                                         No. 114,908

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                              In the Matter of the Marriage of

                                     MELISSA L. KNOLL,
                                         Appellee,

                                              and

                                      DEAN E. KNOLL,
                                        Appellant.


                               SYLLABUS BY THE COURT
1.
        A property settlement agreement incorporated into a divorce decree is a hybrid in
the law having the characteristics of a judgment and retaining the contractual rights of the
parties.


2.
        The confirmation of a property settlement agreement and its merger into a decree
of divorce does not abolish the contractual aspects of the agreement but leaves the court
in the position to construe the provisions of the agreement consistent with the facts and
circumstances and the expressed intentions of the parties.


3.
        The primary rule of construction of a property settlement agreement in connection
with a divorce action is that, if possible, the court must, as in other contract cases,
ascertain and give effect to the mutual intention of the parties when the contract was
made.




                                               1
4.
       The intent of the parties to a property settlement agreement must be determined
from the agreement alone if the terms are unambiguous.


5.
       An appellate court applies a bifurcated standard when reviewing a motion to
modify maintenance.


6.
       When reviewing a motion to modify maintenance, an appellate court reviews the
trial court's factual findings for substantial competent evidence and for an abuse of
discretion. To the extent the trial court's rulings involve interpretation of a settlement
agreement, however, an appellate court exercises unlimited review.


7.
       Substantial competent evidence constitutes such legal and relevant evidence that a
reasonable person might accept as sufficient to support a trial court's conclusion.


8.
       When engaging in review, an appellate court should not reweigh the evidence or
the credibility of witnesses.


9.
       The circumstances of the relationship, as well as the realities of modern married
life, may be considered by a trial court in determining whether the evidence establishes
cohabitation.




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10.
       In absence of an alternative definition of cohabitation within a separation
agreement, Kansas defines cohabitation as living together as husband and wife, where
there is a mutual assumption of marital rights, duties, and obligations like married people,
which may but need not necessarily include sexual relations.


11.
       The Kansas definition of cohabitation does not include a time component. The fact
that two persons have been in a romantic relationship for a short time or that two persons
have been living together for a short time does not mean cohabitation does not exist.


12.
       A contract dividing financial responsibilities between two people living together
does not prevent a court from finding cohabitation when the evidence otherwise suggests
that the two people are cohabitating.


13.
       Under the facts of this case, when a separation agreement provides that a spouse's
obligation to pay maintenance terminates upon the ex-spouse cohabitating with another, a
court does not have discretion to terminate maintenance at any date other than the date
the cohabitation began.


14.
       Where a trial court has the authority to grant attorney fees, its decision is reviewed
under an abuse of discretion standard.




                                              3
15.
        A litigant must object to inadequate findings of fact and conclusions of law to give
a trial court an opportunity to correct them. In the absence of an objection, omissions in
findings will not be considered on appeal. Where there has been no such objection, the
trial court is presumed to have found all facts necessary to support the judgment.


        Appeal from Barber District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed August 19,
2016. Affirmed in part, reversed in part, and remanded with directions.


        Stephen M. Turley, of Cleary, Wagle & West, of Wichita, for appellant.


        Alan C. Goering, of Goering and Slinkard, of Medicine Lodge, for appellee.


Before MALONE, C.J., GREEN and GARDNER, JJ.


        GREEN, J.: This litigation arises out of a property separation agreement for the
termination of spousal maintenance upon the cohabitation of the petitioner. The
respondent, Dean E. Knoll, brought an action to end his spousal maintenance to the
petitioner, Melissa L. Knoll. The trial court determined that Melissa's cohabitation with
her boyfriend, Trevor Mallet, commenced in May 2015. The trial court, however,
determined that Dean's maintenance obligation would not terminate until October 1,
2015. On appeal, Dean contends that the trial court erred when it failed to terminate his
maintenance obligation in May 2015. We agree. On the other hand, Melissa cross-
appeals, arguing that the trial court erred by completely terminating Dean's maintenance
obligation. We disagree. In addition, Melissa contends that the trial court erred by not
awarding her attorney fees. We disagree. Accordingly, we affirm in part, reverse in part,
and remand with directions.


        On April 10, 2014, after over 15 years of marriage, Melissa and Dean divorced.
According to their property settlement agreement, which was incorporated into their
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divorce decree, Dean had to pay Melissa $1,238 per month in maintenance beginning on
May 1, 2014, for a total of 5 years. Nevertheless, the agreement further stated that
"[s]pousal maintenance shall terminate upon the death of either party or the remarriage or
cohabitation of [Melissa]." The term cohabitation was not specifically defined within the
property settlement agreement.


       On May 21, 2015, Dean moved to terminate maintenance obligation. In his motion
to terminate maintenance, Dean argued that Melissa was now cohabitating with Trevor.


       The trial court held a hearing on Dean's motion on July 2, 2015. At the hearing,
Dean testified that he learned at a May 2015 family therapy session with their minor child
that Melissa and Trevor had moved in together. According to Dean, Melissa told the
therapist that since moving in together with Trevor, she considered herself and Trevor as
being part of "a blended family."


       Melissa testified that she had been splitting her time evenly between her residence
with Trevor in Andover, Kansas, and her mother's house in Medicine Lodge, Kansas, for
the past 2 months. Apparently, Melissa and Dean used to rent the Medicine Lodge house
from her mother before their divorce. Melissa explained that she had intended to move all
her property from the Medicine Lodge house to her Andover residence with Trevor but
had not done so because of her father's recent death and her mother's recent medical
issues. Melissa further explained that the reason she had been splitting her time evenly
between Medicine Lodge and Andover was because of her parents' recent medical issues.
Melissa also testified that Dean understood that she would be entering pharmacy school
when they finalized their property separation agreement and that she and Trevor were
both students on a limited income.


       In regards to her living arrangements with Trevor, Melissa testified that she and
Trevor had no joint bank accounts, credit cards, or debt. Melissa further testified that she

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and Trevor would split the groceries but that she would pay for all of her child's
expenses. Melissa testified that she intended to take care of Trevor's minor children when
he could not. Melissa also had three exhibits entered into evidence. Two of the exhibits
were roommate agreements she had with Trevor. Outside of the addresses and total
amount of rent, the substance of both roommate agreements were identical. Under the
roommate agreements, Melissa and Trevor agreed to split rent, utilities, and "cleaning
and other household chores" evenly. The other exhibit admitted into evidence contained
photocopies of checks Melissa had made out to Trevor for rent and utilities.


       On cross-examination, Melissa conceded that she and Trevor had been in a
romantic relationship since February 2015, and they had moved in together in May 2015.
Melissa admitted that she is currently able to live where she does because she is splitting
living expenses with Trevor.


       On October 7, 2015, the trial court ordered the termination of Dean's maintenance
obligation based on the following evidence: (1) that Melissa and Trevor have been in a
romantic relationship since February 2015; (2) that Melissa and Trevor decided to move
in together after becoming romantically involved; (3) that Melissa and Trevor "moved
into the same residence, which appears to be the mutual, sole residence of both parties";
(4) that Melissa and Trevor had equal access to their residence; (5) that Melissa and
Trevor "share expenses approximately equally"; and (6) that Melissa and Trevor "have a
definite understanding as to shared household duties." In reaching its decision, the trial
court noted that the existence of the roommate agreement, that Melissa and Trevor did
not comingle money, that Melissa and Trevor were not engaged nor did they consider
themselves to be married, and that Melissa and Trevor were both students with a limited
income supported the converse of Dean's motion: that Melissa and Trevor were not
cohabitating.




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       Nevertheless, the trial court held that the factors supporting cohabitation
outweighed the factors not supporting cohabitation because the evidence clearly showed
that Melissa and Trevor decided to reside together primarily for romantic reasons not
financial reasons. The trial court ordered the termination of Dean's spousal maintenance
obligation effective October 1, 2015.


       Following the issuance of the trial court's order, Dean moved to amend the
termination date of his maintenance obligation. Dean argued that the correct date of
termination was May 2015 because the trial court ruled that Melissa and Trevor had
begun cohabitating at that time.


       The trial court held a hearing on Dean's motion to amend judgment. The trial
judge ultimately affirmed his prior ruling that Dean's maintenance obligation would
terminate on October 1, 2015. In support of his ruling, the trial judge stated that he
"believe[d] that . . . [he] appropriately exercised [his] equitable authority and discretion
in this matter."


       Dean timely appealed, and Melissa timely cross-appealed.


       Because Melissa's cross-appeal, if successful, would be dispositive of Dean's
contention that the trial court erred when it failed to terminate his maintenance obligation
in May 2015, we will first consider Melissa's assertion that the trial court erred when it
completely terminated Dean's maintenance obligation on October 1, 2015.


Did the Trial Court Err by Terminating Dean's Maintenance Obligation?


       On appeal, Melissa argues that the trial court erred by finding that she and Trevor
were cohabitating. In essence, Melissa argues that the trial court interpreted the facts
incorrectly because she had been spending so much time in Medicine Lodge that one

                                              7
could not consider her cohabitating with Trevor at their Andover residence. Melissa also
argues that she could not have been cohabitating with Trevor because cohabitation is one
step away from marriage and their roommate agreement proves that they were not in a
marital-like relationship. Dean responds that the trial court correctly determined that
Melissa and Trevor were cohabitating given Melissa's testimony at the evidentiary
hearing.


       An appellate court applies a bifurcated standard when reviewing a motion to
modify maintenance. In re Marriage of Strieby, 45 Kan. App. 2d 953, 961, 255 P.3d 34
(2011). An appellate court will review the trial court's factual findings for substantial
competent evidence and whether the trial court abused its discretion. Strieby, 45 Kan.
App. 2d at 961. To the extent the issue involves interpretation of the parties' settlement
agreement, however, an appellate court exercises unlimited review. Strieby, 45 Kan. App.
2d at 961. Substantial competent evidence constitutes such legal and relevant evidence
that a reasonable person might accept as sufficient to support the trial court's conclusion.
Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014). When engaging in this
review, appellate courts should not reweigh the evidence or the credibility of witnesses.
In re Marriage of Kuzanek, 279 Kan. 156, 160, 105 P.3d 1253 (2005).


       Melissa and Dean's property settlement agreement did not define cohabitation. In
the absence of an alternative definition of cohabitation within a divorce settlement
agreement, we are guided by the following definition of cohabitation: "'[To live] together
as husband and wife [and] mutual assumption of those marital rights, duties and
obligations which are usually manifested by married people, including but not necessarily
dependent on sexual relations.'" Kuzanek, 279 Kan. at 158, (quoting In re Marriage of
Wessling, 12 Kan. App. 2d 428, Syl. ¶ 6, 747 P.2d 187 [1987]). "The circumstances of
the relationship, as well as the realities of modern married life, may be considered by the
trial court in determining whether the evidence establishes cohabitation." Wessling, 12
Kan. App. 2d 428, Syl. ¶ 7.

                                              8
       Here, the evidence showed that Melissa and Trevor were in a romantic
relationship before deciding to live together. Then, upon moving in together, Melissa and
Trevor divided their financial burdens and domestic chores evenly. The fact that Melissa
intended to move all of her belongings into the Andover residence with Trevor shows that
she considered the Andover residence her primary residence. Furthermore, the fact that
Melissa referred to herself and Trevor as being part of "a blended family" and the fact
that Melissa admitted that she would at times care for Trevor's minor children further
demonstrated that Melissa and Trevor were cohabitating. Because Melissa and Trevor
were living together like husband and wife, were mutually assuming and dividing
domestic duties, and were blending their children together into a family household,
substantial competent evidenced showed that Melissa and Trevor were cohabitating.


       Nevertheless, Melissa challenges this evidence by relying on an explanation of
cohabitation in 2 Elrod and Buchele, Kansas Law & Practice, Kansas Family Law §
10.93, p. 55 (1999), which states:


       "There are various factors which can be used to determine if there is cohabitation that
       might relieve the former spouse. First, sharing a common residence; long term romantic
       involvement; shared assets or common bank accounts; joint contribution to expenses. If
       the recipient is in fact being supported by the cohabitant, there may [be] a strong case for
       termination based on there no longer being a need."


Based on this explanation, Melissa emphasizes that she and Trevor had only been in a
romantic relationship since February 2015 and had only lived with each other on and off
since May 2015.


       Melissa's arguments, however, run counter to reason. First, Melissa has placed far
too much emphasis on how long she and Trevor were romantically involved. The Kansas
definition of cohabitation does not include a time component for determining when


                                                    9
cohabitation begins; instead, the important factor is whether a couple is living together as
husband and wife. See Wessling, 12 Kan. App. 2d 428, Syl. ¶ 6.


       Moreover, a long-term romantic involvement necessary for cohabitation is
inconsistent with the lack of any time involvement necessary to enter into a valid
common-law marriage under Kansas law. For example, in discussing the requirements
for a valid common-law marriage in 1 Elrod and Buchele, Kansas Law & Practice,
Kansas Family Law § 3.31 (1999), the authors explained that time is not a factor when
determining the validity of a common-law marriage: "The requirements to form a
common law marriage are a capacity to make an agreement to marry; a present agreement
to be married; and a holding out to the public as husband and wife. Time is not a factor."
(Emphasis added.) We note, without the need to cite any authority, a couple who are
cohabiting under a valid common-law marriage are accorded more legal significance
under Kansas law than a couple who are merely cohabiting ostensibly as husband and
wife. Thus, if time is not a factor in determining whether a couple are involved in a valid
common-law marriage under Kansas law, it would seem that a long-term romantic
involvement is not an essential ingredient for establishing cohabitation under Kansas law.


       Second, although Melissa highlights that she and Trevor had only lived with each
other a short while, it is the fact of living with another person as husband and wife, not
the length of time living together, which triggers cohabitation. See Wessling, 12 Kan.
App. 2d, Syl. ¶ 6. Additionally, according to Melissa's own testimony, she intended to
move all of her belongings from Medicine Lodge to her residence with Trevor in
Andover. Melissa testified that the reason she had been splitting her time between her
Andover residence with Trevor and her old home in Medicine Lodge was because of her
parents' respective illnesses. In other words, but for her parents' illnesses, she would have
been living with Trevor full time. As a result, Melissa's argument will not bear nearly the
weight of reliance which she places upon it.


                                             10
       Third, to find that Melissa and Trevor were not cohabitating, this court would have
to reweigh the evidence supporting the trial court's finding of cohabitation. Because this
court is prohibited from reweighing evidence so long as the trial court's findings are
supported by substantial competent evidence, Melissa's argument necessarily fails. See
Kuzanek, 279 Kan. at 160.


       Finally, Melissa further attempts to undermine the trial court's finding by asserting
that the roommate agreement showed that she and Trevor were not in a marital-like
relationship. Melissa cites language from the United States Supreme Court case
Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584, 2608, 192 L. Ed. 2d 609 (2015),
stating that marriage "embodies the highest ideals of love, fidelity, devotion, sacrifice,
and family." Melissa then asserts that she and Trevor could not have been in a marital-
like relationship because their roommate agreement did not include any of the marriage
ideals detailed in Obergefell.


       Yet again, the question of whether Melissa and Trevor were cohabitating is
dependent upon whether their living arrangements indicated that they were cohabitating
under Kansas' definition of cohabitation not Obergefell's explanation of the ideals of
marriage. Furthermore, although Melissa asserts that the roommate agreement
demonstrates that she and Trevor were not living like a married couple, the roommate
agreement divided financial expenses and domestic chores evenly, in a way that
resembled the mutual assumption of marital rights. Last, as Dean argues in his brief,
roommate agreements should not shield persons who are cohabitating with someone from
having their spousal support terminated. Clearly, for policy reasons, it would be
inappropriate to protect persons who are cohabitating with someone from the termination
of their spousal maintenance just because they have attempted to mask their cohabitation
by a contract. See In re Marriage of Kuzanek, 32 Kan. App. 2d 329, 331, 82 P.3d 528
(2004) (holding that "relationships should not be masked by use of a legal device, such as


                                             11
a lease agreement if, when stripped away, cohabitation clearly exists."), reversed on other
grounds, 279 Kan. 156, 105 P.3d 1253 (2005)


         Accordingly, substantial competent evidence showed that Melissa and Trevor
were cohabitating. Thus, the evidence supported the termination of Dean's maintenance
obligation.


Did the Trial Court Err by Terminating Dean's Maintenance Obligation in October 2015
Instead of May 2015?


         Next, we must consider whether the trial court correctly terminated Dean's
maintenance obligation on October 1, 2015, despite the fact that it determined that
Melissa and Trevor began cohabitating in May 2015. Dean argues that under the plain
language of his and Melissa's property settlement agreement, Melissa's act of
cohabitation immediately terminated his responsibility to make any further maintenance
payments. Consequently, Dean argues that the trial court erred when it ruled that his
maintenance obligation terminated on October 1, 2015, instead of May 2015.


         Melissa responds that it would be error to terminate Dean's maintenance obligation
as of May 2015 for the same reason "as the finding of cohabitation in the first instance."
In essence, Melissa reasserts that termination of Dean's obligation to pay maintenance, in
and of itself, was error. Therefore, according to Melissa, regardless of when the trial court
terminated Dean's maintenance obligation, the trial court erred. Thus, Melissa never
specifically addresses whether termination in October 2015, instead in May 2015, was
error.


         As discussed earlier, Melissa's arguments about why the trial court erred in
terminating Dean's maintenance obligation were unpersuasive. Thus, Melissa's present
argument is equally flawed. Moreover, because Melissa has failed to explicitly address

                                              12
Dean's argument on appeal, she essentially concedes that the trial court's ruling was
erroneous. In fact, it seems Melissa recognizes that termination in October was error. She
implies that the trial court made its ruling because the court desired "to temper the harsh
results" of discontinuing maintenance.


       Nevertheless, despite this apparent concession, it is worth explaining why the trial
court's ruling was clearly incorrect. Again, "[t]o the extent that this issue involves
interpretation of the parties' settlement agreement, it is subject to normal rules regarding
contract interpretation which require de novo review." Strieby, 45 Kan. App. 2d at 961.
An appellate court must also adhere to the following rules concerning the interpretation
of property settlement agreements:


               "A property settlement agreement incorporated into a divorce decree is 'a hybrid
       in the law having the characteristics of a judgment and retaining the contractual rights of
       the parties.' In re Estate of Sweeney, 210 Kan. 216, 224, 500 P.2d 56 (1972). '[T]he
       confirmation of the agreement and its merger into the decree does not abolish the
       contractual aspects of the agreement, but leaves the court in the position to construe the
       provisions of the agreement consistent with the facts and circumstances and the expressed
       intentions of the parties.' 210 Kan. at 224. A written instrument may be construed and its
       legal effect determined by the appellate court. Cornwell v. Jespersen, 238 Kan. 110, 116,
       708 P.2d 515 (1985). 'The primary rule of construction of a settlement agreement in
       connection with a divorce action is that, if possible, the court must, as in other contract
       cases, ascertain and give effect to the mutual intention of the parties at the time the
       contract was made.' Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 (1976). The
       intent of the parties to a separation agreement must be determined from the agreement
       alone if the terms are unambiguous. Dodd v. Dodd, 210 Kan. 50, 55, 499 P.2d 518
       (1972)." Wessling, 12 Kan. App. 2d at 430.


       Here, Melissa and Dean's property settlement agreement explicitly stated that
Dean's duty to pay maintenance "shall terminate upon . . . cohabitation of [Melissa]."
(Emphasis added.) Therefore, the express provision of the agreement stated that Dean's

                                                    13
maintenance obligation would terminate once Melissa began cohabitating with another
person. The term "shall" demonstrates that termination is mandatory, not discretionary.
Consequently, the trial judge erred when he determined that he had discretion in
determining the date when Dean's maintenance obligation would terminate.


       This conclusion is also consistent with other Kansas cases. As noted in Dean's
brief, in In re Marriage of Quint, 258 Kan. 666, Syl. ¶ 2, 907 P.2d 818 (1995), our
Supreme Court held that "[m]aintenance payments automatically cease upon the payee's
remarriage when the judgment awarding maintenance so provides." See also Saroff v.
Haun, 28 Kan. App. 2d 471, 473-74, 17 P.3d 943 (2001) (reaffirming that spousal
maintenance terminates automatically upon remarriage when so provided for by
separation agreement). Although these cases involve the act of remarriage instead of the
act of cohabitation, the rule should apply equally to both situations: the obligation to pay
maintenance terminates automatically the moment one party commits an act that requires
the termination of maintenance under the separation agreement. Furthermore, the Illinois
Court of Appeals reached the same conclusion in In re Marriage of Gray, 314 Ill. App.
3d 249, 252-53, 731 N.E.2d 942 (2000), holding that maintenance automatically
terminates when the maintenance recipient cohabitates with another.


       In summary, because the trial court determined that Melissa began cohabitating
with Trevor in May 2015, the trial court erred when it ruled that Dean's maintenance
obligation would terminate on October 1, 2015. Accordingly, we reverse and remand
with directions to terminate Dean's maintenance obligation effective May 2015.


Did the Trial Court Err by Not Awarding Melissa Attorney Fees?


       Finally, Melissa argues that the trial court erred by not granting her request for
attorney fees. Although Melissa did not file a formal motion for attorney fees, she did
make an oral request for attorney fees at the evidentiary hearing on cohabitation. In her

                                             14
brief, Melissa asserts that the trial court erred by both failing to address her attorney fees
request and by not granting her attorney fees request. Nevertheless, Melissa's argument
fails.


         "Where the trial court has the authority to grant attorney fees, its decision is
reviewed under the abuse of discretion standard." Snider v. American Family Mut. Ins.
Co., 45 Kan. App. 2d 196, 199, 244 P.3d 1281 (2011), aff'd 297 Kan. 157, 298 P.3d 1120
(2013).


         First, as Dean argues in his brief, Melissa's argument must fail because she did not
object to the trial court's failure to rule on her attorney fees request. Our Supreme Court
has held: "[A] litigant must object to inadequate findings of fact and conclusions of law
in order to give the trial court an opportunity to correct them. In the absence of an
objection, omissions in findings will not be considered on appeal. Where there has been
no such objection, the trial court is presumed to have found all facts necessary to support
the judgment." Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286
(1998). Accordingly, Melissa had a duty to raise to the trial court that it never addressed
her request for attorney fees. Because Melissa failed to object to the trial court's lack of
findings, she is barred from raising this issue on appeal.


         Second, even if Melissa had preserved her argument, she simply argues that she
was entitled to attorney fees without further explanation. Melissa does not explain what
factors support an award for attorney fees. Moreover, she does not cite any law in support
of her argument. A point raised incidentally in a brief and not argued or supported therein
is deemed waived and abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296
Kan. 636, 645, 294 P.3d 287 (2013). Thus, regardless of the preservation issue, Melissa
has failed to establish that she was entitled to attorney fees in the district court.




                                               15
       After oral argument in this appeal, Melissa timely filed a motion asking that this
court order Dean to pay her attorney fees for this appeal. In her motion, Melissa relies on
Supreme Court Rule 7.07(b) (2015 Kan. Ct. R. Annot. 72), permitting an award of
attorney fees on appeal when the trial court has the authority to award attorney fees. In
addition, Melissa contends that she should be awarded attorney fees under Rule 7.07(c).
This subsection deals with the filing of a frivolous appeal. We note, however, that Dean
has prevailed on all the relevant issues in this appeal. As a result, we see no reason to
saddle Dean with Melissa's attorney fees. Thus, we deny Melissa's motion for attorney
fees and costs.


       Affirmed in part, reversed in part, and remanded with directions to terminate the
maintenance obligation as of May 2015.




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