In re Marriage of Santee

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NOT DESIGNATED FOR PUBLICATION

No. 117,222

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

TRENA SUE SANTEE,
Appellee,

and

EDWARD W. SANTEE,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed January 19,
2018. Affirmed.

Shaye L. Downing, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Lawrence, for
appellant.

David J. Brown, of Law Office of David J. Brown, LC, of Lawrence, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: Edward W. and Trena S. Santee were issued a decree of divorce on
June 24, 2013. Under the terms of the separation agreement adopted by the trial court,
Edward was ordered to pay Trena maintenance in the form of 120 monthly payments of
$1,900. On June 10, 2015, Edward filed a motion to modify maintenance based on the
termination of his employment. Edward later amended his motion and moved to
terminate maintenance alleging that Trena was cohabitating with a nonrelative person in a
marital like relationship. Trena then filed a motion for attorney fees. On March 25, 2016,
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the trial court denied Edward's motion to modify or terminate maintenance and granted
Trena's motion for attorney fees, reserving determination of the amount of attorney fees
for a later date. On March 29, 2016, Edward filed a timely notice of appeal and a motion
to set aside the journal entry. On April 25, 2016, Trena filed a motion to dismiss
Edward's appeal for failure to timely docket. In a memorandum opinion filed December
23, 2016, the trial court dismissed Edward's appeal of the maintenance ruling made
March 25, 2016; denied Edward's motion to set aside the journal entry; and granted in
part and denied in part Trena's motion for attorney fees. Edward filed a timely notice of
appeal regarding the December 26, 2016 decision.

On appeal, Edward argues: (1) The trial court misinterpreted Kansas Supreme
Court Rule 170 (2017 Kan. S. Ct. R. 216) in denying his motion to set aside the journal
entry; (2) the trial court erred in dismissing his appeal; (3) the trial court erred in denying
his motion to terminate maintenance based on Trena's alleged cohabitation with another
person; (4) the trial court erred in denying his motion to modify maintenance based on
the termination of his employment; (5) the trial court abused its discretion by considering
income from separate property in ruling on his motion to modify maintenance; and (6)
the trial court's ruling on attorney fees was not supported by sufficient evidence.
Edward's arguments are not persuasive. Accordingly, the trial court's rulings are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Edward and Trena were married in Panhandle, Texas, on November 30, 1982. On
August 16, 2012, just before the couple could celebrate their 30th wedding anniversary,
Trena filed a petition for separate maintenance. On August 28, 2012, Edward filed his
answer to Trena's petition and counterclaimed for divorce. Edward asserted that he and
Trena were no longer compatible.

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The parties entered into a Marital Separation and Property Settlement Agreement
(Agreement) on June 19, 2013. The Agreement detailed that Edward was to pay
maintenance payments to Trena for 120 consecutive months in the amount of $1,900
beginning June 1, 2013. Under the Agreement, maintenance would terminate upon
Trena's "cohabitation . . . with a nonrelative person in a marital like relationship as set
forth under Kansas law." The Agreement also stated that the trial court would "reserve
jurisdiction to reduce maintenance pursuant to K.S.A. 23-2903 downward only."

On June 24, 2013, the trial court adopted the terms of the Agreement and issued a
decree of divorce on the grounds that Edward and Trena were incompatible. On May 19,
2014, Edward filed a motion to reduce maintenance arguing that his total income had
decreased since the divorce and that Trena's income had increased since the divorce. The
trial court denied Edward's motion.

About a year later, Edward hired a new attorney. The attorney filed an entry of
appearance on June 10, 2015. On that same day, Edward filed his second motion to
modify maintenance arguing that a material change in circumstances had occurred
because his employment had been terminated on March 6, 2015. Edward had been a
senior vice-president for Cumulus Media for about six or seven years before he was
terminated. Edward informed the court that he had received a 90-day severance package,
which had ended June 4, 2015. He also revived his argument that Trena's income had
increased substantially which constituted a material change in circumstances warranting
modification of maintenance. On August 31, 2015, Trena filed her answer to Edward's
motion to modify maintenance and made her own motion for attorney fees. On October
22, 2015, Edward amended his motion to modify maintenance arguing that maintenance
should actually be terminated under the Agreement because Trena was cohabitating with
a nonrelative person in a marital like relationship.

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Trena filed a motion for an order to appear and show cause relating to Edward's
failure to pay maintenance under the Agreement on November 6, 2015. Trena alleged
that Edward had failed to make his $1,900 maintenance payments in September through
November 2015.

On February 22, 2016, an evidentiary hearing was held on Edward's motion to
modify or terminate maintenance, Trena's motion for attorney fees and costs, and Trena's
motion for an order to appear and show cause. The hearing was completed on March 2,
2016, with the trial court announcing its rulings from the bench. On March 8, 2016,
Trena filed a notice of submission of a proposed journal entry and order regarding
maintenance and attorney fees memorializing the trial court's rulings. Pursuant to
Supreme Court Rule 170, Trena's attorney sent a copy of the proposed journal entry to
Edward's attorney for approval. The notice stated that Edward had 14 days to notify
Trena of any objections to the proposed journal entry and if Trena did not receive any
objections, she would file the proposed journal entry with the trial court.

The trial court filed its journal entry on March 25, 2016, covering: (1) Edward's
motion to modify or terminate maintenance; (2) the issue of attorney fees and costs
requested by Trena; and (3) Trena's motion for order to appear and show cause related to
Edward's failure to make timely maintenance payments.

The trial court ruled Edward had failed to meet his burden of proving that Trena
was cohabitating with a nonrelative person in a marital like relationship. The court
specifically ruled:

"The facts presented at trial indicate[d] that [Trena] was in a dating like relationship, but
that [Trena] and her alleged boyfriend did not live together, never commingled finances,
and did not hold themselves out as husband and wife. Furthermore, the facts presented by
[Edward] that the alleged boyfriend watched [Trena's] dog, had sleepovers at [Trena's]
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residence, and had a garage opener are not sufficient to rise to the level of cohabitation,
as those acts are common in modern dating relationships."

The trial court also ruled that Edward had failed to show a material change in
circumstances warranting a modification of maintenance. After taking the "overall
financial circumstances of the parties" into account, the trial court found Edward had
"failed to meet his burden of proof in showing his loss of employment affected his
standard of living or his ability to pay." Specifically, the trial court found: "While loss of
employment may certainly constitute a material change in circumstances for some
individuals who rely solely on their earned income, the facts do not indicate [Edward's]
overall financial condition has changed substantially due to his additional sources of
income." Finally, in relation to Edward's motion to modify maintenance, the trial court
ruled Edward had failed to meet his burden of proof that Trena's increase in income
constituted a material change in circumstances warranting modification of maintenance.
Accordingly, the trial court denied Edward's motion to modify or terminate maintenance.

Next, the trial court considered Trena's motion for an order to appear and show
cause ruling that Edward was violating the terms of the Agreement as he had failed to
make maintenance payments from September 2015 through March 2016. The court ruled
that Edward could purge himself of the contempt by paying the total maintenance past
due—$11,800.

Finally, the trial court considered Trena's motion for attorney fees and costs.
Finding good cause the trial court granted her motion and noted that "until the issue of
whether attorney fees shall be awarded has been decided, it is not appropriate to weigh
the amount and reasonableness of the fees prematurely at trial." The trial court set a
hearing on the motion for attorney fees for May 17, 2016; however, the transcript from
the May hearing was not made part of the record on appeal.
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Edward filed a motion to set aside the journal entry and order regarding
maintenance and attorney fees. Edward asserted that on March 22, 2016, he submitted
objections to Trena regarding her proposed journal entry. Edward also claimed that his
attorney's electronic signature was attached to the proposed order without permission and
that he had requested Trena withdraw the proposed journal entry before it was filed. In
her response to Edward's motion, Trena asserted that she did not receive Edward's
objections until March 24, 2016.

On March 29, 2016, Edward also filed a notice of appeal of "all final orders and
decisions . . . as set forth in the Journal Entry entered March 25, 2016, and all prior or
subsequent orders thereto as they relate to spousal maintenance." On April 25, 2016,
Trena filed a motion to dismiss Edward's appeal. Trena specifically argued that Edward's
motion to set aside the journal entry and order did not toll the time for appeal. Thus,
Trena argued that because Edward had failed to file a docketing statement within the
required 21-day period following the filing of his notice of appeal, he had abandoned his
appeal. On April 29, 2016, Edward filed a response to Trena's motion to dismiss his
appeal. Edward argued that his notice of appeal was a premature notice of appeal because
his motion to set aside the journal entry under K.S.A. 60-260 was still pending before the
trial court. Thus, Edward argued that the actual journal entry and order was still pending
before the trial court.

The trial court heard Trena's motions for attorney fees and to dismiss Edward's
appeal and Edward's motion to set aside the journal entry on May 17, 2016. Importantly,
that hearing transcript was not made available in the record on appeal.

On December 23, 2016, the trial court issued its memorandum decision. The trial
court noted that Edward "neither included in his motion nor otherwise presented at the
hearing the particulars of any objections" he had to the journal entry prepared by Trena's
attorney. Thus, the trial court reviewed the journal entry to determine whether it fairly
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represented its ruling. The trial court ruled: "While the journal entry includes reasoning
not specifically articulated by the Court on March 2, 2016, the journal entry accurately
reflects the disposition of each of the pending issues as pronounced by the Court."
Accordingly, the trial court denied Edward's motion to set aside the journal entry.

Next, the trial court ruled on Trena's motion to dismiss Edward's appeal. The trial
court noted that Edward's "Notice of Appeal was clearly aimed at the issues disposed of
by the March 2, 2016 hearing as journalized and entered of record on March 25, 2016."
The trial court rejected Edward's argument that his notice of appeal was a premature
notice of appeal under Supreme Court Rule 2.03(b) (2017 Kan. S. Ct. R. 14). The trial
court ruled that Edward's "Notice of Appeal was effective to challenge the Court's rulings
on the issue of spousal maintenance." But because Edward had failed to timely file his
docketing statement, the court ruled that he had abandoned the appeal. Accordingly, the
trial court granted Trena's motion to dismiss Edward's appeal.

Finally, the trial court ruled on Trena's motion for attorney fees. The trial court
went through an itemized list of Trena's requested attorney fees and denied some of her
requests and granted others. In all, the trial court awarded Trena attorney fees in the
amount of $5,659. She had originally requested attorney fees in the amount of $30,956.

On January 20, 2017, Edward filed a timely notice of appeal "from all final orders
and decisions . . . as set forth in the Memorandum Decision entered December 23,
2016[.]"

ANALYSIS

Edward's argument under his first issue proves difficult to track. First, Edward
argues the trial court erred in interpreting Supreme Court Rule 170. He argues that
Trena's proposed "journal entry was submitted in error, executed in error, and
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undisputedly contained errors that were not supported by the evidence or found by the
court." Edward is challenging the trial court's ruling on his motion to set aside the journal
entry filed March 25, 2016. After concluding his argument on Supreme Court Rule 170,
Edward also asserts that the trial "court committed further error when it ordered that [his]
appeal was abandoned and would be dismissed." It would appear, then, that Edward has
really presented two issues within the framework of his first issue. These two issues will
be treated separately.

DID THE TRIAL COURT ERR IN INTERPRETING AND APPLYING SUPREME COURT RULE 170
TO DENY EDWARD'S MOTION TO SET ASIDE THE JOURNAL ENTRY?

In his motion to set aside the journal entry, Edward argued that Trena's counsel
had failed to procedurally comply with Supreme Court Rule 170. On appeal, Edward
presents the same argument: Trena's proposed "journal entry was submitted in error,
executed in error, and undisputedly contained errors that were not supported by the
evidence found by the court."

Supreme Court Rule 170 covers the preparation of an order by a party at the
direction of the trial court. When the trial court directs a party to prepare an order, that
party has 14 days (1) to serve opposing counsel of record a copy of the proposed order;
(2) to serve opposing counsel of record notice that unless an objection to the proposed
order is received within 14 days, the order will be filed with the court; and (3) to file with
the trial court a certificate of service with a copy of the proposed order and notice
attached. Supreme Court Rule 170(b). "An objection to a proposed order must be
served—not later than 14 days after service of the proposal—on the party that drafted it."
Supreme Court Rule 170(c) (2017 Kan. S. Ct. R. 216). If no timely objections are
received by the drafting party, that party must submit the original proposed order to the
court for approval. If a timely objection is received by the drafting party, "the parties
must make a reasonable effort to confer to resolve the objection and, if agreement is
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reached, the drafter must submit the agreed journal entry to the court for approval."
Supreme Court Rule 170(d)(2) (2017 Kan. S. Ct. R. 217). If the parties cannot reach an
agreement, even after reasonable efforts to confer, "the drafter must submit the original
draft and the objection to the court and the court must settle the order, with or without a
hearing." Supreme Court Rule 170(d)(3) (2017 Kan. S. Ct. R. 217).

Before we consider Edward's arguments, we should note that this issue was taken
up at the hearing held May 17, 2016. The transcript of that hearing is not included in the
record on appeal. The burden to designate the appellate record with facts supporting a
claim is on the party making the claim. Without a complete record, the claim of error
generally fails. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644-45, 294
P.3d 287 (2013).

The trial court articulated in its decision on Edward's motion to set aside that the
motion "was presented with little argument at the May 17, 2016, hearing. Along with
proffers of counsel, the [trial] [c]ourt deems the matter as submitted on the
motion/response and without any request for the [c]ourt to hear evidence to resolve any
disputes in the respective proffers." On appeal, we have Edward's motion and Trena's
response, but we do not have the proffers that counsel made at the hearing. Based on the
trial court's decision, those proffers proved to be an essential part of the trial court's
decision-making process. Thus, Edward has failed to meet his burden to designate the
record on appeal. We have no meaningful way to review the issue. Edward's claim of
error fails.

Using only Edward's motion and Trena's response along with the trial court's
order, in all events the trial court did not err in denying Edward's motion to set aside the
journal entry. Edward's arguments are strictly procedural. The trial court described the
motion as "premised entirely on alleged procedural shortcomings in how the motion was
prepared/submitted." On appeal, Edward specifically asserts that he had submitted timely
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objections to Trena under Supreme Court Rule 170(c). Edward also asserts that Trena's
counsel had submitted the proposed journal entry with his attorney's unauthorized
electronic signature. He argues that the trial court "arbitrarily and without any specified
reason disregarded these facts which were not disputed." Next, Edward asserts that the
trial "court's decision is seemingly arbitrary when it specifically finds that the proposed
journal entry contains findings or 'reasoning' that was not articulated by the court, but
does not set the ruling aside or otherwise amend it."

This court has held that Supreme Court Rule 170

"is designed to allow the court some assistance in memorializing court orders. [Citation
omitted.] The court is always free to draft its own journal entry without any assistance
from counsel. By ordering one party to prepare the journal entry and another to review it,
the parties can be assured that the journal entry truly reflects the court's order.
Enforcement of the rule is left to the sound discretion of the district court, since its whole
purpose is to provide assistance to the court. Therefore, for an appellate court to reverse
or remand a case due to failure comply with this procedural rule would be rare and we are
unable to locate any such Kansas cases." In re Marriage of Anjard, No. 103,426, 2011
WL 5389679, at *8 (Kan. App. 2011) (unpublished opinion).

Because the enforcement of Supreme Court Rule 170 falls within the sound
discretion of the trial court, a trial court's application of the rule will only be overturned
for abuse of discretion. A trial court's action constitutes an abuse of discretion (1) when
no reasonable person would adopt the view taken by the trial court; (2) when it is based
on an error of law; or (3) when it is based on an error of fact. Wiles v. American Family
Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).

This court has applied the reasoning from In re Marriage of Anjard and held that
the failure to comply with the procedural requirements of Supreme Court Rule 170 is not
particularly problematic when the complaining party has the opportunity to present its
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objections to the trial court. See In re Marriage of Crouse, No. 113,831, 2016 WL
3856677, at *5 (Kan. App. 2016) (unpublished opinion).

Here, in the end, the trial court was able to review the proposed journal entry in
light of Edward's motion to set aside the journal entry. Edward was provided the
opportunity to argue his objections at the hearing held May 17, 2016. We do not have the
benefit of reviewing the transcript from that hearing, but based on the trial court's
decision, we know that Edward did not seize upon that opportunity. Moreover, Edward
also fails on appeal to present any substantive objections to Trena's proposed journal
entry. Thus, Edward fails to show how he was actually prejudiced by the trial court's
actions. The failure to support a point with pertinent authority is akin to failing to brief
the issue. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan.
993, 1001, 348 P.3d 602 (2015). When an appellant fails to brief an issue, that issue is
deemed abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d
676 (2011).

For those reasons, Edward has failed to show that the trial court abused its
discretion in denying his motion to set aside the journal entry based on its application of
Supreme Court Rule 170. The trial court reviewed the journal entry and found that
"[w]hile the journal entry includes reasoning not specifically articulated by the Court on
March 2, 2016, the journal entry accurately reflects the disposition of each of the pending
issues as pronounced by the Court." Because the purpose of Supreme Court Rule 170 is
to provide assistance to the court in drafting orders, where the trial court reviews and
approves the order after providing the nondrafting party an opportunity to voice
objections, we cannot say that the trial court abuses its discretion.




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DID THE TRIAL COURT ERR IN DISMISSING EDWARD'S
APPEAL FILED MARCH 29, 2016?

On March 25, 2016, the trial court filed its journal entry covering: (1) Edward's
motion to modify or terminate maintenance; (2) the issue of attorney fees and costs
requested by Trena; and (3) Trena's motion for order to appear and show cause related to
Edward's failure to make timely maintenance payments. On March 29, 2016, Edward
filed the motion to set aside the journal entry discussed above. On that same day, Edward
filed a notice of appeal "from all final orders and decisions . . . as set forth in the Journal
Entry entered March 25, 2016, and all prior or subsequent orders thereto as they relate to
spousal maintenance to the Kansas Court of Appeals."

On April 25, 2016, Trena filed a motion to dismiss Edward's appeal, arguing that
he had failed to comply with Supreme Court Rule 2.04 (2017 Kan. S. Ct. R. 15). Trena
specifically asserted that under Supreme Court Rule 2.04, Edward was required to docket
his appeal within 21 days of filing his notice of appeal. Edward argued that his notice of
appeal was a premature notice of appeal under Supreme Court Rule 2.03 because his
motion to set aside was still pending before the court, which meant that the journal entry
relating to maintenance was still pending before the court.

The trial court addressed the issue at the May 17, 2016 hearing. Again, the
transcript for that hearing is not available on appeal. The trial court's decision on Trena's
motion to dismiss Edward's appeal stated:

"[Edward] filed a Notice of Appeal on March 29, 2016, that specifically
references 'all final orders and decisions of the District Court . . . as set forth in the
Journal Entry entered March 25, 2016, and all prior or subsequent orders thereto as they
relate to spousal maintenance.' [Trena] asserts that consistent with Sup. Ct. Rule 2.04, a
docketing statement . . . was due April 19, 2016, and alleging that none has been filed,
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[Trena] asks this Court to find that the appeal is presumed abandoned as permitted by
Sup. Ct. Rule 5.051(a).
"[Edward] asserts that because he filed the Motion to Set Aside the March 2,
2016 journal entry (characterizing it as a timely-filed K.S.A. 60-260 motion), said journal
entry 'is also still pending before the Court and not yet finalized.'
"The statute itself makes it clear this is not an accurate statement. 'The motion
does not affect the judgment's finality or suspend its operation' K.S.A. 60-260(c)(2). The
principle is well-established in appellate opinions. . . .
"Citing Sup. Ct. Rule 2.03(b), [Edward] characterizes the notice of appeal as
timely because the 'Court has not entered any order disposing' of [Edward's] motion to set
aside the journal entry'. But this Court notes that the notice of appeal does not relate to
the disposition of the motion to set aside the journal entry but, rather, the substance of the
rulings in the journal entry that was, in fact, filed and is, in law, a final judgment as of
March 25, 2016. K.S.A. 60-258.
"[Edward's] obligation was to docket the appeal within 30 days of the entry of
that final judgment. K.S.A. 60-2103. That statute does list certain motions which will toll
that 30 day limitation but a motion under K.S.A. 60-260 is not one of those motions. As
already pointed out, K.S.A. 60-260(c)(2) contains the language that makes it clear that a
motion for relief under that statute does not suspend the finality of the judgment.
"[Edward's] Notice of Appeal was clearly aimed at the issues disposed of by the
March 2, 2016 hearing as journalized and entered of record on March 25, 2016. The
subsequent motion to set aside that journal entry has been denied. In reviewing the
language of the Notice, the Court does not find language that embraces the idea of a
premature notice of appeal as contemplated by Sup. Ct. Rule 2.03(b) pertaining to the
outcome of the decision on the Motion to Set Aside that journal entry. The Notice of
Appeal was effective to challenge the Court's rulings on the issue of spousal
maintenance. Having failed to timely prosecute that appeal by the filing of a docketing
statement in compliance with Sup. Ct. Rule 2.04, and consistent with Sup. Ct. Rule
5.051(a), the Court believes it is proper to find that the appeal has been abandoned and
find that the appeal should be, and is hereby, dismissed."

The trial court's reasoning is sound. Supreme Court Rule 2.04(a)(1) states that an
appellant must docket his or her appeal no later than 21 days after filing a notice of
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appeal by filing certain documents identified in the rule with the clerk of the appellate
courts. Here, it is not disputed that Edward failed to docket his appeal within 21 days of
filing his notice of appeal on March 29, 2016. There is a dispute, however, as to whether
Edward's motion to set aside the journal entry excused his failure to docket his appeal
within 21 days.

Edward argues that "[w]hether the motion to set aside was filed pursuant to K.S.A.
§ 60-252(b) or K.S.A. § 60-260, the time to docket the appeal was tolled until the district
court ultimately ruled on the motion." Edward goes on to argue that the "journal entry
should have been set aside pursuant to K.S.A. § 60-252(b)." But, as Trena points out,
Edward identified his motion to set aside as one made under K.S.A. 60-260. Edward did
not argue that his motion to set aside was made under K.S.A. 60-252(b). Issues that are
not raised before the trial court cannot be raised for the first time on appeal. Wolfe
Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Accordingly,
review of Edward's motion to set aside must be reviewed as a motion filed under K.S.A.
60-260.

Edward argues that even if the trial court was correct in finding that his motion to
set aside was filed under K.S.A. 60-260, Supreme Court Rule 2.03(b) "specifically and
unambiguously states that notice of appeal must be filed 30 days after the order disposing
of the motion for relief under K.S.A. § 60-260 is issued." Thus, Edward asserts that his
notice of appeal filed March 29, 2016, was a premature notice of appeal under Supreme
Court Rule 2.03(b), because the motion to set aside and, thus, the underlying spousal
maintenance order, was still pending before the trial court.

A party intending to challenge an order disposing of a K.S.A. 60-260 motion
"must file a notice of appeal . . . not later than 30 days after the entry of the order
disposing of the last such remaining motion[.]" Supreme Court Rule 2.03(b) (2017 Kan.
S. Ct. R. 15). "A motion filed pursuant to K.S.A. 60-260(b) for relief from a judgment
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does not affect the finality of the judgment or suspend its operation, nor does it toll the
time for filing a notice of appeal from such judgment." Giles v. Russell, 222 Kan. 629,
Syl. ¶ 2, 567 P.2d 845 (1977).

Edward confuses the time for docketing his appeal from the trial court's order filed
March 25, 2016, with the time for filing his notice of appeal from the trial court's order
disposing of his motion to set aside the journal entry filed December 23, 2016. Edward
complied with Supreme Court Rule 2.03(b) when he filed his timely notice of appeal on
January 20, 2017—within 30 days of the trial court's order disposing of his motion to set
aside under K.S.A. 60-260. His notice of appeal filed March 29, 2016, on the other hand,
specifically stated that Edward was taking appeal "from all final orders and decisions . . .
as they relate to spousal maintenance." Supreme Court Rule 2.03(b) had no bearing on
whether the time for docketing Edward's appeal had been tolled. It is clear from Edward's
notice of appeal filed March 29, 2016, that he was taking appeal from the trial court's
order relating to spousal maintenance that was filed March 25, 2016. Accordingly,
Edward was required to docket his appeal within 21 days of March 29, 2016—the day on
which he filed his notice of appeal. Edward failed to meet that deadline.

Having established that the time for appeal was not tolled by Edward's motion to
set aside the journal entry, we now turn to the application of Supreme Court Rule 5.051
(2017 Kan. S. Ct. R. 32). "When an appellant has filed a notice of appeal in the district
court, but has failed to docket the appeal in compliance with Rule 2.04, the appeal is
presumed abandoned and the district court may enter an order dismissing the appeal."
Supreme Court Rule 5.051(a) (2017 Kan. S. Ct. R. 32-33). "The order of dismissal shall
be final unless the appeal is reinstated by the appellate court having jurisdiction of the
appeal for good cause shown on application of the appellant made within 30 days after
the order of dismissal was entered by the district court." City of Kansas City v. Lopp, 269
Kan. 159, Syl. ¶ 1, 4 P.3d 592 (2000); see also Supreme Court Rule 5.051(b) (same).

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Although Edward filed a timely notice of appeal with regard to the March 29,
2016 order ruling on spousal maintenance, attorney fees, and court costs, the district court
dismissed that appeal based on Edward's failure to docket the appeal within 21 days of
filing the notice of appeal. Because Edward did not file an application for reinstatement
of his appeal within 30 days of the dismissal, the order of dismissal became final. Given
this procedural history, the district court correctly found that we are precluded from
considering the merits of Edward's claims on appeal. But even if we were not
procedurally precluded from considering Edward's appeal, the following discussion
reveals that the claims set forth by Edward in his notice of appeal would fail on their
merits.

DID THE TRIAL COURT ERR IN DENYING EDWARD'S MOTION TO TERMINATE
MAINTENANCE BASED ON A CLAIM OF COHABITATION?

Edward argues that the trial court "arbitrarily disregarded the undisputed evidence
presented regarding cohabitation, resulting in a finding that there was no cohabitation,
which was not supported by the evidence." Edward specifically argues that the trial court
arbitrarily disregarded the testimony of Trena's boyfriend and of the private investigators
hired to investigate whether Trena was cohabitating with another person. It must be noted
that the testimony of Trena's boyfriend is not included in the record on appeal. He did not
testify at the hearing held February 22, 2016. There is mention of his deposition
testimony being offered as an exhibit at that hearing. However, the deposition is likewise
not included in the record on appeal.

Edwards recites facts derived from the testimony but he fails to instruct this court
on any working definition of cohabitation or cite any legal authority whatsoever in
support of his position. Again, the failure to support a point with pertinent authority is
akin to failing to brief the issue. University of Kan. Hosp. Auth., 301 Kan. at 1001. And
when an appellant fails to brief an issue, that issue is deemed abandoned. Superior Boiler
17

Works, Inc., 292 Kan. at 889. Accordingly, Edward has abandoned this issue, and his
argument fails.

Even if Edward had not abandoned the issue, he has presented insufficient facts to
show the trial court arbitrarily disregarded evidence that its decision was based on some
extrinsic motivation. The trial court ruled:

"The facts presented at trial indicate[d] that [Trena] was in a dating like relationship, but
that [Trena] and her alleged boyfriend did not live together, never commingled finances,
and did not hold themselves out as husband and wife. Furthermore, the facts presented by
[Edward] that the alleged boyfriend watched [Trena's] dog, had sleepovers at [Trena's]
residence, and had a garage opener are not sufficient to rise to the level of cohabitation,
as those acts are common in modern dating relationships."

The trial court clearly considered the evidence. Accordingly, Edward's argument
fails.

DID THE TRIAL COURT ERR IN DENYING EDWARD'S MOTION TO
MODIFY MAINTENANCE BASED ON A MATERIAL CHANGE IN CIRCUMSTANCES?

The trial court ruled that "[b]cause fluctuation in [Edward's] income was
foreseeable at the time the Agreement was signed, particularly due to [Edward's] age, his
loss of employment . . . is not enough to rise to a material and permanent change in
circumstances warranting a modification of maintenance." The trial court noted that
Edward "is highly qualified and skilled and can find employment if he chooses to do so."
That finding was based on the fact that Edward believed he might be rehired by his
former employer, who told Edward to "keep the doors open." Additionally, Edward had
not actually applied for employment with any other company since his employment was
terminated. The trial court also ruled that Edward "failed to meet his burden of proof in
showing his loss of employment affected his standard of living or his ability to pay."
18

This court reviews a trial court's decision to grant or deny a motion to modify
spousal maintenance by reviewing the record to determine whether the trial court's factual
findings are supported by substantial competent evidence and whether the trial court
abused its discretion. In re Marriage of Strieby, 45 Kan. App. 2d 953, 961, 255 P.3d 34
(2011). A judicial action constitutes an abuse of discretion (1) if no reasonable person
would take the view adopted by the trial court; (2) if it is based on an error of law; or (3)
if it is based on an error of fact. Wiles, 302 Kan. at 74.

As a threshold issue, we must once again point out Edward's failure to cite any
legal authority in support of his position. The failure to support a point with pertinent
authority is akin to failing to brief the issue. University of Kan. Hosp. Auth., 301 Kan. at
1001. And when an appellant fails to brief an issue, that issue is deemed abandoned.
Superior Boiler Works, Inc., 292 Kan. at 889. Accordingly, Edward has abandoned this
issue, and his argument fails.

Even if we were to reach the substance of Edward's argument, however, we would
see that the trial court's findings were supported by substantial competent evidence and
the trial court did not abuse its discretion in ruling that Edward had failed to show a
material change in circumstances warranting a modification of his maintenance
obligation.

Edward argues that "no reasonable person would find that a party is required to
cash out their retirement, sell their home, or otherwise liquidate assets . . . in order to
meet these [maintenance] obligations." Edward's argument is hyperbole. Prior to his
termination from Cumulus, Edward was receiving an annual salary of $158,103.24.
Edward acknowledged he received a severance package as part of his termination.
Edward also admitted that he had obtained a consulting contract worth $56,000 in 2015
and that he had not sought out any position for salaried employment since being
terminated by Cumulus. When asked why he had not sought out lesser-paying jobs,
19

Edward testified that he had "other income." Edward had an investment account with a
balance of $325,000 at the time of the hearing. Additionally, Edward received a yearly
payout from a trust of which he was a beneficiary. In 2013, the trust paid Edward
$32,698.63; in 2014, the trust paid Edward $61,445.52; and in 2015 the trust paid Edward
$32,418.30.

After reviewing that evidence, the trial judge ruled that Edward

"had a job that paid a good wage. But, quite frankly, when I consider what evidence was
presented to show how the loss of that job impacted his overall financial condition, there
just wasn't a lot of evidence to convince me that his loss of job was a material impact on
his overall financial condition and his ability to pay.
. . . .
"I—I think that he's—he's certainly had a basis for the court to consider the issue.
But when I consider that his burden was to convince me that his overall circumstance had
changed, I'm not sure that—I don't believe he's met that burden."

Accordingly, the trial court ruled Edward had "failed to meet his burden of proof
in showing his loss of employment affected his standard of living or his ability to pay."

This court has recognized that no case has precisely defined "change in
circumstances" as it relates to the proposed modification of spousal maintenance. In re
Marriage of Hedrick, 21 Kan. App. 2d 964, 968, 911 P.2d 192 (1996). Our courts have
defined change in circumstances in other contexts, however, recognizing that "'[a]
material change of circumstances' . . . requires consideration of a variety of facts and
circumstances. A material change in circumstances must be of such a substantial and
continuing nature as to make the terms of the initial decree unreasonable. [Citations
omitted.]" In re Marriage of Nelson, 34 Kan. App. 2d 879, 887, 125 P.3d 1081 (2006).

20

This court in In re Marriage of Ehinger, 34 Kan. App. 2d 583, 590, 121 P.3d 467
(2005), affirmed a trial court's order to temporarily modify maintenance from $1,200 per
month down to $170 per month where a former husband's monthly income had dropped
from $9,009.38 to approximately $400. The trial court ordered maintenance be modified
downward for a period of six months while the former husband looked for other income-
producing opportunities. In In re Marriage of Ehinger, the former husband's employment
had been terminated. He collected unemployment while he sent out 2,800 resumes in an
attempt to find a new job. He was unsuccessful, so he emptied his portion of his
retirement account to start an advertising business. The new business was not producing
income. Thus, he filed a motion to modify maintenance, which the court granted.

In re Marriage of Ehinger stands in stark contrast to Edward's situation. Edward
did not actively search for a new job because he did not need one. He relied on his other
income streams to support himself. He still had access to his investment account and was
receiving a yearly payout from a trust. He was also operating a consulting business that
had recently been awarded a contract worth $56,000. Based on those facts, substantial
competent evidence supports the trial court's factual finding that Edward had failed to
show a material change in circumstances that was substantial and continuing in nature.
Thus, the trial court did not abuse its discretion.

DID THE TRIAL COURT ERR IN CONSIDERING EDWARD'S OVERALL
FINANCIAL SITUATION IN DETERMINING WHETHER HE HAD EXPERIENCED
A MATERIAL CHANGE IN CIRCUMSTANCES?

In the trial court's ruling on Edward's motion to modify maintenance, the court
specifically ruled that an "analysis into a material change in circumstances requires an
examination of the overall financial circumstances of the parties. The Court is not limited
in considering all sources of [Edward's] income in his ability to pay maintenance."
Edward argues the trial court's consideration of his other income from property explicitly
excluded by a prenuptial agreement between he and Trena was an abuse of discretion.
21

This issue is a sort of continuation of the issue just discussed. In addition to reviewing the
trial court's actions for an abuse of discretion, this court may need to interpret certain
agreements between the parties. This court exercises unlimited review over the
interpretation and legal effect of written instruments. Prairie Land Elec. Co-op v. Kansas
Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014).

Edward and Trena entered into an antenuptial agreement on September 23, 1982.
The antenuptial agreement identified certain separate property brought to the marriage by
Edward and Trena and made it known that "each desires to retain such separate property,
the income therefrom, and any property obtained through investment of the proceeds
from the sale thereof, free from any claim or right of any nature whatsoever of the other
that might otherwise arise of be acquired by reason of the intended marriage . . . ." The
prenuptial agreement specifically indicated that after they were married, Edward and
Trena were to

"retain all rights in his or her separate property, which shall include any property
hereinafter inherited by or given to either of them, together with all increases thereto and
income derived therefrom, and any property obtained through investment of the proceeds
from the sale of such property, and each of them shall have the absolute and unrestricted
right to hold, enjoy, control, manage, encumber, or mortgage, such separate property, free
and clear of any claim that may be made by the other by reason of their marriage, and
with the same effect as if no marriage had been consummated between them."

Edward argues that the "[pr]enuptial [a]greement clearly provides that Trena is not
entitled to any interest in Edward's separate property, specifically including any income
derived therefrom." Edward argues that the trial court abused its discretion because it
considered his income from his separate property in determining whether he had
undergone a material change in circumstances affecting his ability to pay his monthly
maintenance obligation. Trena argues, on the other hand, that the agreement entered into
at the time of the divorce supersedes the prenuptial agreement. Trena also argues that she
22

"is not claiming any right or interest in [Edward's] income sources, she is simply
demanding that he pay the sums due under her contract with him." The contract that she
is referring to is the Agreement signed in contemplation of their divorce. The Agreement
makes no mention of the parties' prenuptial agreement.

In determining whether the trial court abused its discretion in considering the
agreements, it is helpful to look at the history of the case. On May 19, 2014, Edward filed
his first motion to reduce maintenance, alleging that a material change in circumstances
had occurred which justified a reduction in his maintenance obligation to Trena. On July
2, 2014, Edward filed a memorandum in support of his motion to reduce maintenance. In
that memorandum, Edward explicitly stated that there had been a material change in
circumstances because his "separate income from his farm and disbursement from his
mother's trust have declined significantly from the amount previously considered in
maintenance awarded to [Trena]." In relation to Edward's first motion to reduce
maintenance, however, Trena argued that maintenance was only calculated using
Edward's salaried income and not income from separate property that was outside the
marital estate. The trial court noted that the "incomes from [Edward's] investments were
excluded from [Edward's] income used to calculate maintenance. As [Trena] points out,
she agreed to an amount less than the Douglas County guidelines suggested, based solely
upon [Edward's] annual wages." The court also ruled, however, that the fluctuations in
income from separate property "were within the contemplation of the parties at the time
of the decree when they agreed upon a maintenance amount."

The trial court's ruling on Edward's first motion to modify maintenance only
muddies the waters in relation to whether the trial court properly considered Edward's
overall financial condition in his current motion to modify maintenance. A review of the
record makes it clear that both parties have taken stances on both sides of the issue when
it serves their interests. While the initial determination of the amount of maintenance may
have been solely based on Edward's salaried income, as the trial court noted, it was also
23

made with the knowledge that each parties' separate income was likely to be variable.
And because both parties have argued both sides of the issue, we cannot say that the trial
court abused its discretion in considering Edward's overall financial condition in
determining whether he had experienced a material change in circumstances justifying a
reduction in his maintenance obligation.

"Maintenance settled by a separation agreement that is incorporated into the
divorce decree is not subject to subsequent modification by the court except as prescribed
by the agreement or as subsequently consented to by the parties." In re Marriage of
Hedrick, 21 Kan. App. 2d 964, Syl. ¶ 1. Here, the Agreement did not limit what the trial
court could consider in determining whether maintenance should be modified. As Trena
points out, the trial court's consideration of Edward's overall financial condition—
including his income from separate property—did not confer any right in that income to
her. Instead, the trial court simply considered Edward's ability to pay the maintenance
obligation that he had agreed to pay. The trial court considered whether Edward's loss of
employment amounted to a material change in circumstances.

Moreover, looking back to the facts of In re Marriage of Ehinger it becomes
apparent that Edward has not met his burden of proving that he has experienced a
material change in circumstances. Edward admitted at the hearing on his current motion
that he was not seeking further salaried employment because he did not need the income.
Edward should not be able to skirt his maintenance obligation by simply failing to seek
further employment and claiming a material change in circumstances. Had he
experienced a material change in circumstances, Edward would be actively seeking new
employment—which he is not because his separate income and income from consulting
jobs has allowed him to continue living comfortably. For those reasons, we cannot say
that the trial court abused its discretion in considering Edward's overall ability to pay
maintenance in determining whether he had experienced a material change in
circumstances.
24

DID THE TRIAL COURT ERR IN DETERMINING THE AMOUNT OF
ATTORNEY FEES TO BE AWARDED TO TRENA?

In its December 23, 2016 memorandum decision, the trial court awarded Trena
attorney fees in the amount of $5,659. Trena had requested attorney fees in the amount of
$30,956. The trial court considered the procedural history of the case and found "that
[Edward] is pursuing these motions from a very personal, emotional place which affects
his ability to accept the legal obligations to which he assented when he negotiated the
settlement agreement in this case." The trial court walked through an itemized list of
Trena's requested attorney fees in reaching its decision noting that evidence was
presented at the hearing held May 17, 2016.

Trial courts are vested with wide discretion in determining the amount and
recipient of attorney fees. When reviewing an award, the appellate court will not reweigh
the testimony or the evidence presented or reassess the credibility of witnesses. So long
as an award is supported by substantial competent evidence, it will not be set aside on
appeal. In re Marriage of Strieby, 45 Kan. App. 2d at 973. See Snider v. American
Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013). Trial courts are experts
in the area of attorney fees and may draw on and apply their knowledge and expertise in
determining an award's reasonable value. Appellate courts too are experts on the
reasonableness of attorney fees. In re Marriage of Strieby, 45 Kan. App. 2d at 975. Still,
appellate courts do not substitute their judgment for that of the trial court on the specific
amount of attorney fees awarded absent a showing of abuse of discretion. Rinehart v.
Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). A judicial action
constitutes an abuse of discretion (1) if no reasonable person would take the view adopted
by the trial court; (2) if it is based on an error of law; or (3) if it is based on an error of
fact. Wiles, 302 Kan. at 74.

25

In considering the reasonableness of an award of attorney fees, the eight factors set
forth in Rule 1.5(a) (2017 Kan. S. Ct. R. 292) of the Kansas Rules of Professional
Conduct (KRPC) should be analyzed. Those eight factors are:

"(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
"(3) the fee is customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
"(8) whether the fee is fixed or contingent." KRPC 1.5(a) (2017 Kan. S. Ct. R.
292).

It must be noted that while the trial court awarded Trena attorney fees, the court
denied the majority of the fees Trena requested. The trial court denied Trena's following
requests: (1) $9,025 in relation to Edward's motion to modify maintenance filed May 19,
2014, finding that the motion raised substantial legal issues; (2) $3,325 in relation to
Edward's motion to compel discovery filed in July 2014; (3) $12,147 for Edward's late
filing of his amended motion to modify or terminate maintenance based on cohabitation,
finding no basis to conclude the filing was done in bad faith; and (4) $425 and $375 on
Edward's motion to set aside and Trena's motion to dismiss Edward's appeal, finding that
the issues were within the scope of reasonable dispute. The trial court granted Trena's
following requests: (1) $1,447 in responding to Edward's request for improper discovery;
(2) $500 for prosecuting her contempt action against Edward; and (3) $3,712 in relation
to Trena's December 2, 2015 motion to compel discovery.

26

Edward argues that the trial court's award of attorney fees was unreasonable and
not supported by any evidence. Thus, Edward argues that the trial court abused its
discretion. We must point out, however, that the transcript of the May 17, 2016 hearing is
not included in the record on appeal. The burden to designate the appellate record with
facts supporting a claim is on the party making the claim; without a complete record, the
claim of error generally fails. Friedman, 296 Kan. at 644-45.

Here, the trial court's order relating to attorney fees expressly states: "The Court
specifically reserved evidence on [the] issue [of attorney fees] at the time of the March
[2, 2016] trial and indicated it would be determined at the May [17, 2016] hearing."
Accordingly, it is clear that the evidence relating to the trial court's award of attorney fees
was presented at the May 17, 2016 hearing. Since we do not have the transcript of that
hearing, we are left to guess at what evidence the trial court relied on in calculating its
award of attorney fees. Trena argues that we can look to her memorandum in support of
her motion for attorney fees in determining whether the fees awarded were reasonable.
Indeed, Trena's memorandum in support of her motion specifically cites and walks
through each of the factors identified in KRPC 1.5(a). The memorandum certainly shows
that Trena supported her argument relating to attorney fees with the correct authority.

The fact remains, however, that we do not have the transcript from the May 17,
2016 hearing. For that reason, we cannot say one way or the other whether the trial
court's award was supported by substantial competent evidence or amounted to an abuse
of discretion. Because Edward did not meet his burden to designate the record with facts
supporting his arguments, we will not disturb the trial court's ruling on appeal. Edward's
argument fails.

Moreover, on appeal, Edward has given the panel a recitation of what he sees as
relevant facts but has failed to cite any legal authority in support of his position. The
failure to support a point with pertinent authority is akin to failing to brief the issue.
27

University of Kan. Hosp. Auth., 301 Kan. at 1001. And when an appellant fails to brief an
issue, that issue is deemed abandoned. Superior Boiler Works, Inc., 292 Kan. at 889.
Accordingly, Edward has abandoned this issue.

Affirmed.