                                        No. 112,057

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                             In the Matter of the Marriage of:

                                     STEVE SKOCZEK,
                                        Appellant,

                                            and

                                MARSHA LYNN SKOCZEK,
                                      Appellee.


                              SYLLABUS BY THE COURT

1.
       The district court is in the optimum position to make findings on the best interests
of the minor children.


2.
       Appellate courts review a district court's order determining the amount of child
support for an abuse of discretion, while the interpretation or application of the Kansas
Child Support Guidelines is a question of law subject to unlimited review.


3.
       The district court can deviate from the amount of child support listed in the
Guidelines but must justify any such deviation through specific written findings.


4.
       The determination of a child support obligation is not subject to a precise division
of time and money for child support. These are not computations that must be made with
scientific accuracy down to the penny. Rather, they arrive as a result of the application of


                                             1
child support guideline principles and the adaptation of guideline models that result in an
equitable award. Each case is different. Each parent's circumstances are unique. All
children's needs differ. The judicial eye and hand must fill in the final blanks, not a
computer program.


       Appeal from Johnson District Court; CHRISTINA DUNN GYLLENBORG, judge. Opinion filed June
5, 2015. Affirmed.


       Joseph W. Booth, of Lenexa, for appellant.


       David W. Fairbanks, of Norton Hare, L.L.C., of Overland Park, for appellee.


Before HILL, P.J., GREEN and LEBEN, JJ.


       HILL, J.: The district court ordered Steve Skoczek to pay $1,700 per month child
support to Marsha Skoczek. Skoczek appeals the district court's child support order,
contending that the district court should have applied an equal parenting time adjustment
instead of a 20 percent parenting time adjustment when it computed his child support
obligation. Our review of the record leads us to conclude that the child support order in
this case was a valid exercise of district court discretion. We affirm.


A brief case history provides context.


       Steve Skoczek and Marsha Lynn Skoczek were married in 1997. They have four
minor children. In 2013, Marsha filed for divorce. Sometime later, on their own, Steve
and Marsha resolved all issues except maintenance and child support. Their separation
agreement provided that they would have joint legal custody of the children and they
agreed to a 2-2-3 parenting plan. (A system of alternating days with the children.)




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       The district court approved the plan and incorporated the parties' separation
agreement and parenting plan into the divorce decree filed in May 2014. The court found
that it was in the children's best interests that Steve and Marsha receive joint custody of
the children.


       The district court then tried the issues of maintenance and child support. After
applying a parenting time adjustment, the district court ordered Steve to pay Marsha
$1,700 per month child support. Steve contends the court erred when it adjusted the
guidelines child support figure for his parenting time. In his view, he is paying too much
for child support.


General principles of law guide us.


       Without a doubt, the district court is in the best position to make findings on the
best interests of the minor children. In re Marriage of Rayman, 273 Kan. 996, 999, 47
P.3d 413 (2002). We review a district court's order determining the amount of child
support for an abuse of discretion, while the interpretation or application of the Kansas
Child Support Guidelines is a question of law subject to unlimited review. In re Marriage
of Wiese, 41 Kan. App. 2d 553, 559, 203 P.3d 59 (2009). Judicial discretion is abused if
the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law;
or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 935, 296 P.3d 1106 (2013).


       As an appellate court, we review the district court's findings of fact to determine if
those findings are supported by substantial competent evidence and are sufficient to
support the district court's conclusions of law. In doing so, we will not weigh conflicting
evidence, pass on the credibility of witnesses, nor redetermine questions of fact. See In re
Marriage of Atchison, 38 Kan. App. 2d 1081, 1085, 176 P.3d 965 (2008). Finally,
"substantial evidence" is such legal and relevant evidence as a reasonable person might

                                              3
accept as being sufficient to support a conclusion. Venters v. Sellers, 293 Kan. 87, 93,
261 P.3d 538 (2011).


We must use the Kansas Child Support Guidelines.


       It is mandatory to use the Kansas Child Support Guidelines (2013 Kan. Ct. R.
Annot. 123). In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998). The
district court can deviate from the amount of child support listed in the Guidelines but
must justify any such deviation through specific written findings in the journal entry
detailing how the deviation is in a child's best interests. Failure to make such written
findings, however, is reversible error. In re Marriage of Thurmond, 265 Kan. at 716; In
re Marriage of VanderVoort, 39 Kan. App. 2d 724, 732, 185 P.3d 289 (2008).


       The Guidelines include various methods, worksheets, and schedules adopted by
our Supreme Court to aid the district court in calculating child support. The 2013 version
of the Guidelines govern the child support award here. They give the district court the
discretion in situations where parents share their time equally or nearly equally to use
either the shared expense formula or equal parenting time formula in setting child
support. Guidelines § III.B.7. (2013 Kan. Ct. R. Annot. 129). The court did not use the
shared expense formula, as neither party wanted to use it. Only the equal parenting time
formula is pertinent to this case since Steve asked the court to use it. This formula
eliminates the need for parents to exchange receipts for the purpose of dividing their
share of the direct expenses.


       To use the equal parenting time formula, the district court must first make an
affirmative finding that a shared residential custody arrangement is in the best interests of
the minor child, that the parents share the child's time equally or nearly equal, and one or
more of the following conditions apply:


                                              4
          • The parties do not agree to use the shared expense plan;
          • applying the shared expense formula would place the parent designated to
               pay the direct expenses without the sufficient funds to be responsible for
               the direct expenses; or
          • applying the shared expense formula is not in the best interests of the minor
               child. Guidelines § III.B.7.b.


The Guidelines also speak to adjusting child support amounts to account for larger
amounts of time the child spends with the parent obliged to pay child support.

       In completing a worksheet to calculate the presumptive child support obligation,
the district court also has the discretion to adjust the obligation to take into account how
much time the child spends with each parent if the adjustment is in the best interests of
the child. See Guidelines § IV.E. (2013 Kan. Ct. R. Annot. 138). This was used by the
court here.


       If the child spends 35 percent or more of the child's time with the nonresidential
parent, the district court shall determine whether a time formula adjustment in child
support is appropriate. The court can thus increase or decrease the support order by
applying these adjustments. When calculating the time formula adjustment, the district
court shall not consider the child's time spent at school or in day care. Guidelines
§ IV.E.2.b. To assist the district court, the Guidelines provide a table that may be used to
calculate the amount of parenting time adjustment. See Guidelines § IV.E.2.b.


       The time formula adjustment table displays three parenting time adjustment
percentages:




                                                5
       1. A 5 percent parenting time adjustment when the child's percentage of time with
          the nonresidential parent is 35 percent to 39 percent;
       2. a 10 percent parenting time adjustment when the child's percentage of time
          with the nonresidential parent is 40 percent to 44 percent; and
       3. a 15 percent parenting time adjustment when the child's percentage of time
          with the nonresidential parent is 45 percent to 49 percent. Guidelines
          § IV.E.2.b. (2013 Kan. Ct. R. Annot. 140).


We examine the steps taken by the district court here.


       The dispute between the parties centered on which of two approaches to follow
when setting the appropriate child support payment. Steve asked the district court to use
the equal parenting time formula with Marsha to either pay all of the direct expenses and
receive $800 child support or receive approximately $560 child support with Steve
paying all of the direct expenses. From her point of view, Marsha asked the court to
calculate the presumptive child support obligation using a 15 percent parenting time
adjustment. Marsha argued that it would be inequitable to use the equal parenting time
formula given the great difference in their incomes, i.e., Steve earned $99,459.37 per year
while Marsha earned approximately $55,912.75, and that she would incur additional
expenses during the summer when Steve was unable to exercise his parenting time.


       When it decided this matter, the court disagreed with Steve's assertion that it only
had the discretion to use the parenting time adjustment if the equal parenting time
formula was excluded. The court believed that it had the discretion to use either method
when determining child support. The district court acknowledged the parties had agreed
they shared parenting time equally or nearly equally based on the 2-2-3 parenting
schedule but found the evidence of their historical relationship showed Steve's
employment demands during the summer for 2 days a week over several weeks resulted
in Steve exercising between 45 percent and 49 percent of the total parenting time.

                                             6
       The court then ordered that Marsha would care for the children on the days Steve
worked during the summer on his designated parenting time and found it would not be in
the best interests of the children to use either the equal parenting time formula or
Marsha's requested 15 percent parenting time adjustment provided for in the Guidelines.
Instead, the district court ordered a 20 percent parenting time adjustment, which would be
more equitable. In other words, Steve received a greater adjustment to his child support
obligation than that proposed by Marsha.


       After pointing out the need to calculate a new worksheet, the district court stated
that it had another reason why it was not in the best interests of the children to use the
equal parenting time formula—"just having issues related to who should pay the direct
expenses and why and just overall what is more in the best interest of these children is a
20 percent parenting time adjustment."


We examine the arguments raised in this appeal.


       On appeal, Steve contends that the Guidelines require the district court to apply
the equal parenting time formula if the shared expense formula is not applicable and the
affirmative findings under Guidelines § III.B.7.b. are made. In other words, Steve is
arguing that the equal parenting time formula was automatically triggered here, and the
district court no longer had any discretion to order the presumptive child support amount
based on the worksheet either with a parenting time adjustment or without an adjustment.
We must disagree with this assertion.


       Clearly, the Guidelines state that the use of the equal parenting time formula is
discretionary with the court even if the court makes the findings under Guidelines
§ III.B.7.b. The general instruction passage states: "Use of this section is discretionary
with the court. Parents who share the children's time equally or nearly equally may be
eligible for . . . the Equal Parenting Time Formula." (Emphasis added.) Guidelines

                                              7
§ III.B.7. (2013 Kan. Ct. R. Annot. 129).


       Moving to the more specific section, Guidelines § III.B.7.b. states: "The Equal
Parenting Time Formula is discretionary with the court and may be used to set child
support when" the district court makes the required affirmative findings. (Emphasis
added.) (2013 Kan. Ct. R. Annot. 131). Simply stated, the required affirmative findings in
Guidelines § III.B.7.b. are only a prerequisite to justify the district court exercising its
discretion to use the equal parenting time formula.


       We see no language in §§ III.B.7. or III.B.7.b. mandating the use of the equal
parenting time formula if the district court determines the required affirmative findings
discussed above are present. The court always has the option not to make any
adjustments.


       Also, we are not convinced that the court made the findings contemplated in the
Guidelines. Before it decided not to use the equal parenting time formula, the district
court here found that it was in the children's best interests for Steve and Marsha to share
residential custody and that the parties did not agree to use the shared expense formula.
The district court also found that Steve and Marsha agreed to share the residency of the
children equally or nearly equally, an arrangement reflected in the 2-2-3 parenting plan.
This is not an unequivocal affirmative finding by the district court regarding the
prerequisite findings under the Guidelines. Nor is this parenting time adjustment award
an implicit finding that Steve did not show they shared the children equally or nearly
equally.


       Even if we assumed that the district court did make the required affirmative
findings to use the equal parenting time formula, the court still had the discretion to use
two other methods to calculate child support if it was in the best interests of the children,


                                               8
i.e., calculate the presumptive child support amount either with or without a parenting
time adjustment.


        Steve also argues that the district court was precluded from ordering a parenting
time adjustment because the time formula adjustment table only contemplates those
situations where a nonresidential parent's time ranges from 35 percent to 49 percent. This
argument is predicated on his erroneous belief that sharing parenting time equally or
nearly equally can only amount to 50 percent.


        When the district court decided not to use the equal parenting time formula, it
considered evidence that during 12 days of the summer Steve would be required to work
during his scheduled parenting time and the children had historically been under Marsha's
care during this time. Despite Steve's contention that under the 2-2-3 shared parenting
schedule each parent would care for the children equally, the record supports the district
court's finding that Steve actually only exercised between 45 percent and 49 percent of
the total parenting time. Ignoring holidays and vacations, the 2-2-3 shared parenting
schedule provided for each parent to have the children for 50 percent of the year or
approximately 182.5 days each. However, Steve's summer work schedule shifts his actual
parenting time to 170.5 days, or 46.7 percent of the year; whereas, Marsha would have
the children for 194.5 days, or 53.3 percent of the year. Moreover, the evidence that
Marsha would be unavailable to care for the children for 1 of the 6 weeks during the
summer does not affect the finding that Steve only exercises between 45 percent and 49
percent of the total parenting time. The district court appropriately used its discretion
here.


        We must point out that these matters are not subject to a precise division of time
and money for child support. These are not computations that must be made with
scientific accuracy down to the penny. Rather, they arrive as a result of the application of
child support guideline principles and the adaptation of guideline models that result in an

                                              9
equitable award. Each case is different. Each parent's circumstances are unique. All
children's needs differ. The judicial eye and hand must fill in the final blanks, not a
computer program.


       The district court applied the correct legal standard, and its factual determinations
had legally sufficient support in the evidence. Because we do not reweigh that evidence
on appeal, we are left to ask whether no other person would have come to the same
conclusion not to use the equal parenting time formula. We conclude that others would
indeed come to the same conclusion and, thus, it cannot be an abuse of discretion.


       While the parenting plan called for shared custody and equal or nearly equal care
of the children, there was evidence in this case showing not only disparate incomes but
Marsha having to bear additional expenses to care for the children during Steve's
parenting time. Given the standard of review, we cannot say the district court abused its
discretion forgoing the equal parenting time formula and granting a 20 percent parenting
time adjustment. Had the court followed Marsha's suggestion, Steve would have had to
pay more for child support.


       However, to complete our abuse of discretion analysis, we must still address the
district court's deviation from the recommended time formula adjustment found in
Guidelines § IV.E.2.b. when it increased the adjustment from 15 percent to 20 percent.


We examine the amount of the adjustment.


       Steve argues that the district court, in determining the 20 percent parenting time
adjustment, erroneously deviated from the Guidelines by relying upon the 80/20 rule
previously found in the Guidelines which was replaced by the equal parenting time
formula. See Guidelines § III.B.7.b.


                                             10
       It is clear that Steve's argument on this point is based upon an assumption that the
court only has the discretion to award Marsha the adjustment percentages found on the
table provided in Guidelines § IV.E.2.b. Actually, the district court is not required to use
the table. Indeed, Guidelines § IV.E.2.b. provides that a district court may use the table
provided in the Guidelines to calculate the parenting time adjustment. Again, this is a
matter of discretion.


       In addition, there is a well-established rule that the district court has the ability to
deviate from the Guidelines when determining the amount of child support if such
deviation is justified in writing in the journal entry. See In re Marriage of Thurmond, 265
Kan. at 716; In re Marriage of VanderVoort, 39 Kan. App. 2d at 732. This discretion to
deviate from the Guidelines extends to the adjustment percentages recommended in the
table found in Guidelines § IV.E.2.b. In the case In re Marriage of Atchison, 38 Kan.
App. 2d 1081, 1091, 176 P.3d 965 (2008), this court found that the district court had
failed to properly exercise its discretion in finding a 15 percent parenting time adjustment
appropriate under Guidelines § IV.E.2.b. because the district court was not aware that it
could deviate higher than the maximum 15 percent figure the table in the Guidelines
provided.


       Here, the district court found: "After hearing arguments by counsel the court
declines to use the Equal Parenting Time Adjustment but allows for a reduction in child
support owed. Steve will pay to Marsha $1700 per month for Child support effective June
1, 2014." To reach the $1,700 amount, the child support worksheet reflects a 20 percent
parenting time adjustment, instead of the maximum recommended figure of 15 percent
found in Guidelines § IV.E.2.b. when the child's percentage of time with the
nonresidential parent is 45 percent to 49 percent.


       When we couple those statements with those made by the court in the decree and
the written findings in the child support worksheet adopted by the court, we are satisfied

                                              11
with the findings made by the court to support its decision to give Steve a greater
reduction in child support than what Marsha suggested. We find no error here.


       Affirmed.




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