In re Marriage of Sinks

1

NOT DESIGNATED FOR PUBLICATION

No. 114,609

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

CARRIE E. SINKS,
Appellant,

and

LAWRENCE W. SINKS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed July 22, 2016.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.

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

Robert E. Keeshan, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: When the district court entered a final decree of divorce for
Lawrence W. Sinks (Larry) and Carrie E. Sinks (Carrie), both parties appealed to this
court. There, this court determined that the district court improperly allowed an expert
rebuttal witness to testify about Larry's income and business holdings, leading to a
reversal. On remand, the district court was directed to recalculate Larry's income and to
clarify some of its orders concerning maintenance. Specifically, this court asked the
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district court to explain the relationship between the $55,000 Carrie spent on her own
support during the pendency of the divorce and the length of the maintenance award.

As instructed the district court recalculated Larry's income. However, when
considering the relationship between Carrie's expenditures and the length of the
maintenance award, the district court decided to reexamine the $100,000 it had
previously considered marital debt to pay for marital and child expenses. After finding
that some of the $100,000 actually constituted Carrie's individual support, the district
court granted Larry a credit. A short while later, Larry moved the court to prevent Carrie
from relocating to Texas with their daughter. While the district court denied Larry's
motion, it sua sponte granted him travel expenses to visit the child.

Carrie now appeals, arguing that the district court exceeded the mandate by
reexamining the $100,000 figure. She also argues that the district court recalculated
Larry's income incorrectly and improperly granted him travel expenses to visit their
daughter. Finally, after oral argument in this case, Larry filed a motion for attorney fees.

Because we find the district court exceeded this court's mandate, we reverse the
district court's decision to reconsider the previously approved $100,000 for marital debt
and set aside the additional $18,831.44 credit that was given to Larry. This court affirms
the district court's calculation of Larry's income for child support purposes. We remand
for the district court to reconsider its decision to exclude expenses from Larry's income
for spousal maintenance purposes which it had included for child support purposes.
Furthermore, we vacate the district court's sua sponte order granting Larry travel
expenses as a credit against child support for potential visits to Texas. And finally, we
deny Larry's request for attorney fees.



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FACTUAL AND PROCEDURAL HISTORY

Summarized from an earlier appeal in this case, the facts are as follows: Carrie
and Larry married in 1995 and had two children. After 15 years of marriage, Carrie filed
for divorce. Instead of entering formal orders for temporary support, the district court
permitted an informal agreement between the parties in which Carrie would use the
couple's shared assets to cover the cost of joint debts and child expenses while the action
was pending with plans to "balance the ledger" and backdate support when the divorce
was finalized. In re Marriage of Sinks, No. 110,316, 2014 WL 4627495, at *1 (Kan. App.
2014) (unpublished opinion) (Sinks I). Among other things, the final order from the
district court provided:

 Carrie spent $100,000 of the couple's liquid marital assets on marital
debts.
 Additionally, Carrie spent $55,000 on support for herself during the
pendency of the divorce, while Larry spent $45,000 on his living
expenses.
 Based on testimony at trial, Larry's income for child support and
maintenance purposes was $134,195.
 Maintenance would last for 62 months from the date of divorce.

Carrie and Larry each appealed aspects of the ruling, and this court reversed for
the district court to reconsider a number of issues. Most importantly, this court
determined that the district court improperly allowed a rebuttal expert witness to testify.
Therefore, this court required the district court to calculate Larry's income without
consideration of that testimony. 2014 WL 4627495, at *4. In light of this ruling, the court
also ordered recalculation of maintenance and child support, an explanation by the
district court as to why it declined to follow the Douglas County Family Law Guidelines,
and an explanation as to how the district court treated the relationship between the length
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of the maintenance award and the $55,000 Carrie spent on support. 2014 WL 4627495, at
*5-7.

On remand, Larry argued that his yearly income was $37,583. This recalculation
depended in part on crediting him for certain business travel expenses and depreciation
that the first decision treated as income. In terms of maintenance, he argued that the
district court needed to recalculate the $100,000 it originally determined to be marital
debt, as he argued that some of the costs included in that figure duplicated costs from the
$55,000 Carrie spent on living expenses.

Carrie, on the other hand, contended that the district court could not reexamine the
$100,000 figure as the parties agreed to treat it as marital debt, the information Larry
relied on to argue that some of the expenses were duplicative was available to him at the
time of the original trial, and the amount had never been appealed. Instead, Carrie alleged
that the only real issue on remand concerned Larry's income, which she calculated should
include travel expenses for purely personal trips and the full amount of depreciation from
his businesses. She also conceded that Larry was owed a $5,000 credit to equalize the
cost of their individual support during the pendency of the divorce, and both parties
agreed that child support and maintenance needed to be backdated to the date of filing not
the date of the divorce.

In its ruling, the district court accepted Larry's calculation of his income as a base
number but added to that $7,318 for a write-off for a mobile office he no longer owned
and $7,500 for the depreciation of his business. These additions brought his yearly
income up to $52,401. This new income became the basis for the recalculated child
support award; but finding that depreciation and in-kind income is not required to be
included in the calculation of maintenance, the district court used the base income
(namely, $37,583) to calculate that award. And as agreed by the parties, the district court
also backdated both maintenance and child support to the date of filing.
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In light of the backdated maintenance and child support awards, the district court
reexamined both the $100,000 it originally termed marital debt and the $55,000 spent by
Carrie for her living expenses. Because the district court concluded that a little over
$37,660 of the $100,000 duplicated Carrie's other expenses, it credited Larry back half
that amount or $18,831.44.

Carrie appealed the district court's ruling. Before she docketed the appeal,
however, Larry filed a motion to enforce parenting time and prevent her from moving the
couple's remaining minor child out of state. At a hearing, the parties proffered that Larry
had no set parenting time with their daughter as he first needed to complete certain steps
before filing a motion to modify parenting time. That said, the parties also recognized
that their daughter did spend time with Larry by choice. The district court ultimately
allowed the move but ordered that Larry receive a credit on his child support for travel
expenses if he visited his daughter in Texas. Carrie timely filed a notice of appeal from
this ruling. This court granted her motion to docket out of time, and the docketing
statement, filed a short time later, included issues from both the district court's order on
remand and the order concerning the out-of-state move.

Finally, within 14 days of oral argument, as required by Supreme Court Rule
7.07(b)(2) (2015 Kan. Ct. R. Annot. 72), Larry filed a motion for appellate attorney fees.

ANALYSIS

Carrie did not abandon her appeal when she filed her docketing statement out of time.

Before reaching the merits of Carrie's appeal, Larry argues that Carrie abandoned
all issues related to the district court's June 11, 2015, order related to this court's remand
by failing to docket her appeal within 21 days.

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After filing a notice of appeal with the district court, an appellant has 21 days to
file his or her docketing statement with the Clerk of the Appellate Courts. Supreme Court
Rule 2.041(a) (2015 Kan. Ct. R. Annot. 17). But importantly, this "obligation to timely
docket an appeal arises from an appellate rule of this court rather than a statutory
mandate." Fowler v. State, 37 Kan. App. 2d 477, 480, 154 P.3d 550 (2007). Accordingly,
"most of the subsequent steps in prosecuting an appeal . . . are enforceable as this court
deems appropriate in its discretion." 37 Kan. App. 2d at 481; see K.S.A. 2015 Supp. 60-
2103(a) (providing that an appellant's failure to prosecute an appeal may result in the
appellate court providing whatever remedy it "deems appropriate").

Here, Carrie filed her initial notice of appeal on July 2, 2015, but failed to timely
file a docketing statement. In fact, Carrie's first filing with the appellate court was a
motion to docket out of time, which she later amended. Despite Larry opposing the
motion, this court granted leave for Carrie to file her docketing statement on October 26,
2015. Clearly, more than 21 days passed between the initial notice of appeal and the
docketing statement, which leads to Larry's insistence that Carrie waived any arguments
stemming from the order she appealed July 2.

But as Larry acknowledges in his brief, our Kansas appellate courts are not
required to dismiss an appeal for failure to comply with this 21-day requirement. See
Vorhees v. Baltazar, 283 Kan. 389, 393, 153 P.3d 1227 (2007) (holding that decision to
dismiss under Supreme Court Rule 5.05 [2015 Kan. Ct. R. Annot. 37] is discretionary).
And while Larry urges this court to adopt a good cause requirement when considering
whether to grant a motion to docket out of time, he provides no real justification for such
a rule. In fact, Larry relies primarily on cases concerning insufficient notices of appeal,
not those with late docketing statements. See Gates v. Goodyear, 37 Kan. App. 2d 623,
Syl. ¶ 4, 155 P.3d 1196, rev. denied 284 Kan. 945 (2007); Fiorella v. Fiorella, No.
102,067, 2010 WL 1687864, at *3 (Kan. App. 2010) (unpublished opinion); In re
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Marriage of Crabtree, No. 90,590, 2004 WL 1715002, at *3 (Kan. App. 2004)
(unpublished opinion).

Given that the decision to grant a motion to docket out of time is discretionary and
Larry's only real objection to Carrie's motion is that he believed that Carrie had
abandoned that appeal, it cannot fairly be said this court abused its discretion. All the
appellate issues raised by Carrie are therefore properly before this court, and we will
proceed to examine the merits of Carrie's claims.

The district court exceeded the mandate by reexamining the $100,000 previously
categorized as marital debt.

Carrie argues that the district court erred by reexamining and recalculating the
$100,000 it originally treated as marital debt.

The general question as to whether a district court complied with an appellate
court's mandate is a question of law over which this court exercises unlimited review.
Leffel v. City of Mission Hills, 47 Kan. App. 2d 8, Syl. ¶ 4, 270 P.3d 1 (2011). That said,
when the mandate from an appellate court remands the case for further proceedings
without directing the trial court's judgment, that court "has discretion to preside over the
remaining trial proceedings as if the trial court had originally made the ruling mandated
by the appellate court." 47 Kan. App. 2d 8, Syl. ¶ 5. To put it more succinctly, "a trial
court may address those issues necessary to the resolution of the case that were left open
by the appellate court's mandate." 47 Kan. App. 2d 8, Syl. ¶ 5. But where the appellate
court decided an issue "by explicit language or necessary implication," that issue cannot
be reconsidered by the district court. 47 Kan. App. 2d 8, Syl. ¶ 6.

A few illustrations from other cases concerning appellate mandates help
demonstrate the practical application of these rules. For example, in In re Marriage of
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Phillips, No. 93,655, 2006 WL 2264980, at *5 (Kan. App.) (unpublished opinion), rev.
denied 282 Kan. 790 (2006) (Phillips I), this court determined that the district court
needed to expand its findings of fact and conclusions of law concerning the amount and
duration of maintenance. On remand, however, the district court changed the effective
date for the modification of maintenance despite this court explicitly approving the prior
date. In re Marriage of Phillips, No. 99,172, 2009 WL 454926, at *1 (Kan. App. 2009)
(unpublished opinion) (Phillips II). This court determined that the date change exceeded
its mandate. 2009 WL 454926, at *1.

Somewhat similarly, in Kansas Baptist Convention v. Mesa Operating Limited.
Partnership, 253 Kan. 717, 740, 864 P.2d 204 (1993) (Mesa I), our Kansas Supreme
Court remanded the case to the district court to reexamine a contract and make whatever
modifications would "preserve the original purpose and expectations of the parties in
light of the changed circumstances." But when the district court modified the contract,
one of the parties appealed and argued that the district court's reformation failed to satisfy
the mandate. See Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258
Kan. 226, 231, 898 P.2d 1131 (1995) (Mesa II). After considering all of the party's
contentions as to how the reformation failed to preserve the contract's original purpose
and expectations, however, our Supreme Court affirmed the district court's order. 258
Kan. at 247.

In another instance, our Supreme Court remanded a case to the district court for
more thorough findings of fact and conclusions of law. Progressive Products, Inc. v.
Swartz, 292 Kan. 947, 962, 258 P.3d 969 (2011) (Progressive I). However, one of the
parties appealed the district court's order on remand to this court, arguing that the district
court failed to follow the mandate. Progressive Products, Inc. v. Swartz, No. 109,978,
2014 WL 4080157, at *2-3 (Kan. App. 2014) (unpublished opinion), rev. denied 302
Kan. ___ (2015) (Progressive II). The party based this assertion on the fact that some
facts in the record contradicted those the district court relied on when amending its
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judgment. But as this court pointed out, the Supreme Court remanded the case "because
the trial court's findings were incomplete, not because they were wrong." 2014 WL
4080157, at *3. Accordingly, this court determined that the district court complied with
the mandate by amending its findings and conclusions. 2014 WL 4080157, at *3.

In many ways, this case resembles the reversals in Phillips I and Progressive I.
When grappling with the issue of the maintenance award, this court instructed the district
court "to clearly explain [its] treatment of marital funds used by Carrie for her own
support . . . and how it relates, if at all, to [its] final determination as to the length of the
maintenance award." (Emphasis added.) Sinks I, 2014 WL 4627495, at *7. As pointed out
earlier in the opinion, the district court had already determined that the $100,000
constituted marital debt—a determination this court tacitly approved as "properly
excluded from consideration as maintenance." 2014 WL 4627495, at *7. Nothing in the
opinion even implicitly directs the district court to reexamine that amount; instead, like in
both Phillips I and Progressive I, the mandate focused on the need for more thorough
findings. See Sinks I, 2014 WL 4627495, at *7.

But unlike in Progressive II, where the district court properly addressed the need
for more thorough fact finding, the district court in this case exceeded the narrow scope
of the mandate. For one, the district court never considered the $100,000 part of the funds
Carrie used "for her own support," which were the only funds this court asked the district
court to reconsider. 2014 WL 4627495, at *7. By again examining the $100,000, the
district court reached beyond the narrow focus of this court's instructions. Second, the
district court noted in its order that it reexamined the $100,000 amount to address the
retroactivity of both the maintenance and child support awards. But this court's only
instruction regarding the child support award concerned recalculating Larry's income, not
the $100,000. 2014 WL 4627495, at *4. And third, this court instructed the district court
merely to explain the relationship between Carrie's expenditures and the length of the
maintenance award, not to recalculate anything. 2014 WL 4627495, at *7.
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In sum, although the district court had discretion in resolving the maintenance
issue, reconsideration of the $100,000 figure was not an issue "left open by the appellate
court's mandate." Leffel, 47 Kan. App. 2d 8, Syl. ¶ 5. Instead, this court implicitly
approved of the way the district court handled the $100,000 figure and issued instructions
that concerned only the $55,000 Carrie spent for her own support. By reexamining what
it had already determined to be marital debt, the district court exceeded this court's
mandate. The district court's subsequent credit to Larry in the amount of $18,831.44 must
therefore be reversed.

The district court did not miscalculate Larry's income for maintenance and child support
purposes.

Next, Carrie contends that the district court miscalculated Larry's income on
remand. Our Kansas Statutes expressly authorize the district court to award maintenance
to either party in a divorce. See K.S.A. 2015 Supp. 23-2902. However, an appellate court
generally reviews this award for an abuse of discretion. In re Marriage of Vandenberg,
43 Kan. App. 2d 697, 706, 229 P.3d 1187 (2010). Similarly, child support obligations in a
divorce are governed by statute, as well as the Kansas Child Support Guidelines
(Guidelines) established by our Kansas Supreme Court. See K.S.A. 2015 Supp. 23-3001
et seq. The district court's child support award is reviewed for abuse of discretion, while
the interpretation and application of the Guidelines is a question of law subject to
unlimited review. In re Marriage of Thomas, 49 Kan. App. 2d 952, 954, 318 P.3d 672
(2014). Failure to follow the Guidelines is reversible error. 49 Kan. App. 2d at 955.

Due to the unique financial facts of this case, the district court calculated the child
support and maintenance awards on different base incomes. As such, this opinion will
first examine the facts underlying the district court's calculations before discussing
whether any error occurred.

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Evidence of Larry's income

In reversing and remanding the issue of Larry's income, this court instructed the
district court to disregard the testimony of expert witness Steven York. Sinks I, 2014 WL
4627495, at *4. Without York's testimony, the evidence concerning Larry's income is
limited to the following:

 Larry testified that his income for 2009 was a loss of approximately
$142,000. In 2010, and without accounting for the loss from the prior
year, his income from his business holdings was $37,583.
 In 2009, Larry claimed approximately $54,000 in business depreciation
and $200,000 in equipment depreciation. In 2010, he claimed over
$75,000 of business depreciation.
 Larry deducted over $11,000 in travel expenses in 2010. He testified
that most of these expenses were for business travel and that he never
knowingly claimed personal travel expenses as business ones.
 Accountant Michael Roark testified that Larry's net rental income was
approximately $27,000 in 2010. This income came from Larry's
business holdings.
 Larry's father testified that he had no income at the time of the divorce
hearing.

Based on this testimony, the district court accepted $37,583 as Larry's base
income. But after finding that the Guidelines include depreciation and in-kind income as
child support income, the district court increased this amount to $52,401. However, the
district court elected against using this increased income amount for Carrie's maintenance
award, finding specifically that the calculation of maintenance does not require the same
inclusivity as child support awards under the Guidelines.

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Calculation of child support

On appeal, Carrie argues that the district court needed to count the full $75,000 of
deprecation and all of Larry's travel expenses as income. Our Guidelines allow for self-
employed parents to deduct reasonable business expenses from their income. Kansas
Child Support Guidelines, § II.E.2. (2015 Kan. Ct. R. Annot. 113). However,
"Reasonable Business Expenses are those actual expenditures reasonably necessary for
the production of income. Depreciation shall be included only if it is shown that it is
reasonably necessary for the production of income." Guidelines, § II.E.2 (2015 Kan. Ct.
R. Annot. 113). As such, depreciation is "not categorically . . . deducted as an expense or
treated as income" but instead is included as child support income "depend[ing] on the
particular circumstances of each case." In re Marriage of Wiese, 41 Kan. App. 2d 553,
558, 203 P.3d 59 (2009). Accordingly, "[t]he question of whether depreciation is
reasonably necessary for production of income under the child support guidelines falls
solely within the discretion of the trial judge." 41 Kan. App. 2d at 559.

Our Kansas cases offer a few firm principles regarding depreciation. For example,
a district court's decision to simply disregard depreciation is an abuse of discretion. In re
Marriage of Lewallen, 21 Kan. App. 2d 73, 75, 895 P.2d 1265 (1995). Additionally,
income tax returns do not always provide a reliable indication of an individual's gross
income. 21 Kan. App. 2d at 75. When discussing a very specific type of depreciation in
Wiese, this court noted that where the Guidelines provide no instructions about how to
treat a specific type of deprecation, "the method in which a trial court chooses to
calculate depreciation lies within its discretion." 41 Kan. App. 2d at 560. And generally,
the burden to demonstrate whether depreciation is reasonably necessary for the
production of income is on the party claiming depreciation. See In re Marriage of Cox,
36 Kan. App. 2d 550, 554, 143 P.3d 677 (2006); In re Marriage of Sasko, No. 105,799,
2012 WL 223929, at *6 (Kan. App. 2012) (unpublished opinion). As this court explained
in Sasko:
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"[T]he burden to show that depreciation was reasonably necessary for the production of
income should be placed on [the father who was claiming depreciation] because he
possessed superior knowledge concerning the depreciation expenses. At the modification
hearing, [mother] submitted copies of [father's] tax returns, which contained [father's]
depreciation expenses for tax purposes. These depreciation figures, however, did not give
[mother] any indication of which, if any, depreciation expenses were reasonably
necessary for the production of [father's] income. Only [father] had ready access to that
peculiar knowledge of the particular equipment he would need to replace to successfully
operate his pizza franchises." 2012 WL 223929, at *6.

As Larry alludes to in his brief, neither party spent a significant time on
depreciation at the divorce hearing. There, Larry estimated that the replacement cost of
the equipment he depreciated was likely around $40,000, as it was "so old it's not even
really fixable." He testified that he used this equipment to generate income. And at a later
hearing on a motion to modify child support, an accountant testified that when Larry
regained some equipment after his business' buyer defaulted, Larry depreciated the
equipment's full value—namely, $200,000. However, the accountant did not believe the
equipment was worth that full amount.

On appeal, Carrie points to this limited amount of testimony and claims that Larry,
like the father in Sasko, failed to carry his burden and prove that the depreciation was
reasonably necessary for the production of income. But importantly, Carrie never really
raised this issue while cross-examining either Larry or the accountant. In fact, nothing in
the record appears to undercut Larry's assertion that he used the equipment that originated
the depreciation to generate income. In other words, although Larry presented only a
small amount of evidence to meet his burden, that evidence essentially went
uncontroverted, allowing the district court to consider it conclusive on the issue of
depreciation. See D.M. Ward Const. Co., Inc. v. Electric Corp. of Kansas City, 15 Kan.
App. 2d 114, Syl. ¶ 6, 803 P.2d 593 (1990) ("It is a general rule of law that
uncontroverted evidence which is not improbable or unreasonable cannot be disregarded
14

by the trial court . . . and such uncontroverted evidence should ordinarily be regarded as
conclusive."), rev. denied 248 Kan. 994 (1991).

Exercising its discretion, the district court relied on the age of the equipment to
decide that most of the depreciation constituted a reasonable business expense rather than
income. This court has repeatedly upheld decisions in which the district court's
calculation resulted in only some of the depreciation being deducted from income. In re
Marriage of Wiese, 41 Kan. App. 2d at 566-67; In re Marriage of Cox, 36 Kan. App. 2d
at 554; In re Marriage of Sims, No. 108,437, 2013 WL 5422326, at *10 (Kan. App. 2013)
(unpublished opinion), rev. denied 299 Kan. 1269 (2014); In re Marriage of Jones, No.
97,714, 2008 WL 2251177, at *10 (Kan. App. 2008) (unpublished opinion) (reversing
district court's decision on other grounds but upholding depreciation calculation). Like in
those cases, the district court balanced the evidence presented at the hearing in reaching
its final conclusion. And given that the method by which a district court calculates
depreciation lies within its discretion, it cannot be said that the decision in this case is
unreasonable. See In re Marriage of Wiese, 41 Kan. App. 2d at 560. Accordingly, the
district court's decision to add only $7,500 of depreciation back into Larry's income is
affirmed.

Calculation of maintenance

Carrie also argues that the district court incorrectly recalculated Larry's income for
maintenance purposes. Specifically, she contends that the Douglas County Family Law
Guidelines (DCFLG) require the district court use the same definition of gross income as
in the Guidelines—a definition that includes depreciation and other income.

In calculating the maintenance award, the district court relied on the portion of the
DCFLG providing that "[t]he maintenance guideline is 17% of the difference between the
parties' respective gross income or earning capacities. The definition of gross income is
15

as defined by the Kansas Child Support Guidelines." (Emphasis added.) Douglas County
Family Law Guidelines § 3.01 (October 2012). But because guidelines such as these have
not been officially adopted by any court, this court has held that judges are not required
to justify their decision to deviate from them. See In re Marriage of Marcus and Ording,
No. 111,811, 2015 WL 3632435, at *9 (Kan. App. 2015) (unpublished opinion)
(discussing the Johnson County Family Law Guidelines). Therefore, Carrie's insistence
that the district court absolutely needed to include depreciation and other income in the
maintenance award is misplaced.

That said, the district court elected to follow the DCFLG in all other aspects of the
maintenance award. And while maintenance awards in general need only be "fair, just
and equitable under all circumstances," the formula from the DCFLG envisions including
depreciation and other income as in the Guidelines. See K.S.A. 2012 Supp. 23-2902(a);
DCFLG § 3.01. The district court's only justification for deviating from the DCFLG was
that maintenance, unlike child support, need not include depreciation—a justification
unsupported by the DCFLG's plain language. DCFLG § 3.01 ("The definition of gross
income [for the calculation of spousal maintenance] is as defined in by the Kansas Child
Support Guidelines."). Despite the large amount of discretion afforded the district court
in awarding maintenance, we agree with Carrie that this aspect of the decision is
arbitrary.

Accordingly, we remand the order regarding spousal maintenance and ask the
district court to reconsider its decision to exclude depreciation from maintenance and, as
with the previous appeal, if it believes a deviation is "fair, just and equitable" explain its
rationale for deviating from the DCFLG. See Sinks I, 2014 WL 4627495, at *6. This
should not be interpreted as a license to reexamine the depreciation amount, merely
whether the depreciation amount included in income for child support purposes should be
justifiably excluded from the income calculation for spousal maintenance purposes.

16

The district court erred in granting Larry travel expenses for visits to his daughter in
Texas.

Finally, Carrie argues that the district court erred in granting Larry travel expenses
for any potential visits to Texas. She specifically contends that because Larry had no
official court-ordered parenting time at the time of the move, he is not entitled to any
travel reimbursements.

The Guidelines provide for several adjustments to a parent's basic support
obligation. These adjustments, listed in Guidelines, § IV.E. (2015 Kan. Ct. R. Annot.
126), "apply only when requested by a party," and "[t]he party requesting the adjustment
is responsible for proving the basis for the adjustment." The allowed adjustment, "if any,"
is then entered in the parties' child support worksheet. Guidelines, § IV.E. (2015 Kan. Ct.
R. Annot. 126). At issue in this case is the long-distance parenting time cost adjustment,
which allows for consideration of "[a]ny substantial and reasonable long-distance
transportation/communication costs directly associated with parenting time." Guidelines,
§ IV.E.1. (2015 Kan. Ct. R. Annot. 126). Because the decision to allow a child support
adjustment is discretionary one, this court reviews the issue for an abuse of that
discretion. See In re Marriage of McPheter, 15 Kan. App. 2d 47, 48, 803 P.2d 207
(1990).

Preliminarily, Carrie argues that Larry never requested any child support
adjustments for his potential visits to Texas. And a review of the record supports this
contention. At the hearing, Larry candidly admitted that visits would present financial
difficulties, but he never formally requested an adjustment to his child support obligation.
As such, the district court essentially granted him the adjustment sua sponte, which
appears to run afoul of the Guidelines. See Guidelines, § IV.E. (2015 Kan. Ct. R. Annot.
126).

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But even if this court considers that single reference as a request for a travel
expense adjustment, the district court's decision presents two other problems. First, Larry
never "prov[ed] the basis for the adjustment" as required by the Guidelines. Guidelines,
§ IV.E. (2015 Kan. Ct. R. Annot. 126). He presented no testimony about the potential
costs of visiting his daughter other than vaguely implying that he would not be able to
stay with her and Carrie. Without detailed information about these potential travel costs,
the district court's order essentially allows Larry to claim prospective, unspecified credits
to his child support obligation. Given that the Guidelines envisions travel expenses being
included as part of the parties' child support calculation, this rather hazy method of
permitting travel expenses is at odds with our Kansas law. Guidelines, § IV.E.1. (2015
Kan. Ct. R. Annot. 126).

Second, and more importantly, the long-distance costs covered by the adjustment
are those "directly associated with parenting time." Guidelines, § IV.E.1. (2015 Kan. Ct.
R. Annot. 126). But as the parties agree and as noted by the district court, Larry had no
court-ordered parenting time at the time of the move. Although the record is clear that
Larry and his daughter saw one another occasionally and were working to improve their
relationship, Larry had no actual parenting time to exercise. And as Larry had no
parenting time, no costs can be "directly associated with" his exercise of that time.
Guidelines, § IV.E.1. (2015 Kan. Ct. R. Annot. 126).

As noted earlier, use of the Guidelines is mandatory in a divorce action, and
failure to follow them is reversible error. In re Marriage of Thurmond, 265 Kan. 715,
716, 962 P.2d 1064 (1998). Here, the district court clearly failed to follow the procedural
mechanisms for granting a child support adjustment for long-distance parenting costs.
See Guidelines, § IV.E. (2015 Kan. Ct. R. Annot. 126). Accordingly, we find it necessary
to vacate the order granting travel expenses.


18

We deny Larry's request for attorney fees.

After oral argument in this case, Larry filed a timely motion for attorney fees
pursuant to K.S.A. 2015 Supp. 23-2715 and Supreme Court Rule 7.07(b) and (c) (2015
Kan. Ct. R. Annot. 72). This court has authority to award attorney fees for services on
appeal in cases where the district court had authority to award attorney fees. Supreme
Court Rule 7.07(b)(1) (2015 Kan. Ct. R. Annot. 72). Additionally, K.S.A. 2015 Supp.
23-2715 grants the trial court authority to award attorney fees to either party in an action
for dissolution of marriage as justice and equity require. After considering the arguments
of counsel, we determine that an award of attorney fees is not required by justice or
equity in this case and, accordingly, we deny said request.

In sum, we reverse the district court's decision to reconsider the previously
approved $100,000 for marital debt and order that amount to stand with no additional
credit to Larry. This court affirms the district court's calculation of Larry's income for
child support purposes. We remand for the district court to reconsider its decision to
exclude expenses from Larry's income for spousal maintenance purposes which it had
included for child support purposes. Furthermore, we vacate the district court's sua
sponte order granting Larry travel expenses as a credit against child support for potential
visits to Texas. And finally, we deny Larry's request for attorney fees.

Affirmed in part, reversed in part, vacated in part, and remanded with directions.