In re Marriage of Hirsh & Lenzen

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NOT DESIGNATED FOR PUBLICATION

No. 112,978

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

LAUREN ELIZABETH HIRSH,
Appellee,

and

JOHN C. LENZEN,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed December 4,
2015. Affirmed.

Joseph W. Booth, of Booth Family Law, of Lenexa, for appellant.

Preston A. Drobeck, of Berkowitz, Cook, Gondring & Driskell, LLC, of Kansas City, Missouri,
for appellee.

Before GREEN, P.J., GARDNER, J., and JOHNSON, S. J.

Per Curiam: John C. Lenzen appeals from the district court's order that made
findings regarding his ex-wife's choice of a private school for their daughter and the
amount of tuition for that school. John, a lawyer, raises a number of procedural and
substantive challenges to the order, yet we find no error.



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Procedural background

The facts are well-known to the parties and are undisputed so we find it
unnecessary to set them forth in detail. Suffice it to say that John C. Lenzen and Lauren
Elizabeth Hirsh were married in 2004, had a daughter, Elizabeth Rose Lenzen (Ellie) in
2005, and were divorced in Bermuda in 2009. Under the terms of the Bermuda consent
order, the parties had joint custody of Ellie, John was to pay child support for Ellie, and
in setting that child support amount, the parties took into consideration that John agreed
to pay for 100% of private-school tuition for Ellie "at any primary and secondary school
[to] which the parties shall reasonably agree." That order also obligated John to pay
"100% of her private primary and secondary school tuition subject to the proviso that the
parties shall jointly agree the choice of school for Ellie from time to time."

John eventually moved from Bermuda to Nevada and Lauren and Ellie moved to
Johnson County, Kansas. Lauren determined that Pembroke Hill, in Kansas City,
Missouri, would be the best school option for Ellie. When Lauren told John of this
decision, he responded that he would not pay the tuition because he had not approved the
school. Lauren then invited John's input into the choice of private school for Ellie, but
John failed to respond or to suggest alternatives. After having received no response from
John, Lauren enrolled Ellie in Pembroke Hill for the 2013-2014 school year.

Thereafter both parties filed various child custody and other motions, Lauren
sought to register the Bermuda decree in Kansas, and John objected to jurisdiction in
Kansas. This prompted another flurry of motions and responses. Eventually, the Johnson
County, Kansas, court ruled Lauren's selection of a private school was consistent with the
parties' agreement, that Pembroke Hill was a reasonable choice, that its tuition for the
2013-2014 school year was $17,580, and the tuition for the 2014-2015 school year was
$18,060. The court clarified that its finding was not a judgment against John which would
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require him to pay those costs, since the court had no personal jurisdiction over him. We
examine John's claims of error below.

Did the district court err in registering the Bermuda order under the Uniform Interstate
Family Support Act UIFSA?

We first examine John's assertion that the Bermuda consent order cannot be
registered in Kansas because Bermuda is not a "state" as defined by UIFSA and cannot
be a "state" without a reciprocity agreement with Bermuda.

The district court ruled that the Bermuda order would be registered under UIFSA,
K.S.A. 23-36,101 et seq., finding the order had been issued by a "state" because
Bermuda's procedures were substantially similar to the procedures under UIFSA in
Kansas. See K.S.A. 2014 Supp. 23-36,101(s)(2).

Whether jurisdiction exists is a question of law over which we exercise an
unlimited scope of review. In re Marriage of Sandhu, 41 Kan. App. 2d 975, 978, 207
P.3d 1067 (2009). We also exercise unlimited review of the district court's statutory
interpretation. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). Our review of the
district court's findings on subject matter jurisdiction is a mixed question of law and fact.
We review the court's factual findings in a light most favorable to the prevailing party
below to determine if they are supported by substantial competent evidence. We then
apply an abuse of discretion standard in determining whether those findings support the
court's legal conclusion. In re Marriage of Vandenberg, 43 Kan. App. 2d 697, Syl. ¶¶3-4,
229 P.3d 1187 (2010).

Kansas cases have not previously decided whether Bermuda is a "state" for UIFSA
purposes. UIFSA is intended to be used as a procedural mechanism for the establishment,
modification, and enforcement of child and spousal support obligations. See Gentzel v.
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Williams, 25 Kan. App. 2d 552, 556, 965 P.2d 855 (1998). UIFSA allows persons to
register for enforcement in Kansas a support order issued by "a tribunal of another state."
K.S.A. 2014 Supp. 23-36,601. That Act defines "state" to include: "a foreign jurisdiction
that has enacted a law or established procedures for issuance and enforcement of support
orders which are substantially similar to the procedures under this act, the uniform
reciprocal enforcement of support act or the revised uniform reciprocal enforcement of
support act." K.S.A. 2014 Supp. 23-36,101(s)(2).

The district court found that Bermuda met that definition. The district court
considered Bermuda's Maintenance Orders Act of 1974 and the 1989 revision and found
the laws to be substantially similar to the procedures contained in UIFSA. The 1989
revision of the Bermuda act declared the following states to be reciprocating: California,
Connecticut, Florida, Hawaii, Maryland, Missouri, New Jersey, and Ohio. Every state in
the United States has adopted some version of UIFSA. See Pulkkinen v. Pulkkinen, 127
So. 3d 738, 741 (Fla. Dist. App. 2013). Thus the eight states that had reciprocity
agreements with Bermuda had also enacted UIFSA, as has Kansas. The court concluded
that Kansas' version of that uniform act is substantially similar to the procedures for
issuance and enforcement of support under the Bermuda laws. We find that conclusion to
be both reasonable and sufficient to support jurisdiction in Kansas.

John argues that because Kansas is not listed in the Bermuda act as a reciprocating
country, the statutory schemes cannot be substantially similar. But as noted above,
UIFSA does not require reciprocity as a condition to treating a foreign jurisdiction as a
"state." K.S.A. 2014 Supp. 23-36,101(s)(2). John also contends that a foreign jurisdiction
must be recognized by the Attorney General or have a federal-level reciprocity agreement
in order for its orders to qualify for registration under UIFSA, citing K.S.A. 2014 Supp.
23-3601(a). That statute provides in relevant part:

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"If the attorney general finds that reciprocal provisions are available in a foreign
nation . . . for the enforcement of support orders issued in this state, the attorney general
may declare the foreign nation . . . to be a reciprocating state for the purpose of
establishing or enforcing any duty of support."

The plain language of this statute, however, does not purport to establish the
exclusive definition for a "state," or the exclusive means by which enforcement orders
may be registered. See K.S.A. 2014 Supp. 23-36,101(s)(2). Instead, it merely sets forth
one way to achieve reciprocal support enforcement for countries not certified by the
Secretary of State. See 42 U.S.C. § 659a (2012) (authorizing the Secretary of State to
certify countries with adequate support-enforcement procedures as one route to reciprocal
support enforcement); 42 U.S.C. § 659a(d) (states have a right to enter into reciprocal
arrangements for the establishment and enforcement of support orders for countries not
certified by the Secretary of State "to the extent consistent with Federal law.").

Nor does caselaw support John's position. John cites Dia v. Oakley, 42 Kan. App.
2d 847, 217 P.3d 1010 (2009), rev. denied 290 Kan. 1092 (2010), but there we rejected
the very argument that John makes here — that a foreign (German) order cannot be
registered and enforced in Kansas because a foreign country is not a state as defined by
UIFSA. We applied the same provision that the district court applied here in finding that
UIFSA's definition of a state includes foreign countries with similar procedures for the
enforcement of support orders. Then, as now: "Kansas law provides that a foreign
country is treated as a state for UIFSA purposes if it has established support-enforcement
procedures substantially similar to UIFSA." 42 Kan. App. 2d at 856.

John also cites In re Marriage of Beeson and Van der Weg, No. 92,673, 2005 WL
2347788 (Kan. App. 2005) (unpublished opinion), but nothing in that case supports his
position that a reciprocating agreement is necessary. There, the Secretary of State had
declared Netherlands a "reciprocating country" for enforcement of orders to provide
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support to children, merely demonstrating that such an agreement is sufficient.
Accordingly, the district court correctly registered the Bermuda order under UIFSA.

Did the district court correctly exercise jurisdiction over child custody issues under the
Uniform Child Custody Jurisdiction and Enforcement Act UCCJEA?

John argues that the district court should have declined to exercise jurisdiction
under the UCCJEA.

The issue is whether the district court erred in finding that it had subject matter
jurisdiction over the child custody issues within this dispute. Whether subject matter
jurisdiction exists is a question of law over which we exercise unlimited review. Graham
v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013). The question involves interpretation
of the UCCJEA, which also requires this court to exercise unlimited review. See McNabb
v. McNabb, 31 Kan. App. 2d 398, 403, 65 P.3d 1068 (2003).

K.S.A. 2014 Supp. 23-3218(a) allows a district court to change or modify a prior
child custody order when a material change of circumstances is shown "[s]ubject to the
provisions of the uniform child custody jurisdiction and enforcement act."

Lauren and Ellie had lived in Kansas for less than 6 months at the time this action
was commenced, therefore, there was no home state claiming jurisdiction under the
UCCJEA. But K.S.A. 2014 Supp. 23-37,201(a)(2) provides an alternative basis for
jurisdiction which the district court found applicable here. If Kansas is not the home state,
the court may find that it is in the best interest of the child that the Kansas court assume
jurisdiction where the child and at least one parent have a significant connection with
Kansas and substantial evidence concerning the child's future care, protection, training,
and personal relationships is in Kansas. K.S.A. 2014 Supp. 23-37,201(a)(2). Both the
"significant connection" and "substantial evidence" are measured at the commencement
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of the proceedings. See K.S.A. 2014 Supp. 23-37,201(a)(1). In this case, the proceedings
commenced on October 11, 2013.

John challenges the district court's finding that Ellie had a significant connection
with Kansas and that substantial evidence was available in Kansas concerning the child's
care, protection, training, and personal relationships under the UCCJEA. See K.S.A. 2014
Supp. 23-37,201(a)(2). He asserts that Lauren's plans to live in Kansas were future plans,
and that nearly all of the evidence presented established that Ellie had contacts with
Missouri, not Kansas.

On November 13, 2013, Judge David Haber in the Johnson County District Court
held a telephone conference with Judge Duckworth of Clark County, Nevada, and both
parties' Nevada counsel to determine jurisdiction under the UCCJEA. Judge Duckworth
concluded that the Kansas court should conduct an evidentiary hearing on Lauren's
domicile. If it was found that Lauren was domiciled in Kansas, jurisdiction would be
more appropriate in Kansas. After holding an evidentiary hearing, Judge Hauber
concluded that Lauren was a resident of Kansas, and Kansas should exercise jurisdiction
under the UCCJEA.

The record supports the district court's findings. Lauren testified that they closed
on her new home in Mission Hills, Kansas, in early July 2013, and she moved to Kansas
on July 28, 2013. Lauren, Ellie, and Lauren's fiancé stayed in the new residence for the
first few weeks. However, due to the construction mess in the new home, Lauren and
Ellie stayed at the home of her fiance's boss in Leawood, Kansas, for a period of 2 weeks.
During that period, Lauren spent time at the Mission Hills residence every day to check
on her dogs and work at the residence. Ellie would go to her Mission Hills residence
every day after school.

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At the time Lauren filed her petition to register the Bermuda order under the
UCCJEA, Lauren, her fiancé, and Ellie were temporarily residing at a weekly rental on
the Missouri side of the state line. However, Lauren and Ellie had not abandoned their
Kansas residence and continued to return daily to the house to care for their dogs and take
care of other chores. Most of their belongings remained in the Kansas residence and they
anticipated being able to return to the residence full time in November 2013. Ellie played
soccer, participated in soccer, and attended a synagogue in Kansas. Lauren obtained a
Kansas driver's license on October 9, 2013.

The court stated that it was clear that Lauren's intent and domicile were in Kansas.
Although Pembroke Hill is in Missouri, it is the closest private school to Lauren's
residence in Mission Hills. The court noted that Ellie also had connections to Kansas
through extracurricular activities. The district court found that Ellie's care, training,
protection, and personal relationships were with her mother and had followed her from
California to Kansas, thus, "They have plenty of connections here." The court found it
unimportant that Lauren and Ellie were temporarily staying in a Missouri hotel and that
Ellie attended school in Missouri "in light of my knowledge of the geography here, as
well as the important issues related to our jurisdiction." The district court correctly
concluded that it had jurisdiction under the UCCJEA, citing K.S.A. 2014 Supp. 23-
37,201 as the basis for its order.

The sole case cited by John is In re E.T., 36 Kan. App. 2d 56, 137 P.3d 1035
(2006), disapproved of in In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008). We find its
facts to be significantly different. In re E.T. involved an infant and proceedings under the
Kansas Code for the Care of Children, K.S.A. 38-1501 et seq. In that case, E.T. was born
in Missouri and spent several months in a Missouri hospital after his birth. At the time the
petition was filed, E.T. lived in Missouri with foster parents and had never been to
Kansas. E.T.'s birth parents resided in Kansas. Although it appeared that Missouri was
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the more appropriate forum, Kansas properly exercised jurisdiction after Missouri
declined to accept jurisdiction. 36 Kan. App. 2d at 68.

Here, the evidence showed that Lauren and Ellie were permanent residents of
Kansas and they spent time at their Kansas residence every day to work and care for the
dogs. Due to construction issues, they were temporarily sleeping at a Missouri hotel.
Lauren and Ellie left most of their belongings at the Kansas residence, and they never
intended to change their residence to Missouri. The plan was to resume sleeping at the
Kansas residence as soon as construction was completed in November 2013. "A place
may in good faith become one's actual residence the first day he arrives there if he really
intends to make it his domicile or home." Blair v. Blair, 149 Kan. 3, 6, 85 P.2d 1004
(1939).

The record, viewed in the light most favorable to Lauren, contains substantial
competent evidence showing a "significant connection" to Kansas and "substantial
evidence" in Kansas as of the date the proceedings commenced. K.S.A. 2014 Supp. 23-
37,201(a)(2). We thus find no abuse of discretion in the court's legal conclusion that the
exercise of jurisdiction was proper in Kansas.

Was there a dispute as to which school the child should attend?

John also contends there was no dispute for the district court to decide as to which
school Ellie should attend. John claims that the district court's decision to hear an issue
not in controversy violated the separation of powers doctrine of the United States and
Kansas Constitutions. He claims that he never interfered with Lauren's unilateral choice
of a school and never invoked the court's power to challenge that choice, and that the
only conflict was whether he was required to pay for Ellie's tuition.

The district court's findings regarding the choice of school are as follows:
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"Petitioner's Motion for Order Determining Child's School (DOC 48) is
sustained. The parties' Bermuda Order clearly and unambiguously reflects that the parties
agreed it was in the best interests of their minor child to attend private school.
Respondent has never proposed an alternative private school to Pembroke Hill, where the
child currently attends. The Court finds that the Petitioner's choice of Pembroke Hill is
appropriate and reasonable based upon the parties' agreement, and the minor child shall
continue to attend Pembroke Hill."

Whether a claim is nonjusticiable is a question of law over which this court's
review is plenary. Gannon v. State, 298 Kan. 1107, 1118-19, 319 P.3d 1196 (2014).
Under the Kansas case-or-controversy requirement, the following factors must be met:
(1) parties have standing; (2) issues not be moot; (3) issues be ripe, having taken fixed
and final shape rather than remaining nebulous and contingent; and (4) issues not present
a political question. Gannon, 298 Kan. at 1119. "Whether a dispute rises to the level of an
actual controversy is one of degree, and the entertainment of the action rests within the
discretion of the trial court. [Citation omitted.]" Wichita Computer & Supply, Inc. v.
Mulvane State Bank, 15 Kan. App. 2d 258, 260-61, 805 P.2d 1255, rev. denied 248 Kan.
999 (1991).

John does not specifically challenge any of these factors. Lauren clearly had
standing to raise the issue of the choice of school. See Yordy v. Osterman, 37 Kan. App.
2d 132, 134, 149 P.3d 734 (2007) (the district court has the authority to resolve disputes
regarding choice of school when parents have joint custody but do not agree). It appears
to us the only arguable factor is mootness.

We begin with the recognition that "[g]enerally, Kansas appellate courts do not
decide moot questions or render advisory opinions." See State v. Williams, 298 Kan.
1075, 1082, 319 P.3d 528 (2014). Under the separation of powers doctrine, Kansas courts
do not issue advisory opinions but decide actual cases or controversies. Gannon, 298
Kan. 1107, Syl. ¶ 2. The mootness test has been described as a determination of whether
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it is clearly and convincingly shown that the actual controversy has ended, and the only
judgment would be ineffectual and not impact the parties' rights. See Williams, 298 Kan.
at 1082. Under this test, we find the issue of school choice was not moot.

The record reflects that John has been inconsistent in his position regarding the
choice of Ellie's school. At times, he appears to have suggested that public school would
be a better option, even submitting a letter from a child psychologist which he alleges
supports that position. During the hearing, John repeatedly clarified that he did not want
the district court to remove Ellie from Pembroke Hill, but he wanted the record to reflect
that he did not agree with Lauren's unilateral decision to enroll Ellie in Pembroke Hill.
But before enrolling Ellie at that school, Lauren had asked John for his input into the
decision but John did not respond. At the hearing, John's counsel stated: "John has not
agreed to Pembroke, but John has not asked this Court to intercede Lauren's trespass [in]
placing the child in Pembroke Hill without asking him." Whether John was objecting to
the choice of school, to any choice of school without his prior agreement, or was just
positioning himself for an argument that he need not pay tuition for any private school is
unclear. What is clear is that the record does not "clearly and convincingly" show that
there was no controversy about where to send Ellie to school, thus the issue was not
moot.

The district court's finding that Pembroke Hill was a reasonable choice of school
for Ellie resolved a justiciable issue.

Did the district court err in its factual findings about the choice of private school and the
cost of tuition?

We finally address John's argument that the district court erred in making factual
findings that Pembroke Hill was a reasonable choice of school for Ellie and regarding the
amount of its tuition for the 2013-2014 and the 2014-2015 school years. John complains
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that the district court made these findings with the intention that John would be bound by
those findings when and if Lauren sought enforcement of the obligation to pay for Ellie's
tuition in the Nevada courts.

The district court made these factual findings as part of the proceedings regarding
custody issues that arose between the parties concerning their minor child, Ellie.
However, in making these findings, the district court recognized that it did not have
personal jurisdiction over John and was not entering a money judgment for the tuition.
There is no dispute that the district court did not have personal jurisdiction over John and
therefore could not enforce child support obligations here under the UIFSA.

Because this issue challenges the district court's factual determination in the nature
of a custody determination, see In re Marriage of Debenham, 21 Kan. App. 2d 121, 124,
896 P.2d 1098 (1995), we apply an abuse of discretion standard. In re Marriage of
Rayman, 273 Kan. 996, 1001, 47 P.3d 413 (2002). Judicial discretion is abused only
when no reasonable person would take the view adopted by the district court. In re
Marriage of Kimbrell, 34 Kan. App. 2d 413, 419, 119 P.3d 684 (2005). The party
asserting that the district court abused its discretion bears the burden of showing such
abuse. In re Marriage of Hair, 40 Kan. App. 2d 475, 480, 193 P.3d 504 (2008), rev.
denied 288 Kan. 831 (2009). John bears that burden here.

The only issue is whether the district court exceeded its authority in determining
the choice of school for Ellie and the cost of tuition at Pembroke Hill for the relevant
years. Neither factual finding requires personal jurisdiction over John. Instead, these
issues fall under the purview of child custody and the parenting plan. The UCCJEA
determines the district court's power to make custody orders for any children of the
marriage. See Guye v. Guye, 8 Kan. App. 2d 219, 221, 654 P.2d 482 (1982).

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Under the UCCJEA, Kansas courts will recognize and enforce custody decrees
entered in other countries if they are rendered by appropriate authorities which afford
reasonable notice and opportunity. In re Marriage of Nasica, 12 Kan. App. 2d 794, 797,
758 P.2d 240, rev. denied 243 Kan. 778 (1988). John and Lauren were awarded joint
custody of Ellie, and the issue of where Ellie attends school falls under the jurisdictional
framework of the UCCJEA and its underlying policy of not having simultaneous custody
proceedings in two different states. See In re Marriage of Iwed, 34 Kan. App. 2d 178,
181, 116 P.3d 36 (2005). The UCCJEA governs custody disputes, and the choice of a
child's school is related to child custody matters.

"When the district court orders that parents have joint custody of their child, they
have equal rights to make decisions in the best interests of their child. K.S.A. 60-
1610(a)(4)(A). This includes the decision about which school their child should attend.
Thus, Mother and Father had equal rights to make decisions about which school their son
should attend. See In re Marriage of Debenham, 21 Kan. App. 2d 121, 896 P.2d 1098
(1995). In the all-too-common event of a dispute on such a fundamental issue between
parents who are subject to the court's ongoing jurisdiction during the minority of their
child, it is the job of the courts to resolve the dispute in a manner that is in the best
interests of the child." Yordy, 37 Kan. App. 2d at 134.

Personal jurisdiction over both parents is not required to assume jurisdiction for
custody issues under the UCCJEA.

"'A court must have in personam jurisdiction to enter an order to pay child
support. Kulko v. California Superior Court, 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct.
1690 (1978). The same is not true of a custody determination made pursuant to the
UCCJA. A petitioner need not establish that the nonresident spouse has "minimum
contacts" with the forum state, Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed.
95, 66 S. Ct. 154 (1945), to bring an action under the UCCJA. "Rather, custody is in
effect an adjudication of a child's status, which falls under the status exception of Shaffer
v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). A court may therefore
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adjudicate custody under the [UCCJA] without acquiring personal jurisdiction over an
absent party given reasonable attempts to furnish notice of the proceedings." In re
Marriage of Hudson, 434 N.E.2d 107, 117 (Ind. App. 1982), cert. denied 459 U.S. 1202
(1983); see Unif. Child Custody Jurisdiction Act § 12, Commissioners' Note, 9 U.L.A.
149 (1979).'" In re M.L.K., 13 Kan. App. 2d 251, 254, 768 P.2d 316 (1989) (quoting
Warwick v. Gluck, 12 Kan. App. 2d 563, 568, 751 P.2d 1042 [1988]).

The district court did not impose a personal obligation or duty on John by merely
finding that Pembroke Hill is a reasonable choice of school for Ellie and the cost of
tuition at the school. The district court restricted its findings to those that fall under the
realm of child custody. The district court restricted its ruling to custody issues. It noted
that Lauren had retained counsel in the Nevada proceedings and had a path through
another jurisdiction for enforcement of child support orders, but it explicitly denied any
request to enforce child support or order attorney fees. The district court acted within its
discretion in determining where Ellie should attend school and the cost of attendance.

Affirmed.