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    STATE of Kansas, Appellee, v. Kevin William MCNELLIS, Appellant.
    No. 118,420
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Kevin W. McNellis, appellant pro se.
    Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Kevin McNellis, who represents himself on appeal, appeals his conviction and sentence for battery against his wife, Kara. We will summarize the rulings we are making on the many issues McNellis has raised before explaining our decision in more detail. In McNellis' brief on appeal, he lists 19 separate issues. We have reorganized them a bit-now showing 11 issues-but have addressed the points he raised.

First, McNellis complains about the record on appeal and his access to it. He complains that the district court didn't properly handle motions he filed to add items to the appellate record and that the district court didn't send him a paper copy of its records. But some items he wanted in the record couldn't properly be included-his correspondence with his attorneys may relate to an ineffective-assistance-of-counsel claim that he could raise in a later habeas corpus proceeding but no habeas claim is now before us. And we cannot identify any other document that hasn't been included in the record that might reasonably affect resolution of the issues he has raised on appeal. As for the availability to him of a paper copy of the record, the district court clerk made the record available to him electronically at the courthouse. McNellis suggests that because he lives hundreds of miles away, the clerk's efforts here are not ideal. But McNellis was also represented for a time by an attorney who had the full record, and McNellis acknowledges that his former attorney's assistant sent McNellis "the last known record on appeal dated November 2017, with all items on record attached accordingly with PDF files, or similar ...." Since the full record at that time was provided to McNellis by his former attorney and the clerk made the full trial-court record available (even if only at the clerk's office), we find no reversible error here in the handling of the record.

Second, McNellis addresses alleged errors involving the withdrawal of his trial attorney. But McNellis doesn't show how this had any impact on the trial. McNellis represented himself at trial, and he hasn't suggested he provided inadequate representation. With no connection between this claim and the trial outcome, McNellis hasn't shown a trial error involving his prior attorney.

Third, McNellis raises a series of issues related to the State's grant of immunity to Kara at the preliminary hearing. But he once again doesn't show how this affected his trial and he didn't object at the preliminary hearing to the State's grant of immunity to Kara. Because he didn't raise the issue in the district court, he cannot raise it on appeal.

Fourth, McNellis claims that the court erred by allowing officer Matt Pfrang to refresh his memory by looking at his police report-which McNellis calls a script-while testifying at the preliminary hearing. But a witness who has an independent recollection of the subject matter can use a document to refresh memory, so the court didn't err in allowing the officer to do so.

Fifth, McNellis raises arguments that the attorneys who represented him were ineffective. But we usually will not consider an allegation of ineffective assistance of counsel for the first time on appeal because the factual basis for the claims hasn't been developed in the trial court. We see no reason to deviate from that rule here.

Sixth, McNellis claims that the district court erred by not letting him call Kara McNellis to testify at trial by electronic means while she remained in Illinois. Although Kansas law allows for witnesses to testify from another place under special circumstances, McNellis hasn't shown that the compelling circumstances required to allow such testimony existed. So he has not shown that the district court abused its discretion by denying the request.

Seventh, McNellis argues that the district court erred by not removing potential jurors who had "self-admitted conflict[s] of interest." But McNellis didn't raise this issue in the district court and doesn't cite any exception to the general rule that issues must be raised first in the trial court to be considered on appeal. We therefore decline to take up this claim of error.

Eighth, McNellis claims that the district court failed to keep jurors and the prosecutor from using the same public restroom during the trial. But jurors are instructed at the start of a trial not to talk about the case to anyone or let anyone talk to them about it. We presume that the jurors followed that instruction and find no error in letting jurors use the public restroom in the hallway of a courthouse.

Ninth, McNellis claims the prosecutor erred by presenting evidence from officers and hotel employees about what Kara told them at the hotel. But McNellis didn't object to the admission of this evidence at trial, and a trial objection is needed to preserve an evidentiary issue for appeal.

Tenth, McNellis says there wasn't sufficient evidence to support his conviction. But the State had to prove only that McNellis hit Kara at least one time that night in anger. Several witnesses at trial who testified that McNellis injured Kara, describing blood dripping from her ear, red marks on her neck, and Kara's statements about her injuries. There was more than sufficient evidence to supports McNellis' conviction for battery.

Last, McNellis claims the district court erred by issuing two arrest warrants while he has been on probation. He objects that the first warrant was issued before he was given a chance to "appear and defend." But a warrant is issued on probable cause, not after a contested trial. The court followed the proper procedure, and McNellis has the right to defend against the allegation after arrest. McNellis argues that the second bench warrant apparently was issued against him in retaliation for proper conduct. But he has not shown that he raised that issue in the district court or any reason why it may be raised for the first time on appeal.

With that overview, we will go on to review the case and issues on appeal more fully.

FACTUAL AND PROCEDURAL BACKGROUND

McNellis, who represents himself on appeal, appeals his conviction for battery against his wife, Kara.

In May 2015, an employee at the Bluemont Hotel in Manhattan called 911 after a guest-Kara-reported that "her husband assaulted her and hit her multiple times." When officers arrived at the hotel room where the incident had occurred, officers found Kara being treated by emergency medical personnel.

We start with the facts set out in Kara's written statement to the police. She said that she and McNellis had driven from their home in Chicago to Manhattan to visit family. She said they argued for the "majority of [the] car ride."

After the couple arrived at the Bluemont Hotel, Kara checked into the hotel and McNellis went to a bar. He returned to the hotel about an hour later, but the two kept arguing. McNellis left again and "went out drinking for the rest of the evening." He returned to the hotel room around 11 p.m.

Kara said that she and McNellis were in separate beds when "he became agitated." She then said that McNellis started to restrain her in her bed, "held his hands around [her] neck and was squeezing, [and] repeatedly put [her] in a chokehold position and was twisting [her] neck to the point of pain." Then Kara said he hit her three to four times on the left side of her face.

Kara said that at that point she "was able to get away, off [the] bed into the corner of the room[, but] he restrained [her] again around [her] neck and struck [her] 2-3 more times and spit in [her] face." Kara described "screaming throughout this ordeal." Finally, McNellis left the hotel room with Kara's phone and car keys.

One officer who responded to the incident, Michael Wagenblast, interviewed Kara, and that interview was recorded on his body camera. He also took photos of the injuries Kara sustained, including a cut ear, bruised eyelid, and marks on her neck.

According to an email hotel employee Ashley Arth wrote to her supervisors, Kara called the front desk around 11:35 p.m. "and said that her husband had physically abused her by hitting her in the head and choking her." The email also said Kara "thought she needed to be check[ed] out because at one point in time she blacked out during the abuse." Arth said she called the police as soon as she got off the phone with Kara.

The State charged McNellis with one count of aggravated battery. Before trial, though, the State amended the charge to simple battery, a misdemeanor. The elements of battery charged here were (1) physical contact (2) done in a rude, angry, or insulting manner. See K.S.A. 2018 Supp. 21-5413(a)(2).

McNellis was first represented by attorney Colt Knutson, who later withdrew because of "complete and irreconcilable differences" and because "[c]ommunication and dialogue between [McNellis] and counsel ha[d] ceased to exist." The district court then appointed Gary West to represent McNellis. West later withdrew, also because of "[i]rreconcilable differences." The court tried to appoint a third attorney, Brenda Jordan, to represent McNellis. McNellis rejected that appointment and, "[a]fter being fully advised, [McNellis] waive[d] his right to counsel and refuse[d] stand-by counsel."

McNellis represented himself at trial. The jury heard from Wagenblast, two hotel employees (Arth and Severance Hill), and McNellis. Kara wasn't able to come to Kansas for the trial due to a high-risk pregnancy, so the State read to the jury testimony that she had given at an earlier hearing.

The jury found McNellis guilty of battery. The district court sentenced him to 12 months of probation with an underlying term of 6 months in jail that McNellis would have to serve if he didn't successfully complete probation.

ANALYSIS

I. McNellis Hasn't Shown Error Regarding the Record on Appeal.

McNellis makes two basic complaints about the record on appeal. First, he complains that the district court either refused to add items he wanted in the record or failed altogether to act on some of his requests. Second, he argues that he didn't have sufficient access to the record to work on his appeal.

We begin by considering the purpose of the record on appeal-it allows us to consider the issues properly before us on appeal. Here, we need to determine whether McNellis got a fair trial and whether evidence used against him at trial was properly admitted. But McNellis is trying to weave other issues into his appeal with broad claims of "Public Corruption riddled throughout nearly all aspects" of his case. We do not have sweeping investigatory powers over public corruption. In a criminal case that resulted in conviction, like this one, we decide whether errors require reversal of that conviction.

It appears to us that most of the records McNellis points to as not being in our record simply don't affect the issues that are properly before us. For example, McNellis wants us to see communications between him and the attorneys who represented him at different times. But there were no evidentiary hearings in the trial court about whether any of his attorneys provided inadequate representation; normally, we don't consider that issue on direct appeal unless those hearings have happened. See State v. Dull , 298 Kan. 832, 839, 317 P.3d 104 (2014) ; State v. Van Cleave , 239 Kan. 117, 119-21, 716 P.2d 580 (1986). Instead, issues of ineffective assistance of counsel are usually first raised in a later habeas proceeding under K.S.A. 2018 Supp. 60-1507 only after the defendant's conviction is affirmed on direct appeal. If the conviction isn't affirmed, of course, there would be no need to look at the adequacy of the representation; the defendant would either get a new trial or have the charges dismissed altogether. Since McNellis' communications with his attorneys weren't part of the district court's proceedings, they wouldn't properly be part of the record for this appeal. See Supreme Court Rule 3.01 (2019 Kan. S. Ct. R. 19).

McNellis also wants us to see emails with his probation officer, with the trial judge, and with the prosecutor. Once again, those weren't part of a district court hearing or filing. And McNellis doesn't provide any reasonable link between those materials-or others excluded from the record-and any of the issues properly before us. We could not identify any document not included in the record that might reasonably affect resolving those issues.

McNellis also argues that he has been wrongfully deprived of a copy of the record and is entitled to a "proper free copy for all of the needed and requested items of record with audio ... in their full and non-redacted form."

We agree that McNellis had a right to access the appellate record. K.S.A. 22-4509 provides for that access:

"Whenever it is determined that a transcript of all or some part of the trial or other proceeding is necessary to enable a person who is entitled to appeal, or to pursue another post-conviction remedy, to present such person's cause adequately and it is further determined that the appellant or petitioner or movant is financially unable to pay for the preparation of such transcript, the district court shall order that the transcript be supplied to the appellant or petitioner or movant by the official reporter of the district court."

But at the beginning of this appeal, McNellis was represented by an appointed attorney. In fact, that attorney filed a brief on McNellis' behalf before, at McNellis' request, our court struck that brief and allowed McNellis to file his own brief, raising many more issues.

As for the record, though, McNellis agrees that his former attorney's assistant sent McNellis "the last known record on appeal dated November 2017, with all items on record attached accordingly with PDF files, or similar ...." He also concedes that the district court clerk's office made the record available to him electronically at the Riley County Courthouse.

McNellis argues that access at the Kansas courthouse is of little value to a litigant who would have to travel 1,300 miles roundtrip to view it. From the perspective of serving litigants and the public, McNellis makes a fair point. But on the facts here, he hasn't shown a violation of due process or fundamental fairness; nor has he shown prejudice. The full appellate record as it stood in November 2017 (the record his appointed attorney used to file a brief) was provided to McNellis, and the full district court record was available to him at the courthouse. McNellis' appellate brief cites appropriately to the trial transcript, and he hasn't shown that lack of better access to the record prejudiced him in any way in preparing his 60-page brief. With no showing of prejudice, any error that took place would be considered harmless. See State v. Salary , 309 Kan. 479, 487, 437 P.3d 953 (2019). We therefore find no reversible error here in the handling of the record.

II. McNellis Has Not Shown Reversible Error Regarding the Withdrawal of His Trial Counsel, Colt Knutson.

McNellis next claims error over the withdrawal of his trial counsel, Colt Knutson. Before trial, Knutson asked the district court to let him withdraw as McNellis' attorney, citing irreconcilable differences and lack of communication with McNellis. The court granted Knutson's motion, concluding in a written order that "after being duly advised, [it found] that just cause exist[ed]" to allow Knutson to withdraw.

McNellis complains that no hearing took place. He also alleges that Knutson had conflicts of interest.

But this is another area in which McNellis doesn't tie his general allegations of misconduct to the trial, which caused the conviction that is now on appeal. As we have already explained, there's no claim of ineffective assistance of counsel properly before us.

And McNellis ultimately represented himself at trial. On appeal, McNellis hasn't argued that he did an inadequate job of representing himself at trial or that the district court failed to advise him of the risks of doing so before he made that choice. McNellis had the right to represent himself at trial, see State v. Jones , 290 Kan. 373, 376-77, 228 P.3d 394 (2010), and he did so. He has shown no impact on the trial from Knutson's earlier representation. McNellis therefore has not shown error on this point.

III. McNellis Didn't Preserve for Appeal Any Complaints About the State's Grant of Immunity to His Wife.

McNellis raises a series of issues related to the State's grant of immunity to Kara at the preliminary hearing, which provided the testimony read to the jury at trial. Most of these claims have to do with McNellis' claims that the State violated Kara's rights, not his own rights. So it's once again hard to see how these claims (such as the failure to involve a victim coordinator for Kara on the hearing record or the failure of police to give Miranda warnings to Kara) would in any way impact McNellis' trial. In any case, he didn't object at the preliminary hearing to the State's grant of immunity to Kara. Since McNellis didn't raise this objection when the grant of immunity was made in the district court, he cannot raise the issue on appeal. See State v. Cheffen , 297 Kan. 689, 698, 303 P.3d 1261 (2013).

IV. The District Court Didn't Err by Allowing Officer Pfrang to Refresh his Recollection by Referring to His Police Report While Testifying at the Preliminary Hearing.

McNellis claims that the court erred by letting Officer Matt Pfrang refresh his memory by looking at his police report-which McNellis calls a script-while testifying at the preliminary hearing. There are two problems with this argument.

First, of course, the testimony occurred at the preliminary hearing, not at trial. "As a general principle, after an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is considered harmless unless it appears that the error caused prejudice at trial." Jones , 290 Kan. at 381. McNellis hasn't shown how allowing Pfang to refresh his memory by looking at his report during the preliminary hearing affected Pfang's trial testimony.

Second, even if it had some effect on the trial, we review a district court's decision to allow a witness to use memoranda or other items to refresh the witness' recollection only for an abuse of discretion. See State v. Stinson , 43 Kan. App. 2d 468, 478-79, 227 P.3d 11 (2010) ; State v. Kelly , 19 Kan. App. 2d 625, 627, 874 P.2d 1208 (1994). A court abuses its discretion when its decision is based on an error of law or fact, or when no reasonable person could agree with the decision. See State v. Brown , 51 Kan. App. 2d 876, Syl. ¶ 4, 357 P.3d 296 (2015).

It is a well-established rule that " '[a] witness while testifying, or prior thereto, may refresh his recollection by reference to any memoranda relating to the subject matter, provided he then has an independent recollection of the subject matter.' " Stinson , 43 Kan. App. 2d at 478 (quoting Barbara, Kansas Law and Practice, Lawyer's Guide to Kansas Evidence § 9.13, p. 309 [5th ed. 2007]). Based on the transcript of the preliminary hearing, that's precisely what happened here.

While McNellis was cross-examining Pfrang at the preliminary hearing, McNellis asked Pfrang if he was reading from a report. Pfrang responded that the report was in his lap and confirmed that he read parts of the report but not the entire thing. Based on that testimony and the long-standing rule that allows a testifying witness to refresh his or her recollection by looking at a report, there was no abuse of discretion in letting Pfrang keep using his report. The officer's initial practice of having it in his lap, apparently hiding its use, is not a good one; the use of a document to refresh recollection should be done transparently, not in a secretive way. But a witness who has an independent recollection of the subject matter may use a document to refresh memory. Since a reasonable person could agree with the district court's ruling, we find no abuse of discretion.

V. We Do Not Reach the Merits of McNellis' Claims that He Received Ineffective Assistance of Counsel.

McNellis next claims this the attorneys who represented him after Knutson were ineffective. McNellis claims that trial attorneys Gary West and Brenda Jordan and appellate attorneys Blake Robinson and Bobby Hiebert were ineffective.

McNellis wrote the district court a long letter in which he alluded to ineffective assistance from West. But other than that letter, the record shows that McNellis didn't formally raise ineffective assistance of counsel to the district court, and the district court never heard arguments or made findings of facts or conclusions of law about McNellis' claims.

As we have already noted, we usually do not consider an allegation of ineffective assistance of counsel for the first time on appeal. Dull , 298 Kan. at 839. While " 'there are circumstances when no evidentiary record need be established, when the merit or lack of merit of an ineffectiveness claim about trial counsel is obvious,' and an ineffectiveness claim can therefore be resolved when raised for the first time on appeal, these circumstances are 'extremely rare.' " Dull , 298 Kan. at 839 (quoting Rowland v. State , 289 Kan. 1076, 1084-85, 219 P.3d 1212 [2009] ).

Here, there weren't proceedings in the district court to hear McNellis' claims on ineffective assistance of counsel. At least some of McNellis' claims-like his claim that Jordan allegedly refused to defend his case, or that West didn't do any investigative work-would require an evidentiary hearing to resolve. Likewise, an evidentiary hearing would be required to resolve his claims that Robinson failed to investigate the case and that Hiebert didn't do anything to help McNellis "stay the judgment and or punishment."

We see no indication that McNellis requested an evidentiary hearing on these matters in the district court. On this record, we decline to reach the merits of McNellis' ineffective-assistance-of-counsel claims for the first time on appeal. If ineffective representation by any attorney representing McNellis affected the outcome of his trial, i.e., the guilty verdict, he may seek habeas relief under K.S.A. 2018 Supp. 60-1507.

VI. The District Court Didn't Abuse Its Discretion by Denying McNellis' Request to Have Kara Testify Electronically.

McNellis' next claim is that the district court erred by not calling Kara McNellis to testify at trial by " 'face-time,' Skype, or common programs used in all of American Courts." We review the district court's decision on this trial-procedure question for an abuse of discretion. A court abuses its discretion when its decision is based on an error of fact or law, or when no reasonable person could agree with the decision. See State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011).

At trial, the district court ruled that McNellis' wife, Kara, was unavailable to testify as a witness. The State then read Kara's prior testimony from the December 4, 2015 preliminary hearing. After that, McNellis asked the district court to let Kara testify by Facetime or a conference call. The court denied McNellis' request because McNellis' argument "has not been accepted by our Supreme Court as a valid method to testify in court ...."

The trial court was wrong on that legal point. One rule, Supreme Court Rule 145 (2019 Kan. Ct. R. 217), provides for the use of electronic communication in proceedings other than a trial: "The court may use a telephone or other electronic conference to conduct any hearing or conference other than a trial on the merits ." (Emphasis added.) For trials on the merits of the case, though, the rule points to K.S.A. 2018 Supp. 60-243(a), which allows electronic communications for testimony in compelling circumstances: "At trial, the witness' testimony must be taken in open court, unless otherwise provided by law. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location."

That the trial court based its decision on a proposition that was legally in error doesn't end the inquiry, though, because "appellate courts may affirm a district court as right for the wrong reason if an alternative basis exists for the district court's ruling." State v. Smith , 309 Kan. ----, 441 P.3d 1041, 1047 (2019). So we still must consider whether the district court's ruling was correct under K.S.A. 2018 Supp. 60-243(a).

To get permission to present Kara's testimony electronically under that statute, McNellis had to show that compelling circumstances required letting Kara testify from Illinois. But Kara had come to Kansas and provided testimony at the preliminary hearing. McNellis didn't show the district court any reason to believe her testimony would be different at trial or that she hadn't been appropriately questioned at the earlier hearing. On appeal, McNellis has cited no way in which her electronic testimony at trial would have differed from the sworn testimony she had given at the preliminary hearing. In that case, McNellis didn't show compelling circumstances required that Kara's testimony be taken at trial by electronic means while she remained in Illinois. The district court did not abuse its discretion when it denied McNellis' request.

VII. McNellis' Claim of Jury Tampering Is Unpersuasive.

McNellis next argues that the district court erred by not removing potential jurors who had "self-admitted conflict[s] of interest." McNellis seems to object generally to the way the jury panel was selected.

To consider this issue, we first review the district court's factual findings to ensure they are supported by substantial evidence. We then have unlimited review over the district court's legal conclusions. See State v. Lewis , 38 Kan. App. 2d 91, 93, 161 P.3d 807 (2007).

McNellis says the court should have removed four women-one because of her relationship with the State's attorney, and three others he didn't specifically name, because of their relationships with Riley County police officers. But McNellis didn't raise this issue at the district-court level, so the district court never had a chance to make either findings of fact or form legal conclusions based on those findings.

Generally, a party is precluded from raising an issue for the first time on appeal. State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). And if a party raises an issue for the first time on appeal, it must explain which exception to the preservation rule applies. State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) ; see Kansas Supreme Court Rule 6.02(a)(5) (2009 Kan. S. Ct. R. 34). McNellis doesn't explain why this issue is properly before this court when raised for the first time on appeal, and he doesn't cite an exception that would let us consider the issue. 301 Kan. at 1043. We conclude that the issue is not properly before us for consideration.

Even if McNellis had properly preserved the issue for appeal and shown some error, though, the error would be harmless. That's because none of the potential jurors who McNellis says had conflicts of interest ultimately served on the jury.

VIII. McNellis Has Not Shown Error in the Lack of a Trial Order that Potential Jurors and the State's Attorney Could Not Use the Same Restroom.

McNellis next objects that the district court failed to remedy the situation created when Kendra Lewison, the State's attorney, and the female potential jurors used the same public restroom. But McNellis fails to explain how this caused him prejudice, and he doesn't say what the court should have done to address the situation.

The situation is a common one in courthouses throughout the country. Many courthouses don't have separate restrooms set aside for jurors. So members of the public, attorneys, witnesses, and jurors may well end up in the restroom down the hall from the trial courtroom at the same time. Of course, chance encounters can occur in parking lots near the courthouse, at the courthouse entrance, and in other places.

Because this is a common issue, it's covered in pattern jury instructions. At the start of the case the court tells jurors not to communicate with anyone about the case and not to let anyone communicate with them about it, either. See PIK Crim. 4th 50.010. The judge in McNellis' case gave a similar instruction to the jury, telling it before the lunch break on the first day of the two-day trial that "it's your duty not to converse with or allow yourself to be addressed by any person ... on any subject of this trial." The judge told the jurors that "if anyone does attempt to discuss this case with you, you should notify [the bailiff] immediately." And the judge repeated that instruction when court adjourned for the day.

We presume that jurors follow the instructions, State v. Thurber , 308 Kan. 140, 194-95, 420 P.3d 389 (2018), so there's no reason to think that any improper discussions took place. In addition, of course, attorneys know that they are not to talk with the jurors during the trial. McNellis has not shown error in the trial court's failure to keep jurors from using the same restroom as the prosecutor.

IX. The Prosecutor Didn't Err by Presenting Kara's Preliminary Hearing Testimony to Be Read at Trial.

Next, McNellis raises another issue about testimony presented about statements of his wife, Kara. The State presented not only her preliminary-hearing testimony but also statements she made to others, like officers or hotel employees. For those statements, the State presented the evidence through the testimony of those other witnesses. McNellis argues that this was hearsay evidence and that the prosecutor was "taking advantage of the Defendant's lack of knowledge of the law." McNellis frames this issue as one involving prosecutorial misconduct, but the true issue is the evidentiary issue of whether the district court properly admitted the hearsay evidence at trial.

The district court first determined Kara was unavailable to testify at McNellis' trial and permitted the State to present hearsay evidence (her testimony from the preliminary hearing) rather than have her testify in person. McNellis doesn't challenge the court's decision to admit Kara's testimony from the preliminary hearing. Rather, he says the prosecutor erred by presenting evidence from other witnesses that included hearsay statements made by Kara.

McNellis is right that hearsay evidence, defined as evidence of a statement made by someone other than the testifying witness that's offered to prove the truth of that statement, is generally inadmissible at trial. K.S.A. 2018 Supp. 60-460. And McNellis is right that the statements he challenges were hearsay: different witnesses told the jury what Kara had told them about the incident in the hotel, and the State offered it to prove that McNellis committed the crime charged. But just because a statement is hearsay doesn't automatically mean it can't be presented at trial; hearsay can be admitted if it meets one of the many hearsay exceptions provided by K.S.A. 2018 Supp. 60-460. Here, as we will explain in a moment, each of the hearsay statements McNellis says the State improperly introduced met an exception to the rule.

But even if there had been no applicable exception, McNellis didn't preserve an objection to this evidence for appellate review. As the State notes in its brief, McNellis didn't object to this evidence at trial. That's a requirement to obtaining appellate review of improperly admitted evidence; the trial court must first be given a chance to consider the objection. See State v. King , 288 Kan. 333, 341-42, 204 P.3d 585 (2009). And an attempt to reshape the argument into one of prosecutorial error can't correct the failure when the claimed prosecutorial error relates to the presentation of evidence. See 288 Kan. at 346-49. So McNellis has not preserved this issue for our review.

Because he is self-represented, though, we will summarize the hearsay exceptions that appear to have been available for each of the items of testimony McNellis has complained about on appeal:

• McNellis challenges the testimony of Arth, a former employee of the Bluemont Hotel. Arth told the jury that on the night of the incident, she received a call from McNellis' hotel room and that the caller told her that "her husband had choked her out and took their vehicle [and] ... she said that she thought she needed to be checked out by an ambulance, so she asked that I call an ambulance for her." Under K.S.A. 2018 Supp. 60-460(d)(3), a hearsay statement can be admitted if the declarant is unavailable to testify and the statement was made "by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." Kara's statement to Arth meets those requirements. Kara called Arth to ask for an ambulance shortly after the battery took place. When Kara made that statement, the State hadn't commenced its criminal action against McNellis, and she had no reason to lie to Arth about the incident. Parts of the statement would also be admissible under K.S.A. 2018 Supp. 60-460(d)(1) and (2) as a description of her present condition (injured and needing medical attention) or as a statement made while under stress from an exciting event (having been "choked ... out" by her husband).
• McNellis says the prosecutor erred by presenting Hill's testimony, which included Kara's statements on the night of the incident. Hill, who worked as a security officer at the hotel, told the jury that Arth called him to respond to Kara's phone call asking for assistance. He said that when he arrived to McNellis' hotel room, Kara was injured and "she wasn't explaining like in clear detail, like she was saying ... they got into an argument, or they had been arguing, and he threw her on the bed and ... was choking her out where she couldn't breathe or see where she was ...." Those statements also appear to have been admissible under K.S.A. 2018 Supp. 60-460(d) as statements made "under the stress of a nervous excitement caused by [an event or condition]" or made the statement in good faith while the person's recollection was clear.
• McNellis says the prosecutor erred by presenting Officer Wagenblast's testimony that after he responded to the 911 call, Kara told him that "she had been slapped." Once again, for an unavailable witness, this statement appears to have been admissible as a statement made in good faith while the person's recollection was clear under K.S.A. 2018 Supp. 60-460(d)(3).

McNellis makes a brief reference to the right to confront the witnesses against him, a right protected by the Confrontation Clause of the United States Constitution. But he had a chance to confront the absent trial witness, Kara, at the preliminary hearing, and he was represented by counsel at that hearing. So there would have been no Confrontation Clause violation by allowing Kara's testimony to be read to the jury at trial. See State v. Stano , 284 Kan. 126, 141-45, 159 P.3d 931 (2007) ; State v. Young , 277 Kan. 588, 599, 87 P.3d 308 (2004).

X. Sufficient Evidence Supports McNellis' Conviction.

McNellis also argues that there wasn't sufficient evidence to support his conviction. Because the jury-the fact-finder in this case-ruled in the State's favor, we review challenges to the sufficiency of the evidence by reviewing all the evidence in a light most favorable to the prosecution. The evidence is enough if, after reviewing the evidence in that light, we are convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do not reweigh the evidence, resolve evidentiary conflicts, or make witness credibility determinations. See State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

The State charged McNellis with violating K.S.A. 2014 Supp. 21-5413(a)(2), which makes it illegal to "knowingly caus[e] physical contact with another person when done in a rude, insulting or angry manner." The State charged that McNellis did this by hitting Kara in an angry manner. That's what the State had to prove beyond a reasonable doubt, and it did so.

First, the jury heard Kara's testimony from the preliminary hearing that she and McNellis checked into the Bluemont Hotel together on the night of the incident. It also heard testimony that police officers and a hotel security guard responded to an incident in her room.

Then the jury heard from Officer Wagenblast. He described how, when he arrived to McNellis' hotel room, he saw a "slightly red bump over her left eye" and that Kara showed him where her left ear was cut. Wagenblast also said Kara had "red marks on her neck ...."

Arth testified that she was working at the hotel on the night of the incident when a female called and asked her to call an ambulance because the caller's husband had choked her out. The State also admitted an email Arth sent to the hotel's front-desk supervisor and general manager; the email said that Kara had reported that "her husband had physically abused her by hitting her in the head and choking her."

Hill, who was working as a hotel security guard, told the jury that Arth called and asked Hill to go to McNellis' room because Kara had called to report a physical assault. Hill told the jury that he saw blood dripping from Kara's ear and that she had red marks across her neck. Hill also told the jury that Kara told him that McNellis "threw her on the bed and ... was choking her out ...."

Along with this testimony, the State presented Kara's written statement that said McNellis had restrained Kara in bed and that he put his hands around her neck and "repeatedly put [her] in a chokehold position and was twisting [her] neck to [the] point of pain." Kara's written statement also said that McNellis "struck [her on the] left side of [her] face about 3-4 times." And the State introduced photos of Kara's injuries and the video recordings of the statements she made to the responding officers.

The State needed merely to show that McNellis had struck her one time that night in anger. The evidence the State presented was more than enough to support McNellis' conviction for battery against Kara.

XI. McNellis Has Not Shown Error in the District Court's Issuance of Arrest Warrants for McNellis .

Last, McNellis claims the district court erred by issuing arrest warrants for him while he has been on probation. He alleges that the first warrant for a probation violation was issued without giving him a chance to "appear and defend." He argues that a second warrant was issued in retaliation because he was exposing public corruption in the courts.

Under K.S.A. 2018 Supp. 22-3716(a), "the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment ...." Subsection (b) instructs that "[u]pon arrest and detention pursuant to subsection (a), the court services officer or community correctional services officer shall immediately notify the court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release or assignment or a nonprison sanction." K.S.A. 2018 Supp. 22-3716(b)(1). These statutes do not require a defendant to have the chance to defend himself before the arrest warrant is issued. Like other warrants, this one may be issued on probable cause; the defendant has a chance to explain and defend his conduct after arrest.

Here, the State moved to revoke McNellis' probation based on allegations that McNellis had violated his probation by not reporting to his probation officer. Based on an affidavit, the court issued an arrest warrant against McNellis. The record shows that the court followed prescribed procedure when issuing a warrant against McNellis.

McNellis apparently argues that the second bench warrant that the court issued against him was unlawful because it had an unlawful purpose. If so, the matter should have been addressed first in the district court. Once again, issues generally must be first addressed in the district court. If an issue is to be addressed first on appeal, the party raising it must tell us what exception allows the presentation of the issue here first. Godfrey , 301 Kan. at 1043.

McNellis has not shown error, and we affirm the district court's judgment.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    In the MATTER OF the MARRIAGE OF Jody L. MOLER, Appellee/Cross-appellant, and William R. MOLER, Appellant/Cross-appellee.
    No. 119,113
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Joseph W. Booth, of Lenexa, and Peggy S. Bisping, of Shawnee, for appellant.
    Gary L. Ayers, of Foulston Siefkin LLP, of Wichita, and Anne E. Burke, of Burke McClasky Stevens, of Overland Park, for appellee.
    Before Gardner, P.J., Green and Atcheson, JJ.
    MEMORANDUM OPINION
   Per Curiam:

This appeal arises from a district court's interpretation and application of supplemental child support and supplemental maintenance provisions in the parties' post-divorce settlement agreement. Both parties have appealed, challenging the supplemental amounts due for 2015.

Factual and Procedural Background

William and Jody Moler married in 1990 and had three children, born in 1993, 1998, and 2000. They divorced in 2013. The decree included the parties' Separation and Property Settlement Agreement (Settlement Agreement) and Parenting Plan approved by the court. When the parties divorced, the youngest two of the three children were minors subject to the jurisdiction of the district court. Now, all the children are over 18.

The parties agreed that William would pay Jody $3,560 per month in "base child support." The base child support calculation was made by averaging the extended and nonextended income formulas based on William's salary of $275,000.

In addition to base child support, the parties agreed to a supplemental child support provision:

"[I]n addition to the Base Child Support described above ... [Jody] shall receive 10% of the amount, if any, by which the sum of all [William's] earned income (wherein 'earned income' shall be defined as bonus income and cash distributions from stock options/restricted stock options and excluding any income from investments including but not limited to those investments shown on the attached spreadsheet and the actual stock options or restricted stock options [William] may receive) exceeds his current salary ($275,000 per year). The supplemental child support shall be prorated for the last year the support is due (any year a child emancipates)."

The parties challenge the district court's application of this provision and the supplemental maintenance provision on appeal.

Both parties waived their rights to statutory maintenance from the other and agreed to a supplemental maintenance provision. It defined "earned income" identically to the definition of that term in the supplemental child support provision:

"[I]n lieu of any month to month maintenance and in consideration for the division of marital assets, that [Jody] shall receive 20% of the amount, if any, by which the sum of all [William's] earned income (wherein 'earned income' shall be defined as bonus income and cash distributions from stock options/restricted stock options and excluding any income from investments including but not limited to those investments shown on the attached spreadsheet and the actual stock options or restricted stock options [William] may receive) exceeds his current salary ($275,000 per year)."

The primary issues on appeal are whether certain income William received during 2015 is included in the Settlement Agreement's definition of "earned income," and whether the parties could use that definition instead of the Kansas Child Support Guidelines' (Guidelines) definition of income in calculating supplemental child support.

William and Jody agreed to exchange their relevant tax and financial documents each year to facilitate calculation of the amounts due. Unless one party died or Jody remarried or cohabitated with another adult, William would pay supplemental maintenance through 2020. The parties also agreed to his payment of other items, such as insurance costs relating to the children, college costs not covered by the children's college funds, pet care, vehicles for the children, and other expenses. The Settlement Agreement also divided the marital assets and debts. Jody received $2,429,819-about 56% of the marital estate-while William received the remaining $1,839,082.

Careers and Salaries

Jody did not work outside the home for the large majority of the marriage. Around the time of the divorce, Jody took a minimum wage job as a paraprofessional in a school. She began teaching second grade full-time in August 2016 with an annual salary of $40,950.

From 2004 to 2012, William worked for Inergy Midstream, LLC, a midstream oil and gas company. In October 2012, William left his position as Chief Operating Officer of Inergy to work at Tallgrass Energy Partners (Tallgrass), a company that "builds critical energy of a structure for the transportation of crude oil and natural gas." William described Tallgrass as starting with "nine guys and the bank." By the time of the parties' divorce, William was Chief Operating Officer, Executive Vice President, and a board member of Tallgrass, which had grown to 650 employees.

In June 2013, 33 days after the court approved the parties' Separation Agreement, William was awarded 50,000 Equity Participation Units (EPUs) in Tallgrass in accordance with the company's long-term incentive plan. The plan defined EPUs as "a phantom (notional) unit granted under the Plan which entitles the Participant to receive, in the discretion of the Committee, a Unit or amount of cash equal to the Fair Market Value of a Unit" which would later be converted to common units of the partnership. The vesting schedule was subject to an "in-service date"-meaning the date that the Pony Express Crude Oil Pipeline was completed and began service. One-third of the EPUs were to vest on the latter of May 13, 2015 or the in-service date, while the other two-thirds were to vest on the latter of May 13, 2017 or the in-service date. Vesting depended on William's continued employment.

William could not choose whether to receive a stock option or an EPU, nor did he participate in any meeting in which the board determined whether he got cash, a stock option, or a unit. But he was part of the discussion when developing the EPUs, and he described the EPU system as something good for both the employees and the company:

"We wanted it to be more upbeat and supportive of the employees. Everybody in the company got some form of equity participation unit. And we wanted it to be titled something that was indicative of what we wanted them to have, which everybody pulling the rope the same direction, doing the same things for the same good and value, working as a team. So equity participation unit we felt met that standard."

In May 2015, the first third of William's EPU award-16,667 units-vested with a fair market value of $809,350. William received no cash as a result of this portion of the award vesting, but the receipt of the award was a taxable event. The dollar amount was considered "federal taxable wages" according to William's earnings statement, and they were reported under wages and salaries-not investment income or options-on his 2015 tax return. William had 6,239 units withheld to satisfy his tax liability.

William also received a $500,000 discretionary cash bonus in 2015, which he did not dispute was bonus income that Jody had a right to include in calculating supplemental support. His 2015 tax return showed that he received $895,426 of nonpassive income and a cash distribution of $12,292,331 from Tallgrass KC, LLC-a Tallgrass subsidiary company related to the one William worked for.

Litigation Leading to this Appeal

In June 2016, Jody and William's middle child turned 18 and William moved to modify both the base child support and the supplemental child support formulas. He asked that the supplemental support, 10% for two children, be prorated for 2016 and 5% thereafter for the remaining minor child, as was consistent with the Separation Agreement. Jody moved to modify child support, alleging that William's income had materially increased since the decree of divorce was filed. William later moved for determination of the amount owed in supplemental support in 2015. The court set the matter for a two-day trial in May 2017.

The parties filed several motions in limine about the anticipated testimony of their expert witnesses. William's expert was Professor Edwin T. Hood, Emeritus Professor of Law at the University of Missouri-Kansas City. Jody's expert was G. Matt Barberich, Jr., CPA. The parties and their experts testified at trial.

District Court's Memorandum Decision

The district court found that the supplemental support provisions in the parties' Settlement Agreement were subject to at least two possible interpretations, so they were ambiguous. The court admitted extrinsic evidence to aid in clarifying the intent and purposes of the uncertain language of the contract, but not to vary or nullify its clear provisions.

The district court found that EPUs are a form of equity compensation that does not constitute earned income as defined in the parties' Settlement Agreement, so it excluded EPUs from the supplemental spousal support calculations. It determined that the parties "specifically excluded forms of equity compensation and investment income" when determining the supplemental support calculation. It found Hood, William's expert, to be "far more persuasive and logical" than Barberich, Jody's expert, and adopted Hood's testimony and opinions in its findings.

The court also found supplemental spousal maintenance included William's annual salary, bonuses, and cash distributions from stock options/restricted stock options but excluded William's income from investment and his equity compensation, whether in the form of stock options, restricted stock options, or EPUs. Its decision did not, however, mention which category William's income from Tallgrass KC fit into.

Finally, the district court held that the parties' redefinition of income for supplemental child support was unenforceable because their definition of "earned income" differed from the definition of "gross domestic income" in the Guidelines. It found it in the best interests of the children to adopt Jody's methodology of calculating supplemental child support on William's total income, including income from EPUs and Tallgrass KC.

Postrial Motions

Jody moved to alter or amend the judgment to clarify that the $895,426 William received from Tallgrass KC should be included when calculating supplemental maintenance. William then moved the court to alter or amend its orders by finding that all income from investments-including taxable passive and nonpassive investment income-should be excluded from supplemental maintenance calculations. He asked that the ruling be altered with specific findings for the amounts he owed for 2015, 2016, and 2017.

The court sustained Jody's Motion to Alter or Amend Judgment and denied in part and sustained in part William's Motion to Alter or Amend. The court found that Jody was entitled to 20% of William's earned income exceeding $275,000 per year, including the income from Tallgrass KC and cash distributions from stock options and restricted stock options but excluding passive income from investments and equity compensation-whether it be in the form of stock options, restricted stock options, or EPUs. The district court therefore adopted Jody's calculations for what is owed for 2015 and 2016 and adopted William's calculations for what is owed for 2017.

Both parties appealed, challenging the amount of supplemental support due for 2015.

Did the District Court Err in Excluding Equity Participation Unit Income When Calculating Supplemental Maintenance?

We first address Jody's argument that the district court erred in not including the value of William's vested EPUs when determining the amount of supplemental maintenance to which she was entitled.

Standard of Review

Whether a written instrument is ambiguous is a question of law subject to de novo review. Waste Connections of Kansas, Inc. v. Ritchie Corp. , 296 Kan. 943, 964, 298 P.3d 250 (2013). To the extent ambiguity exists, questions on the parties' intent raise a question of fact subject to an abuse of discretion standard. Nungesser v. Bryant , 283 Kan. 550, 566, 153 P.3d 1277 (2007) ; George v. Capital South Mtg. Investments, Inc. , 265 Kan. 431, 444, 961 P.2d 32 (1998).

Analysis

Jody argues that the district court erred when it determined that the parties should exclude William's EPU income from the supplemental support calculations. She argues that the phrase "earned income" is unambiguous, and that William's EPU award was bonus income which is included in the definition of "earned income."

" 'The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.' " Stechschulte v. Jennings , 297 Kan. 2, 15, 298 P.3d 1083 (2013). A court can consider evidence other than the agreement itself only if a contract is ambiguous. In re Marriage of Johnston , 54 Kan. App. 2d 516, 526, 402 P.3d 570 (2017), rev. denied 307 Kan. 987 (2018). A contract is ambiguous when there is more than one reasonable interpretation of its language. In re Estate of McLeish , 49 Kan. App. 2d 246, 255, 307 P.3d 221 (2013). And a divorce settlement agreement retains its contractual aspects even after it has been incorporated into a divorce decree. In re Marriage of Hudson , 39 Kan. App. 2d 417, 426, 182 P.3d 25 (2008).

We find that the Settlement Agreement is subject to different interpretations about what the parties meant to include in and exclude from the definition of "earned income." By creating their own definition of that term, the parties sowed the seeds of confusion. We thus agree with the district court that the Settlement Agreement is ambiguous, so the district court appropriately considered parol evidence to help determine whether EPUs-which are unique to this company-are earned income.

Testimony from the parties and their experts diverged on this issue. Jody's expert, Barberich, testified that the EPUs were included in the definition of "earned income" as bonus income, while William's expert, Hood, testified that the EPUs were excluded from that definition as equity-based compensation similar to restricted stock options. We review challenges to specific factual findings in support of maintenance or child support determinations to ensure that those findings are supported by substantial competent evidence sufficient to support the district court's conclusions of law. See In re Marriage of Hair , 40 Kan. App. 2d 475, 486, 193 P.3d 504 (2008) (maintenance); In re Marriage of Atchison , 38 Kan. App. 2d 1081, 1085, 176 P.3d 965 (2008) (child support).

Barberich testified that the EPUs are equivalent to a bonus because their vesting is based on William's services for the completion of a particular project by a specific deadline. He described this set up as a pay-for-performance agreement because the compensation in the form of EPUs is distributed only upon the successful completion of the Pony Express Pipeline by May 2018. Upon vesting, the EPU ceases to exist and the recipient has a tradeable share of Tallgrass. No company-imposed restrictions exist on trading an EPU after it vests into a common unit, but given William's position within Tallgrass, he may be subject to certain SEC restrictions in his ability to complete transactions with his vested units.

Barberich testified that the value of the EPU award-$809,349-was included with William's other compensation, including salary and bonus, on his May 2015 pay stub. That amount was also included in William's gross pay on his W-2. William's 2015 tax return did not report the vesting of the EPUs as a return on investment or dividends or interest but reported it under wages and salaries. He considered the award a bonus because it was contingent on work performance and the completion of the Pony Express Pipeline. In his opinion, the fact that the EPUs convert to units (stock) instead of cash, upon vesting, makes no difference. Barberich said that a nonemployee could purchase a unit that would be considered investment income, but because William earned his, it would not be considered income from investments within the meaning of the Settlement Agreement.

Hood disagreed. He noted that the $809,349.52 was labeled as "Long Term Incentive" on William's pay stub, not "bonus" as discretionary cash bonuses were labeled. That dollar value represented the fair market value of the first third of the EPU award vesting, and although it was a taxable event, William received no cash. The receipt of the Long-Term Incentive was a taxable event much the same as receipt of restricted stock would have been.

Hood explained that when a company is a master limited partnership, such as Tallgrass and Inergy, employees do not receive stock-they receive units. William received restricted units from Inergy, much like the type of unit he was awarded at Tallgrass. Hood called these awards a form of equity compensation. He opined that an EPU is equity-based compensation in the same way that restricted stock options are equity-based compensation. The Settlement Agreement excludes stock options and restricted stock options from the definition of "earned income" in the supplemental support calculations. Hood testified that William does not owe supplemental support when he receives the fair market value of an EPU award because it is excluded per the parties' definition in their Settlement Agreement.

As to the testimony about EPUs, the district court made express credibility findings:

"The Court further finds that Equity Participation Units do not constitute income per the parties' PSA and are not included in the calculation of supplemental spousal support. The Court finds that the analysis, reasoning and opinions of the Respondent's expert Hood to be far more persuasive and logical .... The Court further finds that the Respondent's testimony in this regard[ ] to also be persuasive and adopted by the Court as its findings as well. In adopting the Respondent's expert Hood's opinion, the Court has rejected the Petitioner's expert's opinion finding simply that the Petitioner's expert's conclusions and analysis were not as persuasive to this Court."

"Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations." State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). Thus, we credit the district court's finding that Hood's opinion and William's opinion were weightier, more credible, or more persuasive than Barberich's opinion and Jody's opinion as to EPUs. The testimony of Hood and William provides substantial competent evidence supporting the district court's conclusion that William's EPU income was not to be included when calculating supplemental support under the Settlement Agreement.

Did the District Court Err in Awarding Jody a Share of the Tallgrass KC, LLC Distribution?

We next address William's argument that the district court erred by awarding Jody a share of his $895,426 income from Tallgrass KC.

Analysis

In response to Jody's motion to alter or amend, the court found that the income as reported on William's Tallgrass KC, LLC K-1 amounting to $895,426 should be included in the calculation of supplemental spousal support William owes. William argues that this was an error because the Settlement Agreement excluded income from investments, specifically ones from this entity. We agree.

The Settlement Agreement specifically excludes investment income from the supplemental support definition of "earned income," including but not limited to the investments included on the spreadsheet attached to the Settlement Agreement. That spreadsheet listed "Tallgrass" in the amount of "$450,000"-likely a reference to William's initial $450,000 investment in Tallgrass KC. Although William's testimony was equivocal as to whether this entry on the spreadsheet was to Tallgrass KC, the record supports a reasonable inference that it does so. It is thus expressly excluded from the definition of "earned income" in the supplemental agreements.

But an alternative explanation supports that same conclusion-both experts testified that the Tallgrass KC income was "earned income" as defined by the parties in the Settlement Agreement. Barberich testified on direct examination that the $895,426 distribution from Tallgrass KC was considered earned income "for tax purposes." On cross-examination, however, he agreed that the parties did not adopt the tax definition of "earned income" and called that distribution "a non-passive form of investment income." He described nonpassive income as when a taxpayer materially participates in the business, while passive income means that the taxpayer has an ownership interest in the investment but does not participate in that activity to the level that the IRS requires for it to be nonpassive. When asked: "So you agree that investment income is excluded from the calculations based on the parties' Settlement Agreement?" he responded, "Investment income would be excluded." He conceded that the parties' Settlement Agreement did not distinguish between passive or nonpassive investment income. Thus, according to his testimony, the Tallgrass KC distribution should be excluded from the supplemental support calculations.

Similarly, Hood testified that the funds coming from William's investment in Tallgrass KC "would be clearly investment income, not earned income, within the meaning of the document" and that it should be excluded from supplemental support calculations per the Settlement Agreement. Both parties' experts agreed that the Tallgrass KC income amounting to $895,426 is investment income.

The district court's finding that this amount is not investment income lacks substantial competent evidence to support that conclusion. Its order granting Jody's motion to alter and amend does not state any evidence it relied on in reaching that conclusion. Jody argues that the $895,426 is not investment income because William materially participated in Tallgrass KC and that any income William received from any Tallgrass-related entity that he materially participated in should be included as "earned income." Although Jody's opinion reflects a logical way to define that term, it is contradicted by the definition of "earned income" the parties chose to use in the Settlement Agreement. And Barberich admitted that although William was active in generating the Tallgrass KC income, it is still a kind of investment income. The parties chose to exclude investment income from their definition of "earned income."

We find that the $895,426 is directly attributable to William's 9.109% ownership interest in Tallgrass KC and must be considered investment income. Both experts agreed that the $895,426 distribution was a kind of investment income. Because the parties specifically excluded investment income from supplemental support calculations without differentiating between active or passive income, Jody is not entitled to a share of the $895,426.

Did the District Court Err in Modifying the Settlement Agreement's Supplemental Child Support Provision?

William claims that the district court erred when it modified the Settlement Agreement's supplemental child support provision. First, he argues that the district court lacked jurisdiction to modify that provision because it is separate and distinct from the base child support provision which follows the Guidelines. Second, he argues that enforcing the remainder of the supplemental child support provision after replacing "earned income" with "domestic gross income" was an error because the district court did not have evidence about the needs of the children in doing so. Third, William argues that if the district court could modify supplemental child support for policy reasons, it should have stricken the entire supplemental child support provision instead of just the limiting language and used the base child support provision to ensure adequate funds for the children.

Standard of Review

Whether jurisdiction exists is a question of law over which this court has unlimted review. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017). We review a district court's order determining the amount of child support for an abuse of discretion, while we have unlimited review over the interpretation and application of the Guidelines. In re Marriage of Paul , 32 Kan. App. 2d 1023, 1024, 93 P.3d 734 (2004), aff'd 278 Kan. 808, 103 P.3d 976 (2005). We also exercise unlimited review over issues involving the interpretation of separation agreements, as they are subject to the normal rules of contract law. In re Estate of McLeish , 49 Kan. App. 2d at 255.

Did the District Court Have Jurisdiction to Modify the Supplemental Child Support Provision?

We first address William's assertion that the district court lacked jurisdiction to modify the supplemental child support provision. The Settlement Agreement has two provisions that involve support for the couple's children. First, the parties agreed to what they called base child support. K.S.A. 2018 Supp. 23-3002(a) provides: "In determining the amount to be paid for child support, the court shall follow the Kansas child support guidelines adopted by the supreme court pursuant to K.S.A. 20-165, and amendments thereto." The parties agree that the base child support provision complied with the Guidelines and specified that its provisions for child support are modifiable and terminable by the court under K.S.A. 23-3001 et seq. William's income, as that term is defined by the Guidelines, exceeded the child support schedules, so the parties considered the extended-income formula then averaged the extended-income formula with the non-extended income formula to reach the amount of child support due under the Guidelines.

Second, the parties provided for supplemental child support in addition to base child support. William was to pay supplemental child support directly to Jody in years when his "earned income" exceeded his salary of $275,000. But the Settlement Agreement's definition of "earned income" for purposes of supplemental child support excludes income from investments and stock options or restricted stock options William may receive and is thus is narrower than the definition of "domestic gross income" required by the Guidelines. The Guidelines define "domestic gross income," as "income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent." Guidelines § II.D. (2019 Kan. S. Ct. R. 85). This definition is intentionally broad to include every conceivable form of income whether in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever. See In re Marriage of Callaghan , 19 Kan. App. 2d 335, 336, 869 P.2d 240 (1994) (quoting 2 Elrod, Kansas Family Law Handbook § 14.024, p. 14-11 [1990] ).

The district court, recognizing this distinction, modified the supplemental child support provision, finding that the parties could not use a non-Guidelines definition of income for purposes of child support even for this supplemental provision. It found the parties' agreement unenforceable and revised it by striking "earned income" and its definition and substituting the Guidelines' required "domestic gross income" and its definition. William argues that the district court had no jurisdiction to do so. We agree.

Separation agreements are subject to the normal rules of contract negotiation. In re Marriage of Hudson , 39 Kan. App. 2d at 426. As with any other contract, the intent of the parties to a separation agreement governs. 39 Kan. App. 2d at 427. We liberally interpret contracts to carry out the intention of the persons making them. Ranney v. Ranney , 219 Kan. 428, 431, 548 P.2d 734 (1976).

But parental child support obligations in a divorce action are governed by statute and guidelines established by our Supreme Court. See generally K.S.A. 2018 Supp. 23-3001 et seq. (governing court's obligation and authority to make provisions for child support); K.S.A. 2018 Supp. 20-165 (mandating Supreme Court to adopt rules establishing child support guidelines); Kansas Supreme Court Administrative Order No. 287, effective September 1, 2016. Parents may make a provision for child support in a separation agreement, but even though the agreement is approved and incorporated into the decree, the court has the power to modify it in the best interests of the child. K.S.A. 2018 Supp. 23-2712 ; 2 Elrod, Kansas Law and Practice: Kansas Family Law § 14:30 (2018). Our statute provides that "any provisions relating to" the support of minor children "shall be subject to the control of the court in accordance with all other provisions of this article." K.S.A. 2018 Supp. 23-2712. Those other provisions require the court, among other matters, to follow the Guidelines in determining the amount to be paid for child support, K.S.A. 2018 Supp. 23-3002, and permit the court to modify prior child support orders. K.S.A. 2018 Supp. 23-3005.

Child support is a right belonging to the child which cannot be reduced or terminated by agreement between parents. In re Marriage of Schoby , 269 Kan. 114, Syl. ¶ 1, 4 P.3d 604 (2000) ; see Brady v. Brady , 225 Kan. 485, 488-89, 592 P.2d 865 (1979) ("Divorced parents cannot legally reduce child support or terminate the obligation by a contractual agreement or otherwise. It is a right of the child and can only be reduced or terminated by court order."). Thus parents cannot contractually agree to reduce or terminate a parent's continuing statutory obligation to support minor children. Thompson v. Thompson , 205 Kan. 630, 633, 470 P.2d 787 (1970).

But here, the parties did not agree to reduce or terminate child support-they agreed to increase it under certain circumstances. The statutorily required amounts of child support were included in the base child support provision. Only the supplemental child support provision defined income differently than did the Guidelines. The apparent purpose for the supplemental provision was to benefit the minor children in years when William's income was greater than $275,000 without making the parties return to court to prove a material change of circumstances. See K.S.A. 2018 Supp. 23-3005(a) (where modification of child support is sought within three years of the original order or a modification of that order, the party seeking modification must demonstrate a material change in circumstances).

We find no similar case in Kansas. Kansas courts have found, however, that they lack jurisdiction to modify provisions in an agreement incorporated into the decree of divorce that extend payment obligations past the statutorily required length of time. For example, we have found that parties may contractually agree to extend maintenance payments beyond 121 months, despite K.S.A. 2018 Supp. 23-2904's statement that "the court may not award maintenance for a period of time in excess of 121 months." See Johnston , 54 Kan. App. 2d at 530. This case illustrates the principle that parents may voluntarily agree to do more than the law requires, and that which a court cannot do. Cf. In re Marriage of Roth , 26 Kan. App. 2d 365, 369-70, 987 P.2d 1134 (1999) (finding that the court had no jurisdiction to modify the parties' settlement agreement relating to income tax exemptions).

Similarly, a divorce court has no power to continue a provision for support of a child after the child attains the age of majority but the parents may agree to do so. See, e.g., Morrison v. Morrison , 14 Kan. App. 2d 56, 60-61, 781 P.2d 745 (1989) (finding if the parents have a written agreement for post-majority support incorporated into the decree of divorce, the trial court has no jurisdiction to modify the periodic support payments after the child has reached the age of 18); In re Marriage of Williamson , No. 115,518, 2016 WL 7429527, at *4 (Kan. App. 2016) (unpublished opinion) (finding that when the education expense obligations of a parent extend past the age of majority by an agreement incorporated into the decree of divorce, once the child reaches the age of majority, the trial court lacks jurisdiction to modify the agreement); In re Marriage of Guthrie-Craig , No. 113,410, 2016 WL 3128692 (Kan. App. 2016) (unpublished opinion) (finding "[p]arents may contractually agree to extend the payments in a written agreement, but such an agreement between the parties does not extend the court's authority to modify the agreements").

We recognize that Jody and William's child was a minor at the time of trial, and that these child support cases are distinguishable because they are based on statutory language that the court may generally order the child support to be paid "for any child less than 18 years of age." K.S.A. 2018 Supp. 23-3001(b). Nonetheless, these cases reflect the general principles that the court generally lacks jurisdiction to modify an otherwise valid agreement that provides for child support above and beyond the child support required by the Guidelines, and that a parent has a right to do more for his or her children than the law requires. Parents may contractually agree to extend the payments in a written agreement, but such an agreement between the parties does not extend the court's authority to modify the agreement. See Bartlett Grain Co. v. Kansas Corporation Comm'n , 292 Kan. 723, 726, 256 P.3d 867 (2011) ("[P]arties cannot confer subject matter jurisdiction by consent.") (citing Padron v. Lopez , 289 Kan. 1089, 1106, 220 P.3d 345 [2009] ).

The child support Guidelines do not prohibit a parent from paying more support than the Guidelines require and doing so serves the purpose of the Guidelines:

"And the purpose of the Guidelines is not offended, but rather is aided by allowing divorcing parents to agree to provide greater support for their children. The Guidelines do not constitute the maximum support that a parent may agree to provide for his or her children. Although, as a rule, it is not in the best interest of the children when their parents agree to an amount of child support below the Guidelines, no one can convincingly argue that the best interests of the children are not served when their parents agree to support in excess of the amount established by the Guidelines. Although a court is not bound by such agreements, when parents wish to provide or agree to provide more support than required by law, the Guidelines should not act as a barrier. Furthermore, when the trial court reviews the parties' agreement that requires child support in excess of the Guidelines, it is only required to find that the parents, 'having demonstrated knowledge of the amount of child support established by the [Guidelines], have agreed to child support' in excess of the Guidelines." Pursley v. Pursley , 144 S.W.3d 820, 825-26 (Ky. 2004) (permitting parties to redefine income for the purpose of determining Father's additional child support obligation).

It is uncontested that William knew the amount required by the supplemental child support agreement exceeded his legal obligation established by the Guidelines.

We apply " 'the paramount public policy [ ] that freedom to contract is not to be interfered with lightly.' " Idbeis v. Wichita Surgical Specialists, P.A. , 279 Kan. 755, 770, 112 P.3d 81 (2005) (quoting Weber v. Tillman , 259 Kan. 457, 474, 913 P.2d 84 [1996] ). The parties' Settlement Agreement is an enforceable contract, and a court is not at liberty to revise, modify, or make a different contract from that entered into by the parties. Fourth Nat'l Bank & Trust Co. v. Mobil Oil Corp. , 224 Kan. 347, 353, 582 P.2d 236 (1978). An exception may arise when a court acts in equity, see Stauth v. Brown , 241 Kan. 1, 11, 734 P.2d 1063 (1987), but the district court did not exercise its equitable jurisdiction here-instead it reformed the parties' agreement because of what it thought the Guidelines required.

The district court lacked the authority to reform the parties' settlement agreement by substituting the Guidelines' definition of domestic gross income for the parties' definition of earned income in the supplemental agreement. The parties did not redefine income for purposes of the child support required by the Guidelines. Instead, they used the Guidelines definition of income for the required child support amounts (base child support), then agreed to pay amounts above and beyond those required by the Guidelines based on a non-Guidelines definition of income (supplemental child support). That agreement does not violate the law.

The district court should have enforced the supplemental child support agreement as written. Because the supplemental child support agreement uses the same definitions of "earned income" as did the supplemental spousal support, the district court should have interpreted its definition of "earned income" in the same way. We find it unnecessary to reach William's other claims of error. We direct the district court to remove the Tallgrass KC payment to William from the calculation of supplemental spousal support, to restore the formula the parties agreed to for supplemental child support, and to remove the Tallgrass KC payment to William from the calculation of supplemental child support.

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


author: Leben, J.:

text:
    STATE of Kansas, Appellee, v. Derek E. STEFAN, Appellant.
    No. 120,536
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    MEMORANDUM OPINION
   Leben, J.:

Derek Stefan challenges the district court's decision to sentence him to prison on his conviction for possession of methamphetamine. He contends that K.S.A. 2018 Supp. 21-6824, which requires that a court sentence certain offenders to drug treatment instead of prison, should have controlled his sentence. The State did not respond on appeal with any argument against Stefan's position; we find that Stefan qualified for a drug-treatment sentence under that statute, so the district court erred when it instead sent Stefan to prison.

FACTUAL AND PROCEDURAL BACKGROUND

In 2018, Stefan pleaded no contest to possession of methamphetamine under K.S.A. 2108 Supp. 21-5706-an offense he committed while he was on parole in another felony case. Based on Stefan's criminal-history score of D, the presumptive sentence for this crime was 23, 24, or 26 months in prison. See K.S.A. 2018 Supp. 21-6805(a). The sentence fell in what's called a border box on the sentencing guidelines grid. See K.S.A. 21-6805(a), (d). In such cases, the presumptive sentence is prison but the district court has the option instead to impose a nonprison sentence, like probation, based on certain findings the court must make. See K.S.A. 2018 Supp. 21-6804(q) ; State v. Whitlock , 36 Kan. App. 2d 556, Syl. ¶ 4, 142 P.3d 334 (2006).

A presentence-investigation report was completed before Stefan's sentencing. It showed that Stefan had a high probability of a severe substance-use disorder and an LSI-R score (a criminal risk-needs assessment) of 30, which corresponds to a moderate-risk category. Based on those scores, Stefan asked at sentencing that the court sentence him to probation so he could receive drug treatment under what's commonly called Senate Bill 123. That was the 2003 legislation codified at K.S.A. 21-4729 and now recodified in K.S.A. 2018 Supp. 21-6824. At sentencing, the State agreed with Stefan and asked the court to place Stefan on probation with an underlying sentence of 24 months in prison that he would serve only if he failed to complete his probation.

But the district court instead sentenced Stefan to 24 months in prison. The court said that "[t]here [was] no question ... that Mr. Stefan is in need of substantial treatment." But considering Stefan's probation violations from a different case and a prior failed attempt at drug treatment, the court found that ordering Stefan to receive additional drug-treatment services wouldn't be effective. The court said that it was declining to make the border-box findings that treatment would be more effective than imprisonment. See K.S.A. 2018 Supp. 21-6804(q).

Stefan then appealed his sentence to our court.

ANALYSIS

Stefan's argument is straightforward. He contends that his prison sentence was illegal because he qualified for mandatory drug treatment under K.S.A. 2018 Supp. 21-6824(a)(1). The district court cannot ignore a mandatory requirement established by statute, he argues.

Two statutes controlled whether Stefan should go to prison or be sent for drug treatment. K.S.A. 2018 Supp. 21-6805 is the general statute providing a presumptive prison sentence-but the option for probation-if the offense is a level-5 drug crime and the defendant's criminal-history score is D. K.S.A. 2018 Supp. 21-6824(a) is a specific statute providing for probation and drug treatment for level-5 drug offenses with a criminal-history score of D if the defendant meets additional criteria set out in the statute. Those criteria are that the defendant have a "high risk status as determined by the drug abuse assessment" and "a moderate or high risk status as determined by the criminal risk-need assessment." K.S.A. 2018 Supp. 21-6824(c). Stefan asserts-and the State does not contest-that he scored as high risk in the drug-abuse assessment and moderate or high risk on the LSI-R test used in Kansas for the criminal risk-need assessment. So he qualified for probation and drug treatment under K.S.A. 2018 Supp. 21-6824.

The only potential hurdle Stefan faces on appeal is that the district court said it was declining to make the border-box findings usually required under K.S.A. 2018 Supp. 21-6805. If those findings are required even when the defendant meets the requirements of K.S.A. 2018 Supp. 21-6824, then the district court's prison sentence may have been appropriate. We conclude, however, that no border-box findings are required.

K.S.A. 2018 Supp. 21-6824(c) provides that if the offender has high-risk status in the drug assessment and moderate or high risk on the LSI-R, then "the sentencing court shall commit the offender to treatment ." (Emphasis added.) Even for crimes committed when another special statutory rule applies, such as when the new offense was committed while the defendant is on felony parole, the district court must follow the specific directive of K.S.A. 2018 Supp. 21-6824(c). The Kansas Supreme Court addressed the situation in which the new offense was committed while the defendant was on parole in State v. Andelt , 289 Kan. 763, Syl. ¶ 7, 217 P.3d 976 (2009), which Stefan cites to support his position.

In Andelt , the defendant was statutorily eligible for drug treatment, but he committed the new offense while on felony parole. One statute generally allowed the imposition of a prison sentence even when the guidelines otherwise called for probation if the defendant committed the new offense while on felony parole. But the Andelt court held that the specific provision on drug treatment ("the sentencing court shall commit the defendant to treatment") controlled; the sentencing court in that situation had no discretion to send the defendant to prison. 289 Kan. 763, Syl. ¶ 7.

We have essentially the same situation here. Although there's a general statute that usually requires border-box findings to put a defendant in the 5-D grid box on probation rather than give him a prison sentence, K.S.A. 2018 Supp. 21-6824 specifically covers defendants in the 5-D grid box who meet the other terms of that statute. The State hasn't contested Stefan's eligibility under K.S.A. 2018 Supp. 21-6824 in the trial court or on appeal. We therefore conclude that the district court erred in sentencing Stefan to prison, vacate Stefan's sentence, and remand the case to the district court for resentencing.

Stefan also claims the district court violated his rights under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it used his prior convictions to determine his criminal-history score. Stefan argues that this increased his sentence without requiring the State to prove the past convictions to a jury beyond a reasonable doubt. Apprendi held that the Sixth Amendment to the United States Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum-"[o]ther than the fact of a prior conviction"-must be proved beyond a reasonable doubt to a jury. 530 U.S. at 490.

The Kansas Supreme Court has already considered this issue and confirmed that Apprendi does not keep the court from considering the mere fact of a prior conviction when applying the Kansas sentencing guidelines. State v. Overman , 301 Kan. 704, 716, 348 P.3d 516 (2015) ; State v. Ivory , 273 Kan. 44, 47-48, 41 P.3d 781 (2002). So the district court did not violate Stefan's rights when it used his prior criminal history to apply the Kansas sentencing guidelines.

On Stefan's motion, we accepted this appeal for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). We have reviewed the record available to the district court, and we find that the district court erred in sentencing Stefan to prison.

We vacate Stefan's sentence and remand the case to the district court for resentencing.