tell Miranda about the alleged abuse. The attorney also sought to cast
doubt on her allegations of abuse toward S.B. by pointing out that despite her concerns,
Mother continued to allow S.B. to go to Father's house for his parenting time. Mother
admitted that she never told Father that her ex-boyfriend lived with her for about a year,
even though the ex-boyfriend lived in the house when S.B. was there. Father's attorney
suggested that Mother wanted to move to California because her ex-boyfriend lived in
California and his family lived in Los Angeles; Mother denied this.

When S.B.'s GAL questioned Mother, she stated that if the judge denied her
request to move with S.B., she would try to stay in Kansas but was not sure if she could
make it work jobwise.

During closing, the GAL stated that, were the court to decide only on Father's
motion for evenly divided parenting time, he would recommend against it. The GAL
stated that under the law, the judge should consider five factors to determine if he should
grant Mother's motion to move to California with S.B.
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The first factor was the potential impact of the move on S.B.'s "emotional,
physical, or developmental needs." The GAL stated that S.B. had a clear desire to stay
with Mother, not Father. The GAL stated that "Father had been more of a parent of
convenience, less of an involved parent." He pointed out that S.B. was not really bonded
with Father. The GAL also stated that Mother would make more money at the job in
California which would provide a "trickle-down advantage" for S.B.

The second factor was the "soundness and the motive of the custodial parent's
decision to relocate." The GAL stated it was clear that Mother was motivated by her
better job prospects. Nevertheless, the GAL also said that it was a "question mark" as to
whether Mother was motivated in part by a desire to get back with the ex-boyfriend who
formerly lived with her, who was at that time living in California. He testified that "the
move is based on mom's desire for a new job, period. The rest of it is really trying to
rationalize whether that decision is in the best interest of the minor child."

The third factor was the availability of a reasonable alternative parenting schedule
and whether Mother would comply with the parenting plan after moving. The GAL stated
that Mother's proposed parenting plan "would devastate a relationship between Dad and
the child," but he added, "The flip side is, how do you devastate something that may not
be there right now?" Further, the GAL noted that Mother and Father had severe issues
with exchanges and said, "if we're having exchanges here in Kansas City—issues—how
are these exchanges going to happen when we're putting the child on a plane from
California to Kansas or vice versa?"

The fourth factor was "what the detrimental effect of the move on a child and a
noncustodial parent would be." The GAL stated that Father had recently taken steps to
improve his relationship with S.B., but the GAL noted he was not sure if Father's efforts
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were earnest and would continue, or if they were just reactionary because of Mother's
motion to move S.B.

The fifth factor was "the dynamics of the parent-child relationship prior to the
move." The GAL testified that according to Mother, Miranda, and S.B., S.B. had no real
relationship with Father. Nevertheless, the GAL stated, "I've seen the child, in my visits,
laying on Dad in my—in my lobby waiting to meet with me. Hugging, kissing each other.
For them to have no connection, I don't see it." The GAL acknowledged that Mother had
done most of the parenting, and Father "has not tried to be involved." The GAL stated
that Father's lack of a relationship with S.B. was likely due in part both to his lack of
desire and Mother's lack of support for the relationship. Ultimately, the GAL
recommended that the court allow Mother to move with S.B., stating that it was a "55/45
type of decision" in favor of the move.

On February 7, 2018, the district court issued its decision. The district court wrote
that it found Mother's testimony "was often not credible or persuasive" when she
addressed the conflict between her and Father. It further wrote the following: "Contrary
to mother's claim of being bullied, she has no problem standing up to father,
communicates in a dictatorial manner and often manipulates scheduling and decision-
making to father's detriment." Further, the court wrote, "Father's parenting role and
record leaves much to be desired" because of Father's lack of involvement. Nevertheless,
the court noted that Father seemed to be making efforts towards creating a stronger bond
with S.B. Finally, the court noted, "Additionally and significantly, the GAL
surreptitiously observed [S.B.] with father in his office waiting room. He told the Court
that [S.B.] was 'all over him' with affection and that they obviously had a bond, even if
not as close as with mother."

The district court ruled that Mother could not move S.B. to California. The district
court gave nearly five pages of reasons for this ruling. In part, the court stated:
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"While many of the above factors could be discussed in relation to the facts of
this case, three factors weigh most heavily in the Court’s decision: 1) mother's
questionable motive in moving; 2) her history of thwarting father's relationship with
[S.B.]; and 3) thus each parent's ability or willingness to respect and appreciate the bond
between [S.B.] and the other and support that relationship in the future. The evidence
relating to these three factors overlaps considerably but it all cuts against the proposed
move being in [S.B.]'s best interest."

Mother timely appealed.

Did the District Court Abuse Its Discretion by Deciding the Move Was Not in
S.B.'s Best Interests?

Our Supreme Court has frequently reiterated:

"'[w]hen the custody issue lies only between the parents, the paramount consideration of
the court is the welfare and best interests of the child. The trial court is in the best
position to make the inquiry and determination, and in the absence of abuse of sound
judicial discretion, its judgment will not be disturbed on appeal. [Citations omitted.]'" In
re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (quoting In re Marriage
of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 [1998]).

Abuse of discretion review therefore applies to the district court's denial of
Mother's motion to move S.B. to California. When reviewing for abuse of discretion, this
court will not disturb the district court's decision unless the decision is based on an error
of law or fact, or if no reasonable person would agree with the decision. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015). The party
asserting an abuse of discretion bears the burden to show that the district court abused its
discretion. In re P.J., 56 Kan. App. 2d 461, 466, 430 P.3d 988 (2018).

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Mother argues that the district court abused its discretion by applying the wrong
legal standard. According to Mother, she "lost her motion principally because the court
found that she committed a major transgression against [Father]'s rights as a father" by
cohabitating with her ex-boyfriend and not telling Father about it. Mother argues that the
district court did not conduct the appropriate best interests analysis, but rather "relied on
its frustration with [Mother] as she co-parented with [Father]." This argument is flawed.

Under K.S.A. 2018 Supp. 23-3201, district courts shall "determine legal custody,
residency and parenting time of a child in accordance with the best interests of the child."
K.S.A. 2018 Supp. 23-3203 provides a nonexhaustive list of factors district courts shall
consider when determining custody, residency, and parenting time. These factors include:

- "Each parent's role and involvement with the minor child before and after
separation" K.S.A. 2018 Supp. 23-3203(a)(1);
- "the emotional and physical needs of the child" K.S.A. 2018 Supp. 23-3203(a)(5);
- "the willingness and ability of each parent to respect and appreciate the bond
between the child and the other parent and to allow for a continuing relationship
between the child and the other parent" K.S.A. 2018 Supp. 23-3203(a)(8); and
- "the ability of the parties to communicate, cooperate and manage parental duties"
K.S.A. 2018 Supp. 23-3203(a)(10).

Here, both Mother and Father sought to amend the existing parenting plan. Father wanted
to amend the plan to give him more parenting time; Mother wanted to amend the plan so
that she could move S.B. to California. The district court denied Mother's motion to move
S.B., but it did modify the parenting plan.

As pointed out earlier, the list of factors used to determine a child's best interests is
nonexhaustive. See K.S.A. 2018 Supp. 23-3203(a). Further, under K.S.A. 2018 Supp. 23-
3222(c), the statute controlling changes in a child's residence states the following:
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"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." (Emphasis added).

Thus, both best interests analysis under K.S.A. 2018 Supp. 23-3203 and the relocation
analysis under K.S.A. 2018 Supp. 23-3222(c) are nonexhaustive and the district court can
correctly consider all "appropriate" factors when conducting these analyses.

Here, the district court spent seven pages explaining the applicable law, treatises,
and model statutes it relied on to reach its conclusions. The district court correctly
identified K.S.A. 2018 Supp. 23-3201 et seq. as the controlling child custody statutes.
The district court also looked to the American Academy of Matrimonial Lawyers' model
relocation statute and the American Bar Association's Family Law Section model
Relocation Act. The district court then laid out 16 conclusions. The conclusions included:

"46. However all cases are highly dependent on their individual facts. While many of the
above factors could be discussed in relation to the facts of this case, three factors
weigh most heavily in the Court's decision: 1) mother's questionable motive in
moving; 2) her history of thwarting father's relationship with [S.B.]; and 3) thus
each parent's ability or willingness to respect and appreciate the bond between [S.B.]
and the other and support that relationship in the future. The evidence relating to
these factors overlaps considerably but it all cuts against the proposed move being in
[S.B.]'s best interest.
. . . .
"55. Mother's primary motive in moving as it relates to the minor child, is to get herself
and [S.B.] away from father. Mother thinks that 'all the back and forth' and [S.B.]'s
anxiety over 'transitions' are bad for her. She thinks that these will interfere with
[S.B.]'s schooling in the future; that she won’t have enough time to get her
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homework done. Mother did not articulate how attending school from two parents'
homes will be different or more difficult for [S.B.] than other children of divorced
parents. She just does not seem able to envision father as playing a role in [S.B.]'s
childhood education. Generally, mother does not believe father knows how to take
care of [S.B.]. She testified that [S.B.] came back from a trip with father rubbing her
genital area and having nightmares (although she never discussed this with him).
Mother testified that [S.B.] 'dreads' going to her father's house. She testified that
after parenting time with father [S.B.] struggles emotionally at school; that she is
withdrawn and tired. She blames [S.B.]'s two low test scores of 80% and 83% on
time with father. She does not think father can prepare [S.B.]'s schoolwork or
backpack for her. She claims that father does not bathe [S.B.] and that she returns
from his house unkempt and wearing dirty clothes; that she is 'pretty suffering' after
a night at father's. She does not believe father knows to put warm clothes or a coat
on [S.B.] in colder weather. She believes that being away from the stress of
parenting time with father for extended periods of time is the only thing that will
clear up [S.B.]'s eczema.
"56. The Court does not find valid evidence that much, if any of this is true or valid,
except that [S.B.] experiences some anxiety over parenting time with father. The
Court believes this is more accurately described as anxiety over the dysfunction and
exchanges between her high conflict parents and her preference for time at mother's
house. The Court does not doubt that [S.B.] is fully aware that her mother does not
want her to spend time with father. Also that mother does not believe she will be
safe or well cared for with him. She knows her grandparents physically carried her
away from her father when he tried to pick her up at school for a weekend trip. She
knows she is not allowed to take her backpack or her things to father's house or even
wear her clothes there. Mother's contempt for father is palpable. She more than
implied in testimony that father's negligent medical care of his own father
contributed to his death. When asked directly, she could not testify that he is a
loving father. Mother does not really want [S.B.] to believe that father is loving or
competent either. Her testimony to the contrary is merely lip service.
"57. Because mother believes that time with father is against [S.B.]'s best interests, she
has made numerous attempts to thwart father's parenting time, some of which are
mentioned above. Additionally, she has significantly undermined father's role in
[S.B.]'s life both through her attitude toward him and introducing another father
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figure into [S.B.]'s life without father's knowledge. On two occasions she combined
the two and deceptively interfered with father's parenting time so [S.B.] could do an
activity with [Mother's ex-boyfriend]."

Mother is correct that the district court did discuss Mother's cohabitation with her
ex-boyfriend and the fact that she lied to Father about it. Mother is incorrect, however,
that this constituted application of an incorrect legal standard. Indeed, the court itself
stated that the three primary reasons animating its order were "(1) mother's questionable
motive in moving; (2) her history of thwarting father's relationship with [S.B.]; and (3)
thus each parent's ability or willingness to respect and appreciate the bond between [S.B.]
and the other and support that relationship in the future."

In context, it is clear that the district court brought up the ex-boyfriend as an
example of Mother withholding from Father material information about S.B.'s life and
wellbeing. The court found that Mother allowed an unrelated man to live in her house
with S.B., and lied to Father about it. When S.B. told Father about the man and Father
asked Mother directly about the man, Mother misrepresented the truth by saying the man
was a "helper." The district court here reasonably concluded that this behavior
demonstrated an unwillingness on Mother's part to cooperate in coparenting S.B. with
Father, and Mother's desire to obstruct Father's coparenting rights.

The district court also cited the issue as an example of Mother's lack of credibility.
In doing so, the district court ultimately concluded: "The Court cannot conclude that [the
ex-boyfriend] plays a role in mother's proposed move. The Court does conclude that
mother is not credible when discussing the purchase of her house or her relationship with
[the ex-boyfriend]."

District courts are uniquely positioned to assess a witness' credibility because they
are privy to the witness' demeanor at trial. As with any credibility assessment, a district
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court judge must weigh surrounding facts and circumstances along with a witness'
testimony. This weighing of the evidence process is something district judges frequently
must do. Thus, appellate courts do not reweigh evidence or reassess a witness' credibility.
Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406
(1999). Here, the district judge concluded that Mother's testimony about S.B.'s best
interests was not credible. As a result, this court cannot reweigh or reassess the district
judge's credibility determination.

Finally, Mother makes a large point of the fact that the district court wrote that its
"standard parenting plan orders in all cases include a prohibition against another adult
moving into a child's home without 30 days' notice to the other parent, including the
person's identity, birthdate and social security number." Mother is correct that S.B.'s
parenting plan imposed no such requirement. Nevertheless, the district court was not
penalizing Mother for violating a clause that did not exist, as she claims on appeal.
Instead, it stated that it includes this requirement in nearly all parenting orders in order to
demonstrate how important it is that a parent have knowledge of other adults living with
his or her child. This is a common sense requirement insofar as a child's safety and
wellbeing is concerned.

Mother has not satisfied her burden to show that the district court used an
erroneous legal standard. The district court's consideration of her cohabitation with her
ex-boyfriend was not application of an erroneous legal standard but, instead, the court
giving an example of Mother's failure to "respect and appreciate the bond between child
and the other parent and to allow for a continuing relationship between the child and the
other parent." This is one of the statutory factors listed in K.S.A. 2018 Supp. 23-3203(a).
Further, because a district court shall "consider all factors the court deems appropriate"
when ruling on a motion to relocate a child, the district court here did not err by
considering Mother's decision to let her ex-boyfriend live in her home with S.B. for a
year and lie about it to Father. See K.S.A. 2018 Supp. 23-3222(c).
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Did the District Court Err by Allowing the GAL to Act as a Witness?

Mother originally raised both issues relating to the GAL as a single argument on
appeal. As Father correctly identified, these are separate issues subject to separate
analysis. In her reply brief, Mother agrees that these are separate issues. The first GAL
argument that Mother raises is that the district court erred by allowing the GAL "to act as
a witness." We consider this argument waived because Mother failed to adequately brief
this issue.

The only relevant portion of Mother's brief states:

"We do have evidence that the court considered statements by the GAL as
testimony from the GAL when it relied on the GAL. In one of the few points, the court
coined as significant: 'Additionally and significantly, the GAL surreptitiously observed
[S.B.] with father in his office waiting room. He told the Court that [S.B.] was 'all over
him' with affection and that they obviously had a bond, even if not as close as with
mother.' (R. Vol. l, p. 180.)
"It was these observations that supported Rajat's claims: 'The Court finds from
the evidence and/or observations of the GAL that all of father's above allegations are
essentially true, as discussed in more detail below.' (R. Vol. l, p. 171, ¶ 7.) This
undoubtedly is the court accepting the GAL's statements as evidence, not as a
recommendation."

In her brief, Mother failed to argue how this statement was error and provided no
authority to support her assertion that the statements constituted error. Additionally,
Mother failed to explain how the GAL's conduct resulted in prejudice to her; indeed, the
GAL ultimately recommended in favor of Mother's motion to relocate to California.
Although Mother later tried to substantively argue the issue in her reply brief, this is
insufficient to preserve the issue for our review. See Sierra Club v. Mosier, 305 Kan.
17

1090, 1134, 391 P.3d 667 (2017) ("'An appellant may not raise new issues in a reply
brief.'"). Accordingly, we do not reach this issue on the merits.

Does the District Court's Order That the Parents Waive Ex Parte Contact Between
the Court and the GAL Constitute Judicial Misconduct?

Mother's second GAL argument is that the district court erred by including in the
order appointing a GAL a clause that stated both parties waived any objection to ex parte
contact between the court and the GAL. The challenged clause reads as follows: "The
parties agree to waive any ex-parte communications between the Guardian Ad Litem and
the Court. Counsel for the parties agrees to allow the Guardian Ad Litem to have direct
contact/communications with their client(s)."

Mother admits that the order she challenges was issued on March 8, 2017, nearly a
year before her appeal in this case. She admits that she did not timely object to the
ordered waiver. Mother also admits that "there is no evidence in the record that the
'waiver' ever resulted in ex parte communications" but, she argues, "the order created the
appearance of impropriety."

Nevertheless, Mother plainly admits that there is no evidence in the record that
any ex parte communications transpired between the GAL and the district court. Thus,
Mother has failed to show prejudice of her substantial rights. As a result, we reject this
argument.

Attorney fees

After oral arguments in this case, both Mother and Father moved for attorney fees
under Supreme Court Rule 7.07 (2019 Kan. S. Ct. R. 50). Both parties note that under
Supreme Court Rule 7.07(b)(1) and K.S.A. 2018 Supp. 23-2715, this court has the ability
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to award attorney fees "as justice and equity require." K.S.A. 2018 Supp. 23-2715.
Neither party here makes a compelling case that "justice and equity" require an award of
fees in this case.

Mother makes no arguments about justice and equity. Additionally, this court is
generally hesitant to award attorney fees to a party that does not fully prevail on appeal.
Richardson v. Murray, 54 Kan. App. 2d 571, 588, 402 P.3d 588 (2017), rev. denied 307
Kan. 988 (2018).

Father argues that "a substantial portion" of his appellate fees were caused by
Mother's requests to modify the record and request for oral argument. Review of his
attorney fee affidavits shows that only a few hours were explicitly identified as spent on
dealing with "exhibit issues" or "retriev[ing] exhibits." This does not strike us a
significant hardship or unusual demand beyond the scope of typical appellate practice.
Thus, we do not find that justice and equity require an award of attorney fees for Father.

Accordingly, both Mother's and Father's requests for attorney fees are denied.

Affirmed.