                                         No. 112,786

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                              In the Matter of the Marriage of:

                                   VEARL E. CRAWFORD,
                                        Appellee,

                                             and

                                  EUGENIA L. CRAWFORD,
                                       Appellant.


                               SYLLABUS BY THE COURT


1.
       Maintenance settled by a separation agreement which is later incorporated into a
divorce decree is not subject to modification by the court except as provided for by the
agreement or as subsequently agreed to by the parties.


2.
       When a court has ordered maintenance, it retains the power to modify future
maintenance payments that have not already become due, irrespective of whether the
original divorce decree specifically states such retention of jurisdiction.


3.
       The court may not modify maintenance without the consent of the party liable for
the maintenance if it has the effect of increasing or accelerating the liability for the
unpaid maintenance beyond what was prescribed in the original decree.




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4.
       If the original divorce decree reserves the power of the court to hear subsequent
motions for reinstatement of maintenance and such a motion is filed prior to the
expiration of the stated period of time for maintenance payments, the court shall have
jurisdiction to hear a motion by the recipient of the maintenance to reinstate the
maintenance payments.


5.
       Reinstatement also means the extension of maintenance beyond the original term
provided in the original divorce decree.


6.
       A district court's retention of the power to modify maintenance in a divorce decree
does not amount to the retention of the power to reinstate or extend maintenance beyond
the term originally provided.


       Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed June 12, 2015.
Affirmed.


       Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellant.


       Amy C. Coppola, of Crow & Associates, of Leavenworth, for appellee.


Before PIERRON, P.J., BUSER and POWELL, JJ.


       POWELL, J.: Eugenia L. Crawford appeals the district court's denial of her motion
to reinstate and extend maintenance, arguing the court had jurisdiction to modify
maintenance under the terms of the divorce decree and should have considered the merits
of her motion. We disagree and affirm.


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                          FACTUAL AND PROCEDURAL BACKGROUND


       Eugenia and Vearl E. Crawford were married in October 1996. In October 2009,
as part of the parties' separate maintenance action, they executed a stipulation and
property settlement agreement which obligated Vearl to pay Eugenia "$1025 per month
commencing in the month that either party leaves the marital residence, with a like
amount to follow each month thereafter [on] the 1st day of the month until further Order
of the Court. . . . Duration of the maintenance shall be 55 months."


       Vearl subsequently filed for divorce, and the matter proceeded to trial on
November 19, 2010, with witnesses and testimony. According to the journal entry and
decree of divorce filed on February 11, 2011, the district court found, inter alia, the
following:


       "5.    The parties were separated by Separate Maintenance Action and the parties
              signed and entered into a settlement agreement on October 8, 2009. The parties
              indicated by their signatures that the Settlement Agreement entered into by both
              parties was fair, just and equitable and the agreement set forth obligations and
              maintenance.
       "6.    The parties followed this Settlement Agreement until April of 2010, wherein the
              parties orally modified this agreement indicating that [Vearl] would pay al [sic]
              of [Eugenia's] bills in lieu of any maintenance payments provided for in
              paragraph 3 of the Settlement Agreement.
       "7.    As there was no provisions [sic] in the Settlement Agreement prohibiting an oral
              modification of said agreement, that is now the agreement of the parties.
       "8.    [Vearl] has alleged more than half of his income is going to [Eugenia] and that is
              not fair, just or equitable.
              ....
       "11.   K.S.A. 60-1610(b)(2) allows for the Court to determine if maintenance payments
              are appropriate given a demonstrated need by [Eugenia]. The Court finds $1025 a
              month an appropriate award of maintenance to [Eugenia]. . . .


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       "12.    The Court will adopt the written Settlement Agreement regarding the
               maintenance and debt of the parties to be paid by [Vearl] as valid, just and
               equitable and incorporates it herein by reference as though more fully set forth
               herein.
       "13.    The Court further finds that for a period of up to two years, as per the Settlement
               Agreement, [Eugenia] will take the entire amount of the maintenance payments,
               the mortgage and the car debt as maintenance payments to [Eugenia] as taxable
               income, paid by [Vearl] as income reduction for tax purposes.
       "14.    The Court finds that the maintenance outlined in this Decree of Divorce is valid,
               just and equitable and further reserves jurisdiction concerning said maintenance
               and the real estate of the parties for modification if necessary.
       "15.    The maintenance duration shall remain the same as outlined in the Settlement
               Agreement, which shall be effective January 1, 2011. [Vearl] will be given credit
               for nine (9) months of maintenance payments made through the months of April
               through December."


       The parties agree the 55-month maintenance period referred to in the settlement
agreement expired in October 2014.


       In June 2014, Eugenia filed her motion to reinstate and extend maintenance. A
hearing on the motion was held in August 2014; after hearing arguments the district court
held the settlement agreement did not have a provision regarding retaining or reserving
jurisdiction. The district court found that the divorce decree did state jurisdiction was
reserved "'concerning said maintenance . . . for modification if necessary.'" However, the
district court held:


       "Modification and reinstatement are not similar things. In this particular case,
       modification in the context of Kansas law means that the Court has the authority to
       reduce the maintenance and the amount—from the amount of $1,025 downward but the
       Court is without jurisdiction to increase the maintenance upwards or to lengthen the
       period of time."



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       The district court's journal entry stated: "The Court did reserve jurisdiction for the
modification of maintenance as provided in paragraph 14 of the Decree of Divorce but
there was no reservation of jurisdiction to reinstate or extend maintenance."


       Eugenia timely appeals.


        DID THE DISTRICT COURT ERR IN RULING IT DID NOT HAVE JURISDICTION
          TO CONSIDER EUGENIA'S REINSTATEMENT AND EXTENSION MOTION?



       On appeal, Eugenia argues the district court erred in concluding it did not have
jurisdiction to reinstate and extend maintenance. She asserts two main points in support
of this argument: (1) Because Vearl objected to the settlement agreement's maintenance
provisions at the divorce hearing, the maintenance ordered by the district court was not
pursuant to the agreement of the parties, making it court ordered and therefore subject to
modification; and (2) even if the ordered maintenance was pursuant to the agreement of
the parties, the parties agreed to the district court's modification of the agreement by not
appealing the language in the decree of divorce reserving the district court's jurisdiction
to modify the maintenance pursuant to K.S.A. 2013 Supp. 23-2904.


       Vearl counters that even if the district court retained jurisdiction to modify
maintenance, it did not retain jurisdiction to reinstate or extend maintenance past October
2014. Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743-44, 295 P.3d 542 (2013).


       It is well established that maintenance settled by a separation agreement which is
later incorporated into a divorce decree is not subject to subsequent modification by the
court except as provided for by the agreement or as subsequently agreed to by the parties.
In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996); see K.S.A.
2013 Supp. 23-2712(b).

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       Alternatively, when a court has ordered maintenance, it retains the power to
modify future maintenance payments that have not already become due, irrespective of
whether the original divorce decree specifically states such retention of jurisdiction. In re
Marriage of Evans, 37 Kan. App. 2d 803, 805, 157 P.3d 666 (2007); In re Marriage of
Ehinger, 34 Kan. App. 2d 583, Syl. ¶¶ 3, 8, 121 P.3d 467 (2005), rev. denied 280 Kan.
982 (2006). However, the power to modify maintenance is limited to reducing such
maintenance:


               "'At any time, on a hearing with reasonable notice to the party affected, the court
       may modify the amounts or other conditions for the payment of any portion of the
       maintenance originally awarded that has not already become due. The court may not
       modify without the consent of the party liable for the maintenance, if it has the effect of
       increasing or accelerating the liability for the unpaid maintenance beyond what was
       prescribed in the original decree. Thus, maintenance may be reduced downward, but not
       increased upward.'" (Emphasis added.) Ehinger, 34 Kan. App. 2d at 587 (quoting
       Blaylock & Lambdin, Property Division and Maintenance, 1 Practitioner's Guide to
       Kansas Family Law § 4.68, p. 4-30 [Leben ed. 2004]).


 See K.S.A. 2013 Supp. 23-2903.


       K.S.A. 2013 Supp. 23-2904 allows a court to extend maintenance beyond the term
in the original divorce decree provided such authority is specifically retained:


       "If the original court decree reserves the power of the court to hear subsequent motions
       for reinstatement of maintenance and such a motion is filed prior to the expiration of the
       stated period of time for maintenance payments, the court shall have jurisdiction to hear a
       motion by the recipient of the maintenance to reinstate the maintenance payments."


       Parenthetically, we note the relevant statutory language remains unchanged
between the filing of the divorce decree in February 2011, when K.S.A. 60-1610(b)(2)

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was applicable, and the filing of Eugenia's motion for reinstatement and extension of
maintenance in June 2014, when K.S.A. 2013 Supp. 23-2904 was applicable. In the
context of the present case, reinstatement means the extension of maintenance beyond the
original term provided in the original divorce decree. See In re Marriage of Diesel, No.
93,730, 2005 WL 3289430, at *2 (Kan. App. 2005) (unpublished opinion).


       In light of these authorities, we need not decide whether the district court's order in
the original divorce decree amounted to an adoption of the parties' agreement concerning
maintenance or its own order because in neither case was there a specific reservation of
jurisdiction to reinstate or extend maintenance beyond the 55-month period. The
settlement agreement itself contains no provision for court modification, and the divorce
decree only stated "the maintenance outlined in this Decree of Divorce is valid, just and
equitable and further reserves jurisdiction concerning said maintenance . . . for
modification if necessary." (Emphasis added.)


       Because the settlement agreement and the original divorce decree did not
expressly state or contain language making it unmistakably clear that the district court
had continuing jurisdiction to hear motions for reinstatement or extension of maintenance
beyond the initial order, the district court lacked jurisdiction under K.S.A. 2013 Supp. 23-
2904 to reinstate or extend maintenance beyond October 2014.


       Affirmed.




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