In re Marriage of L.F. and M.F.

No. 125,862

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

L.F.,
Appellant,

and

M.F.,
Appellee.

SYLLABUS BY THE COURT

1.
Investigations and reports ordered under K.S.A. 23-3210 may include
psychological evaluations of parents conducted for the purpose of determining
appropriate legal custody, residency, visitation rights, and parenting time.

2.
Investigations and reports ordered under K.S.A. 23-3210 are not subject to the
requirements of K.S.A. 2023 Supp. 60-456 and a Daubert hearing is not required to
determine their admissibility. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

3.
Realized capital gains which are periodically and regularly received by a parent
can be included in that parent's gross income for the calculation of child support under
the Kansas Child Support Guidelines.

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4.
A parent's use of income to pay their attorney fees does not change the character
of the funds from "income" to "non-income" for purposes of calculating child support
under the Kansas Child Support Guidelines.

Appeal from Johnson District Court; ERICA K. SCHOENIG, judge. Oral argument held October 15,
2024. Opinion filed January 3, 2025. Affirmed.

Thomas R. Buchanan, Susan B. Galamba, and Deborah A. Moeller, of McDowell, Rice, Smith &
Buchanan, of Kansas City, Missouri, for appellant.

Catherine A. Zigtema, Zigtema Law Office LC, of Shawnee, for appellee.

Before CLINE, P.J., MALONE and SCHROEDER, JJ.

CLINE, J.: This appeal involves a fact-intensive and emotionally charged divorce
case. The parties are familiar with the long history of this case, so we recite only the facts
necessary to explain our ruling. Highly summarized, L.F. (Mother) and M.F. (Father),
parents of three children, divorced in 2018 and agreed to a parenting plan. They each
moved to modify the parenting plan in 2019, accusing each other of multiple types of
abuse and poor parenting. At one point, the district court ordered an investigator to
conduct psychological evaluations and parenting assessments of the parents under K.S.A.
23-3210. After an evidentiary hearing, the district court issued orders on parenting time
and child support, among other issues.

On appeal, Mother challenges the district court's admission of her psychological
evaluation at the hearing, as well as its modification of the parenting plan, calculation of
child support, and various rulings involving the guardian ad litem (GAL) who was
appointed to represent the children's interests in the divorce proceedings. After careful
review of the record, we find no error in the court's rulings. As for Father's motion for

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attorney fees on appeal under Supreme Court Rule 7.07(a)(4) and (c) (2024 Kan. S. Ct. R.
at 52), we do not find Mother's appeal was frivolous and therefore deny the motion.

REVIEW OF MOTHER'S APPELLATE CHALLENGES

I. Did the district court err in ordering and admitting Dr. Prado's psychological
evaluations and testimony under K.S.A. 23-3210?

Before the hearing on the parties' competing motions to modify parenting time, the
GAL requested psychological evaluations of the parents to assist his custody
investigation. The district court ordered both parents to undergo psychological
evaluations and parenting assessments by Dr. Nicole Prado under K.S.A. 23-3210(c) and
Johnson County Local Rule 23. The evaluations were completed and submitted to the
district court with copies to the parties' attorneys. Mother moved to exclude the
evaluations and the supervised parenting reports alleging they were inadmissible under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), claiming Dr. Prado's methodologies and opinions were flawed and
unreliable.

While the district court initially scheduled a Daubert hearing, it reconsidered and
ruled Dr. Prado's opinions, evaluations, and reports were admissible under K.S.A. 23-
3210. The court found K.S.A. 23-3210, as the more specific statute in the family law
code, applied over the general rule of evidence found in K.S.A. 60-456. It also noted
there was no need for a Daubert hearing because K.S.A. 23-3210 allows a party to
challenge opinions and reports from court-appointed investigators like Dr. Prado through
cross-examination and/or impeachment through other experts.

Mother renews her challenge to the admission of these documents on appeal,
along with Dr. Prado's hearing testimony, claiming the district court abrogated its
gatekeeping function by failing to hold a Daubert hearing. She maintains that K.S.A. 60-

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456 still applies and the admission of this evidence prejudiced her by influencing the
district court's findings on appropriate parenting time.

A. Standard of review

Our standard of review of this issue is multifaceted. While a district court's
admission of expert testimony is generally reviewed for an abuse of discretion, to the
extent interpretation of statutes is required, our review is de novo. In re Care &
Treatment of Cone, 309 Kan. 321, 325, 435 P.3d 45 (2019). A judicial action constitutes
an abuse of discretion if the action is arbitrary, fanciful, or unreasonable; is based on an
error of law; or is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). And if we find an error in the
court's admission of expert testimony, that error "does not warrant reversal unless 'there is
a "reasonable probability that the error will or did affect the outcome of the trial in light
of the entire record."'" Castleberry v. DeBrot, 308 Kan. 791, 812, 424 P.3d 495 (2018).

B. K.S.A. 23-3210 or K.S.A. 60-456

The first question we must decide is whether the admission of Dr. Prado's
testimony, evaluations, and letters was governed by K.S.A. 23-3210 or K.S.A. 60-456.

K.S.A. 23-3210, the statute concerning investigations in child custody cases,
reads:

"(a) Investigation and report. In any proceeding in which legal custody,
residency, visitation rights or parenting time are contested, the court may order an
investigation and report concerning the appropriate legal custody, residency, visitation
rights and parenting time to be granted to the parties. The investigation and report may be
made by court services officers or any consenting person or agency employed by the
court for that purpose. The court may use the Kansas department for children and

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families to make the investigation and report if no other source is available for that
purpose. The costs for making the investigation and report may be assessed as court costs
in the case as provided in article 20 of chapter 60 of the Kansas Statutes Annotated, and
amendments thereto.
"(b) Consultation. In preparing the report concerning a child, the investigator
may consult any person who may have information about the child and the potential legal
custodial arrangements. Upon order of the court, the investigator may refer the child to
other professionals for diagnosis. The investigator may consult with and obtain
information from medical, psychiatric or other expert persons who have served the child
in the past. If the requirements of subsection (c) are fulfilled, the investigator's report may
be received in evidence at the hearing.
"(c) Use of report and investigator's testimony. The court shall make the
investigator's report available prior to the hearing to counsel or to any party not
represented by counsel. Upon motion of either party, the report may be made available to
a party represented by counsel, unless the court finds that such distribution would be
harmful to either party, the child or other witnesses. Any party to the proceeding may call
the investigator and any person whom the investigator has consulted for cross-
examination. In consideration of the mental health or best interests of the child, the court
may approve a stipulation that the interview records not be divulged to the parties."

In re Marriage of Talkington, 13 Kan. App. 2d 89, 762 P.2d 843 (1988), was one
of this court's earlier cases interpreting K.S.A. 60-1615, now K.S.A. 23-3210. The court
noted the purpose of this section was to permit "'reports by a neutral investigator'" which
"'remove[s] the child custody question from an adversarial fact-finding process.'" 13 Kan.
App. 2d at 91 (quoting Maxwell, In the Best Interests of the Divided Family: An Analysis
of the 1982 Amendments to the Divorce Code, 22 Washburn L.J. 177, 238 [1983]). This
section is important, because in adversarial child custody proceedings requiring
tremendous amounts of fact-finding, the investigator's "'report can reduce court time
because the information is not obtained through in-court testimony.'" 13 Kan. App. 2d at
91 (quoting Maxwell, 22 Washburn L.J. at 238).

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In In re Marriage of Talkington, a parent objected to the admission of a home
study report ordered under K.S.A. 60-1615 on the grounds of hearsay because the
investigator did not testify at the custody hearing. While we agreed the report would
otherwise be hearsay under the circumstances, we found it was admissible because it met
the requirements for admissibility under K.S.A. 60-1615—that is, the report was made
available to the opposing party before the hearing. 13 Kan. App. 2d at 92. Relying on the
statutory interpretation principle that a more specific statute controls over a general one
unless it appears the Legislature intended otherwise, we found that in child custody
hearings the provisions of K.S.A. 60-1615 governing admissibility of reports supplanted
the evidentiary rules in the hearsay statute, K.S.A. 60-460. 13 Kan. App. 2d at 91-92. We
noted the objecting parent had the right under K.S.A. 60-1615 to call the investigator who
prepared the home study to testify. And we found if that parent wanted to cross-examine
the preparer, he should have subpoenaed the preparer as a witness or taken his testimony
by deposition. 13 Kan. App. 2d at 92.

On the other hand, K.S.A. 2023 Supp. 60-456, the statute concerning witness
testimony in civil proceedings, reads:

"(a) If the witness is not testifying as an expert, the testimony in the form of
opinions or inferences is limited to such opinions or inferences as the judge finds: (1)
Are rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b).
"(b) If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify thereto in
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to the facts of the case."

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K.S.A. 60-456(b) effectively adopted the test found in Daubert. Under Daubert,
the Court determines the reliability of proposed scientific testimony by looking to factors
such as (1) whether the theory has been tested; (2) whether the theory has been subject to
peer review and publication; (3) the known or potential rate of error associated with the
theory; and (4) whether the theory has attained widespread or general acceptance. 509
U.S. at 592-94. But these four factors are not a "'definitive checklist or test'" and a court's
gatekeeping inquiry into reliability must be "'tied to the facts' of a particular 'case.'"
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238
(1999). K.S.A. 60-456(b) is substantively identical to Federal Rule of Evidence 702.

The "rejection of expert testimony is the exception rather than the rule." Fed. R.
Evid. 702 advisory committee's note to 2000 amendments. As Mother contends, Daubert
requires the court to act as a gatekeeper for the admission of expert testimony. 509 U.S.
at 596. But "[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof" remain "the traditional and appropriate means of
attacking shaky but admissible evidence." 509 U.S. at 596. In short, "[t]he Daubert
factors are simply a way of distinguishing 'between science and pseudo-science.'" Hyman
& Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 104 (Ky. 2008). A district court most
commonly fulfils its gatekeeping role regarding challenged expert testimony by
conducting a Daubert hearing. Goebel v. Denver and Rio Grande Western R.R. Co., 215
F.3d 1083, 1087 (10th Cir. 2000).

Mother contends the district court abrogated its gatekeeping role by failing to
assess Dr. Prado as an expert under Daubert and K.S.A. 2023 Supp. 60-456. But Father
argues K.S.A. 2023 Supp. 60-456 does not apply because K.S.A. 23-3210 controls.

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1. K.S.A. 23-3210 can be used to order psychological evaluations of
parents.

Mother argues K.S.A. 23-3210 only provides authority for mental health
evaluations of a child, not their parents. But district courts have used K.S.A. 23-3210 (or
its predecessor K.S.A. 60-1615), to order psychological evaluations of parents,
companions of parents, and children in contested child custody proceedings. See In re
Marriage of Talkington, 13 Kan. App. 2d at 90 (noting the district court ordered a mental
health evaluation of the mother under K.S.A. 60-1615). And in Watchous v. Jensen,
No. 70,382, 1994 WL 17120393 (Kan. App. 1994) (unpublished opinion), this court
considered whether the district court committed reversible error by accepting and relying
upon certain psychological evaluations without giving the parties notice of the reports.
The district court ordered full psychological evaluations of the parents, children, and
companion of one of the parents. We found the evaluations admissible under K.S.A. 60-
1615 because they were made available to the parties' counsel before the hearing, which
is all the statute requires. 1994 WL 17120393, at *3.

Similarly, in In re Marriage of Block, No. 70,143, 1994 WL 17120582 (Kan. App.
1994) (unpublished opinion), the district court ordered an expert to conduct a
psychological evaluation under K.S.A. 60-1617, now K.S.A. 23-3510. This statute
permits the district court to appoint a "professional trained in family counseling to
determine if it is in the best interests of the parties' children that the parties and any of the
children have counseling regarding custody and visitation matters." 1994 WL 17120582,
at *5. The mother argued "the trial court improperly used Dr. Johnson in dual roles as the
clinical psychologist who evaluated the parents and child under K.S.A. 1993 Supp. 60-
1617 and as the child custody investigator under K.S.A. 60-1615." 1994 WL 17120582,
at *6. This court disagreed with the mother. It found there was "no conflict between the
role of a psychological expert under K.S.A. 1993 Supp. 60-1617 and the role of a child
custody investigator under K.S.A. 60-1615." 1994 WL 17120582, at *6. It then held:

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"Neither statute prohibits an expert from serving in both capacities and, as demonstrated
in this case, the roles overlap." (Emphasis added.) 1994 WL 17120582, at *6. Here, the
district court did not order a counseling determination under K.S.A. 23-3210. But like In
re Marriage of Block, it did order Dr. Prado to act as a child custody investigator under
that statute.

Mother relies on one sentence in K.S.A. 23-3210(b)—which she reads out of
context—to conclude that this statute only allows for evaluation of a child. She contends
that since the statute only permits the child custody investigator to "refer the child to
other professionals for diagnosis," this means the investigator cannot evaluate the parents.
(Emphasis added.) K.S.A. 23-3210(b). But this reading ignores the statute's purpose and
the context for that sentence.

To begin, the purpose of K.S.A. 23-3210 is to authorize an "investigation and
report concerning the appropriate legal custody, residency, visitation rights and parenting
time to be granted to the parties." K.S.A. 23-3210(a). Dr. Prado testified she conducted
her psychological evaluation to diagnose any mental health symptoms which impacted
the parties' parenting and coparenting abilities. As in Watchous, the psychological
evaluations of the parents here were ordered for the purpose of determining the most
beneficial custodial arrangement for their three children. 1994 WL 17120393, at *2.

Next, Mother's reading of the sentence allowing an investigator to refer a child for
diagnosis also takes it out of context. The scope of the investigation under the statute—
both who can conduct it and what type of information can be gathered—is quite
expansive. First, the statute specifies: "The investigation and report may be made by
court services officers or any consenting person or agency employed by the court for that
purpose." (Emphasis added.) K.S.A. 23-3210(a). And it allows an investigator to "consult
any person who may have information about the child and the potential legal custodial
arrangements." (Emphasis added.) K.S.A. 23-3210(b). This includes the power to

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"consult with and obtain information from medical, psychiatric or other expert persons
who have served the child in the past." K.S.A. 23-3210(b). By allowing the investigator
to also obtain a professional diagnosis of the child, the Legislature empowered the
investigator to fill any gaps in information that may exist, not restrict the investigator's
authority.

The statutory designation of this authority also protects the investigator from what
may otherwise be seen as an invasion of the child's privacy or medical privileges. In
Werner v. Kliewer, 238 Kan. 289, 296, 710 P.2d 1250 (1985), which was an invasion of
privacy case, the Kansas Supreme Court held a mother's medical privilege under K.S.A.
60-427 was waived and overridden by K.S.A. 60-1610(a)(3)—a statute requiring courts
to consider the best interests of the child in custody proceedings—when the court needed
to determine mother's fitness to have custody of the children in a divorce proceeding. See
also In re Marriage of Kiister, 245 Kan. 199, Syl. ¶ 2, 777 P.2d 272 (1989) ("In
determining visitation rights, the court's paramount concern is the best interests of the
child. This concern outweighs the parent's right of confidentiality in medical and
psychological counseling records."). By authorizing the investigator to refer the child for
a medical diagnosis, the statute appears to override the child's statutory medical
privileges and privacy. See Comment g to the Principles of the Law of Family
Dissolution: Analysis and Recommendations § 2.13 (Am. Law Inst. 2002) (statutes like
K.S.A. 23-3210(b) "explicitly provide[s] for waiver of otherwise applicable statutory
privileges, in cases involving custody of children"). Again, we read this language to
expand the investigator's authority rather than contract it.

Finally, Mother argues for the first time on appeal that the district court can only
order parental evaluations under K.S.A. 2023 Supp. 60-235. This statute provides the
court where the action is pending "may order a party whose mental or physical condition
. . . is in controversy to submit to a physical or mental examination by a suitably licensed
or certified examiner." K.S.A. 2023 Supp. 60-235(a)(1). And there is a section in the

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Kansas Family Law Code which discusses K.S.A. 2023 Supp. 60-235: Under K.S.A. 23-
3218(a), "the court may change or modify any prior order of custody, residency,
visitation and parenting time, when a material change of circumstances is shown." More
pertinently, it also provides: "The court may order physical or mental examinations of the
parties if requested pursuant to K.S.A. 60-235, and amendments thereto." K.S.A. 23-
3218(b).

Since Mother failed to make this argument to the district court, it is unpreserved
for our review. See Kansas Supreme Court Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36).
We also note that she provides no analysis to support her claim that K.S.A. 2023 Supp.
60-235 is the only way a court can order a mental health evaluation of a parent in a child
custody proceeding. The court ordered the psychological evaluation and parenting
assessments here under K.S.A. 23-3210, not K.S.A. 60-235, so we limit our discussion to
whether district courts are required to apply K.S.A. 2023 Supp. 60-456 before admitting
opinions and reports of investigations conducted under K.S.A. 23-3210. And we note the
scope of Dr. Prado's charge from the district court was broader than simply providing a
mental health evaluation like the kind authorized by K.S.A. 2023 Supp. 60-235. That is,
in addition to conducting psychological evaluations of both parents, Dr. Prado was asked
to complete a parenting assessment. During that assessment, Dr. Prado consulted several
third parties, as contemplated by K.S.A. 23-3210(b). Such consultations do not appear to
be involved—or are at least not mentioned—in an independent mental health
examination conducted pursuant to K.S.A. 2023 Supp. 60-235.

2. K.S.A. 23-3210 applies to the type of evaluation the parents were
ordered to undergo by Dr. Prado.

Mother next argues the district court incorrectly relied on K.S.A. 23-3210 to admit
Dr. Prado's opinions and report because Mother says the statute only allows for a

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"custody evaluation," and Dr. Prado admitted she did not conduct a custody evaluation.
But Mother reads both the statute and the scope of Dr. Prado's work too narrowly.

First, K.S.A. 23-3210 does not limit an investigator's report to a custody
evaluation. It more generally permits the report to "concern[] the appropriate legal
custody, residency, visitation rights and parenting time to be granted to the parties."
K.S.A. 23-3210(a). Indeed, the title of the statute is: "Information relating to custody or
residency of children; visitation or parenting time with children."

Next, even though Dr. Prado testified she did not conduct a custody evaluation,
she did testify that she was asked to do a "parenting assessment." And she testified the
psychological evaluation she conducted was meant to "determine and understand the
mental health components impacting the parties functioning, globally, the impacts they
may have on their parenting ability, and the impacts any mental health conditions they
have on their ability to effectively coparent." She explained how she consulted third
parties working with the children "to determine how [the parents] were interacting with
the children." She also discussed how her psychological evaluations are meant to
diagnose mental health symptoms "that are negatively impacting the person[']s
functioning and potentially their coparenting relationship," which would be directly
related to decisions about the appropriate legal custody, residency visitation, and
parenting time to be granted.

The purpose of Dr. Prado's report was to examine Mother and Father's parenting
ability and capacity to coparent, both of which would help the district court determine the
appropriate parenting time. Therefore Dr. Prado's evaluations qualify as a report under
K.S.A. 23-3210.

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3. Requiring a Daubert hearing and application of K.S.A. 2023 Supp. 60-
456 to reports issued under K.S.A. 23-3210 is unnecessary and impractical.

Mother also contends that even if K.S.A. 23-3210 authorizes reports such as Dr.
Prado's, it does not mandate their admission. That is, she maintains the district court is
still required to determine the admissibility of investigatory reports in child custody
proceedings under K.S.A. 2023 Supp. 60-456 for the court to fulfill its gatekeeping role
to ensure the evidence is reliable. She cites no legal authority for this proposition—she
simply notes K.S.A. 23-3210(b) states an ordered report "may be received in evidence at
the hearing." (Emphasis added.) That is, it does not "automatically" allow for admission
of the report but simply permits the court to do so. She believes because the statute makes
the admission of the report permissive, this means the Kansas Legislature intended the
Daubert standard to still be applied.

But Mother does not offer any statutory language or legislative history showing
the Legislature considered Daubert in passing this law or when it passed amendments to
the law. A more reasonable interpretation would be that the Legislature used the word
"may" so as not to eliminate objections based on relevance to the issues to be tried at the
hearing. And Mother lodged no such objection to Dr. Prado's report.

Moreover, as the district court pointed out, a Daubert hearing would be redundant
since the procedure for testing reliability of the evidence is already in the statute. It
explained that K.S.A. 23-3210 allows a party the full ability to challenge the report and
present testimony about why the investigator's findings are invalid or problematic.
Indeed, the court noted in the pretrial order that Dr. Prado's evaluations and reports were
"admitted pursuant to K.S.A. 23-3210, subject to further evidence disputing any findings
or recommendations, and subject to cross-examination and/or impeachment of the
preparer or consultant of the preparer."

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Father also points out the Family Law Code specifies that general rules of
evidence apply in domestic proceedings unless superseded by specific provisions. K.S.A.
23-2104; K.S.A. 60-402. And we relied on a similar rule of statutory interpretation in In
re Marriage of Talkington to find the general evidentiary rules governing hearsay do not
apply to reports ordered under K.S.A. 23-3210. 13 Kan. App. 2d at 92-93. This rule
equally supports our conclusion that, like hearsay and K.S.A. 2023 Supp. 60-460,
Daubert and K.S.A. 2023 Supp. 60-456 also do not apply to such reports.

The plain text confirms the Legislature intended K.S.A. 23-3210 reports to be
admitted if the procedural safeguards in subsection (c) are met. Neither Mother nor
Father dispute subsection (c) was met in this case. Since subsection (c) was met, like it
was in In re Marriage of Talkington, the district court had the authority to accept the
report into evidence.

Finally, both Father and the district court also point out: "The provisions of the
Kansas family law code shall be construed to secure the just, speedy, inexpensive and
equitable determination of issues in all domestic relations matters." K.S.A. 23-2102. As
already mentioned, and acknowledged by Mother, the goal of K.S.A. 23-2310 is to
receive "reports by a neutral investigator [which] remove the child custody question from
an adversarial fact-finding process. . . . The report can reduce court time because the
information is not obtained through in-court testimony." In re Marriage of Talkington, 13
Kan. App. 2d at 91. Mother even notes K.S.A. 23-3210's "sole rationale is to speed trial
and to save expense by obviating the need for additional testimony to counter hearsay."
Dr. Prado filled the role of an investigator who helped speed the trial along because she
was charged with providing insight into Mother and Father's parenting abilities after her
evaluation. This saved the district court many hours of listening to more witnesses from
both sides, including some whom Dr. Prado consulted. Although the court eventually
held Dr. Prado's testimony was "successfully" challenged by Mother through Mother's
experts, that does not diminish the statute's purpose.

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4. Mother's attempt to distinguish caselaw relied on by the district court is
unpersuasive.

Mother next argues the district court improperly relied on In re Marriage of
Talkington, 13 Kan. App. 2d. 89 and Smart v. BNSF Railway Co., 52 Kan. App. 2d 486,
496-97, 369 P.3d 966 (2016), in admitting Dr. Prado's reports. Mother argues In re
Marriage of Talkington "evaluated only whether hearsay would preclude the admission
of reports and . . . made no analysis of whether the . . . expert opinion is admissible." This
is a fair conclusion. We made no ruling on the interplay of expert testimony and K.S.A.
60-1615 in In re Marriage of Talkington. But as explained earlier, our reasoning there is
still analogous because we addressed application of a general rule of evidence in the
specific context of a child custody case.

Mother also posits In re Marriage of Talkington's reasoning does not apply
because its hearsay rule comes with procedural safeguards. She states that even when a
court-appointed reporter under K.S.A. 23-3210 does not testify, In re Marriage of
Talkington permits the report to be entered into evidence, even with hearsay statements,
because it still allows cross-examination of the hearsay declarant "whom the investigator
has consulted." K.S.A. 23-3210(c). Mother thus believes even when an investigator does
not testify, there is still an "avenue to ensure the admitted hearsay testimony is reliable."

But the same is true for cross-examining the investigator's credentials,
investigatory methodology, and conclusions. Mother can and did challenge Dr. Prado's
report through cross-examination. See K.S.A. 23-3210(c). She also was permitted to and
did present expert testimony to discredit Dr. Prado's report. See In re Marriage of Block,
1994 WL 17120582, at *6 (stating parties "present[] expert testimony to substantiate"
their problems with the investigator's opinions). The cross-examination of Dr. Prado and
testimony of her own expert ensured Mother had an opportunity to challenge the
reliability of Dr. Prado's report.

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Mother further contends the district court improperly relied on Smart, 52 Kan.
App. 2d at 496-97. But the record citation Mother provides (the first page of the parties'
pretrial order) does not support her contention since it does not discuss Smart, nor could
we find any mention of Smart elsewhere in the pretrial order. The only case the court
cited in the pretrial order when it held Dr. Prado's reports were admissible under K.S.A.
23-3210 was In re Marriage of Talkington, 13 Kan. App. 2d at 93.

For these reasons, we do not find the district court erred in admitting Dr. Prado's
testimony, evaluations and assessment, and parenting time reports under K.S.A. 23-3210.

5. Mother was not prejudiced by the district court's decision to admit Dr.
Prado's report under K.S.A. 23-3210 because the district court stated that
Mother "successfully" challenged that evidence.

Even if we found the district court erroneously admitted Dr. Prado's reports and
testimony, we are not persuaded the admission prejudiced Mother. While Mother
contends Dr. Prado's unreliable opinions and report influenced the district court's
decision, the court specifically said it gave "little weight to Dr. Prado's reports, and found
[Mother's] evidence, including her expert witnesses, to be compelling." The court also
noted "[s]cant evidence" was presented relating to Dr. Prado's parenting time reports, and
it specifically noted it "did not find those reports to be helpful in reaching its decision."

We are not persuaded by Mother's request that we disbelieve the district court. As
the court noted when it denied Mother's motion to amend the judgment: "This is not a
jury-tried case, and the Court appropriately weighed the evidence related to Dr. Prado's
reports and [Mother]'s two experts. [Mother] was not denied the opportunity to challenge
Dr. Prado's findings, and in the Court's mind, successfully did so." Generally, "[w]hen a
trial court acts as the finder of fact, it is presumed to have considered only legal,
competent, and admissible evidence." 75b Am. Jur. 2d, Trial § 1585. That "presumption
is overcome only when there is an indication that the court did give some consideration to

16
inadmissible evidence or evidence that should have been excluded." 75b Am. Jur. 2d,
Trial § 1585. When there is a bench trial, "the harm caused by evidentiary error is
lessened, and an appellate court will reverse only when the trial court's judgment has
apparently or obviously been infected by erroneously admitted evidence." 5 Am. Jur. 2d,
Appellate Review § 660.

This court has found it persuasive when a district court judge, acting as a fact-
finder, conveys on the record that alleged erroneously admitted evidence was
unimportant to the final judgment. In State v. Clingerman, 63 Kan. App. 2d 682, 688, 536
P.3d 892 (2023), Clingerman argued "that the inclusion of [an officer's] unsworn
testimony tainted the trial court's view of the evidence during the bench trial." In denying
Clingerman's new trial motion the magistrate judge stated: "But even if the Court were to
find that his oath was not sufficient, and that his testimony cannot be relied upon, there is
still ample evidence from the other witnesses that this crime was committed, beyond a
reasonable doubt." 63 Kan. App. 2d at 689. This court found:

"In most cases, appellate courts reviewing for harmless error do not have the
benefit of the fact-finder explicitly outlining which evidence was more persuasive and
which evidence was less useful in arriving at a verdict.
....
"Most harmless error review does not have the benefit of such explicit statements from
the finder of facts. Here, the record provides the unusual benefit of having the fact-finder,
the magistrate judge, explicitly state on the record the rationale behind the conviction and
which evidence was most relevant to her factual conclusion. We know directly from the
record that [the officer's] testimony—whether erroneously admitted or not—did not
affect the verdict. Because there is no reasonable possibility that the error, if any, affected
the verdict, we conclude that this is an independent alternative ground for affirming this
decision. [Citations omitted.]" 63 Kan. App. 2d at 689-90.

The same is true here. The district court specified that it gave little weight to Dr.
Prado's testimony and reports and found that Mother's expert testimony successfully

17
challenged Dr. Prado's findings. Like Clingerman, this record provides the unusual
benefit of having the fact-finder, the district court judge, explicitly state on the record that
the alleged erroneously admitted evidence had little weight in her factual conclusion. So
even if Dr. Prado's testimony and report were erroneously admitted, we find there is no
reasonable possibility that the alleged error affected the district court's judgment.

We decline to reverse the district court's order or to remand the matter for a new
trial based on its admission of Dr. Prado's testimony and reports.

II. Did the district court err in its division of parenting time?

Mother next argues the district court erred in its division of parenting time
between the parties. She claims the evidence does not support the factual findings on
which the court based its division. Specifically, she contends the district court: (1) made
no finding that Father was untruthful, (2) gave insufficient weight to Father's history of
domestic violence; and (3) gave too much weight to evidence of Mother's alcohol abuse.

Review of child custody arrangements is subject to an abuse of discretion
standard. See State, ex. rel. Secretary, DCF v. M.R.B., 313 Kan. 855, 862, 491 P.3d 652
(2021). And to the extent we must review the district court's factual findings, we examine
whether they are supported by substantial competent evidence. See Gannon v. State, 305
Kan. 850, 881, 390 P.3d 461 (2017); Harrison v. Tauheed, 292 Kan. 663, 674, 256 P.3d
851 (2011).

A district court abuses its discretion: "(1) when no reasonable person would take
the view adopted by the district court; (2) when a ruling is based on an error of law; or (3)
when substantial competent evidence does not support a district court's finding of fact on
which the exercise of discretion is based." Cheney v. Poore, 301 Kan. 120, 128, 339 P.3d

18
1220 (2014). Mother bears the burden of demonstrating the district court abused its
discretion. Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009).

Mother largely asks us to reweigh evidence and make credibility determinations,
which we cannot do. M.R.B., 313 Kan. at 863-64. We must defer to the district court's
credibility assessments because, unlike this court, the district court personally observed
all the witnesses. Cresto v. Cresto, 302 Kan. 820, 839, 844, 358 P.3d 831 (2015). And
district courts are in the best position to evaluate testimony of witnesses, unlike this court,
which is presented with only a paper record. State v. Schaefer, 305 Kan. 581, Syl. ¶ 7,
385 P.3d 918 (2016); M.R.B., 313 Kan. at 863-64.

Mother offers no proof the district court failed to assess Father's credibility other
than that the court did not write about Father's credibility in its journal entry. But there is
no legal requirement that it do so. As Father correctly notes, we presume the district court
made all factual findings required to support its judgment, which necessarily includes
credibility determinations on contested matters. State v. Goff, 44 Kan. App. 2d 536, 540-
41, 239 P.3d 467 (2010). Mother has failed to persuade us that the district court did not
assess the credibility of all witnesses when making its factual findings on the division of
parenting time.

Mother also asks us to believe her version of several events over Father's, but
while the court made no explicit finding about Father's credibility, it did find that
"Mother's credibility . . . is questionable," particularly when the children's negative
reports of Mother were corroborated by the other siblings and their individual therapists.

We also find the district court properly considered Father's history of domestic
abuse in determining parenting time, as it is required to do under K.S.A. 23-3203(a)(9).
The court found Mother was a victim of Father's domestic abuse, including physical and
emotional abuse. Indeed, the court made findings addressing past and present abuse by

19
the parties against each other and abuse affecting the children. But the court found that
Father's abusive actions towards Mother stopped in 2015, and Father had not been
abusive to the children since the divorce, while it found Mother, on the other hand, has
engaged in alcohol abuse and physical violence towards the children after the divorce.
With both parents having a history of abusing each other, the district court took the
reasonable action of putting more weight towards the parents' present behavior, instead of
disproportionately weighing abuse that occurred before the divorce. In context of
evaluating the parties' domestic abuse, the district court did not abuse its discretion in
noting both parties have a history of domestic abuse and choosing to evaluate their
individual present behaviors.

The district court found Father's abuse was directly related to his alcohol abuse,
and he testified he stopped drinking after his arrest in 2015 for domestic violence against
Mother. While Mother argues the district court erred in "relyi[ng] heavily on [Father's]
version of events," she offers no evidence to dispute the events other than her assertion
that Father is dishonest. Mother offered no evidence of Father's current alcohol abuse,
testifying she "ha[d] no idea" if Father was drinking again. On the other hand, Father
successfully completed his probation early for the misdemeanor with no indication of
alcohol concerns on probation. Father's undisputed testimony is both relevant to domestic
abuse and furnishes a substantial basis of fact. And Mother points to no conflicting
evidence the court should have relied on.

As for the district court's findings about Mother's drinking, Mother is right that her
Soberlink tests largely show she tested negative for alcohol consumption. Yet other
evidence supports the district court's conclusion that Mother engaged in alcohol abuse. In
a social worker's supervised parenting time log, it stated that in Mother's house on
July 25, 2020, a "social worker noticed alcohol bottles in the cabinet, including a
Smirnoff bottle and another bottle." The district court also listened to the children's
reports of Mother's drinking and her behaviors, as presented by the GAL. For example,

20
one child reported in December 2019 that Mother drinks "most days." Mother, according
to the child, would smell like alcohol and act "weird." Mother would hide her drinking by
placing wine in Gatorade bottles, hiding alcohol in tumblers, drinking late at night, and
hiding vodka bottles in the laundry room. And the children reported that while Mother
was drinking, she was "mean," "annoying," would "bump into walls," and would be
"angry."

Even if Mother is correct that she stopped abusing alcohol sometime in 2020, as
demonstrated by Soberlink tests, that does not mean the district court abused its
discretion in dividing the parties' parenting time. The GAL reported other domestic abuse
behaviors Mother engaged in. Mother would become angry with the children for
disclosing things to the GAL, telling them they "would have to go to an orphanage if they
didn't stop talking to [the GAL]" about her and "ratt[ing]" her out. Mother was
consistently engaging in erratic and confrontational behavior according to the children.

Mother also engaged in a physical altercation with one of the children. In February
2020, Mother overpowered the child physically, chased and held the child down, and was
"overly physical" with the child. Mother, a tae kwon do instructor, was on top of the child
and asked another present child to video the altercation. Police were called. Mother was
known as a bully, mean, and picked on the children repeatedly. This evidence is another
indication of abusive behavior towards the children, that occurred after the divorce, and
supports the court's parenting time findings.

The district court analyzed relevant factors under K.S.A. 23-3203 and expressed
concerns about: Mother's behavior towards the children; two of the children's frustrations
with the current 50/50 parenting plan, including one child specifically sharing she would
prefer more time with Father; Mother's struggles with meeting the children's emotional
and physical needs including a failure to ensure the children are fed and attend school on
time; Mother's physical abuse towards the children; the negative effect of Mother's

21
roughly 50% parenting time on a child's school behavior; Mother dictating how the
therapists should do their jobs; Mother's continued disparaging of Father when the
children are with Mother; the chaos of Mother's house; Mother and Father's domestic
abuse of each other and the children; Mother's alcohol abuse; and Mother's inability to
maintain the children's schedules for school and activities.

The district court's detailed findings are supported by evidence presented at the
hearing, so we therefore find it did not abuse its discretion in its parenting time decisions.

III. Did the district court properly assess GAL fees between the parties and deny
Mother's posthearing motion for additional discovery?

Mother next challenges posthearing rulings by the district court "denying
additional discovery and dividing GAL fees between the parties." She cites the district
court's order granting the GAL's posthearing request for fees over Mother's objection in
support of both points. But this order only addresses the GAL fees, it does not address
any additional discovery. Mother claims she sought to reopen discovery of all
communications between Father and/or his counsel and the GAL, and Dr. Prado to
investigate the GAL's alleged collaboration between the GAL and Father. She also claims
she sought to subpoena documents and a deposition from Dr. Prado. She provides no
citation for her request for this discovery or an accurate citation to the record for the
district court's ruling on that request, in violation of Rule 6.02(a)(5). Our independent
review of the record located a transcript of a hearing denying Mother's request, which
Father cited as well. In denying the request, the district court stated it had ruled on the
substantive issues involved in the case and had denied Mother's motion to alter or amend.
The court found it did not need more information from Dr. Prado on and after those
rulings.

22
As for the GAL's request for fees, Mother contends the GAL failed to properly
perform his duties and, according to the GAL's time records submitted after the hearing,
improperly collaborated with Father. She contends the GAL failed to present evidence
favorable to Mother at the hearing and acted as Father's "joint defense counsel." And
Mother contends the court erred in denying her request for additional discovery because
she contends this discovery will support the alleged collusion between Father and the
GAL. Mother asks us to remand the case to the district court with instructions to "permit
the requested post-trial discovery to ascertain the extent of collaboration, its potential
impact on the presentation of facts and make new findings based upon a complete
record." She also asks us to order Father to pay all the GAL fees and expenses.

A. Standard of review

To the extent Mother challenges the district court's findings of fact and
conclusions of law related to the GAL's representation of the children's best interests,
those decisions are reviewed for substantial competent evidence and de novo,
respectively. Gannon, 305 Kan. at 881; see also In re Marriage of Bergmann & Sokol, 49
Kan. App. 2d 45, 47, 305 P.3d 664 (2013) ("The issue of GAL fees involves findings of
fact and issue of law creating a mixed standard of review."). And we review a district
court's ruling on a posttrial or posthearing discovery request under an abuse of discretion
standard of review. State v. Gutierrez, No. 119,849, 2019 WL 4553478, at *1 (Kan. App.
2019) (unpublished opinion); see City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160
P.3d 812 (2007).

B. We see no error in the district court's assessment of GAL fees.

Mother's arguments are largely based on inflammatory accusations against the
GAL which are largely void of any record citations to support the claims. We find there

23
is substantial evidence in the record to support the district court's findings in support of
its assessment of fees.

Under Kansas Supreme Court Rule 110A(c)(1) (2024 Kan. S. Ct. R. at 192), a
GAL must:

"(1) Conducting an Independent Investigation. A guardian ad litem must conduct an
independent investigation and review all relevant documents and records, including
those of social service agencies, police, courts, physicians, mental health
practitioners, and schools. Interviews—either in person or by telephone—of the
child, parents, social workers, relatives, school personnel, court-appointed special
advocates (CASAs), caregivers, and others having knowledge of the facts are
recommended. Continuing investigation and ongoing contact with the child are
mandatory."

Mother believes the GAL ignored his duties and responsibilities under this statute
because he did not act in the best interests of the children when he worked with Father's
counsel. According to Mother, the GAL and Father's counsel worked together to prepare
for the hearing and prepare witnesses like Dr. Prado and colluded together to make biased
recommendations towards Father.

The district court recognized the GAL and Father met three times before the
hearing. It stated: "The Court has reduced [Mother]'s one-half portion of the GAL fees
due and owing by $3,630. The Court is requiring [Father] to pay this amount because the
time entries for dates 4/21/2022, 4/29/2022, and 5/02/2022, indicate that the GAL
conferenced with [Father]'s attorneys on those dates for trial preparation." The court did
not mention any "collusion" between the GAL and Father and did not conclude the GAL
"picked sides" with Father because the GAL was "biased." It did, however, acknowledge
that Mother wanted Father to pay all fees incurred by the GAL and found "the GAL's

24
advocacy in this case complies with his 'duties and responsibilities' enumerated in Kansas
Supreme Court Rule 110A."

Father points out that a GAL, under Rule 110A must conduct an "independent
investigation." The rule does not say the GAL must be "impartial." And Father correctly
asserts that Mother is not entitled to have the GAL present favorable evidence of Mother.
See Rule 110A.

GALs must review a variety of documents and conduct interviews with various
sources. Rule 110A(c)(1). A GAL's purpose is to determine the best interests of the child
and represent those interests in court through "vigorous[] advoca[cy]." Rule
110A(c)(3)(E) (2024 Kan. S. Ct. R. at 192). Here, before the hearing, the GAL submitted
a proposed parenting plan he believed best served the best interests of the children. Father
sent Mother written notice that he intended on asking the court to follow the GAL's
proposed plan.

GALs must vigorously advocate for the best interests of the child. This means they
must represent those interests in a partisan way. If the GAL determines it is in the best
interests of the child to reduce parenting time with Mother, then the GAL has a duty to
advocate for that position through: "(i) calling, examining, and cross-examining
witnesses; (ii) submitting and responding to other evidence; and (iii) making oral and
written arguments based on the evidence that has been or is expected to be presented."
Rule 110A(c)(3)(E) (2024 Kan. S. Ct. R. at 192). If the GAL determines the best interests
of the children are for Father to receive more parenting time, it is the responsibility of the
GAL to vigorously advocate for that position at the hearing. Consequently, that position
will inherently line up with Father's position if Father also seeks to receive more
parenting time.

25
In sum, the GAL did not err by making a set of independent recommendations, in
the best interests of the children, that Father chose to join. Nor was it improper for the
GAL to meet with Father after the GAL had made his assessments to prepare to present
the best case to support those assessments at the hearing.

The district court ordered GAL's fees to be split among Mother and Father. And it
ordered Father to pay GAL's fees for the 13.2 hours the GAL spent with Father over three
days discussing preparation for the hearing. It stated:

"As the Court has already found, the conduct of both parties has contributed to the
litigation and court orders entered in this case. No persuasive evidence has been
presented to support a finding that Father should have to pay a larger portion of the GAL
fees than Mother. The Court continues to find, based upon all information available and
previously presented, that Mother is capable of paying, and has sufficient resources to be
able to pay, one-half of the GAL fees incurred, including witness fees, subject to the
exceptions stated herein."

Mother now argues: "Because [the] GAL crossed the line and became more akin
to an advocate for [Father], [Mother] should not be forced to pay any of the GAL's trial
preparation fees and expenses."

Since Mother fails to present evidence supporting her claim that the GAL
improperly colluded with Father, there is no basis for concluding the district court erred
in requiring her to pay a fair share of the GAL fees. Indeed, the reasonability of the
district court is further demonstrated by its careful consideration of the 13.2 hours the
GAL spent with Father's counsel in preparation for the hearing. The district court stated,
"after considering the equities involved," Mother's portion should be reduced so she did
not have to pay for the GAL's time meeting with Father's counsel. It was reasonable for
the district court to require Father to pay the fees that were linked to the GAL meeting his
counsel. It was not unreasonable to require Mother to pay half of those remaining fees.

26
C. We see no error in the district court's decision not to reopen discovery.

Mother contends the GAL's bias has two implications: First, that discovery needs
to be reopened so the collusion between the GAL and Father can be explored, and
second, Father should have paid GAL's fees entirely. Given that Mother's accusations
about the GAL colluding with Father are unsubstantiated, and we see no error in splitting
the GAL's fees between the parties, we also see no error in the district court's decision not
to allow Mother to pursue discovery after the hearing on this issue.

We therefore affirm the district court' decision to deny Mother's motion for
additional discovery.

IV. Did the district court err in calculating the gross incomes of Mother and Father to
determine child support?

Mother argues the district court erred in calculating both parties' gross incomes.
She contends her realized capital gains should not be included in her gross income. And
she argues the district court should not have deducted depreciation from Father's income
or have awarded him health insurance credit.

A. Standard of review

We review de novo a district court's interpretation and application of the Kansas
Child Support Guidelines (2024 Kan. S. Ct. R. at 101). Because Mother's appeal of the
district court's interpretation of her gross income turns on the meaning of "gross income"
under the Guidelines, we review that challenge de novo. In re Marriage of Dean, 56 Kan.
App. 2d 770, 773, 437 P.3d 46 (2018).

27
B. Mother's gross income should include her realized capital gains.

The district court included realized capital gains in both parties' gross incomes for
child support purposes, using a two-year average based on their tax returns and other
supporting documents admitted as exhibits. Mother argued the district court should
exclude her capital gains as income because the withdrawals from her investment
accounts were used to pay her litigation expenses. But the court found it legally could not
consider how Mother used her income in calculating her gross income, citing In re
Marriage of Matthews, 40 Kan. App. 2d 422, 429, 193 P.3d 466 (2008). And factually it
found Mother's part-time wages and yearly dividends did not cover her claimed monthly
expenses, and the evidence presented at the hearing supported the finding that Mother
regularly received income from sources other than her part-time job and yearly dividends.

On appeal, Mother argues the district court erred by including her realized capital
gains in her gross income. She argues these gains were generated from the sale of assets
set aside to her in the divorce action, and thus, according to In re Marriage of Case, 19
Kan. App. 2d 883, 891, 879 P.2d 632 (1994), and In re Marriage of Dimond, No. 98,855,
2008 WL 3369094 (Kan. App. 2008) (unpublished opinion), cannot be included in her
gross income. She contends these cases hold income earned from the liquidation of assets
obtained as property division are not regular earnings and should not be considered
income for calculating child support. But these cases are not analogous nor does Mother
properly describe them.

As we noted in In re Marriage of Ormiston, 39 Kan. App. 2d 1076, 1080, 188
P.3d 32 (2008), In re Marriage of Case does not stand for the "broad proposition" that
lump-sum payments are not included income. Rather, we recognized in In re Marriage of
Case that "'[d]omestic gross income includes "every conceivable form of income,
whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance,
rent, or whatever."'" In re Marriage of Ormiston, 39 Kan. App. 2d at 1080 (quoting In re

28
Marriage of Case, 19 Kan. App. 2d at 892). We also noted the Kansas Child Support
Guidelines "explicitly include income that is regularly and periodically received." In re
Marriage of Ormiston, 39 Kan. App. 2d at 1081. And in In re Marriage of Dimond, we
upheld the exclusion of funds generated from the liquidation of an asset set aside to her in
the divorce because the funds were not "regular and periodic income." 2008 WL
3369094, at *4.

Mother does not address the district court's factual finding that she regularly and
periodically uses income beyond what she receives from her part-time job and yearly
dividends to pay her monthly expenses. 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." In re Marriage of Matthews, 40 Kan. App. 2d 422, Syl ¶ 4. Income,
under the Guidelines, "mean[s] every conceivable form of income, whether it be in the
form of earnings, royalties, bonuses, dividends, interest, maintenance, or rent." 40 Kan.
App. 2d 422, Syl ¶ 5. Thus, it was proper for the district court to include this additional
income since it falls within the Guidelines' definition of domestic gross income.

While Mother argues the district court should not have included this income
because she liquidated assets to pay for the divorce proceedings, she fails to address the
caselaw the court cited which holds the court cannot consider how the income is used
when determining whether it qualifies as gross income. In In re Marriage of Dean, we
held the Guidelines "do not grant a district court the discretion to exclude non-liquid
capital gains from rental income received by self-employed persons." 56 Kan. App. 2d
770, Syl. ¶ 5. We relied on In re Marriage of Matthews, in part, because that case noted:
"'[T]he fact that [Father] chose to use his income to pay for an asset he purchased does
not change the character of the money from "income" to "non-income" for purposes of
calculating child support under the Guidelines.'" In re Marriage of Dean, 56 Kan. App.
2d at 777 (quoting In re Marriage of Matthews, 40 Kan. App. 2d at 429). The same is

29
true here. The fact that Mother chose to use her income to pay for attorney fees does not
change the character of the money from "income" to "non-income" for purposes of
calculating child support under the Guidelines. The district court noted, in quoting In re
Marriage of Matthews, 40 Kan. App. 2d at 429, "how a party chooses to use their income
'does not change the character of the money from "income" to "non-income."'" Nor does
Mother address the district court's finding that Mother regularly liquidated assets to pay
her monthly expenses. Realized capital gains which are periodically and regularly
received by a parent can be included in that parent's gross income for the calculation of
child support under the Kansas Child Support Guidelines.

We therefore find no error in the district court's inclusion of Mother's realized
capital gains in her domestic gross income for child support purposes.

C. Mother failed to preserve her remaining objections to the child support
calculation.

On appeal, Mother also raises two more objections to the district court's
calculation of Father's income in its child support calculations. First, she alleges Father
depreciated a vehicle he purchased which reduced his gross income for child support
purposes. Next, she alleges the court should not have deducted the cost of the children's
health insurance from Father's income because his company pays this expense. Father
alleged Mother failed to raise these objections before the district court so they are
unpreserved for appeal. We agree. State v. Green, 315 Kan. 178, 182, 505 P.3d 377
(2022) (Generally, issues not raised before the district court cannot be raised on appeal.).

Mother failed to cite in her brief where she made these arguments below. An
independent review of the record reveals Mother raised these issues in her motion to alter
or amend, filed after the hearing. And in denying that motion, the district court found
Mother should have raised these arguments at the hearing.

30
In his brief on appeal, Father alleged Mother failed to preserve these arguments.
While Mother filed a reply brief, she did not address this issue in it. After oral argument,
she filed a purported Rule 6.09 letter in which she recited snippets of Father's hearing
testimony which briefly mentioned these two items along with generic citations to
various child support worksheets. See Supreme Court Rule 6.09(a)(2) (2024 Kan. S. Ct.
R. at 40). But the purpose of a Rule 6.09 letter is to notify the court of "persuasive or
controlling authority" that was published either after a party's appellate brief was filed or
after oral argument, not to correct a party's failure to comply with Rule 6.02(a)(5). Rule
6.09(a)(2) (2024 Kan. S. Ct. R. at 40). Further, none of the record citations provided in
Mother's letter show that Mother brought these issues to the district court's attention. A
mention of these items in Father's testimony or child support worksheets with no
objection from Mother before or during the hearing is not sufficient to notify the district
court that Mother is challenging the inclusion of these items. And as Father points out,
these items are intertwined with other factual considerations made by the district court,
which would have required Mother to raise her objections below.

Kansas Supreme Court Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36) requires an
appellant to cite "a pinpoint reference to the location in the record on appeal where the
issue was raised and ruled on" in the district court. Or "[i]f the issue was not raised
below," the brief must include "an explanation why the issue is properly before the
court." Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36). Because Mother fails to point to
where in the record on where the district court ruled on her argument, she failed to
preserve her argument for review.

FATHER'S MOTION FOR ATTORNEY FEES ON APPEAL

After oral argument, Father moved for attorney fees on appeal under Rule
7.07(a)(4) and (c) (2024 Kan. S. Ct. R. at 52). Father alleges justice and equity require
that we grant him an award of fees in this case because Mother's appeal stayed the district

31
court's judgment of child support, meaning Father has had to pay out fees on appeal while
being denied payment of child support assessed by the district court. He also alleges the
appeal is frivolous because Mother raised no justiciable issue.

While we empathize with Father's difficult financial situation, we do not find
Mother's appeal was frivolous nor do we find the equities of this situation in particular
support an award of fees. To award fees simply because the underlying judgment is
stayed while the matter is on appeal would chill parties' exercise of their legal right to
appeal. The staying of an underlying judgment is a normal occurrence in appellate
practice, which can have difficult but not unusual consequences. We do not find the
circumstances here to be unusual enough to justify an award of fees. And while Mother
was unsuccessful on appeal, this was a fact intensive and complicated case in which
emotions ran high. We find the issues she raised to be justiciable even though they were
not persuasive. Therefore, we deny Father's motion for attorney fees on appeal.

CONCLUSION

We see no error in the district court's admission of Dr. Prado's testimony and
related documents, nor do we see error in its assessment of parenting time and child
support. We therefore affirm its decisions.

Affirmed.

In re Marriage of L.F. and M.F.

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