In re Bean

523 P.3d 516 (Table)

In the MATTER OF the MARRIAGE OF Alicia BEAN, Appellee, and Dennis JOHNSON, Appellant.

No. 124,478

Court of Appeals of Kansas.

Opinion filed January 27, 2023.

MEMORANDUM OPINION

Per Curiam:

In this divorce action, Dennis Johnson appeals from the district court's division of marital property and its decision not to require his ex-wife, Alicia Bean, to pay spousal maintenance. On appeal, Johnson contends that the district court abused its discretion in dividing the property and by failing to properly consider Bean's alleged dissipation of assets. Johnson also contends that the district court abused its discretion by failing to take into consideration his alleged need for spousal maintenance and Bean's ability to pay. Based on our review of the record, we conclude that the district court appropriately followed Kansas law regarding the division of marital property and regarding an award of spousal maintenance. Moreover, we conclude that the district court did not abuse its discretion in dividing the marital property or in denying Johnson's request for spousal maintenance. Thus, we affirm.

FACTS

Bean and Johnson were married on April 28, 2011. At the time of their marriage, Bean was 32 years old and Johnson was 38 years old. There were no children born of the marriage of Bean and Johnson. However, at the time of her marriage to Johnson, Bean had two minor children from a previous marriage. Johnson had not been previously married and does not have any children.

On July 29, 2019, Bean filed a petition for divorce. In addition, Bean filed a motion for temporary orders in which she requested that the district court enter temporary orders regarding the marital residence, the parties’ vehicles, and other marital property. In granting the motion for temporary orders, the district court ordered—among other things—that both parties were restrained from "[m]aking withdrawal for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account."

On August 12, 2019, Johnson filed an answer to Bean's petition. In his answer, Johnson requested that the district court order Bean to pay him temporary and permanent spousal maintenance. However, he did not file a motion seeking temporary maintenance, and none was awarded during the pendency of the case. Although the parties subsequently participated in mediation, they were unable to reach an agreement.

Johnson filed a Domestic Relations Affidavit (DRA) on April 30, 2021. In his DRA, Johnson stated that his monthly gross income was $1,500 and his net monthly income was $1,200. Johnson attached a proposed property division to his DRA in which he itemized the items of personal property and debt to be divided as well as his suggested division. He also proposed that Bean pay him an equalization payment in the amount of $16,355. It does not appear that Bean ever filed a DRA during the pendency of the divorce action.

The district court held a bench trial on June 1, 2021. Bean testified that she married Johnson after she had completed medical school and finished her residency in family medicine. At the time the parties were married, Bean was working as a doctor at a community health center in Junction City. She was making approximately $125,000 per year and Johnson was making approximately $25,000 per year as an auto body technician.

Bean also testified that she developed pulmonary arterial hypertension and had to quit her job in Junction City due to the high workload. In 2015, the parties moved to Russell where Bean found employment at a hospital making approximately $200,000 per year plus bonuses. About four months after filing for divorce, Bean quit her job at the hospital in Russell. According to Bean, she did so because of blood clots that were caused by her underlying medical condition. The hospital in Russell provided Bean with a three-month severance package.

Regarding her health, Bean testified that her condition was worse at the time she filed the petition for divorce. According to Bean, in 2019 her doctors estimated she probably had about four years to live, but she had stabilized to some degree at the time of trial so long as her blood clots did not return. Bean testified about the uncertainty of her condition and indicated that she would likely need to be on oxygen for the rest of her life. She also reaffirmed her deposition testimony in which she testified that her health condition would likely shorten the length of time that she could work. Nevertheless, she testified that she was "stable" and "ready to work" at the time of trial.

The parties’ tax returns for 2018, 2019, and 2020 were admitted into evidence at trial. In 2018, the parties’ gross income was $282,141, and in 2019, their gross income was $215,074. Bean testified that most of the couple's income for those years came from her salary and benefits. She also testified that she was unemployed for most of 2020. As a result, the parties’ gross income dropped to $116,382. Of this amount, only $37,104 came from wages and salary. The bulk of their income came from other sources including $47,050 received from pensions and annuities.

At the time of trial, Bean testified that she had about $55,000 outstanding in student loan debt from her undergraduate studies incurred before the marriage. In addition, Bean had an outstanding loan of $19,000 for her son's education that she incurred after the filing of the divorce petition. She also testified that she had incurred approximately $44,500 in medical debt during the course of the marriage. She further testified that she had about $12,400 in credit card debt and that the majority of this debt had been incurred after she filed the petition for divorce.

Bean admitted that after filing the petition for divorce, she cashed out her 401(k) retirement account in violation of the temporary orders entered by the district court. She testified that she netted about $35,000 from the 401(k) account. According to Bean, she used the money to pay bills and buy groceries while she was unemployed. In May 2021, Bean began working as an independent contractor in Marshall, Missouri, where she resided at the time of trial. Bean testified that she was paid $100 per hour with no benefits and that she worked approximately 37 hours per week in this position.

At trial, Johnson testified that he was working at a supermarket in Russell making $10.25 per hour. According to Johnson, he had not applied for any jobs in the autobody shop business due to a "cancer scare" from exposure to chemicals in the workplace. Johnson testified that he has never made more than around $25,000 per year. He further testified that he was currently living in a single car garage that he converted into sleeping quarters. Johnson indicated that the rent for the space was $500 per month and that his parents had been paying this expense for him.

Moreover, Johnson testified that while the divorce was pending, the parties agreed to sell the marital residence and divide the proceeds. Because the parties sold the residence for $312,000, it was estimated that the net proceeds to be divided would be $27,266.90. However, Johnson testified that the proceeds ended up being significantly less than the estimate because Bean had deferred several mortgage payments while she was unemployed. As a result, the net proceeds to be divided ended up being only $3,868.21.

Johnson requested that the district court award him spousal maintenance in the amount of 25 percent of Bean's gross income on a calendar basis of the district court's choosing. The 25 percent amount represented the difference between Bean's income and his income at the time of trial. He also requested an escalator clause that would allow for adjustments should there be changes in the parties’ gross incomes during the maintenance period. In addition, Johnson asked the district court to take into consideration Bean's dissipation of assets when making its division of assets and debts.

After the presentation of the evidence and arguments of counsel, the district court took a 30-minute recess. When the trial resumed, the district court announced its decision from the bench. The district court first found that the parties were incompatible and granted the divorce. The district court then noted that the parties’ household personal property had already been divided by the parties, and it found this division to be just, fair, and equitable. Using Johnson's proposed division of property document as a guide and taking into consideration the additional debt that had been incurred by Bean during the pendency of the divorce, the district court divided the remaining property and debt.

The district court found that both parties were in a negative net worth position. Specifically, it found Bean to be in a negative position of $13,643 and Johnson to be in a negative position of $1,660. The district court then found the value of the 401(k) retirement account that had been liquidated by Bean to be $32,000. Because the district court found Bean to be in a $12,000 worse financial position than Johnson, it subtracted this amount from the value of the 401(k) account. The district court then divided the remaining $20,000 equally between the parties and granted a $10,000 judgment to Johnson to be paid by Bean within six months.

Turning to the issue of spousal maintenance, the district court considered the factors set forth by this court in the case of In re Marriage of Hair , 40 Kan. App. 2d 475, 484, 193 P.3d 504 (2008). After considering each of these factors, the district court denied Johnson's request for maintenance. The district court explained that it did not "have enough evidence of either ability to pay by [Bean] or of need by [Johnson]." The district court reasoned that Bean's "medical condition is such that it has severely affected her earning capability, but nobody knows to the...