Henson v. Henson

58 Kan.App.2d 167

464 P.3d 963

In the MATTER OF Gina Noel HENSON, n/k/a Bish, Appellee, and Christopher Robert Henson, Appellant.

No. 120,543

Court of Appeals of Kansas.

Opinion filed April 17, 2020

Thomas C. McDowell, of McDowell Chartered, of Wichita, for appellant.

Charles F. Harris, of Law Office of Charles F. Harris, of Wichita, for appellee.

Before Gardner, P.J., Buser, J., and Burgess, S.J.

Gardner, J.:

In this post-divorce case, Christopher Robert Henson appeals the district court's decisions about child support arrearages, medical reimbursements, and attorney fees owed to his ex-wife Gina Noel Bish. Chris also challenges a default judgment entered against him in 2005. Chris argues that because the district court's decisions were based on a void judgment ordered by a California court without subject matter jurisdiction, they must be found void. We agree. Because the district court's decisions were based on a void judgment, we reverse the district court's decision and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Chris and Gina divorced in 1991. They have three children together. Their youngest child turned 18 years old in 2009. At the time of their divorce, Chris, Gina, and their children lived in Kansas.

Kansas issues original child support orders.

In a 1991 divorce decree, the district court awarded Gina primary residential custody of all three children. The district court also ordered Chris to pay child support in the amount of $226 per month through September 1991 and $300 per month after that. Chris was also ordered to pay 50% of the children's prescriptions, medications, and medical bills.

Sometime in 1993 or 1994, Chris moved to California and found a job as a legal assistant. Gina remained in Kansas. But Chris failed to notify the district court or Gina of his move or change in income. He did, however, continue to make some child support payments.

California enforces the Kansas orders in 1994.

In August 1994, Gina moved to enforce Chris' support obligations, so an action commenced under the Uniform Reciprocal Enforcement of Support Act (URESA), K.S.A. 23-451 et seq. See L. 1994, ch. 301, § 86, effective July 1, 1995. By the time Gina filed her motion, however, Chris had an arrearage in past due child support. The district court trustee began an action to enforce the Kansas child support order and to obtain medical reimbursement under URESA. Once opened, the case was forwarded to the Child Support Office of the District Attorney in San Francisco. The Kansas support order was registered there in December 1994. Chris then began paying $300 per month in child support pursuant to an income withholding order issued in the California action.

California modifies the Kansas orders in 1996.

In May 1996, the district court trustee, on Gina's behalf, asked the California court to modify the child support amount and require payment for medical bills and insurance. The California court assessed the parties' incomes and modified the Kansas order by:

• increasing Chris' child support obligation from $300 to $948 per month;

• requiring Chris to pay an additional $50 per month toward the arrearages; and

• finding each party responsible for half of all unreimbursed or uninsured health expenses.

Chris did not appeal this December 1996 order.

Chris moves to Colorado.

After the California court modified Chris' support obligation in December 1996, Chris made semi-regular child support payments until 2005. By 2002, Chris had moved from California to Denver, Colorado. Again, Chris failed to notify the district court or Gina of his move. Gina remained in Kansas. Because Chris had moved to Colorado, California stopped collecting support and closed its case. At that time, its records showed Chris' child support arrearage was $71,687.87.

In October 2002, the Sedgwick County Court trustee sent a notice of intent to issue an income withholding order to Chris' employer in Colorado. The notice showed a total of $400 per month would be withheld—$300 for the child support obligation and $100 for arrearages. That same month, the Department of Child Support Services sent a letter and a copy of the 1996 California order modifying Chris' child support to the trustee's office. Both documents were filed in the district court.

The Kansas court finds Chris in default and bases the amount of arrearage on the California modification.

In June 2005, Gina moved to determine that Chris was in arrears for child support in the sum of $73,276.76 and $10,374.82 in unpaid medical expenses. This motion was sent to Chris' last known address as given by his attorney. But Chris claims that he never received the motion. After the motion was filed, Chris' attorney moved to withdraw. The district court held a hearing on both motions, but Chris failed to appear. The district court granted Gina's motion and entered a default judgment against Chris. It found Chris owed $73,019.59 in child support arrearage and $10,374.82 in unpaid medical expenses. Chris claims he never saw the journal entry until after the time passed for filing a notice of appeal, so he never appealed it. The district court, however, determined that Chris had been properly notified.

In August 2005, after Gina and Chris' oldest child turned 18, the district court trustee sent another notice of intent to issue an income withholding order. It specified that $200 would be collected monthly for child support and an additional $200 would be collected monthly for past due support. Chris did not respond to or appeal from this order.

Colorado enforces the Kansas default judgment.

In July 2006, the trustee registered the Kansas support order and the Kansas arrearage judgment of $75,419.59 in Colorado for collection by an income withholding order. Chris did not object.

The accrual of child support ended on June 30, 2009, after Gina and Chris' youngest child had turned 18 years old on April 5, 2009. See K.S.A. 2009 Supp. 60-1610(a).

In May 2010, another withholding order began collecting $800 in past due child support from Chris' wages. That continued until January 2014 when Chris moved to set aside the 2005 default judgment.

Chris moves to set aside the Kansas 2005 default judgment .

After a hearing on Chris' 2014 motion to set aside the default judgment, the district court denied it. But the district court modified the 2005 default judgment so it could determine the amount of arrears after December of 1996, when the California court modified the Kansas support order. The district court ordered Chris to contact the California court to determine the amount, if any, of that arrearage.

Instead, Chris filed a notice of appeal from that order. But this court filed a show cause order, questioning our jurisdiction to review the decision. After Chris failed to respond to the show cause order, we dismissed his appeal in March 2015.

After we dismissed his appeal, Chris moved to terminate the income withholding order. He argued that he should not be required to pay any arrearage until he complied with the district court's order to determine the amount of arrearage owed under the California decision. Chris claimed he had overpaid his support arrearages by over $75,000 because he was responsible for his child support obligations only until December 1996, when the California court modified the Kansas support order. The district court denied Chris' motion and left the income withholding order in place.

Gina moves to adopt the California order; Chris argues it is void.

Gina apparently took it upon herself to get records from the California case because Chris had failed to do so. In August 2016, after obtaining the California records, Gina moved to determine updated arrearage amounts and to adopt the modified California order (Gina's 2016 motion). Chris responded that the district court lacked jurisdiction to enforce the California modified support order, that the Uniform Interstate Family Support Act (UIFSA) provisions prohibited enforcement of the California order, and that he had overpaid his Kansas support obligations. In a supplemental response, Chris argued the California court lacked jurisdiction to modify the Kansas support order under the Full Faith in Credit for Child Support Orders Act (FFCCSOA) and UIFSA because Kansas had maintained exclusive and continuing jurisdiction over the case since its initiation in 1991.

At the hearing on Gina's 2016 motion, Gina offered and the district court admitted a California account summary document showing Chris owed $71,867.83 in unpaid child support. The district court issued a memorandum opinion in August 2018, affirming its previous rulings, including the 2005 default judgment and its support and arrearage determinations. The district court also found that Chris had waived his FFCCSOA defense by failing to assert it at the 2014 hearing on his motion to set aside the default judgment. In a supplemental order filed in September 2018, the district court held that Chris owed: $88,631.88 in child support arrearage; $24,007.05 for the 2005 medical expenses judgment; and $7,486.75 on outstanding judgments for attorney fees.

In November 2018, the trustee issued another notice of intent to issue an income withholding order for $2,500 per month for past due support. Chris objected. The district court held a hearing, overruled Chris' objection, and authorized the withholding order, which remains in effect.

Chris now appeals the district court's 2014 decision on his motion to set aside the default judgment, this court's 2015 dismissal of his appeal from that case, the district court's 2015 denial of his motion to terminate the income withholding order, and the district court's two 2018 decisions.

THE DISTRICT COURT ERRED IN FINDING THE CALIFORNIA COURT HAD JURISDICTION TO MODIFY THE CHILD SUPPORT ORDER .

This appeal centers on the district court's 2005 default judgment, which accepted Gina's child support arrearage numbers that were calculated, at least in part, using the California court's modified...