In re Marriage of Langley

1

NOT DESIGNATED FOR PUBLICATION

No. 115,829

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of:
KENNETH LANGLEY,
Appellant,

and

COURTNEY LANGLEY,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed April 28, 2017.
Affirmed.

Douglas C. Cranmer and Thomas C. Witherspoon, of Stinson, Lasswell & Wilson, L.C., of
Wichita, for appellant.

W. Thomas Gilman, Patricia A. Gilman, Travis M. Pfannenstiel, and Bradley J. Schlozman, of
Hinkle Law Firm, L.L.C., of Wichita, for appellee.

Before GARDNER, P.J., ATCHESON, J., and STUTZMAN, S.J.

ATCHESON, J.: Kenneth Langley appeals related rulings of the Sedgwick County
District Court denying him relief in the latest chapter of an ongoing child custody dispute
with Courtney Langley, his former wife, and awarding attorney fees to Courtney. We find
no basis to disturb those rulings and, therefore, affirm the district court. We also take up
and deny Courtney's motion for attorney fees in responding to Kenneth's appeal.

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Kenneth and Courtney married in July 2007 and had J.L., their only child, in May
2008. In July 2009, Kenneth filed for divorce, and Courtney filed an answer and counter-
petition. The district court granted a divorce decree in September 2010 and later that year
entered a judgment establishing child custody and parenting time and reconciling the
couple's financial rights and obligations arising from the marriage. Both during and since
the divorce proceedings, child custody has been a festering sore between Kenneth and
Courtney. Early on, the district court assigned a case manager to help soothe the rawness.
Kenneth and Courtney were working with at least their second case manager when this
particular disagreement flared up. We dispense with a prolonged introductory narrative
outlining the contentious history pertaining to the postdivorce parenting of J.L. Rather,
we turn to the specific issues Kenneth has raised and provide focused factual and
procedural summaries for them.

KENNETH LANGLEY'S POINTS ON APPEAL

No Evidentiary Hearing on Motion for Indirect Civil Contempt

In February 2016, Kenneth filed a motion requesting the district court order
Courtney to show cause why she should not be held in indirect contempt for violating the
provisions of the judgment governing child custody and parenting. The motion also
requested that the district court grant him sole legal custody of J.L., replacing the joint
legal custody that had been in effect. Kenneth signed a 2 1/2-page, single-spaced affidavit
in support to the motion and tendered a 2-page narrative chronology of events with the
affidavit. See K.S.A. 2016 Supp. 20-1204a(a) (court may issue show cause order upon
motion accompanied by affidavit "specifically setting forth the facts constituting the
alleged violation").

The judgment included these provisions regarding the parenting of J.L.: (1) each
parent should provide 14 days' notice to the other of any medical or dental appointments
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for the child, except for emergencies; (2) each parent should provide the other 14 days'
notice if either "[is] leaving town with the minor child and shall provide the dates,
itinerary and telephone contact information"; and (3) "[e]ach parent shall have the right to
make major decisions affecting the child [list of examples omitted] and any decisions
affecting the child which the Court finds to be in the best interest of the minor child." In
the judgment, the district court retained jurisdiction "to resolve" joint parenting decisions
on which Kenneth and Courtney disagreed.

In his motion and the supporting documents, Kenneth cited specific instances in
which he asserted Courtney violated those duties. He cited occasions when he says
Courtney gave him less than 14 days' notice of "leaving town" with J.L. and represented
he received no notice for more than 100 excursions. He cited one medical appointment
for which Courtney gave virtually no notice. And he complained that Courtney had J.L.
baptized at the church she attended without consulting him or giving him any notice of
the baptismal ceremony.

Courtney responded to the motion through her lawyer. After reviewing the
submissions and hearing argument from the lawyers for Kenneth and Courtney, the
district court declined to find Courtney in contempt. Kenneth contends the district court
erred in failing to hold an evidentiary hearing.

Contempt of court may be either direct or indirect. Direct contempt entails
contumacious or disrespectful conduct in the court's presence. Indirect contempt occurs
outside the court's presence and typically involves the willful refusal to obey a court
order, a form of contumacy. Either may be treated as a civil contempt or a criminal
contempt in fashioning a remedy. Civil contempt aims to compel a party to abide by the
terms of a court order going forward. Upon a finding of civil contempt, a court may jail a
particularly recalcitrant party for an indefinite period until he or she agrees to comply
with the order. The court may impose a periodic fine—daily or weekly, for example—or
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some other coercive sanction until the party complies. Criminal contempt punishes a
party for a past violation of an order with a fixed fine or jail sentence as a punitive
sanction. See In re Marriage of Shelhamer, 50 Kan. App. 2d 152, 155-56, 323 P.3d 184
(2014) (discussing direct and indirect contempt and civil and criminal remedies). The
Kansas Legislature has codified procedures governing judicial determination of indirect
contempt. K.S.A. 2016 Supp. 20-1204a.

Kenneth's motion outlined circumstances that could only be indirect contempt,
since whatever Courtney did took place outside the district court's presence. But the
motion wasn't explicit about the remedy as one for civil or criminal contempt. The
supporting papers allude to civil contempt. And Kenneth's appellate brief refers to civil
contempt. We, therefore, presume the appeal concerns civil rather than criminal
contempt. A district court's denial of one party's request for a judgment of criminal
contempt against another party is not an appealable order. State ex rel. Sanborn v.
Bissing, 210 Kan. 389, 394-96, 502 P.2d 630 (1972). Conversely, the denial of a request
for civil contempt may be appealed. American Trust Administrators, Inc. v. Sebelius, 267
Kan. 480, 488, 981 P.2d 248 (1999).

In American Trust Administrators, the Kansas Supreme Court held a district
court's finding that a party had not committed indirect civil contempt should be reviewed
on appeal for abuse of judicial discretion. 267 Kan. at 489. A district court exceeds that
broad discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproved factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied
134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012).[*]

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[*]An appellate court reviews an affirmative finding of contempt without
deference to the district court but examines the remedy for abuse of discretion. In re
M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002); Shelhamer, 50 Kan. App. 2d at 154-55.
The district court's determination of relevant facts has to be supported by substantial
evidence with due regard on appeal for credibility determinations. Heightened appellate
review of an affirmative finding of contempt has logical underpinnings. Typically, a
district court judge will make a contempt determination with respect to his or her own
order. So the conclusion that a party's conduct should not be treated as contempt ought to
be afforded great weight on appeal. The court issuing an order is in the best position to
say that particular conduct conforms to that order—or, more precisely, doesn't violate it
in a way rising to contempt. See Johnson v. Johnson, 11 Kan. App. 2d 317, 320, 721 P.2d
290 (1986) (district court properly declines to find party in contempt where conduct is
"not willful to such a degree as to amount to contemptuous disobedience"). Appellate
deference to that call reflects an entirely justifiable approach. At the same time, an
affirmative finding of contempt necessarily triggers some form of sanction. Unlimited
appellate review of the grounds for the contempt shields the contemnor from a district
court determination that may be rooted more in a visceral reaction (or overreaction) to
conduct perceived to be disrespectful than in a studied evaluation of the circumstances.

Here, Kenneth specifically complains the district court did not hold an evidentiary
hearing in declining to find Courtney in indirect civil contempt. In reaching its decision,
the district court relied on the detailed representations Kenneth made in his motion to
show cause, his affidavit, and the accompanying narrative. The district court assumed
those representations to be true—giving Kenneth the best possible factual foundation. In
doing so, the district court implicitly presumed that Courtney acted intentionally rather
than negligently. For example, the district court treated Courtney's alleged failures to give
notice at all as deliberate decisions rather than inadequate attempts. On appeal, Kenneth
does not point to more or different evidence he would have presented during an
evidentiary hearing. He does suggest such a hearing would have accentuated the
willfulness of Courtney's actions.

Nothing in K.S.A. 2016 Supp. 20-1204a, governing indirect contempt, mandates
that a district court hold an evidentiary hearing simply because a party has filed a motion
requesting a show cause order. The statute affords a district court the authority to decline
to issue a show cause order after reviewing the motion and supporting materials. K.S.A.
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2016 Supp. 20-1204a(a) ("the court . . . may order a person alleged to be guilty of
indirect contempt . . . to appear and show cause why such person should not be held in
contempt" [emphasis added]). Even if a district court convenes a hearing, the statute itself
does not require an evidentiary proceeding. Where, as here, a district court augments the
written submissions with argument from the lawyers, it may then decline to find
contempt without taking evidence, so long as it accepts the factual representations of the
moving party. If those representations do not warrant a contempt finding, the district
court can so rule. In this case, we need not delve into an accused contemnor's request for
an evidentiary hearing and the due process rights that may be implicated. A district court
may well be required to honor that request before imposing a contempt sanction. See In
re J.T.R., 47 Kan. App. 2d 91, 100-01, 271 P.3d 1262 (2012) (contemnor in criminal
contempt proceeding has due process right to trial and other procedural protections);
Pryweller v. Pryweller, 218 Ill. App. 3d 619, 628-29, 579 N.E.2d 432 (1991) (In an
indirect civil contempt proceeding, "the offender is entitled to the requirement of due
process of law[,] . . . including an evidentiary hearing.").

On the narrow issue, then, we see no error in the district court's failure to hold an
evidentiary hearing before declining to find Courtney in indirect civil contempt. In his
appellate argument, however, Kenneth expands the point to challenge the district court's
underlying determination against a contempt finding—essentially making an argument
that the district court abused its discretion.

What we have said so far shows the district court both understood the factual
circumstances, since it accepted Kenneth's representations for purposes of considering his
motion, and applied the appropriate legal framework. The remaining ground supporting
an abuse of discretion would require us to find that no other district court would have
ruled the same way on this record. We are unwilling to make so harsh an assessment. Far
from it.

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Several times, Courtney gave Kenneth less than 14 days' notice when she took J.L.
on trips of more than a day. According to Kenneth's assertions, even then, he received 7
to 10 days' notice, which the district court treated as substantial compliance. We find no
fault with such a characterization. Kenneth asserted he received grossly inadequate notice
of one medical appointment for J.L. The situation did not involve an emergency.
Courtney apparently was able to get J.L. in to see the doctor the same day she called to
schedule a visit. She promptly notified Kenneth. The district court declined to view that
as contemptuous disobedience of the judgment. We are comfortable other district courts
would have taken a like view.

Kenneth alleged that Courtney repeatedly gave him no advance notice of "leaving
town" with J.L., thereby violating the judgment. He cited Courtney's regularly taking J.L.
to services at a church in Andover. We understand Courtney and Kenneth lived in
Wichita. Andover is roughly 15 miles east of Wichita. In making that allegation, Kenneth
relied on interpreting the phrase "leaving town," as used in the judgment, to mean
something approximating "traveling beyond the corporate limits of the City of Wichita."
We can't say whether his premise more exquisitely tortures common sense or the
everyday understanding of the term "leaving town," but it certainly does both. In
approving the language in the judgment, the district court could not have meant that
either parent had to give the other 14 days' notice if he or she simply drove J.L. beyond
the city limits of Wichita. Would that include driving on Douglas Avenue through
Eastborough? Not likely. Nor would it include going to church in Andover. The notion
defies common sense. The phrase itself connotes a trip that includes a stay of at least 1
night away from home. The requirement in the judgment that the parent leaving with J.L.
provide the dates and itinerary of the trip certainly suggests as much. Going from Wichita
to somewhere and returning the same day would involve a single date. So would leaving
and reentering the corporate limits of Wichita in a single car ride. The district court
would not stand alone in finding Kenneth's allegation did not evince contemptuous
disrespect for the judgment on Courtney's part.
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Courtney's failure to discuss with Kenneth or notify him of J.L.'s baptism presents
a tougher question. The factual assertions show that Courtney deliberately kept
information about J.L.'s baptism from Kenneth and that he found out about the ceremony
later, more or less by happenstance. Everyone presumes the baptism to be a "major
decision" of the sort the two were to confer about. We have no reason to doubt that
characterization of the event. Baptism is generally considered a profound ritual marking
the participant's acceptance of the fundamental tenets of Christianity, as reflected in the
Gospel of that denomination and church. Although Kenneth mentions that he thought J.L.
too young, at 7 years of age, to be baptized, his principal complaint lies in his having
missed "a singular occurrence in the life of [J.L. that] cannot again be experienced in
either his life or the life of his child." But Kenneth does not claim that J.L.'s attendance at
the Andover church or her baptism were emotionally or morally debilitating to her or
were otherwise contrary to her best interests. Kenneth plainly knew J.L. was attending the
church and voiced no objection.

Based on the factual context the district court considered—essentially Kenneth's
assertions in support of his motion—Courtney violated the parenting orders in the
judgment in the way she handled J.L.'s baptism. But any given violation of an order does
not require the district court impose a contempt sanction on the violator, even if another
party demands it. A district court's volitional determination not to sanction, based on the
particular circumstances, exemplifies judicial discretion and its exercise. As Kenneth
correctly pointed out, J.L.'s baptism was unique and would not be replicated, so a civil
contempt sanction—designed to compel future compliance with a court order—presents
an unfocused remedy for the violation. We cannot say the district court abused its
discretion in declining to take that step. The district court did direct that the case manager
take up the situation with Kenneth and Courtney. Case management offers a forum
readily directed toward conciliation and the fostering of more positive modes of
interaction going forward. In at least some cases, those efforts may be more productive in
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the long run than coercive judicial action aimed at one party. The district court had the
latitude to make that call.

In sum, we find no abuse of judicial discretion or other grounds for reversing the
district court's refusal to find Courtney in contempt of court or in declining to hold an
evidentiary hearing on the way to making that ruling.

No Evidentiary Hearing on Case Manager's Recommendations

The case manager recommended several modifications and clarifications of the
parenting provisions of the judgment in an effort to smooth some of the barbed edges to
the interaction between Kenneth and Courtney. The district court approved those
recommendations at the same hearing it considered Kenneth's request that Courtney be
held in contempt of court. Kenneth complains that the district court deprived him of due
process by ruling on the recommendations based on the argument of the lawyers and
without hearing evidence. Especially given the limited scope of the changes, we find no
error on this point.

Although Kenneth objected in the district court to taking up the case manager's
recommendations, his objection did not invoke due process in so many words. Because
the claim rests on a constitutional right, we opt to put any concerns about preservation of
the issue aside in favor of addressing the merits.

A parent has a fundamental right to raise his or her child that is protected as a
liberty interest in the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. See Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). The
government may materially restrict that liberty interest only for good reason after
affording the parent adequate procedural due process protections. Procedural due process,
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in turn, entails a flexible right to be heard in a meaningful way and at a meaningful time,
tailored to the nature of the government action and the protected interest at stake.
Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (nature
and extent of the due process protections must be calibrated to the significance of the
interest at stake); Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.
Ct. 652, 94 L. Ed. 865 (1950) (The Due Process Clause "at a minimum" requires that
"deprivation of life, liberty, or property by adjudication be preceded by notice and
opportunity for hearing appropriate to the nature of the case.").

In In re Marriage of Hutchison, 47 Kan. App. 2d 851, Syl. ¶ 1, 281 P.3d 1126
(2012), this court held that a party has a constitutional due process right to an evidentiary
hearing in the district court to challenge allegedly mistaken factual bases for a case
manager's decisions that substantially impair the party's right to parent a child. The court,
however, recognized that some actions by a case manager would not materially diminish
the constitutional liberty interest of a parent and, therefore, would trigger no (or minimal)
procedural due process protections. 47 Kan. App. 2d at 858.

Here, the case manager's recommendations did not adversely affect either parent's
liberty interest in raising J.L. Nor did Kenneth dispute any factual premise upon which
the recommendations were based.

The case manager recommended language clarifying the "leaving town" provision
of judgment to make excruciatingly clear that the notification obligations of either parent
applied to overnight stays at places more than 20 miles from Wichita. The
recommendation did not inhibit either parent's substantive rights related to J.L. and
merely added specificity to a notification obligation that had been in place. The change in
no way implicated either parent's liberty interests.

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Earlier, the case manager had agreed to allow the parties to videotape their
interactions to discourage untoward behavior. She did so "with extreme hesitation" in
response to Kenneth's complaints about Courtney's rude conduct. Courtney had since
complained that Kenneth used the videotaping as a means of intimidating her. The case
manager wanted a court directive that Kenneth videotape "discreetly" and that he not
show those recordings to J.L. Again, the recommended limitations on videotaping do not
implicate constitutionally protected parenting rights.

Finally, the case manager recommended that neither parent bring his or her
significant other to J.L.'s medical appointments. The significant others, of course, were
not J.L.'s biological or adoptive parents and had no authority to act for her. Accordingly,
they had no legal need to be present. Courtney had complained that the presence of
Kenneth's significant other in the examination room and during physician consultations
was disruptive and posed confidentiality problems. The case manager's recommendation
had no effect on the rights of Kenneth or Courtney to participate in medical decisions for
J.L. or to be present at the child's appointments with healthcare providers. The
recommendation did not implicate either parent's liberty interest.

Kenneth also sought to challenge the case manager's recommendation that
Courtney not be sanctioned for failing to him give required notice of a particular medical
appointment. The case manager declined to do so because Courtney did notify Kenneth
and he attended J.L.'s appointment. The issue of sanctions, however, does not bear
directly on or diminish in any way Kenneth's constitutional right to parent J.L. So he had
no constitutional due process right to an evidentiary hearing in the district court regarding
the recommendation.

In short, none of the case manager's recommendations impaired Kenneth's
constitutional right to parent J.L. In turn, Kenneth had no constitutionally protected due
process right to an evidentiary hearing on the recommendations—a determination that is
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consistent with both general due process principles and the particular application of those
principles to case management, as recognized in Hutchison. We, therefore, reject
Kenneth's point and affirm the district court.

No Referral of Requested Change in Custody to Case Manager

Following the denial of his show cause motion, Kenneth filed a motion requesting
that he be given sole legal custody of J.L. He essentially cited the same grounds he relied
on in asking for the contempt finding against Courtney. He also filed a motion for
reconsideration of the court's contempt ruling. The district court denied both motions. (As
we indicated, Kenneth also sought a change in legal custody as a remedy for Courtney's
alleged contempt of court.) On appeal, Kenneth contends the district court was obligated
to refer the request for a change in custody to the case manager and the failure to do so
amounted to reversible error. We reject the contention as inconsistent with the purpose of
case management and the statutory regulation of custody orders.

A district court may appoint a case manager to act as a neutral to assist parents in
fashioning agreements on child custody and other parenting issues. K.S.A. 2016 Supp.
23-3507. The process is typically used when the parents have been unable to come to
reasonable arrangements on custody matters and their inability to agree has provoked
ongoing friction, often resulting in serial court filings laced with petty or histrionic
accusations. See K.S.A. 2016 Supp. 23-3508(a), (b); Marriage of Hutchison, 47 Kan.
App. 2d at 856-57. Basically, case management is a tool that may, but need not, be
deployed to deescalate frayed emotions that can accompany child custody issues and to
bring the parties together in a controlled environment to facilitate structured
communication and negotiation in an effort to resolve disagreements over those issues. If
the parties have an assigned case manager, nothing in the statutory scheme requires the
district court to refer a particular motion or request to the case manager. K.S.A. 2016
Supp. 23-3507 et seq.
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As stated in K.S.A. 2016 Supp. 23-3219(a), a district court may consider
modifying a final custody order when a party files a verified motion or a motion
accompanied by an affidavit setting out facts alleged to warrant the change. The district
court may deny the request if the factual allegations fail to establish a prima facie case for
a change. If the allegations are sufficient, the district court should then try the "factual
issues" and rule on the motion. K.S.A. 2016 Supp. 23-3219(a). The statute does not
require the involvement of a case manager at any stage in the process.

In sum, case management is a means to head off disagreements about child
custody and to expedite the resolution of those disagreements when they arise. The
district court, however, retains full authority to promptly address particular motions or
other disputes even after the parties have been assigned a case manager and to do so
without first engaging the case management process. To hold otherwise would unduly
constrain a district court's judicial authority and in many instances would needlessly
prolong the decisionmaking process. To be plain, a district court can decide a motion to
modify child custody without referring it to a case manager for consideration. Kenneth's
argument to the contrary would transform case management from a tool to be used to
good effect in many situations into a mandatory bureaucratic function that would be no
more than an empty exercise in many other situations. District courts retain the
discernment to assess a given circumstance and to make a studied determination on the
utility of case management. We reject Kenneth's point and affirm the district court's
denial of his motion to modify custody.

Award of Attorney Fees to Courtney

After denying Kenneth's motions seeking a contempt order against Courtney and a
change in child custody, the district court granted Courtney's request for attorney fees
under K.S.A. 2016 Supp. 23-2715 and awarded her $3,000. Kenneth appeals that award.
14


As provided in K.S.A. 2016 Supp. 23-2715, a district court may grant either party
costs and attorney fees "as justice and equity require" in a divorce action or later
proceedings related to child custody. Accordingly, a district court has broad statutory
discretion to grant attorney fees. And we essentially review an award based on K.S.A.
2016 Supp. 23-2715 for abuse of judicial discretion. In re Marriage of Strieby, 45 Kan.
App. 2d 953, 972-73, 255 P.3d 34 (2011) (construing identical language in predecessor
statute); In re Marriage of Barbee, No. 115,134, 2017 WL 1198496, at *7-8 (Kan. App.
2017) (unpublished opinion).

The outcome of a legal dispute does not dictate a fee award under K.S.A. 2016
Supp. 23-2715. In other words, K.S.A. 2016 Supp. 23-2715 is not a fee-shifting statute
requiring an award to a prevailing party. Nor does it automatically allocate attorney fees
to a party for having to respond to frivolous motions or arguments. Rather, the district
court may take account of the overall circumstances and in particular the comparative
financial ability of the parties to pay attorney fees and whether a legally questionable
motion has been filed against the party substantially less able to absorb those expenses.
See Dunn v. Dunn, 3 Kan. App. 2d 347, Syl. ¶ 3, 595 P.2d 349 (1979) (When considering
a statutory award of attorney fees in domestic relations matter, the district court "must
consider . . . the need of one party, weighed against the financial ability of the other to
pay."). If a district court finds an award of attorney fees to be appropriate in light of those
considerations, it should apply the criteria outlined in Rule 1.5(a) of the Kansas Rules of
Professional Conduct (2017 Kan. S. Ct. R. 292) to determine the amount to be awarded.
Marriage of Strieby, 45 Kan. App. 2d at 973.

The district court offered what might be characterized as nonspecific findings
supporting the attorney fee award to Courtney. The findings show the district court
considered the circumstances but do not detail precise reasons for the ruling. We may,
however, presume a district court has made sufficient findings in the absence of an
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objection from the aggrieved party for more or better findings. See Hill v. Farm Bureau
Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998); In re Marriage of Knoll, 52
Kan. App. 2d 930, 941, 381 P.3d 490 (2016) (applying presumption of adequate findings
to attorney fee request in postdivorce dispute over maintenance). The presumption
undercuts Kenneth's argument, since he did not ask the district court to clarify its ruling.

In addition, Kenneth contends the billing records Courtney's attorney submitted to
the district court in support of the fee request were too generic to permit an award. He
says the records neither described the work done with particularity nor documented that
the work related to the specific matters before the district court. But Kenneth concedes
those documents are not in the record on appeal. We cannot make a reasoned review
without the billing records and, therefore, reject that ground for reversing the fee award.
An appellant must furnish a record on appeal sufficient to consider the points raised and
to show a material error. Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Kenneth has not done so in this respect.

We have been shown no error in the district court's award of attorney fees to
Courtney and, therefore, affirm that ruling.

COURTNEY LANGLEY'S MOTION FOR ATTORNEY FEES ON APPEAL

Courtney has timely filed a motion requesting we assess against Kenneth the
attorney fees she incurred in responding to this appeal. As provided in Supreme Court
Rule 7.07(b), (c) (2017 Kan. S. Ct. R. 50), this court may grant attorney fees related to an
appeal if the district court had the authority to award fees or upon finding the appeal (or
some portion of it) to be frivolous. Courtney relies on both grounds and has supported her
request for $13,291.50 with invoices from her lawyers.

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A point raised on appeal must be devoid of merit to be deemed frivolous for
purposes of assessing the appellee's attorney fees against the appellant. See Peoples Nat'l
Bank of Liberal v. Molz, 239 Kan. 255, 257, 718 P.2d 306 (1986) (court defines
"frivolous appeal" as one presenting nothing more than a question "readily recognized as
devoid of merit in that there is little prospect that it can ever succeed"). The claim must
be without so much as a colorable basis to sink to that level. Although Kenneth's
argument in the district court and on appeal about the meaning of the "leaving town"
provision in the judgment defies good sense and might well be labeled frivolous, he
asserted other positions that were not. We mention the lack of notification about J.L.'s
baptism as an example. Kenneth's legal point about the baptism presented at least a
colorable issue in the district court. And we are not prepared to say the point devolved
into frivolousness in this court because appellate review—and reversal— depended upon
establishing an abuse of judicial discretion. See In re Marriage of Bos, No. 109,850, 2014
WL 1796155, at *5 (Kan. App. 2014) (unpublished opinion) (court rejects rule that "[an]
unsuccessful appeal in the face of an abuse of discretion standard ought to require the
appellant to pay the appellee's attorney fees").

At least a portion of Kenneth's appeal could not be characterized as frivolous. But
the billing records Courtney has submitted in support of her fee request do not distinguish
among the arguments by showing the time her lawyers devoted to each of them and, thus,
the fees she incurred. Rather, the billing entries simply state an amount of time devoted to
undifferentiated work on the appellate brief. We have no way of allocating the work and
fees to specific arguments or issues. In this respect, Courtney presented us with an all-or-
nothing request for fees in an appeal involving multiple issues. Because Kenneth's appeal
was not wholly frivolous and Courtney has not provided us with a way to reasonably
allocate the fees she paid between what might be frivolous and what wasn't, we cannot
grant her motion under Rule 7.07(c). Cf. DeSpiegelaere v. Killion, 24 Kan. App. 2d 542,
Syl. ¶ 1, 947 P.2d 1039 (1997) (When an action combines claims allowing attorney fees
17

with those that don't, the party seeking fees must "segregate the work" done on the
respective claims so the award covers only those permitting fees.).

Courtney alternatively relies on K.S.A. 2016 Supp. 23-2715 and argues she should
be granted her attorney fees for this appeal in the interests of justice and equity. We have
already outlined the considerations that go into finding an award to be appropriate under
K.S.A. 2016 Supp. 23-2715. In her request to this court, Courtney has not endeavored to
show the attorney fees she incurred caused her a significant financial hardship or that she
was significantly less able financially than Kenneth to bear the costs, including attorney
fees, associated with the motions he filed. Absent that showing, we are not prepared to
rely on K.S.A. 2016 Supp. 23-2715 to grant Courtney's motion. See In re Marriage of
Lynn, No. 114,154, 2016 WL 3856630, at *3 (Kan. App. 2016) (court denies motion for
attorney fees on appeal based on K.S.A. 2016 Supp. 23-2715 because movant "has not
shown that shifting her attorney fees . . . is necessary to accomplish financial equity").

The rulings of the district court are affirmed, and, for the reasons stated, we deny
Courtney's motion for attorney fees on appeal.