Kaelter v. Sokol

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NOT DESIGNATED FOR PUBLICATION

No. 115,704


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JANET S. KAELTER,
Appellee/Cross-appellant,

v.

STEVEN L. SOKOL,
Appellant/Cross-appellee,

and

In re Parentage of BENJAMIN SARBY SOKOL,
A Minor Child, by His Mother JANET S. KAELTER,

v.

STEVEN L. SOKOL.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVEN M.P. O'GRADY, judge. Opinion filed January 26,
2018. Affirmed.

Richard W. Martin, Jr., of Martin & Wallentine, LLC, of Olathe, for appellant/cross-appellee.

Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, PA, of Overland Park, for
appellee/cross-appellant.

Before HILL, P.J., MALONE, J., and MERLIN G. WHEELER, District Judge, assigned.



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PER CURIAM: This domestic dispute between an unmarried couple has been
litigated for 10 years. Ultimately, the district court made several orders dividing the
property of Janet Kaelter and Steven Sokol, as well as determining the parentage,
custody, and support of their son. Sokol appeals, challenging the court's appointment of a
special master, the methods employed by the master, and the court's ultimate approval
and adoption of most of the master's recommendations. He seeks reversal and remand for
a new trial.

We must consider seven claims in this appeal—six from Sokol, and one from
Kaelter. After giving a brief case history, we address Sokol's six issues in three groups.
We begin by reviewing Sokol's two claims of a deficient performance: the master
allegedly did not take an oath, and the master and the court did not conduct proper
hearings on Sokol's claims. After that, we look at Sokol's two issues arising after the
court announced its rulings: the denial of his posttrial motions and then quashing his
deposition subpoena he had served on the master. Finally, we examine Sokol's remaining
issues concerning their son's IRA: the court ordering it transferred to Kaelter, and then
ordering him to reimburse $21,000 he had previously taken from it. Then, we will
consider Kaelter's cross-appeal of the district court's order denying her attorney fees for
the first appeal.

We find no reversible errors and affirm the judgments of the district court.

The parties had a 12-year personal relationship.

The case history begins with the filing of Kaelter's petition. After that, the court
appointed a special master. Then, for several months the master worked on the dispute
and reported back to the judge. In due course, the court adopted most of the master's
recommendations and entered orders accordingly. Sokol objected and over the span of
several months the court conducted a series of hearings on various motions filed by the
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parties. The matter was appealed by Sokol and a panel of this court reviewed one issue
and denied Sokol any relief. Kaelter v. Sokol, No. 107,401, 2013 WL 1876444, at *1, 7-8
(Kan. App. 2013) (unpublished opinion), rev. granted 298 Kan. 1203 (2013). The
Supreme Court overturned the panel, finding this court had reviewed a nonappealable
order and remanded the case to the district court. Kaelter v. Sokol, 301 Kan. 247, 250,
340 P.3d 1210 (2015). On remand, the district court resolved all remaining issues, and
Sokol and Kaelter have appealed again to this court.

Sokol and Kaelter lived together from 1994 to 2006, but never married. Their son
was born in April 1995. Their relationship deteriorated and in February 2007, Kaelter
filed a petition in district court seeking the partition of jointly owned property, a
declaration that Sokol was the father of their son, a determination of custody and
visitation, and an order for Sokol to pay child support. Later, the district court made
temporary orders of joint legal custody of the minor child, placing primary residential
custody with Kaelter subject to liberal and reasonable parenting time by Sokol. The court
also ordered Sokol to pay child support.

Then, in 2008, over Sokol's objection, the court appointed a special master under
K.S.A. 60-253 to preside over the proceedings including all pretrial motions. The court
denied Sokol's motion to reconsider and named Greg Kincaid as special master. In July
2009, the master submitted his report, making recommendations about child support, a
parenting plan, the division of assets, and reimbursement of medical expenses. The
master also submitted to the court a large binder containing documents and exhibits he
had accumulated during the proceedings. Sokol objected to the report. The court
considered Sokol's objections and, with some noted exceptions, adopted the master's
findings of fact and conclusions of law. In its order, the court noted it had reviewed the
report as required by K.S.A. 60-253(e)(1) and (2) and using the language of the statute,
found the master's findings and conclusions "reasonable and appropriate and not clearly
erroneous."
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Unsatisfied, Sokol asked for a hearing on the master's report and filed his
objections under K.S.A. 60-253(e)(2). He also sought a new trial or to alter or amend the
judgment, and filed a motion seeking relief from judgment. Kaelter filed a motion for
clarification and reconsideration of the order. The court heard all of the motions in June
2010.

The court announced its decision from the bench and followed with a written
order. Essentially, the court denied Sokol's objections relating to the appointment of and
handling of the proceedings by the master.

Sokol filed a motion to depose the master, which was denied. Sokol then filed
several more motions:

 a motion for reconsideration of the court's order denying his motion to
depose the master;
 a motion to dismiss Kaelter's petition for partition for lack of subject matter
jurisdiction;
 a motion to reconsider; and
 a supplemental motion to reconsider.

The court held a hearing on these motions and denied them all in its written order in
December 2011.

In the first appeal, Sokol appealed to this court and the panel determined the only
justiciable claim was his argument that the master failed to take an oath of office as
required by law. A panel of this court reasoned that because Sokol knew of the claimed
error but did not raise it until well after it could have been corrected by the district court,
it was invited error and not reversible. Kaelter, 2013 WL 1876444, at *1, 7-8. The panel
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then granted Kaelter's request for appellate costs and attorney fees under Supreme Court
Rule 7.07(b) (2014 Kan. Ct. R. Annot. 70) and K.S.A. 2013 Supp. 23-2216.

In turn, two years later, in 2015, after reviewing the matter, the Kansas Supreme
Court dismissed the appeal on jurisdictional grounds by holding that the district court had
never entered a final appealable order as required by K.S.A. 2013 Supp. 60-2102(a)(4),
because it left unresolved the issue of unreimbursed medical expenses. Thus, this court
lacked jurisdiction. The Supreme Court vacated this court's judgment, including the
attorney fees awarded to Kaelter. See Kaelter, 301 Kan. at 250. The Supreme Court
remanded the case to the district court.

With the case now back in the district court, Sokol and Kaelter filed numerous
motions. Sokol attempted to subpoena the master for trial, but the court quashed the
subpoena. Sokol filed a motion to reconsider.

After hearing all pending motions, the district court ruled on all outstanding issues.
Among other things, the court ordered a judgment against Sokol for reimbursement of
educational expenses, including $21,000 he had wrongfully removed from the child's
IRA. The court refused to rehear decisions regarding the master's appointment and
conduct, or the quashed deposition subpoena. The court noted that with this decision, the
issues would be ripe for appeal. The court also denied Kaelter's request for appellate
attorney fees for the first appeal.

We review Sokol's claims of deficient performance by the master and the court.

In this section, we examine two areas of concern raised by Sokol. Initially, we will
consider Sokol's contention about the lack of an oath by the master. After that, we look at
his complaints about the court's lack of a hearing concerning the master's report.
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First, Sokol complains that the master did not take an oath as required by K.S.A.
60-253. In his view, this is reversible error. We do not agree because he waited much too
long to raise this claim. If it is error, it is invited error and not reversible. As far as we can
tell from this record, Sokol first raised this argument to the district court in November
2009, in his motion for a new trial or to alter or amend the judgment filed under K.S.A.
60-259.

In denying the motion, the court made three findings:
 that K.S.A. 60-253 does not require the filing of a written oath;
 Sokol did not present any evidence that the master did not take an oath;
 and when the report was filed neither party made a contemporaneous
objection about the master not taking an oath.

Unmoved, Sokol continued to raise this claim in a motion to reconsider. This time, he
alleged that he had talked with the master about taking an oath and the master told him it
was not necessary. The district court denied the motion for the same reasons as before. In
its memorandum decision, the court found it was inappropriate to revisit the prior
decisions.

We review a district court's ruling on a motion to reconsider for abuse of
discretion. Board of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n,
306 Kan. 298, 323, 393 P.3d 601 (2017). It is well established that a judicial action
constitutes an abuse of discretion if (1) no reasonable person would take the view adopted
by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact.
Wiles v. American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d 1071 (2015).
We look first at the law.

The applicable statute is clear. Kansas law requires a master to take an oath or give
an affirmation. K.S.A. 2016 Supp. 60-253(b) provides: "The master must swear or affirm
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to hear and examine the cause, and to make a just and true report according to the best of
the master's understanding. The oath or affirmation may be administered by any person
authorized to take depositions." The timing of Sokol's objection is problematic.

A close examination of the circumstances shows what we mean. The district court
approved the master's report on October 30, 2009. About a year later, on November 10,
2010, Sokol submitted his own affidavit with a second motion to alter or amend the
court's approval of the master's report. In that affidavit he describes an alleged
conversation between himself and the master about taking an oath, where the master said,
"No, I'm not required to do that." Sokol alleged that this conversation with the master
occurred on October 16, 2008.

If we consider that allegation to be true, that means Sokol clearly knew of this
alleged error approximately nine months before the master filed his report on July 15,
2009. This also means he knew of this deficiency when he filed his own objections to the
master's report on July 31, 2009, but he made no mention of the failure to sign an oath or
affirmation in his objections. Despite this knowledge, Sokol elected to do or say nothing
about this issue until a year after the October 30, 2009 order which overruled his
objections and accepted the master's findings. Failure to act is often fatal in the law.

Caselaw gives us clear guidance on this point. A party may not invite error and
then complain of that error on appeal. Butler County R.W.D. No. 8 v. Yates, 275 Kan.
291, 296, 64 P.3d 357 (2003). A district court properly denies a motion to alter or amend
where the moving party could have, with reasonable diligence, presented the argument
prior to the challenged judgment. Wenrich v. Employers Mut. Ins. Co., 35 Kan. App. 2d
582, Syl. ¶ 6, 132 P.3d 970 (2006).

Since we are told in Sokol's affidavit that he knew the master had not taken an
oath or filed an affirmation well before the master completed his work, we see no
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reasonable diligence by Sokol to raise this objection when he first learned of the master's
view about not needing to take an oath. The district court could have addressed the issue
at least a year and a half before Sokol bothered to voice his complaint. The trial court's
ruling was reasonable and we see no error of law or fact. Therefore, we find no abuse of
discretion by the court in denying relief to Sokol on this point. We turn now to his
complaints about the court.

In his second issue, Sokol complains that the district court never conducted a
formal hearing on the master's report, nor did it properly consider his objections to that
report. For her part, Kaelter contends that Sokol received a court hearing on his
objections after he filed a motion for a hearing. We will review the steps taken by the
court and because we deem them adequate, we will not reverse the court's order on these
grounds.

The approved procedure for dealing with the work of a master is set out in the
statute. Kansas law requires the district court to hold a hearing before adopting the
master's report. K.S.A. 2016 Supp. 60-253(e)(2) sets out the timing and steps a court
must take when receiving and considering the report:

"In a nonjury action, the court must accept the master's findings of fact unless
clearly erroneous. Within 14 days after being served with notice of the filing, a party may
serve on the other parties written objections to the report. Application to the court for
action on the report and on objections to the report must be by motion and on notice as
prescribed in subsection (c) of K.S.A. 60-206, and amendments thereto. The court after
hearing may adopt or modify the report, reject the report in whole or in part, receive
further evidence or recommit the report with instructions." (Emphasis added.)

Obviously, the phrase "after hearing" is not ambiguous. It means that the court has
to hold a hearing. In fact, some federal circuit courts have interpreted the same language
to entitle a party who objects to the special master's report a right to be heard on those
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objections. See Kieffer v. Sears, Roebuck & Co., 873 F.2d 954, 956 (6th Cir. 1989);
Matter of Chicago, Milwaukee, St. Paul & Pac. R. Co., 739 F.2d 1169, 1171-72 (7th Cir.
1984). From our review of the record, we conclude the court did hold a hearing on the
master's report.

Frankly, we are unpersuaded by Sokol's argument because the district court heard
all of his objections several times. A brief summary of the extensive procedural history of
this case illustrates our point. In July 2009, the master submitted his report and Sokol
filed objections to the report. In October 2009, the court considered Sokol's objections
and, with some noted exceptions, adopted the master's findings of fact and conclusions of
law. In its order, the court noted it had reviewed the report as required by K.S.A. 60-
253(e)(1) and (2) and found such findings and conclusions "reasonable and appropriate
and not clearly erroneous."

In response, Sokol filed several more motions. One asked for a hearing on the
master's report and on his objections under K.S.A. 60-253(e)(2), also a motion seeking a
new trial or to alter or amend the judgment, and another, a motion seeking relief from
judgment. The court then held a hearing on each of those motions in June 2010. During
that hearing, Sokol made four arguments:

 the master did not create an adequate record;
 the master improperly calculated Sokol's income for child support
purposes;
 the master erred in dividing the lake house property; and
 the master erred in turning over their son's IRA to Kaelter.

The record demonstrates that the court thoroughly reviewed Sokol's complaints and ruled
on each point.

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Sokol did offer some clarification of his position. Regarding the failure to create
an adequate record, Sokol suggested that one remedy would be for the court to hold a
limited hearing on issues that needed a better record, such as the income and lake house
issues. Sokol favored that option, as opposed to setting aside the master's report entirely
and setting the matter for trial. On this issue of a proper record, the court found the
pertinent statute—K.S.A. 60-253—does not require the making of a written or oral record
of the proceedings unless a party so requests. It found that neither party made a
contemporaneous request for a record or a contemporaneous objection to proceeding
without a record until after the master submitted his report. The court also found that
K.S.A. 60-253 does not require the court to review all evidence viewed or testimony
heard by the master. But the court had reviewed extensive documentation relied on and
submitted by the master, and received additional evidence submitted by the parties at the
June 15, 2010 hearing.

Then, regarding child support, after comparing both parties' tax returns, Sokol
argued that there was no logic to the master taking into account depreciation and
expenses when figuring Kaelter's income, but ignoring depreciation and expenses when
figuring Sokol's income. Sokol argued there was no support for the special needs
adjustment of $300 per month because their son was not a special needs child. Sokol
proffered multiple exhibits—letters between his attorney and accountant, backup
documentation for all of Sokol's expenses, and documentation of an ongoing dispute
between Kaelter and the Shawnee Mission school district regarding whether their son had
special needs.

The district court agreed with the master that Sokol's income was $89,215 for
child support purposes. The district court found that Sokol used his rental business for
purposes of sheltering income and that the depreciation and losses claimed from that
business should not be used to offset his income. The record supports the court's findings.
The court did eliminate the special needs adjustment as we explain below.
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Regarding the lake house, Sokol argued that the court had no jurisdiction to enter a
monetary judgment, but could only divide the property. Sokol argued the lake house was
his because he paid all of the bills. Sokol proffered an exhibit containing backup
documentation for all of the expenses he paid on the lake house. When it considered the
issue of the lake house, the court found the property was "clearly jointly owned by the
parties"—it was titled in both parties' names, and both parties made an initial $15,000
investment in the property. The court held it could equitably divide the property as
recommended by the master.

Regarding the IRA, Sokol argued the court had no jurisdiction over the IRA
because there was never any intent that Kaelter would have an interest in the IRA. The
court found it had jurisdiction over the child's IRA accounts and directed the transfer of
the accounts from Sokol to Kaelter. Because the court ordered Kaelter to be the custodian
of the child's accounts, the court eliminated the $300 per month special needs
consideration from the master's child support worksheet. The court did not have sufficient
information to determine if the funds in the child's accounts were adequate to cover his
special needs. The court ordered the parties to provide each other with any documents
regarding the accounts and retained jurisdiction over the issue. The court also eliminated
the $100 per month parenting time adjustment from the child support worksheet. The
court left open for further motion the issue of unreimbursed medical expenses because it
did not have sufficient documentary evidence.

It is true that not all was resolved and some disputes remained. Sokol argued that
the court needed to hold yet another hearing. Sokol said, "[W]e're not here presenting
everything that we would present." Kaelter disagreed that a hearing was necessary to
rehash all of the issues and stated that the current hearing on each parties' perceptions of
the deficiencies of the master's report satisfied the requirement within K.S.A. 60-253. But
Kaelter acknowledged that some issues, such as the reimbursement of medical expenses
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for which the master provided no supporting documentation, would require a referral
back to the master or a hearing.

Considering all of this, we hold the June 15, 2010 proceeding constituted a hearing
under K.S.A. 60-253. The parties were given an opportunity to be heard on their
objections to the master's report. Sokol submitted additional documentation to support his
claims, which the court considered along with the exhibit book compiled and relied upon
by the master. The court considered the parties' objections and gave a reasoned
explanation for its decisions. Each party won some issues and lost some issues. The
record shows the court left open for further consideration those issues for which the
master did not provide adequate supporting documentation. The court took up those
issues at a later hearing.

Sokol speculates that "[o]ther shortcomings and inadequacies could have been
revealed at a hearing by the district court," such as the master's failure to interview the
accountant, or a possible conflict of interest because the master had once represented a
client in a lawsuit against Sokol's brother. Sokol fails to show us the legal significance of
his speculations. Sokol certainly did not raise these issues in his objections to the master's
report. The district court heard the parties' arguments on Sokol's objections to the master's
report. The statute certainly does not give Sokol the right to an endless fishing expedition,
searching to discover additional inadequacies in the master's report. Litigation cannot go
on forever.

Moreover, K.S.A. 2016 Supp. 60-253(e)(2) states that the district court "may"
receive additional evidence, but is not required to. Thus, the court was not legally
required to hear additional evidence on all of Sokol's objections if the master's findings
were not clearly erroneous. Additionally, Sokol has failed to show us how things would
have turned out differently had the trial court proceeded in a different fashion. We will
not reverse a trial court because a hearing might be resolved differently. The district court
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conducted a hearing on the master's report as required by law. There is no reversible error
here. We turn now to Sokol's complaints about the master.

The denial of Sokol's posttrial motions and quashing the subpoena are not erroneous.

Sokol claims that the court erred when it denied his posttrial motions because the
master had engaged in improprieties, disregarded K.S.A. 60-253, and denied Sokol
fundamental fairness and due process. In opposition, Kaelter contends that Sokol's
complaints were not preserved for appeal and K.S.A. 60-253 does not require the formal
procedure that Kaelter asks for. As far as we can tell, over an extended period, Sokol
filed four separate motions on this issue.

Sokol is an enthusiastic litigator. He filed his first objections to the special master
report on July 31, 2009. Four months later, in his motion for a hearing on his objections
to the master's report, in his motion for a new trial or to alter or amendment the judgment,
and in his motion for relief from judgment, he made further objections. Then, a year later,
in his motion to reconsider, Sokol asked the court to reconsider its ruling that he did not
object to the master's failure to make a proper record and made additional objections to
the master's report and the master's actions. Finally, two months after that, in his
supplemental motion to reconsider filed on January 14, 2011, Sokol did not complain
about improprieties by the master.

In this appeal, Sokol has boiled his claims about the master to these. He contends
the master:

 failed to file his report;
 failed to file a transcript of the proceedings;
 failed to file the original exhibits with the clerk of the district court;
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 never conducted a formal hearing at which the parties could hear and
contest the evidence or cross-examine the witnesses; and
 refused to allow Sokol's counsel to participate in the proceedings.

We will consider each in turn.

 Failure to file the master's report

Because Sokol did not raise this issue—that the master failed to file his report—
before the trial court, he cannot raise it now on appeal. See Wolfe Electric, Inc. v.
Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).

 Failure to file a transcript of the proceedings

Sokol did complain to the district court that the master did not file a transcript of
the proceedings. In dealing with this, the district court found:

"The Special Master statute does not require the taking of a written or oral record of the
proceedings but provides that '[w]hen a party so requests, the master shall make a record
of the evidence offered and excluded in the same manner and subject to the same
limitations as provided in K.S.A. 60-243(c) for a court sitting without a jury.' Neither
party made any contemporaneous request for a record or made a contemporaneous
objection to proceeding without a record until after the Special Master submitted his
Report to the Court."

Indeed, the special master statute provides that "[t]he master may put parties and
witnesses on oath and may examine them. When a party requests, the master must make
a record of the evidence offered and excluded in the same manner and subject to the
same limitations as a court sitting without a jury." (Emphasis added.) K.S.A. 2016 Supp.
60-253(c). But the statute also states: "The master must file the report with the clerk of
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the court, and, in a nonjury action, unless otherwise directed by the order of reference,
must file with it a transcript of the proceedings and the evidence and the original
exhibits." (Emphasis added.) K.S.A. 2016 Supp. 60-253(e)(1).

A rule of statutory construction is helpful here. When construing statutes to
determine legislative intent, appellate courts must consider various provisions of an act
together (in pari materia) with a view of reconciling and bringing the provisions into
workable harmony if possible. Friends of Bethany Place v. City of Topeka, 297 Kan.
1112, 1123, 307 P.3d 1255 (2013). To reconcile the two provisions of the special master's
statute into workable harmony, the statute requires the master to file a transcript of the
proceedings when such a record has been requested by one of the parties. Here, neither
party contemporaneously requested a record.

Even if we interpret the statute to require the master to file a transcript whether
requested or not, then Sokol still faces an invited error problem. He did not complain
about the master's failure to keep a record of the proceedings until well after it could have
been corrected by the district court.

 Failure to file exhibits

Sokol complained to the district court that the master "[f]ailed to include all
exhibits which were submitted to him." His complaint now on appeal is that the master
failed to file exhibits with the clerk of the district court.

The master gave his reasons for not filing the exhibits. In his report, the master
stated: "The documents relied upon in making the recommendations contained in this
Report are not filed with the Clerk so as to avoid disclosing information to the public that
is of a confidential nature." However, the master stated that a copy was provided to the
court and both parties.
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The district court explained that the report and exhibits were part of the court file,
but not of public record for confidentiality reasons:

"But the documents, in fact even the Special Master's report, is filed but not of public
record. It is in the court file. These documents I will retain for the purposes of any appeal
or further need of these documents and not filing them, as Mr. Kincaid noted, because of
obviously the nature of the financial documents of the parties, not only identifying
information, but also their financial assets and debts and other related matters that should
not be part of the public record.
"So just for clarifying that so everyone knows, we will retain these documents,
everything that was utilized in and forwarded to me by Mr. Kincaid, as well as the
exhibits that were admitted back on the June 15th hearing."

Keeping private information private is not prejudicial to Sokol. Sokol has shown no
abuse of the court's discretion here.

 Never conducted a formal hearing

Sokol complained to the district court about the lack of certain aspects of a formal
hearing, such as not putting witnesses under oath, engaging in ex parte communication,
and the lack of a record. The district court found that the parties had proceeded without
objection and the statute does not require the master to place witnesses under oath nor
have a court reporter transcribe a record. In its ruling from the bench, the court stated:

"It was also raised by Mr. Sokol that there was no record taken in this matter by
the Special Master. Again, I do not believe the Special Master proceedings require a
transcript or record to be taken. In fact, the parties both proceeded in the method by
which Mr. Kincaid operated due to the volumes of exhibits and the extensive contact that
Mr. Kincaid clearly had with both parties on an ongoing basis from approximately
September of 2008 through the time that he eventually rendered his recommendations in
his report July of 2009. There, again, is not a contemporaneous objection. There's an
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objection made after the fact of not maintaining a record or having a court reporter
transcribing any portion of the quote-unquote 'record.' And by the very nature of Mr.
Kincaid's handling of the matter, specifically I'm thinking of not only having contact and
receiving evidence on an ongoing basis from each of the parties, he spoke with the
parties' accountant on major issues with regard to income levels for developing child
support matters. All of this occurred throughout the entirety of the appointment of the
Special Master. No objections were ever raised until after the Special Master issued his
report. Therefore, I do not feel that that is a valid objection that would require the Court
now to disregard the Special Master's recommendations.
"The fact that witnesses were not under oath are neither mandatory nor required
under the broad scope of the Special Master statute allowing for those proceedings."

Sokol argues that K.S.A. 60-253 contemplates that the master will conduct a
formal hearing and cites cases from other jurisdictions holding that a special master must
conduct a hearing, allow for cross-examination, and take evidence in the presence of the
parties. See, e.g., Oswald v. Dawn, 143 Colo. 487, 493, 354 P.2d 505 (Colo. 1960);
Madden v. Madden, 44 Haw. 442, 448, 355 P.2d 33 (Haw. 1960). We focus on Kansas
law.

K.S.A. 2016 Supp. 60-253(c) states, in part:

"The order [of reference to the master] may fix the time and place for beginning and
closing the hearings and for filing the master's report. Subject to the specifications and
limitations stated in the order, the master has the power to regulate all proceedings in
every hearing before the master and to do all acts and take all measures necessary or
proper for the efficient performance of the master's duties under the order. The master
may require the production of evidence on all matters embraced in the reference,
including the production of applicable books, papers, vouchers, documents, writings and
electronically stored information. The master may rule on the admissibility of evidence
unless otherwise directed by the order of reference. The master may put parties and
witnesses on oath and may examine them. When a party requests, the master must make a
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record of the evidence offered and excluded in the same manner and subject to the same
limitations as a court sitting without a jury."

This statute gives many options to a master. Indeed, there are many things a
master "may" do, such as put parties and witnesses under oath and examine them. But
such actions are not required by the statute's express terms. In contrast, when a party
requests a record, the master "must" make a record of the evidence. Here, where there
were no requests, nor any contemporaneous objections to what the master was doing, we
agree with the district court. The matters Sokol complains about are not reversible errors.

One case is instructive. In Schauf v. Schauf, 33 Kan. App. 2d 665, 107 P.3d 1237
(2005), a party complained on appeal that the court erred in appointing a master and
ordering the master to also serve as a mediator. This court disapproved of the dual
appointment. This court held that a party may not object to a dual appointment of the
same person as mediator and master for the first time after the master's report has been
filed. 33 Kan. App. 2d at 675-76. "A party may not complain of rulings or matters to
which it consented, or take advantage of any error upon appellate review which it invited,
or in which it participated." 33 Kan. App. 2d 665, Syl. ¶ 8.

Though the district court did not order the master here to act as a mediator, the
record shows that Sokol participated in a mediation-like atmosphere conducted by the
master in this case. Sokol did not object until well after the master's report was filed.
Therefore, Sokol's claim fails. The district court did not abuse its discretion here.

 Refused to allow counsel to participate

Sokol only briefly mentioned in his own affidavit attached to his motion to
reconsider that he had to appear pro se against his will because his attorney was "not
allowed" by the master. We do not think he preserved this issue for appellate review.
19

Sokol did not raise this issue in his motion to the district court. He does not cite any other
place in the record where he raised this argument. No factual findings were made on this
issue that we can review. An issue not raised before the trial court cannot be raised on
appeal. Wolfe Electric, Inc., 293 Kan. at 403. At this point, we examine Sokol's complaint
about the court quashing his subpoena served on the master.

Sokol contends the district court erred by denying his attempt to depose the master
and quashing his subpoena for the master to appear at trial. He contends the master's
testimony was needed to prove, among other things, that the master took no oath and to
compel the master to produce transcripts of the proceedings.

In 2011, the district court considered and denied Sokol's motion to depose the
master, stating: "Defendant merely seeks a second or third chance to challenge the
findings of the Special Master through his request to take the deposition of Mr. Kincaid.
The basis for such extraordinary action is clearly an invasion of the thought processes of
this fact-finder and is therefore improper." In 2016, the district court quashed the
subpoena because the court was not going to reopen issues regarding the master's alleged
improprieties, and the master's testimony was not relevant to the open issues. The court
also expressed doubt about the propriety of calling the master to testify because the
master was acting as a judicial officer.

Sokol argues that the court's rationale is inapplicable to this case because of the
master's improprieties. A district court's decision regarding whether to quash a deposition
is reviewed for abuse of discretion. Sokol bears the burden to show an abuse of
discretion. See Miller v. Glacier, 284 Kan. 476, 498, 161 P.3d 730 (2007).

Sokol has not met his burden to show an abuse of discretion. He cites no authority
concerning the propriety of the master's testimony under these circumstances. Failure to
support a point with pertinent authority is akin to failing to brief the issue. University of
20

Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d
602 (2015).

We note that K.S.A. 60-253(e)(3) does allow a master to testify at trial on cases
tried to a jury. See Schauf, 33 Kan. App. 2d at 673-74. But this was not a jury case. In a
nonjury action, in contrast, the court "must accept the master's findings of fact unless
clearly erroneous." K.S.A. 2016 Supp. 60-253(e)(2). The statute does not contemplate the
master testifying in a nonjury action. The district court was correct—the master was
acting in a judicial capacity here.

Again, it is important to note that Sokol did not attempt to depose the master until
six months after the district court had overruled his objections to the master's report. He
was trying to rehash these matters that had been settled previously. And, assuming the
master would have testified that he took no oath and did not transcribe the proceedings,
that testimony would not change the outcome. Sokol knew of these alleged errors and
elected to do or say nothing until well after the master had completed his report and the
court adopted it.

We have demonstrated that none of Sokol's procedural complaints are reversible.
While not frequently used by the district courts, the appointment of a special master is an
option available to the court. The master, in turn, is in a quasi-judicial position and has
several statutory options on how to conduct the work the court has directed the master to
do. From our reading of this record, that is what happened here. What Sokol claims to be
an impropriety is not improper. The district court painstakingly considered each of
Sokol's many complaints. The methods of the master here are not reversible, and the
court's refusal to modify them is not reversible either.



21

We will not set aside the court's orders about the child's IRA.

First, Sokol contends the district court erred in ordering him to reimburse Kaelter
because the "sole basis" of that order was the master's recommendation. The record
shows a much different story. After we consider that issue, we turn to his second claim
about transferring the child's IRA to Kaelter.

The master found that the parties accumulated a Roth IRA and other savings for
the benefit for their minor child. The master noted that Kaelter, alone, had financed the
child's educational costs. The child was enrolled in Accelerated Learning which cost
$1,400 a month. The master stated that Sokol "controls [the child's] IRA and has refused
to liquidate it to help to defray this cost. Nor has [Sokol] in any other way paid for [the
child's] educational costs." The master determined that the Roth IRA and other
investments should be transferred to Kaelter to manage for the child's benefit. The master
reasoned that Sokol was behind in his child support payments and had not contributed to
the child's educational needs. Kaelter, as the primary residential parent, was better suited
to manage the funds for the child's benefit. A few days later, Sokol withdrew $21,000
from the child's IRA account. Sokol forged his son's signature to endorse the check and
used the money to pay his personal attorney fees.

When the district court adopted the master's recommendations, it ordered that the
Roth IRA and other investments accumulated for the benefit of the child be transferred to
Kaelter as a fiduciary for the benefit and use of the funds for the child.

At a later hearing, the court found that Sokol had not signed over custodianship of
the accounts to Kaelter and provided only two pages relating to the accounts. The court
ordered Sokol to sign over custodianship of the accounts within 48 hours and awarded
Kaelter attorney fees for delays in producing the ordered documents. Sokol signed the
forms that day.
22

Kaelter filed a motion for reimbursement and sanctions. She alleged that she sent a
business records subpoena to the financial institution holding the IRA account. She then
discovered that Sokol had taken $21,000 out of the IRA account in July 2009, and
deposited the money into his personal checking account.

The court found that the IRA account should have been available for payment of
educational expenses. The court ordered a judgment against Sokol for reimbursement of
educational expenses, including the $21,000 wrongfully removed from the child's IRA.
The court also found sanctions appropriate because within days of the issuance of the
master's report, Sokol forged his child's signature and transferred over 70 percent from
the IRA account for his own personal use. Then he engaged in a two-year litigation battle
to hide what he had done. "Mr. Sokol's actions both on a personal level and in his
litigation strategy cannot be seen as anything other than a bald faced attempt to hide the
truth."

The record discloses that the district court carefully considered whether the IRA
funds could be used to pay the child's educational expenses on many occasions. Sokol
was given the opportunity to present documentation regarding the IRA account to the
court, and indeed was ordered to produce documentation relating to the account to
Kaelter and to transfer custodianship to her. But Sokol, in what appears to be a clear
attempt to hide his wrongful removal of $21,000 from his son's account, failed to comply
with the court's orders. Sokol's own action of appropriating his son's money for his own
use shows he should not have been the custodian on that account.

In his second issue about the IRA, Sokol contends the district court erred in
ordering him to transfer the child's IRA to Kaelter. He contends the district court lacked
jurisdiction over the account because no evidence was presented that the parties jointly
accumulated the account or acquired the account with an intent for both parties to have an
interest in it. Thus, he argues the account was not subject to division by the court under
23

Eaton v. Johnston, 235 Kan. 323, 329, 681 P.2d 606 (1984). He argues nothing in the
parentage statutes grants the district court jurisdiction over the account and it was not an
authorized order under K.S.A. 23-2215. In opposition, Kaelter argues that the district
court did not divide the IRA account as joint property under Eaton but contends, instead,
that the IRA was the child's property under Wilson v. Wilson, 37 Kan. App. 2d 564, 569-
70, 154 P.3d 1136 (2007). Thus, she argues the court correctly determined the IRA
money was available for payment of the child's education expenses and granted judgment
to Kaelter for the amount Sokol wrongfully took out of the account.

Caselaw is clear. In Eaton, the court held that for parties that were not married but
cohabitated, the court may, in its discretion, make an equitable division of property either
jointly accumulated by the parties or acquired with intent that both parties have an
interest in the property. 235 Kan. at 329.

According to Sokol's testimony at the hearing in 2016, there were two accounts in
the child's name: a uniform gift to minors account and a Roth IRA. Kaelter put the
majority of the money into the uniform gift to minors account. Sokol testified he opened
up the Roth IRA in his son's name after consulting with his tax accountant to draw tax-
free interest. He believed the money was his, not his son's. He put his son's name on the
account and himself as the responsible party.

The child testified that he was aware there were accounts in his name. He
understood that he was effectively being paid from his father's company. He helped in the
office doing minor things such as filling tape dispensers. Kaelter testified that the child
was paid exactly the amount that could be put into a Roth IRA each year from the
company.

The district court also had jurisdiction because this was a paternity action and the
IRA certificate was in Sokol's possession. The court had authority to provide for the
24

child's support. K.S.A. 23-2215(c) provides that "Upon adjudging that a party is the
parent of a minor child, the court shall make provision for support and education of the
child."

This has been a very contentious lawsuit with many hearings. The record
oftentimes is confusing because there are so many motions about the same issues filed by
Sokol over the years. We see no reason to reverse; therefore, we affirm the district court
in every respect.

We turn to Kaelter's cross-appeal.

After this court issued its opinion in Sokol's first appeal in 2013, the panel granted
Kaelter's request for appellate costs and attorney fees under Supreme Court Rule 7.07(b)
(2014 Kan. Ct. R. Annot 70) and K.S.A. 2012 Supp. 23-2216, giving the court in a
parentage action the discretion to award costs and attorney fees as justice and equity may
require. When the Supreme Court vacated the judgment of this court for lack of
jurisdiction, it also vacated the attorney fees award.

When the case returned to the district court, Kaelter filed a motion requesting
attorney fees, which included a request for fees incurred in the first appeal. The district
court ordered Sokol to pay Kaelter attorney fees as a sanction because Sokol "knowingly
and intentionally diverted funds earmarked for his son's education to his own personal
use." The court found Sokol's "misconduct and tactics have inflated the cost of this
litigation and unnecessarily delayed the orderly administration of justice. Mr. Sokol has
abused the litigation process in an attempt to cover up his misdeeds." But the court
denied Kaelter's request for appellate attorney fees, stating it had no authority to do so.

Now in this cross-appeal, Kaelter contends the district court erred by finding it
lacked jurisdiction to award her attorney fees relating to the prior appeal. She argues the
25

district court had authority under K.S.A. 2013 Supp. 60-211 and K.S.A. 23-2216 to
award attorney fees. Sokol maintains that the district court was without authority to
award appellate attorney fees.

Indeed, the Kansas Supreme Court rules authorize an award of appellate attorney
fees. "An appellate court may award attorney fees for services on appeal in a case in
which the district court had authority to award attorney fees." (Emphasis added.)
Supreme Court Rule 7.07(b)(1) (2017 Kan. S. Ct. R. 51). Obviously, from that wording,
the rule contemplates that the motion for attorney fees must be made to the appellate
court.

Going deeper into the subject, caselaw persuades us that only appellate courts can
award appellate attorney fees. In Evans v. Provident Life & Acc. Ins. Co., 249 Kan. 248,
265, 815 P.2d 550 (1991), the Kansas Supreme Court held that "[c]ivil appellate attorney
fee awards are to be determined by the appellate court hearing the appeal. Motions for
attorney fees incurred before the Court of Appeals should be determined by the Court of
Appeals." The court in Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 165-67,
298 P.3d 1120 (2013), reaffirmed the holding in Evans. "Evans informed Snider and the
district court that only the Court of Appeals could consider the reasonableness of the
appellate fees related to the proceedings before the Court of Appeals." 297 Kan. at 168.

The district court correctly ruled that it was not authorized to award attorney fees
relating to the prior appeal. We will address the parties' requests for appellate attorney
fees in a separate order.

The rulings of the district court are affirmed.