In re Marriage of Owens

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NOT DESIGNATED FOR PUBLICATION

No. 113,026

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

SHANE K. OWENS
Appellee,

and

MONICA L. OWENS,
Appellant.


MEMORANDUM OPINION

Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed October 2, 2015.
Reversed and remanded.

Jennifer A. Wagle, and Stephen M. Turley of Cleary, Wagle & West of Wichita, for appellant.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Cami R. Baker and
Josh Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellee.

Before MCANANY, P.J., GARDNER, J., and WALKER, S.J.

Per Curiam: This appeal questions the qualifications and role of a limited case
manager (LCM) in child custody proceedings. Because we find the court-appointed LCM
was statutorily unqualified to serve as an LCM, we reverse and remand for further
proceedings.

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The procedural history of the case.

The facts are well known to the parties, and we see no need to recite them in detail
here. Suffice it to say that Shane K. Owens and Monica L. Owens were married, had two
children, divorced, and reached an initial agreement resolving all custody, residency,
parenting time, and child support issues involving the two minor children. The parties
had joint legal custody of the children. Monica was to provide their primary residence,
and Shane was granted parenting time.

Thereafter, Shane filed a motion to modify the children's primary residence. On
April 4, 2013, the district court ordered the parties to enter into limited case management
and appointed Ronda Welsh as the LCM. The district court ordered her to address certain
issues including custody or residency, parenting time, and parenting issues. The parties
reached temporary agreements, and the district court entered temporary orders granting
Shane primary residential custody and granting Monica parenting time.

The LCM later submitted her report to the district court recommending that the
parents continue to have joint custody of the children and that Shane continue to provide
residency for the children.

Monica objected to the LCM's report and recommendations and filed a motion to
disqualify the LCM. The district court scheduled a hearing and notified the parties he
would use "the Standard of Review as set forth in the [In re Marriage of Gordon Hanks,
27 Kan. App. 2d 987, 10 P.3d 42, rev. denied 270 Kan. 898 (2000),] case, with the
objecting party, Respondent, Monica L. Owens, having the ability to thoroughly attack
the credibility" of the LCM. That case found the decision to grant or deny a motion to
remove a case manager is clearly committed to the discretion of the court and ought not
to be overruled absent evidence of abuse of discretion. Saucedo v. Winger, 252 Kan. 718,
729-30, 850 P.2d 908 (1993) (citing State v. Foren, 78 Kan. 654, 658-59, 97 P. 791
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[1908]); Gordon-Hanks, 27 Kan. App. 2d at 991. It also held that the disagreeing party
bears the burden of proving the case manager's recommendation to be erroneous or
inappropriate. Gordon Hanks, 27 Kan. App. 2d at 994.

The district court adopted the parties' factual stipulations. At the hearing, Monica
questioned the LCM about her qualifications and other matters, and Monica herself
testified.

The district court held that Shane should continue to provide residency for the
children as the LCM recommended. The district court noted that typically, "court
proceedings would not be transpiring with the limited case manger proceeding, which did
occur" in this instance. The district court found that the LCM "appropriately reviewed all
information presented to her by the parties," and "was subjected to extensive examination
and cross-examination by the parties' respective counsel."

The district court then addressed the statutory factors district courts must consider
in determining the issues of child custody, residency, and parenting time, see K.S.A.
2014 Supp. 23-3203(a) - (k), stating:

"The Court finds the limited case manager applied the factors, plural, in 10
different recommendations, not just to No. 2 regarding residency and parenting time.

"The Court finds the limited case manager applied the statutory factors to the
multiple recommendations.

. . . .

"The Court finds the limited case manager's report to be thorough and well
thought out with well-reasoned and appropriate recommendations.

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"This Court does not set aside the recommendations of the limited case manager,
but, rather, adopts the same for being well-founded for the reasons previously set forth."

Monica argues the LCM was not qualified under K.S.A. 2014 Supp. 23-3508(d),
and that the district court therefore erred by adopting her recommendations.

Our standard of review

This issue involves interpretation of statutes and local rules, so is a question of law
subject to unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). The
most fundamental rule of statutory construction is the intent of the legislature governs if
that intent can be ascertained. An appellate court must first attempt to ascertain legislative
intent through the statutory language enacted, giving common words their ordinary
meanings. When a statute is plain and unambiguous, an appellate court should not
speculate about the legislative intent behind the clear language, and it should refrain from
reading something into the statute that is not readily found in its words. Cady, 298 Kan.
at 738-39.

Did the statutory qualifications apply to the LCM?

Since 2012, the relevant statutes have required the following qualifications for
appointed case managers:

"To qualify as an appointed case manager, an individual shall:

"(1) (A) Be currently licensed in Kansas as a licensed psychologist, licensed masters
level psychologist, licensed clinical psychotherapist, licensed professional counselor,
licensed clinical professional counselor, licensed marriage and family therapist, licensed
clinical marriage and family therapist, licensed master social worker or licensed specialist
social worker;

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"(B) be currently licensed to practice law in Kansas and have at least five years
of experience in the field of domestic relations law or family law; or

"(C) be a court services officer and have training in domestic relations cases as
prescribed by the district court in which the case is filed;

"(2) be qualified to conduct mediation;

"(3) have experience as a mediator;

"(4) attended one or more workshops, approved and as ordered by the district court in
which the case is filed, on case management; and

"(5) complete a minimum number of continuing education hours regarding case
management issues or abuse and control dynamics issues as established and approved by
the supreme court." K.S.A. 2014 Supp. 23-3508(d).

The district court entered its order for limited case management in this case in April of
2013, on which date this statute was applicable.

Shane contends that the LCM was not appointed case manager under the Kansas
statute but was instead appointed under a local rule which did not contain any
qualification requirements. When the qualifications of the LCM were challenged below,
the district court so held.

The local rule the court alluded to, Local Rule 14 of the Thirteenth Judicial
District, provided:

"When the district court refers a legal matter for limited case management,
(LCM) it is generally contemplated that whenever applicable the specific statutory
directives and procedures set forth in K.S.A. 23-1001 et. seq. as amended shall apply.

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"To clarify and supplement the case management statutes, the following local
rule is promulgated:

"A. Definition of Limited Case Management: Limited case management, formerly
known as Dispute Resolution Counseling (DRC), operates identically to case
management except for the following:

"1. In limited case management, the Court only assigns certain specified
issues to the case manager.

"2. In limited case management, the recommendations of the case manager
do not become the order of the Court except as otherwise stated in this
local rule.

"3. In limited case management, the assignment to limited case management
ends when a written agreement has been approved by the parties, or
when the case manager files recommendations as to the issues specified
by the Court. The Court at any time, upon motion of a party, or on the
Court's own motion, may terminate all or part of the assignment."

The Local Rule was enacted prior to July of 2012 and referred to K.S.A. 23-1001
et seq., which did not require a case manager to be licensed as an attorney or as a
psychologist, or to be a case worker, as required by K.S.A. 2014 Supp. 23-3508(d)(1)
(A), (B), and (C). See K.S.A. 23-1002 (d) (requiring only that appointed case managers
be qualified to conduct mediation, have experience as a mediator, attend a workshop on
case management, and participate in continuing education regarding management issues).

We do not agree that the LCM was appointed case manager solely under the Local
Rule to the exclusion of the Kansas statute. That assertion contradicts the plain language
of the district court's order for limited case management in this case, which provides:
"The parties shall enter into limited case management consistent with K.S.A. 23-3507 et
seq. with Ronda Welsh." (Emphasis added.) That statutory reference would obviously
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include K.S.A. 2014 Supp. 23-3508(d), which states the required qualifications for case
managers.

But even had no reference to that statute been made in the relevant order, the
statute was in effect at the time Welsh was appointed as LCM. Shane fails to show that a
local rule trumps a conflicting state statute or that the statutory qualifications for
appointed case managers do not apply to LCMs. We do not believe such a reading of the
statute would be reasonable. As the 2012 amendments to K.S.A. 23-3508 state: " (e) On
and after September 1, 2012, any case manager appointed by the court prior to, on or
after July 1, 2012, shall meet the requirements of subsection (d)." Welsh was appointed
as an LCM on April 4, 2013, and falls within the term "any case manager." Although her
role may have been circumscribed by Local Rule, the required qualifications to act as a
case manager were not. Accordingly, we find that the terms of the statute applied to
Welsh's appointment as LCM, and the district court erred in finding she did not need to
be qualified in accordance with K.S.A. 2014 Supp. 23-3508(d).

The parties note that on July 1, 2014, the Thirteenth Judicial District repealed
Local Rule 14 and enacted Local Rule 15. That rule provides a process for "limited
parenting coordination" and states that the persons conducting such coordination do not
need to satisfy the professional qualifications for case managers under KSA 2014 Supp.
23-3508(d)(1) or under former Local Rule 14. We do not address the effect of Local Rule
15 here, as it did not apply to Welsh's appointment.

Was the LCM qualified as the statute requires?

Shane contends that an LCM is qualified if she meets subsections (2) through (5)
of K.S.A. 2014 Supp. 23-3508(d). But in so doing, he ignores the conjunctive "and"
between subsections (4) and (5) of the statute. The plain language of the statute requires
that a case manager must meet the requirements of all 5 subsections. i.e., (1)(A) or (1)(B)
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or (1)(C), and (2) and (3) and (4) and (5). Thus the statute requires a case manager to be:
licensed in one of the specified areas, licensed to practice law, or a court services officer.
K.S.A. 2014 Supp. 23-3508(d)(1). In addition to one of those three requirements, the case
manager must be qualified to conduct mediation, have experience as a mediator, attend
approved workshops, and complete a minimum number of continuing education hours.
K.S.A. 2014 Supp. 23-3508(d)(2)-(5).

At the evidentiary hearing, the LCM testified about her qualifications. She had
earned an associate's degree from a legal assistant program, had completed an initial 120
hours of education and training, and had been approved as a mediator by the Kansas
Supreme Court. She had participated in continuing education, had seen how negatively
the divorce process had affected her own children, and she provided dating and
relationship coaching. She testified she did not have a degree of any kind in behavioral
science but she had completed a training class to be a relationship coach. She had been
appointed in approximately 10 cases per year from the Butler County District Court and
had testified in 4 of them. And she had participated in core mediation and domestic
mediation training approximately 8 years ago.

Based on that testimony, the LCM met the qualifications of K.S.A. 2014 Supp. 23-
3508(d)(2) through (5), yet failed to meet the requisite qualifications set forth in
subsections (d)(1). Shane does not contend that the LCM met the requirements of
subsection (d)(1). Therefore, the LCM was not qualified to make the recommendations to
the district court regarding the residency of the children.

Did Monica invite this error?

Shane argues that Monica invited this error by failing to challenge the LCM's
qualifications earlier. He contends that Monica agreed to the original appointment of
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Welsh as the LCM and made no objection to her serving in that role until after the LCM
made her recommendations with which Monica disagreed.

Generally, when a party has invited error, he or she cannot complain of the error
on appeal. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203, 308
P.3d 1238 (2013). But nothing in the record indicates that Monica suggested to the
district court that Welsh serve as the LCM in her case or that she had any knowledge of
the LCM's lack of qualifications at the time the LCM was appointed. Shane thus fails to
show the invited error doctrine applies to these facts.

Does lack of qualifications constitute harmless error?

Where, as here, an error implicates a statutory but not a federal constitutional
right, the party benefiting from the error must persuade the court that there is no
reasonable probability that the error affected the trial's outcome in light of the entire
record for the error to be deemed harmless. State v. McCullough, 293 Kan. 970, 983, 270
P.3d 1142 (2012). We apply this standard here because Monica has not alleged or shown
structural error as to this issue, and she does not assert a due process violation except as
to a separate issue relating to the scope of the evidentiary hearing.

Shane, who benefitted from the error here, does not directly contend that the
LCM's lack of qualifications is harmless error. Nonetheless, he appears to do so indirectly
by asserting that the district court took the following acts: he conducted an evidentiary
hearing regarding the LCM's recommendations; he permitted Monica to challenge the
LCM's qualifications, conclusions, and factual findings; and, he made independent
findings before adopting the LCM's recommendations.

Having reviewed the record in detail, we disagree. Considering the degree of
responsibility the district court delegated to the LCM per Local Rule 14, the shifting of
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the burden of proof on Shane's motion from him to Monica as a result of the LCM's
appointment and recommendations, the weight the district court placed on the LCM's
recommendations, and the scarcity of findings made independently by the district court as
to the ultimate issues, we find Shane has not met his burden to show that the district
court's error in using an unqualified LCM was harmless.

We find it unnecessary to reach the other issues briefed by the parties. We reverse
and remand for further proceedings in accordance with this opinion.