In re Marriage of Ziebart

1

NOT DESIGNATED FOR PUBLICATION

No. 117,293

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

LEIGH ANN ZIEBART,
Appellant,

and

CHAD ZIEBART,
Appellee.


MEMORANDUM OPINION

Appeal from Meade District Court; SIDNEY R. THOMAS, judge. Opinion filed March 30, 2018.
Reversed and remanded with directions.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Michael J. Giardine and Curtis E. Campbell, of Curtis E. Campbell, Chrtd., of Cimarron, for
appellee.

Before ATCHESON, P.J., BUSER, J., and BURGESS, S.J.

BUSER, J.: Leigh Ann Vermillion (formally Ziebart) (Mother) appeals from the
district court's postdivorce changes in legal and residential custody involving the parents'
minor child, T.Z. These court ordered changes were adverse to Mother's motion to
modify the agreed upon parenting plan. Mother appeals the district court's orders with
regard to legal and residential custody. In particular, she appeals the district court's order
defining the parameters of joint legal custody and the district court's award of primary
residential custody to Chad Ziebart (Father).
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Upon our review, we reverse the district court's order which, although termed joint
legal custody, is more akin to sole legal custody. Additionally, we reverse the district
court's order awarding primary residential custody to Father. We remand with directions
to reinstate the parents' agreed upon parenting plan which provided for joint legal custody
and shared residential custody. We further direct the district court to file a journal entry
providing that under the joint legal custody order, both parents shall consult with one
another and have the decision-making authority for all major issues in raising T.Z.,
including but not limited to the child's education, medical care, welfare, and activities.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother are the biological parents of their minor child, T.Z. The parties
were married on August 8, 2009. In November 2011, Mother filed a petition for divorce.
The couple entered into a separation and property settlement agreement wherein they
agreed to joint legal custody and shared residential custody of T.Z., who was one and a
half years old. The settlement agreement was adopted and incorporated into the divorce
decree. Mother and Father lived in Meade, Kansas, until the divorce. About six months
after the divorce, Mother moved to Plains, Kansas. Since the divorce both parents have
remarried.

In August 2015, Mother filed a motion to modify the agreed upon parenting plan.
In her motion, Mother sought to modify the existing parenting plan by "designating both
parents as joint legal custodians with [Mother] as the residential parent." Mother stated
that shared residential custody was no longer in the best interests of T.Z. because Father
refused to communicate with her about various matters involving T.Z. These matters
included disagreements about what school T.Z. would attend, transportation from school
when T.Z. was residing with Father, and emotional problems exhibited by T.Z. when she
returned from parenting time with Father.
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Mother also prepared a proposed parenting plan which provided that T.Z. would
reside with her, setting forth specified parenting times, and establishing methods for
resolving parental disputes without court intervention. In response, Father asked the
district court to deny Mother's motion and to "maintain the current custody and parenting
time schedule, as it is in the best interests of [T.Z.]" On March 31, 2016, the district court
held an evidentiary hearing on Mother's motion.

Testimony Regarding Residential Custody

At the hearing, Mother testified that it had been "getting tougher" to engage in
equal parenting time since T.Z. reached school age. Mother stated that equal parenting
time made it harder for T.Z. to engage in extracurricular activities which was exacerbated
by communication issues and Father's inability to take necessary actions to allow T.Z. to
engage in such activities. On the other hand, Father testified that a change of residence
would not be beneficial to T.Z., stating that "[T.Z.] is excelling at everything, and making
a change, taking her [F]ather out of her life more, is only gonna make it worse." For her
part, Tiffany Ziebart (Stepmother) testified that she was not supportive of changing the
shared time between the parents because she believes that "[T.Z.] would be heartbroken."

Mother's brother, Brian Deighton, testified that Mother and Father were both great
parents and he did not believe that it would be appropriate to change the residential
custody arrangement. According to Deighton, "it would be best for [T.Z.] to stay in the
situation she is now in." Casie McAtee, a friend of the parties through Father's work,
testified that Stepmother is "[v]ery caring and loving" and an "excellent stepmom."
However, McAtee was concerned that T.Z. could be adversely affected by her parents'
ongoing complaints. Justin Hegwood, Father's work supervisor, testified that Father does
a "great job as a dad." Hegwood testified that it would be detrimental to change the
shared time with T.Z. because T.Z. "loves [Father] and . . . she likes being there."

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Rebekah Garrison, T.Z.'s former preschool teacher, testified that T.Z. gets along
very well with other children, is an above average student, and Garrison was not aware of
any problems that T.Z. had at home. Garrison was concerned, however, about changing
T.Z.'s current residency arrangement. Stachia Conway, T.Z.'s kindergarten teacher,
testified that T.Z. was at "the top of [her] class," with a cheerful personality. She did not
notice any problems with T.Z regarding the residential arrangement. Jerrilynn Wood, the
principal at T.Z.'s school, testified that she has been doing well under the shared
residential custody arrangement. While Wood agreed that "younger children need
stability of schedule and home rules more so than high school-aged children," she opined
that "if [T.Z. is] doing well now, then I think that's what's most important."

Testimony Regarding the Selection of a School

Mother testified there was a "big fight" that lasted over a month because the
parents wanted T.Z. enrolled in different schools. According to Mother, since Father did
not enroll T.Z. at Meade when enrollment started, she enrolled T.Z in the school district
where she resides and notified Father of her decision. Ultimately, T.Z. was enrolled in
Kismet, which is about 7 miles from Mother's residence and 19 miles from Father's
residence. Mother testified that although there were initial problems in transporting T.Z.
from school when she was residing with Father, those problems had been alleviated.

Father testified that he tried to get Mother to agree to have T.Z. attend
kindergarten in Meade. However, "[t]here was no way" that Mother was agreeable to
allowing T.Z. to attend school in Meade. Father stated, "I got a text message one day that
said, [T.Z.'s] pre-enrollment . . . is taking place . . . and I said, I take it you haven't
switched your mind about school districts? Her response was no." According to Father,
he is able to make the schooling arrangement work and there are no transportation
problems.

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Testimony Regarding Parental Communications

Mother testified that Father and she have difficulties communicating about
decisions regarding T.Z. For example, Mother complained that Father had refused to
provide her with information about a new daycare for T.Z. In particular, Mother claimed
that she and Father have difficulties sitting down face-to-face to discuss issues about T.Z.
However, there was evidence at trial that the parents were using text messaging to
communicate regarding decisions involving their daughter. Mother denied that she was
trying to mislead the court about the communication difficulties. For his part, Father
responded that the parents frequently communicated in person, by phone, or by texts.

District Judge's Findings at the Hearing

At the conclusion of the hearing, the district judge stated he had "no doubt that the
parents, as well as the stepparent, in this case love . . . [T.Z.] dearly, and what's unusual is
that we have this much support coming from both parents." The district judge
determined, however, that "the bottom line is . . . shared parenting takes a high degree of
communication and cooperation between parents. It can be sabotaged by one parent, so I
am not going to impose shared parenting on the parents."

The district judge found that Mother's testimony was "colored" and discounted
some of her testimony as "not completely the whole truth." He found the evidence
showed Father had "worked hard at being a parent and worked hard at trying to
communicate, has tried to be there for his daughter as much as possible." Although the
district judge was reluctant to change the shared residential custody, he highlighted
Principal Wood's testimony "that younger children . . . need more stability." The district
judge expressed concern that although Father wanted the shared parenting to continue,
Father admitted he "can't sit down and have . . . a deep conversation with [Mother]—and
that is an issue in shared parenting." The district judge commented that the parents know
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what is in T.Z.'s best interests. He concluded, "[w]hat's the best for [T.Z.] is if you can
both agree." The district court then ordered the parties to attend mediation, which was
unsuccessful.

Order Modifying the Parenting Plan

In June 2016, the district court filed a written order modifying the parenting plan.
The district court summarized Mother's position that due to T.Z. reaching school age "her
activities have increased to such an extent that the shared parenting plan is no longer in
[T.Z.'s] best interest." The district judge encapsulated Father's position that "equal
parenting time is still in the best interest of their minor child" and he did "not want to risk
harming [T.Z.] by changing the current parenting plan." The district judge found that
Mother overstated her contentions causing them to be "factually inaccurate" and he
surmised that "her motive for change in the parenting plan is more for her own personal
convenience instead of the best interest of [T.Z.]"

With regard to enrolling T.Z. in school, the district court found that Mother
"manipulate[ed] . . . the situation . . . to get her way." The district court further noted that
"[Father] has been flexible in making things work, whereas [Mother] has not been so
flexible." The district court found Father was credible and the "evidence shows that he
was willing to go out of his way in making things work and trying to do what is best for
[T.Z.]"

The district court summarized that "[a]ll the witnesses agreed that both parents are
good and fit parents. However, most witnesses expressed concern of any changes in the
parenting plan due to how well [T.Z.] had been doing under the current parenting
agreement." In this regard, the district court emphasized Deighton's testimony, that the
"best arrangement was the current equal parenting time plan." The district court found it
significant that Deighton had a good relationship with both parents, and visited T.Z.
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while she was with Father, noting that it showed Father "knows the importance of
maintaining the good relationships [T.Z.] has with the maternal family." The district court
also highlighted that Stepmother has a "good relationship with [T.Z.] and [Mother] as
well," but expressed concern about the lack of testimony regarding the relationship
between Mother's new husband and T.Z.

The district court concluded:

"[A]lthough there's much evidence to indicate that it may be in [T.Z.'s] continued best
interest for the current parenting arrangement to continue, the Court will not impose that
parenting plan on the parties due to the fact that [Mother] can sabotage that parenting
plan by her lack of cooperation if she chooses. The Court finds that [Father] has
advocated for the best interests of the child throughout this hearing and the case. As a
result, the Court specifically finds that it is now in [T.Z.'s] best interest that the parenting
plan be modified."

The district court placed T.Z. in "joint custody of her parents," but designated
Father as the residential custodian parent. The district court explained:

"This means that [Father] should still seek agreement with [Mother] as to what is best for
their child and that they need to continue to consult with each other in regard to all of
[T.Z.'s] care and activities. However, if there is a disagreement, [Father] will have the
authority to make the decision as to what is best for [T.Z.]"

Mother's Motion to Alter or Amend

Following this order, Mother filed a motion to alter or amend. In her motion,
Mother first argued that while the district court stated it was ordering joint legal custody,
in fact, by giving Father the authority to make unilateral decisions regarding T.Z.'s care
when a disagreement arose between the parties, the court erroneously gave Father sole
legal custody over the child. Next, Mother claimed the district court erred by "granting an
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outcome that was not sought by either party." Finally, Mother asserted the district court's
sua sponte ruling overhauling the prior agreed upon parenting order was not supported by
the evidence.

In its order denying Mother's motion to alter or amend, the district court found:

"That due to self-imposed problems created by [Mother], a shared custody arrangement
would not be in the child's best interests and finds that [Mother] was not completely
honest at the trial on March 31, 2016, and that the evidence also showed that [Father]
attempted to resolve the issues with [Mother]."

The district court also found that Mother has "manipulated the parenting situation
to the point that shared custody [was] not feasible" and Mother's "true reason" for her
motion was financial. The district court stated that "a shared custody arrangement was
not in the best interests of the minor child due to potential sabotage on the part of
[Mother]." On the other hand, the district court found that Father had "gone out of his
way to maintain a positive interaction with the maternal family."

The district court determined it had jurisdiction to "order a parenting plan that the
Court determined to be in the best interests of the minor child" because the issue before
the court was a motion to modify the parenting plan. Next, the district court clarified that
it placed T.Z. in joint legal custody of both parents as opposed to sole legal custody of
Father. The district court explained that both parents are

"to keep each other informed and consult with the other parent as to what activities are
best for their child and work together toward reaching an agreement on what those
activities should be. However, if they cannot agree, the court further clarified that the
parent with whom the child is residing has the ability to have the final say on what
activities the child is involved in while [T.Z.] is with that parent."

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The district judge provided an example of how he understood the joint legal
custody agreement would work with regard to T.Z.'s schooling:

"As the court had previously noted, the child grew up in Meade but as a result of
[Mother's] move to Plains and her manipulation of the situation, the child attended school
in that school district. Now that [Father] has residential custody during school time, he
indicated his preference for their child to go to Meade. [Mother] indicated her preference
was their child goes to school where [Mother] lives. Since the child is living with [Father]
during school hours, this [is] an example where [Father's] preference has priority."

A court ordered parenting plan was incorporated in the district court' order. The
district court granted the parents joint legal custody; "[h]owever, [Father] shall have final
say in any child rearing decisions."

Mother timely appealed the adverse rulings. On appeal, Mother contends the
district court abused its discretion on multiple grounds in its rulings awarding legal
custody and residential custody. We will separately consider these issues.

Subsequent District Court Journal Entry

After oral arguments on appeal, the parties filed a joint motion to supplement the
record by adding a journal entry filed on October 2, 2017. Our court allowed the
supplementation. In the journal entry, the district court sought to explain its prior orders.
The district court acknowledged an inconsistency in its journal entry pertaining to joint
legal custody and the provision in the new parenting order pertaining to joint legal
custody. The district court explained:

"[T]he Court wants to clarify that its intent with its order was to place the minor child in
the joint legal custody of both parties but if there is a conflict as to the child's
activities, . . . that the party whomever has the physical custody of the minor child should
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be the party to make the final decision regarding the activities of that child at that
particular time."

AWARD OF SOLE LEGAL CUSTODY AND PRIMARY RESIDENTIAL
CUSTODY WITHOUT A MOTION OR CHANGE IN CIRCUMSTANCES

For her first issue on appeal, Mother contends the district court's orders giving
Father what is, in essence, sole legal custody and primary residential custody of T.Z.
were based on errors of law. Mother argues there was no legal basis for the district court
to order these changes in custody to a parent who did not make a motion or request such
changes. Mother also claims that, under K.S.A. 2016 Supp. 23-3218, in order for the
district court to change legal or residential custody "the movant must show that there has
been a material change in circumstances."

Father counters that the district court was permitted to award legal and residential
custody in his favor because Mother brought the matter to district court by filing a motion
to change the parenting plan. He also reasons that the burden was on the district court to
determine the best interests of the child and it was not his responsibility to prove a
material change in circumstances. As a result, regardless of the parent who filed the
motion, the district court was permitted to award Father legal or residential custody by
determining the best interests of the child. We will consider both aspects of Mother's
argument separately.

Preliminarily, a brief summary of our standards of review is necessary. A district
court's order granting or denying a modification to a child custody order will not be
disturbed in the absence of an abuse of discretion. In re Marriage of Grippin, 39 Kan.
App. 2d 1029, 1031, 186 P.3d 852 (2008).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the district court; (2)
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is based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. [Citation omitted.]" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011).

An abuse of discretion occurs if discretion is guided by an erroneous legal
conclusion or goes outside the framework of or fails to consider proper statutory
limitations or legal standards. See Matson v. Kansas Dept. of Corrections, 301 Kan. 654,
656, 346 P.3d 327 (2015). Determination of a correct legal standard raises a question of
law subject to de novo appellate review. Harrison v. Tauheed, 292 Kan. 663, 672, 256
P.3d 851 (2011).

Award of Custody to a Parent Who Did Not File a Motion to Modify

"Kansas courts are vested with continuing jurisdiction to modify custody and
visitation orders." In re Marriage of Osborn, 35 Kan. App. 2d 853, 855, 135 P.3d 199
(2006). K.S.A. 2016 Supp. 23-3218 provides, "the court may change or modify any prior
order of custody, residency, visitation and parenting time, when a material change of
circumstances is shown." In this regard, "'The paramount question for determination of
custody as between the parents is what best serves the interests and welfare of the
children. All other issues are subordinate thereto.'" In re Marriage of Whipp, 265 Kan.
500, 506, 962 P.2d 1058 (1998) (quoting Simmons v. Simmons, 223 Kan. 639, 642, 576
P.2d 589 [1978]).

K.S.A. 2016 Supp. 23-3219(a) addresses the process by which a party makes a
motion to change legal or residential custody and provides in part:

"A party filing a motion to modify a final order pertaining to child custody or
residential placement pursuant to article 22, 27 or 32 of chapter 23 of the Kansas Statutes
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Annotated, and amendments thereto, shall include with specificity in the verified motion,
or in an accompanying affidavit, all known factual allegations which constitute the basis
for the change of custody or residential placement. If the court finds that the allegations
set forth in the motion or the accompanying affidavit fail to establish a prima facie case,
the court shall deny the motion. If the court finds that the motion establishes a prima facie
case, the matter may be tried on factual issues."

Prior to what is now codified in K.S.A. 2016 Supp. 23-3219, Kansas courts found
that a change in custody ordered either sua sponte or in favor of a parent who did not file
a motion to modify custody was permitted when the court ordered such a change in
response to a motion to change custody. For example, in Liggett v. Liggett, 165 Kan. 527,
531-32, 195 P.2d 577 (1948), our Supreme Court found the district court did not err when
it modified the parents' custody arrangement by granting the father custody of three of the
parents' five children even though he did not make a motion to change custody. The
Supreme Court found it was

"an anomalous thing to say that if [the court granted the mother's motion in whole or in
part] or that if the court had merely refused her prayer, the order would have been valid,
but because the court gave custody of three boys to the father and of two boys to the
mother that it was void." 165 Kan. at 531-32.

The court in Liggett ultimately held it is "immaterial who invokes the court's
power, or what he may ask, for the court has a continuing duty to protect the custody of
the minors, and to modify and change its orders whenever the circumstances render a
change proper." 165 Kan. at 532. Then—almost half a century later—in Dickison v.
Dickison, 19 Kan. App. 2d 633, 638-39, 874 P.2d 695 (1994), our court upheld a district
court's order changing custody sua sponte in favor of a father after the court first denied
the father's motion to modify custody for failing to prove a change in circumstances
alleged in his motion.
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Our court in In re Marriage of Wilson, No. 108,004, 2013 WL 3155790, at *2-3
(Kan. App. 2013) (unpublished opinion), relied on Dickison to find the district court did
not improperly modify a child custody order under K.S.A. 2011 Supp. 23-3218 when the
motion only sought an ex parte order to change residential custody based on emergency
circumstances under K.S.A. 2011 Supp. 23-3219(b). Our court also found the plain
language of K.S.A. 2011 Supp. 23-3218 does not require or mention that a motion must
be made. In re Marriage of Wilson, 2013 WL 3155790, at *3.

As the court in In re Marriage of Wilson found, K.S.A. 2016 Supp. 23-3218 by its
plain language does not require the filing of a specific motion to authorize a district court
to modify custody. See 2013 WL 3155790, at *3. Indeed, nowhere in K.S.A. 2016 Supp.
23-3201 et seq. is the district court statutorily limited to order only such modification as
sought by the motion. Rather, the district court is to determine legal and residential
custody in accordance with the best interests of the child. K.S.A. 2016 Supp. 23-3201.
Moreover, K.S.A. 2016 Supp. 23-3219(a) does not limit the district court's ability to
determine legal or residential custody, but rather acts as a gatekeeper requiring verified
facts to be alleged with specificity and requires a court to deny the motion if it fails to
allege a prima facie case for a change of legal or residential custody.

As our Supreme Court found in Liggett, we are persuaded that in determining legal
or residential custody it is "immaterial who invokes the court's power, or what he may
ask, for the court has a continuing duty to protect the custody of the minors." 165 Kan. at
532. Accordingly, the fact the district court granted primary residential custody to Father
is not an error of law simply because Father did not request this ruling.





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Award of Custody to a Parent Without a Finding of Changed Circumstances

Next, Mother contends the district court abused its discretion when it sua sponte
granted sole legal and primary residential custody to Father because he did not present
any evidence to show there was a material change in circumstances.

Generally, when a parent seeks to modify a custody order, the parent seeking the
modification must show a material change in circumstances. K.S.A. 2016 Supp. 23-3218.
However, Kansas courts have previously held that a district court is not required to find a
material change in circumstances before modifying orders or decrees that result from
parents' agreed upon stipulations. In re Marriage of Jennings, 30 Kan. App. 2d 860, 863,
50 P.3d 506 (2002). Whether this exception applies turns on "whether the prior custody
proceedings were substantially developed and presented to the court or whether custody
was arranged by a written agreement and merely uncritically adopted by the court."
Johnson v. Stephenson, 28 Kan. App. 2d 275, 280-81, 15 P.3d 359 (2000). This exception
is consistent with the overarching legal principle that custody determinations should be
based on the child's best interests. 28 Kan. App. 2d at 282.

A custody agreement incorporated into a decree of divorce "does not have the
same effect as a court order that is issued after a hearing where evidence is presented and
the trial court makes specific findings of fact." In re Marriage of Jennings, 30 Kan. App.
2d at 863. A party seeking to modify child custody based on a prior agreement of the
parties incorporated into the divorce decree does not have to show a material change of
circumstances when there has never been a prior court hearing held on the issue of child
custody. In re Marriage of Jennings, 30 Kan. App. 2d at 863-64; In re Marriage of
Maule, No. 101,771, 2009 WL 3018102, at *4 (Kan. App. 2009) (unpublished opinion).
Instead, in this situation, the court may modify an agreement simply based on the best
interests of the child. In re Marriage of Jennings, 30 Kan. App. 2d at 863-64.

15

In this case, the parents executed a separation agreement giving each one joint
legal custody and shared residential custody. This original agreement between the parties
was incorporated into the divorce decree by the district court without a contested
evidentiary hearing. As a result, the facts relating to the original custody agreement were
never substantially developed, and there was no requirement that Father show a material
change of circumstances before the custody modification. Instead, the district court was
able to modify the agreement based simply on the best interests of the child. We conclude
the district court did not err as a matter of law by granting Father primary residential
custody simply because he did not present evidence of a material change in
circumstances.

JOINT LEGAL CUSTODY ORDER

For her second issue on appeal, Mother contends that although the district court
ordered the parents to share joint legal custody, as it was defined by the court, this
custodial arrangement erroneously granted Father sole legal custody of T.Z. In particular,
Mother complains that, unlike actual joint legal custody, the district court essentially
permitted Father to have the sole and ultimate legal authority to make parental decisions
after conferring with her.

A district court's order modifying a legal custody order will not be disturbed in the
absence of an abuse of discretion. See In re Marriage of Grippin, 39 Kan. App. 2d at
1031. These applicable legal standards were discussed earlier. See Matson, 301 Kan. at
656; Harrison, 292 Kan. at 672; Ward, 292 Kan. at 550.

In Kansas, when dealing with child custody determinations, the district court is to
award both legal and residential custody. K.S.A. 2016 Supp. 23-3206; K.S.A. 2016 Supp.
23-3207. Legal custody refers to "the allocation of parenting responsibilities between
parents, or any person acting as a parent, including decision making rights and
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responsibilities pertaining to matters of child health, education and welfare." 2 Elrod,
Kansas Law and Practice, Kansas Family Law § 12:13, p. 362 (2017). On the other hand,
residential custody "denotes the day to day caregiving." 2 Elrod, Kansas Law and
Practice, Kansas Family Law § 12:13, p. 362.

There are two types of legal custody—joint or sole. The district court may order
joint legal custody or sole legal custody depending on the best interests of the child.
Importantly, joint legal custody is given preference over sole legal custody. That is
because the public policy of this state is to retain joint legal custody and equal decisional
rights if feasible. In re Marriage of Debenham, 21 Kan. App. 2d 121, 125, 896 P.2d 1098
(1995). Under joint legal custody, Kansas law provides "the parties shall have equal
rights to make decisions in the best interests of the child." K.S.A. 2016 Supp. 23-3206(a).
"Joint legal custody implies, at the very least, that both parents retain the decision-
making authority for the major issues in rearing a child—education, medical care,
activities." (Emphasis added.) 2 Elrod, Kansas Law and Practice, Kansas Family Law
§ 12:14, p. 363 (2017).

Unlike joint legal custody, sole legal custody is not defined by statute. K.S.A.
2016 Supp. 23-3206(b). However, the guiding principle of sole legal custody is that it
"puts the ultimate decision-making power in one parent." 2 Elrod, Kansas Law and
Practice, Kansas Family Law § 12:15, p. 375 (2017). A district court may order sole legal
custody only

"when the court finds that it is not in the best interests of the child that both of the parties
have equal rights to make decisions pertaining to the child. If the court does not order
joint legal custody, the court shall include on the record specific findings of fact upon
which the order for sole legal custody is based." K.S.A. 2016 Supp. 23-3206(b).

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In this case, in her motion, Mother did not seek sole legal custody of T.Z.
Similarly, Father did not request sole legal custody. For its part, the district court clearly
ordered that both parents continue to share joint legal custody. The question presented on
appeal, however, is whether the district court's award of certain decision-making
authority to Father was erroneous because it was more akin to an award of sole legal
custody than joint legal custody.

The district court initially ordered the parents to maintain joint legal custody
whereby Father, as residential custodian, should consult with Mother on matters
involving T.Z.'s care and activities, but he would retain authority to make decisions
involving T.Z. unilaterally upon a disagreement between the parents. In the order on
Mother's motion to alter or amend, the district court reiterated this was a joint legal
custody order. The district court explained that the parents should work together in
reaching agreements on what activities are best for T.Z., but if there was no agreement,
the "parent with whom the child is residing has the ability to have the final say on what
activities the child is involved in while [T.Z.] is with that parent." The district court gave
as an example that Father has the final say on where T.Z. is to go to school because T.Z.
resides with Father during school hours. Finally, the district court held that an attached
parenting plan, which stated that "[Father] shall have the final say in any child rearing
decisions," was the order of the court.

As noted in the Factual and Procedural Background section, after oral arguments
on appeal the district court attempted to further clarify its order by reaffirming that both
parents were to share joint legal custody, "but if there is a conflict as to the child's
activities, . . . that the party whomever has the physical custody of the minor child should
be the party to make the final decision regarding the activities of that child at that
particular time."

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While the contours of joint legal custody are necessarily flexible, the guiding
principle is clear—under joint legal custody both parents have the decision-making
authority regarding important matters of child-rearing. Our court has addressed this issue
in In re Marriage of Debenham, 21 Kan. App. 2d at 122. In that case, our court rejected
the notion that when parties have joint legal custody, the primary residential custodian
should become the ultimate decision maker. If that were the case, our court observed that
"the primary custodian would have the trump card in all decisions contrary to the statute,
which provides for 'equal rights' to make decisions." 21 Kan. App. 2d at 122. Our court
reaffirmed that "our legislature has declared joint custody and equal decisional rights as
the public policy of this state. Under such mandate, courts are ill-equipped to decide these
questions; but the courts must do so as best they can." 21 Kan. App. 2d at 125.

Our court has also acknowledged the inherent difficulties presented when district
courts are confronted with those situations wherein parents who have joint legal custody
cannot agree on child-rearing matters:

"In the all-too-common event of a dispute on such a fundamental issue between parents
who are subject to the court's ongoing jurisdiction during the minority of their child, it is
the job of the courts to resolve the dispute in a manner that is in the best interests of the
child." Yordy v. Osterman, 37 Kan. App. 2d 132, 134, 149 P.3d 874 (2007).

We are persuaded that Mother's complaint is meritorious. While ostensibly
awarding both parents joint legal custody, the district court's order erroneously
empowered Father, as the primary residential custodian, with the ultimate decision-
making authority whenever the parents are unable to agree. This approach is not properly
characterized as joint legal custody. As a result, the district court made an error of law.

It is true that joint legal custody does not give the nonresidential parent "moment-
to-moment input" or "veto power" over every minor child rearing decision. Jones v.
19

Walker, 29 Kan. App. 2d 932, 935, 33 P.3d 872 (2001). However, under joint legal
custody both parents "retain the decision-making authority for the major issues in rearing
a child—education, medical care, activities." 2 Elrod, Kansas Law and Practice, Kansas
Family Law § 12:14, p. 363.

In this case, the district court mistakenly explained that under its joint legal
custody and primary residential custody order, because T.Z. resided with Father while
attending school, Father had the ultimate authority to decide where T.Z. attended school.
The district court explained, "[s]ince the child is living with [Father] during school hours,
this [is] an example where [Father's] preference has priority." But under such reasoning,
Father would have the ultimate say over most of the issues of T.Z.'s health, education,
welfare, and activities of life because, as the residential parent, these matters would likely
arise more frequently during T.Z.'s parenting time with Father rather than Mother. Under
true joint legal custody, however, both Father and Mother have an equal say regarding
these matters. And if the parents cannot agree, it is the district court's responsibility, not
the primary residential custodian's responsibility, to resolve the disagreement in the best
interests of the child.

In summary, the district court erred as a matter of law by awarding joint legal
custody yet also permitting Father, as the residential custodian, to ultimately decide major
issues involving T.Z. without Mother's agreement. We reverse this order. We remand
with directions to reinstate the parent's agreed-upon parenting plan which provided for
joint legal custody. We further direct the district court to file a journal entry providing
that under the joint legal custody order, both parents shall consult with one another and
have the decision-making authority for all major issues in raising T.Z., including but not
limited to the child's education, medical care, welfare, and activities.



20

PRIMARY RESIDENTIAL CUSTODY ORDER

For her final issue, Mother contends the district court abused its discretion by
granting Father primary residential custody. Mother raises several grounds. First, she
argues the district court erred by ignoring K.S.A. 2016 Supp. 23-3202 which requires the
court to presume that the agreed upon parenting plan was in the best interests of the child.
Second, Mother asserts the district court failed to consider the 18 factor test under K.S.A.
2016 Supp. 23-3203. Third, Mother claims the district court erred because its decision on
residential custody was unreasonable and not supported by substantial competent
evidence. Once again, our standard of review in this matter is abuse of discretion. See
Matson, 301 Kan. at 656; Harrison, 292 Kan. at 672; Ward, 292 Kan. at 550. We will
address Mother's arguments individually.

Presumption That the Parenting Plan is in the Child's Best Interests

Mother argues that the district court should not have modified the existing
parenting plan, which provides for shared residential custody, by designating Father as
the primary residential custodian because Father did not present evidence rebutting the
presumption that the parenting plan was in the best interests of the child. K.S.A. 2016
Supp. 23-3202 provides that "[i]f the parties have entered into a parenting plan, it shall be
presumed that the agreement is in the best interests of the child." In order to overcome
this presumption, the district court must articulate "specific findings of fact stating why
the agreed parenting plan is not in the best interests of the child." K.S.A. 2016 Supp. 23-
3202.

"The statutory presumption governs the district court in determining the child's
best interests when the parties have presented an agreement for the court's adoption."
Talbot v. Pearson, 32 Kan. App. 2d 336, 340-41, 82 P.3d 854 (2004). However, this
presumption does not apply if the parties' circumstances have changed, the agreement
21

does not provide for those changes, and a new agreement is not presented to the district
court. In re Marriage of Bradley, 258 Kan. 39, 43, 899 P.2d 471 (1995).

Here, the parties' circumstances have changed since the original divorce decree
provided for shared residential custody. At the time of the divorce, Mother lived in
Meade, Kansas. About six months after the divorce, however, Mother moved to Plains,
Kansas. Courts have consistently found that a change in residence is a change of
circumstance which may render the statutory presumption inapplicable if the agreement
does not provide for that change and a new agreement is not presented to the court. See,
e.g., Maule, 2009 WL 3018102, at *6. Because the parenting agreement did not address a
change in one parent's residence and no new agreement was presented to the district
court, the presumption that a parenting plan was in the best interests of the child does not
apply.

Moreover, "[m]atters regarding custody of children are always subject to
modification even though the parties enter into various written agreements or stipulations
incorporated into either a divorce decree or other final order. [Citation omitted.]" In re
Marriage of Jennings, 30 Kan. App. 2d at 863. Although Mother initially sought to
modify the parenting plan by seeking her designation as the primary residential
custodian, her complaint that the district court was precluded from designating Father as
the primary residential custodian because shared residential custody is presumptively in
T.Z.'s best interests is unavailing.

Failure to Make Findings Under K.S.A. 2016 Supp. 23-3203

Next, Mother claims the district court abused its discretion because it failed to
make findings of fact under the statutory factors set forth in K.S.A. 2016 Supp. 23-3203.
This statute provides that in determining legal and residential custody, the district court
should consider "all relevant factors" including 18 nonexclusive factors. Our court,
22

however, has held that a district court's failure to explicitly refer to each factor identified
in K.S.A. 2016 Supp. 23-3203 is not fatal. See In re Marriage of Vandenberg, 43 Kan.
App. 2d 697, 703, 229 P.3d 1187 (2010). "The statute simply does not require the district
court to make specific findings with respect to each factor on the record." Frakes v.
Frakes, No. 114,954, 2016 WL 4414021, at *5 (Kan. App. 2016) (unpublished opinion).

Kansas Supreme Court Rule 165 (2018 Kan. S. Ct. R. 215) places a duty on the
district court to make adequate findings of fact and conclusions of law on the record. As a
general rule, however, a party must object to inadequate findings to provide the district
court with an opportunity to correct any inadequacy or the issue is not preserved for
appeal. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). Without an objection,
an appellate court generally presumes the district court found all facts necessary to
support its judgment. If the record does not support such a presumption and the lack of
findings precludes meaningful review, however, an appellate court may consider a
remand. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277
P.3d 1062 (2012). Our function, when the district court fails to make adequate findings, is
to review the record to determine whether it supports the presumption that the district
court found facts sufficient to support its judgment. In re Marriage of Whipp, 265 Kan. at
509.

In this case, Mother failed to object to the district court's lack of findings on the
statutory factors of K.S.A. 2016 Supp. 23-3203 or file a motion requesting the district
court to make additional findings. As a consequence, we will presume the district court
considered facts relevant to the statutory factors of K.S.A. 2016 Supp. 23-3203 if (1) the
district court made factual findings relevant to several factors, and (2) the district court
referenced the statute or referenced the best interests of the child standard. See, e.g.,
Vandenberg, 43 Kan. App. 2d at 703-04; In re Marriage of Nemec, No. 115,474, 2016
WL 6031300, at *4 (Kan. App. 2016) (unpublished opinion).

23

Here, the district court noted that it was applying the best interests of the child
standard on multiple occasions. The district court also made factual findings relevant to
several statutory factors. For example, the district court made findings relevant to K.S.A.
2016 Supp. 23-3203(a)(6) which provides that the court shall consider "the interaction
and interrelationship of the child with parents, siblings and any other person who may
significantly affect the child's best interests" when it found that Stepmother maintains a
good relationship with T.Z. The district court also made findings relevant to K.S.A. 2016
Supp. 23-3203(a)(8) which states that the court shall consider "the willingness and ability
of each parent to respect and appreciate the bond between the child and the other parent
and to allow for a continuing relationship between the child and the other parent" when it
found Father had maintained a positive interaction with the maternal family. In short, the
record supports the presumption that the district court made findings of fact sufficient to
satisfy the mandate of K.S.A. 2016 Supp. 23-3203 in determining residential custody. We
conclude that the district court did not abuse its discretion by failing to apply the statutory
factors listed in K.S.A. 2016 Supp. 23-3203.

Substantial Competent Evidence to Support the Change in Residential Custody

For her final argument, Mother contends there is no substantial competent
evidence to support the change in T.Z.'s residential custody. Mother claims that all of the
evidence presented by Father showed that shared residential custody, not primary
residential custody with Father, was in T.Z.'s best interests. Mother also challenges the
district court's finding that she could potentially sabotage the parenting plan by her lack
of cooperation in the future.

"When the custody issue lies only between the parents, the paramount
consideration of the court is the welfare and best interests of the child." In re Marriage of
Whipp, 265 Kan. at 506. "The court must determine which parent will do a better job of
rearing the children and provide a better home environment." Simmons, 223 Kan. at 642.
24

"The trial court is in the best position to make the inquiry and determination, and in the
absence of abuse of sound judicial discretion, its judgment will not be disturbed on
appeal. [Citations omitted.]" In re Marriage of Whipp, 265 Kan. at 506.

Our standard of review provides:

"When an appellant challenges the sufficiency of the evidence to support a trial
court's findings regarding a child's best interests, this court reviews the evidence in a light
most favorable to the prevailing party below to determine if the court's factual findings
are supported by substantial competent evidence and whether those findings support the
court's legal conclusion. [Citation omitted.]" In re Marriage of Vandenberg, 43 Kan.
App. 2d at 704.

"Substantial evidence is such legal and relevant evidence as a reasonable person
might accept as sufficient to support a conclusion." In re Marriage of Kimbrell, 34 Kan.
App. 2d 413, 420, 119 P.3d 684 (2005).

In its order, the district court found it is in T.Z.'s best interests for both parties to
maximize their time with T.Z. It also noted a substantial amount of evidence showed that
it was in T.Z.'s best interests for the current shared residential custody to continue. This
finding is well-supported. As detailed in the Factual and Procedural Background section
of this opinion, witnesses testifying at the hearing stated almost universal agreement that
under shared residential custody T.Z. was loved and cared for by both parents,
maintained a cheerful personality, and was excelling in school.

The district court, however, declined to allow the shared residential custody to
continue, and instead directed that Father maintain primary residential custody. The
district court reasoned that although both parties are "good parents," have provided an
abundance of support, given T.Z. a "bright future" such that the district court "[would]
hate to change things," the change was necessary because Mother "can sabotage that
25

parenting plan by her lack of cooperation if she chooses." In short, the district court's
ruling regarding residential custody seems rather inconsistent with the evidentiary
substance of its findings. In this regard, we note that a district court's ruling may not be
supported by substantial competent evidence if it is inconsistent with the court's previous
comments or rationales. In re Marriage of Lehner, No. 96,698, 2007 WL 1667115, at
*10-11 (Kan. App. 2007) (unpublished opinion).

The district court based its decision, in part, on its determination that Mother was
not forthcoming at the evidentiary hearing and that she brought her initial motion to
modify for financial reasons. While these findings are relevant to the weight afforded
Mother's testimony, they are not dispositive of the critical question of what residential
placement is in the best interests of T.Z. In the context of the strong and uniform
testimony by Father and other witnesses that shared residential custody was in the best
interests of T.Z., we question the district court's focus on Mother's testimonial
shortcomings. As we have stated, "[a] child's residential placement must be made in the
best interests of the child, not in retaliation for a parent's misconduct." In re Marriage of
Grippin, 39 Kan. App. 2d at 1033. Regardless of Mother's motivation in filing her motion
or any deficits in her testimony, the relevant evidence presented by both parents and other
witnesses at the hearing showed that it was in the best interests of T.Z. for her to continue
with shared residential custody.

The district court also found that Mother had "manipulated the parenting situation
to the point that shared custody [was] not be feasible." Although the evidentiary basis for
this finding is unclear, it appears the district court based its opinion on Mother's decision
to enroll T.Z. in the school district where Mother resides, despite Father's objections. The
district court characterized the parents' dispute over T.Z.'s education not as a
disagreement by the parties but rather as "a manipulation of the situation by [Mother] to
get her way."

26

The evidence showed, however, while Father testified that Mother would not
allow T.Z. to attend school in Meade, it was uncontroverted the parties discussed where
T.Z. was to attend school before Mother enrolled her. Moreover, the evidence also
indicated that Mother did not conceal the actions that she was taking to enroll T.Z. in
school. Rather, Mother informed Father of T.Z.'s pre-enrollment when it occurred. The
evidence in the best light to Father shows that the parties discussed the matter, disagreed
where T.Z. should receive schooling, Mother insisted on having T.Z. attend school where
Mother resides, and Father reluctantly acquiesced in this decision. While this
disagreement could have been resolved through mediation or district court involvement,
both parents' decisions and actions have resulted in T.Z. excelling in her schooling. In
sum, the evidence shows that while Mother was determined in her choice of a school and
Father reluctantly acquiesced in her choice, this seems like a rather typical disagreement
between parents rather than evidence of Mother's manipulation of the shared residential
custody arrangement.

Another reason the district court gave for abandoning the shared residential
custody arrangement was that "[Mother] can sabotage that parenting plan by her lack of
cooperation if she chooses." Other than the finding of manipulation regarding T.Z.'s
schooling—a finding not supported by substantial competent evidence—the district court
did not make a finding that Mother had, in fact, sabotaged the shared residential custody
plan during its several years of existence. Rather, the district court's rationale seems
predicated on speculation that Mother might, "if she [so] chooses," sabotage the parenting
plan in the future. The possibility of future sabotage by one or the other parent exists in
every case in which they have reciprocal child custody rights and obligations. So that
cannot be a legally sufficient reason to change those rights and obligations. If it were,
then every order would be open to challenge and change at any time.

Kansas law provides, however, that a change in residential custody should be
grounded in the best interests of the child and may not be based on pure speculation.
27

Burgardt ex rel. Burgardt v. Willinger, No. 109,083, 2013 WL 4730691, at *3-4 (Kan.
Ct. App. 2013) (unpublished opinion). The district court's finding regarding the potential
for Mother to sabotage the parenting plan is not supported by substantial competent
evidence, and given its speculative basis, it is also not an appropriate legal ground to
change shared residential custody. See Burgardt ex rel. Burgardt, 2013 WL 4730691, at
*3-4.

Next, the district court concluded that shared residential custody was not
appropriate because Father testified he "can't sit down and have . . . a deep conversation
with [Mother]." But this finding is directly at odds with the district court's observation
that Mother's concerns about the lack of communication were unwarranted because "there
was certainly much communication" between Mother and Father. Our reading of Father's
testimony persuades us that he was not concerned about the inability to have "a deep
conversation" with Mother because there was no need for it since "[w]e talk every time
we drop off and pick up in person. We talk over the phone and through texts . . . I don't
believe there's a need to sit down at a table and talk about stuff that we've already talked
about." We find no substantial competent evidence to support a finding of insufficient
parental communications sufficient to warrant the abandonment of the shared residential
custody plan.

Finally, the district court made findings regarding why residential custody with
Father would be beneficial to T.Z. For example, the court found that Stepmother provides
good support for T.Z. Also, the district court found that Father maintains a positive
relationship with the maternal family because he had a friendship with Mother's brother,
Deighton. On the other hand, the district court did not make any explicit negative
findings regarding Mother's home environment that would suggest that primary
residential custody with Father would be more beneficial to T.Z. than shared residential
custody. In short, while the district court found that Father provides a good home
28

environment, it did not find that Father would provide a better home environment than
Mother.

We are persuaded that a fair reading of the record conclusively shows there was
insufficient evidence that it was in the best interests of T.Z. for Father to have primary
residential custody. Father did not seek primary residential custody. Rather, his testimony
bolstered the numerous witnesses who testified at the hearing uniformly supporting the
shared residential plan. Moreover, there was substantial competent evidence to support
the district court's findings that Mother and Father are supportive parents, T.Z. is an
excellent student who was not absent or tardy at school, she is very social with other
children, and had been doing well under the shared residential custody arrangement.

The bottom line, established by overwhelming evidence, is that both parents have
contributed to successfully raising a daughter who is thriving with regards to her home
life, health, education, and welfare. Since substantial competent evidence does not
support the factual findings upon which the district court rendered its residential custody
decision, we believe the court erred in modifying the agreed upon parenting plan
regarding residential custody.

In conclusion, we reverse the district court's order which, although termed joint
legal custody, is more akin to sole legal custody. We also reverse the district court's order
awarding primary residential custody to Father. We remand with directions to reinstate
the parent's agreed upon parenting plan which provided for joint legal custody and shared
residential custody. We further direct the district court to file a journal entry providing
that under joint legal custody, both parents shall consult with one another and have the
decision-making authority for all major issues in raising T.Z., including but not limited to
the child's education, medical care, welfare, and activities.

Reversed and remanded with directions.