In re Marriage of Wood

NOT DESIGNATED FOR PUBLICATION2091

No. 122,211

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of
MARLOUISE CLARK WOOD,
Appellee,

and

STEVEN PAUL WOOD,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; LINDA KIRBY, judge. Opinion filed November 13, 2020.
Affirmed.

Michael L. Leyba, of Stange Law Firm, of Wichita, for appellant.

Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellee.

Before ARNOLD-BURGER, C.J., MALONE, J., and WALKER, S.J.

PER CURIAM: Steven Paul Wood appeals the district court's order granting
Marlouise Clark Wood's divorce petition and dividing their marital property from their
41 years of marriage. Steven argues first that the district court abused its discretion by
ignoring a Sedgwick County local court rule that requires a pretrial conference and a
pretrial conference order before the trial. Steven also argues the district court erred in its
ruling by (1) setting an incorrect valuation date for some of the assets, and
(2) characterizing his spending activity after their separation as dissipation of the marital
estate. After reviewing the arguments presented, we affirm the property division ruling.

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 FACTUAL AND PROCEDURAL HISTORY

Marlouise filed for divorce from her husband Steven in April 2017 after 41 years
of marriage because of incompatibility. In the petition, she requested spousal support and
for an equitable division of "the property and obligations of the parties." The petition did
not list a date of separation. Marlouise also indicated no retirement benefits or related
accounts on her domestic relations affidavit (DRA). Along with her petition she filed a
poverty affidavit in support of her request to waive the docket fee because she was
retired, and her only source of income was a monthly Social Security benefit.

The next day, the district court issued an order allowing the case to be filed
without paying a docket fee but reserving final judgment until either the fee had been
paid or a review hearing was conducted on the information obtained in the DRA.
Likewise, the court issued a temporary order allowing Marlouise exclusive possession of
their residence and setting a hearing date for Steven to voice any objections to the
temporary order or request modifications to it.

Three months later, Marlouise filed an amended petition with the only change
being a request for retirement benefits. The court issued an amended temporary order and
notified Steven that Marlouise's counsel would be requesting a business records subpoena
for production of documents related to any retirement accounts. Steven timely answered
the amended petition, admitting the allegations of fact and likewise requesting an
equitable division of property and debt.

In April 2018, Marlouise paid the filing fee and the district court scheduled a
pretrial hearing for June 2018. That hearing was continued several times, until eventually
the parties submitted a pretrial conference order in July 2018. The court promptly
scheduled a settlement conference for August 2018 and an evidentiary hearing for

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September 2018. The evidentiary hearing was continued several more times until March
2019.

About a week before the evidentiary hearing, Marlouise submitted an amended
DRA with slightly updated income and debt information. Her DRA showed monthly
income of $1,356, monthly expenses and debts of $1,771.47, leaving her with a monthly
net balance of -$415.47. As for owned assets, she listed a Buick Rendezvous with a value
of $3,000 and various items of houseware with no specified monetary value.

Steven also submitted his DRA a few days later, which reflected that they had
"separated in 2008." Steven's DRA showed a monthly income of $3,347, monthly
expenses and debts of $2,964, leaving him with a monthly net balance of $383. He also
listed several assets, including: Fidelity IRA worth $993; 2013 Dodge Ram worth
$13,845; 2008 Big Dog motorcycle worth $1,000; 1972 Ford Mustang worth $300; and
1939 Ford Pickup worth $200.

At the evidentiary hearing, the parties gave conflicting testimony on several
points. Marlouise testified that they married in 1976 and separated in 2008. Steven at first
agreed that the separation occurred when he retired in September 2008, but then later
testified that he believed they really separated in 2005. At that time, Marlouise had gone
to live with their daughter to help take care of a premature-born granddaughter.
According to Steven, Marlouise "had no intent when she left in 2005 of ever returning as
[his] wife."

The parties agreed that Steven began giving Marlouise $350 monthly after their
separation but disagreed about the duration of the payments. Marlouise said the payments
began around 2009 or 2010, which continued "[p]robably up until 2015 [or] 2016" when
she bought her Buick Rendezvous. In contrast, Steven said that he began giving her the
monthly payments the first or second month after he retired in September 2008 but
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testified inconsistently as to the final payment date. He said he stopped paying her after
his 10-year fixed pension from Cessna ended in 2017, but also believed the payments
stopped when his girlfriend's mother passed away but could not recall when exactly.

The parties also disagreed about how the district court should value and distribute
Steven's Textron 401(k) account. They did not dispute that it was worth around $133,000
when Steven retired in 2008 and only contained around $1,000 as of the evidentiary
hearing. Steven testified that once he retired, he began taking money out for many
reasons, including:

• Giving their son an unspecified amount of money to help him move back
home from the East Coast after losing a job; $3,000 for bail; and $5,000 to
pay for an attorney. He also gave their daughter money a few times but did
not specify a total amount.
• Paying off a $24,000 mortgage for a home they had owned, as well as
unspecified amounts for medical bills and "about $9,000 worth of hot
checks" Marlouise had allegedly written during their marriage.
• Spending around $12,000 on a single-car garage and carport on the
property where he was still currently living.
• Purchasing a Big Dog motorcycle for $28,000 in 2008 that he now asserted
was "pretty much junk" because it no longer ran, and the manufacturer went
bankrupt.

Steven testified repeatedly that he had no receipts for most of these transactions
but agreed that the account had around $35,000 remaining on December 31, 2008.
Marlouise testified that she did not know about the 401(k) when she first filed the divorce
petition and believed she was entitled to half of the amount that remained when they
separated in 2008. Likewise, Marlouise did not know how much money Steven had given
their children.
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 After considering the evidence presented by the parties, the district court took the
matter under advisement. Several months later, the court issued its final journal entry of
judgment and decree of divorce.

In the ruling, the court found that the parties' testimony supported a finding that
Steven's "concealment and dissipation of marital assets," his failure "to pay adequate
spousal maintenance for over 10 years, and other factors," warranted an equal 50/50
division "valued from the date of separation in 2008." The court set forth the following
distribution of marital assets:

• Marlouise was entitled to a total equitable share of $33,725.40 for the
amount remaining in the 401(k) after the parties separated in 2008, ordering
the $987 currently remaining in the account to be paid upon judgment.
o For the September 29, 2008 withdrawals from the 401(k) totaling
$110,267.26, Marlouise was entitled to a net amount of $21,606.90.
The court assigned an equal distribution of the taxes paid to
withdraw the funds, amounts paid toward marital debts, and gifts
made to their son of which Marlouise did not object. However, the
court subtracted from Steven's share the amounts paid for the Big
Dog motorcycle and the real property improvements that only
benefitted Steven, as well as the gifts to their son of which
Marlouise was not aware, treating these as dissipations of the marital
property.
o For the remaining $35,702.75 of the 401(k), a loan amount of
$5,406.48 was treated as marital debt and subtracted for a remainder
of $30,296.27 in the 401(k) in December 2008 that was marital
property. The court reduced this amount by 20% for taxes, leaving
Marlouise entitled to an additional $12,118.50 as her equitable share
of the remaining funds in the 401(k).
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• Marlouise was entitled to a total equitable share of $63,534.50 for the
amount of the Cessna pensions Steven received during the 10 years after
their separation in 2008. That judgment would be satisfied with monthly
payments of $717.34 from Steven's Cessna pension from April 2019 to
May 2029.
o The court treated both pensions as marital property and used "the
date of separation requested by Respondent" to calculate the total
amounts of the pensions as $211,069. The court also found that
"[h]ad the Cessna pensions been revealed to Petitioner and divided
equally between the parties, over the last 10 years, Petitioner would
have had total accumulated income of $105,524.50." The court then
reduced that amount by $42,000, giving Steven "full credit" for 10
years of monthly $350 payments that he had testified to.
• Marlouise was entitled to half of Steven's remaining Cessna pension "in the
amount of $1,041.52 (or $897.40 in [the] event the smaller Cessna pension
is a 10 year certain annuity)."
• The parties were entitled to their own personal property as in their
respective DRA, with a few exceptions. The court awarded the Big Dog
motorcycle to Marlouise for the estimated value of $1,000 "as partial
equalization of marital property." In addition, the court awarded "[a]ll other
vehicles not awarded above" to Marlouise "if she so chooses," and ordered
that the judgment related to the 401(k) would be reduced by those values if
Marlouise chose to claim the vehicles. Ultimately, Marlouise decided to
exert a claim as to the 2007/08 Big Dog Motorcycle valued at $1,000; the
1969/72 Ford Mustang valued at $300; and the 1939 Ford Pickup valued at
$200, and so the judgment related to the 401(k) was reduced to $32,225.40.
Steven would retain the 1986 Dodge Ram Charger and the GMC Jimmy
valued at $500 each.

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 • The court denied Marlouise's request for spousal maintenance, finding that
since the order entitled her to receive one-half of Steven's Cessna pensions
going forward, the judgment "will assure that her current total need as
shown on her domestic relations affidavit will be met."

Steven timely appealed.

ANALYSIS

The district court did not abuse its discretion by failing to conduct a pretrial conference.

Steven argues first that the district court abused its discretion when it failed to
conduct a pretrial conference, which he asserts was required under a Sedgwick County
local court rule. As a result, Steven asserts that the court's property distribution ruling
must be reversed because a pretrial conference was necessary for the court to establish a
valuation date to determine the value of the marital assets.

In response, Marlouise contends Steven's argument must fail for four reasons:
(1) he is raising the issue for the first time on appeal; (2) the procedural requirement was
satisfied because the parties previously submitted a proposed pretrial conference order
that was "inadvertently never formally filed"; (3) the separation or valuation date could
be set either at a pretrial conference or at trial; and (4) he demonstrated no resulting
prejudice from the alleged lack of a pretrial conference or accompanying order.

In a reply brief, Steven challenges whether Marlouise followed the procedure for
adding the proposed pretrial conference order to the record on appeal. In short, he argues
that any such order was never properly made a part of the record and thus should not be
considered by this court.

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 Our standard of review is abuse of discretion.

We review the district court's alleged failure to conduct a pretrial conference for
an abuse of discretion. A judicial action constitutes an abuse of discretion if (1) it is
arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on
an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). As the
appellant, Steven bears the burden of showing such abuse of discretion. Gannon v. State,
305 Kan. 850, 868, 390 P.3d 461 (2017).

But also to the extent that resolving whether the court needed to hold a pretrial
conference or failed to do so requires interpretation of a statute or court rule, that presents
a question of law subject to unlimited review. Nauheim v. City of Topeka, 309 Kan. 145,
149, 432 P.3d 647 (2019).

Discussion

Under K.S.A. 2019 Supp. 20-342 and Supreme Court Rule 105 (2020 Kan. S. Ct.
R. 164), district courts may enact rules necessary for their administration and that are
consistent with applicable statutes and Supreme Court Rules. With respect to pretrial
conferences in a divorce action, a district court need only conduct a pretrial conference
"upon request of either party or on the court's own motion." K.S.A. 2019 Supp. 23-2709;
see also K.S.A. 2019 Supp. 60-216 (governing pretrial conference procedures). The list
of matters to be discussed at a pretrial conference can include:

"(A) Simplifying the issues;
"(B) determining the issues of law that may eliminate or affect the trial of
issues of fact;
"(C) amending the pleadings if necessary or desirable;
"(D) obtaining admissions and stipulations about facts and documents to avoid
unnecessary proof;

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 "(E) limiting the number of expert witnesses;
"(F) referring issues to a master; and
"(G) such other matters as may aid in the disposition of the action, including
alternative dispute resolution." K.S.A. 2019 Supp. 60-216(c)(2).

After holding a pretrial conference, a district court "should" issue an order reciting
the actions taken on those matters. K.S.A. 2019 Supp. 60-216(d). Generally, a pretrial
conference order supersedes any pleadings and controls the subsequent course of action
unless modified by the court to prevent a manifest injustice. K.S.A. 2019 Supp. 60-
216(d), (e); Nelson v. Nelson, 38 Kan. App. 2d 64, 75, 162 P.3d 43 (2007).

But Sedgwick County enacted its own local rules, which appear to make this
process mandatory. First, the local rules provide that "[n]o case shall proceed to trial
without a Pre-Trial Conference being held, and a Pre-trial Conference Order being filed.
These conferences shall be held Mondays at 8:45 a.m. with the Assigned Family Law
judge," but also that "[n]o Pre-Trial Conference shall be held sooner than 60 days after
the filing of the petition in the case, except by agreement of the parties or for good cause
shown." Sedgwick County Local Court Family Law Rule 411(b), (g).

If the parties have submitted an agreed-upon pretrial conference order on or before
the date of the scheduled conference, their presence is not required unless by notification
from the court. Local Rule 411(c). If no agreed-upon order has been filed, the parties are
required to attend the pretrial conference and the court may order a sanction for
unexcused absences. In addition, "[i]f only one party appears on the date of the
conference and that party has prepared its version of the Pre-Trial or Pre-Hearing
Conference Order, that version shall become the order of the Court, until further order of
the Court." Local Rule 411(f). Under subsection (e),

"Any Pre-Trial conference order must include a) all information required by law and
local rules, b) the date of the settlement conference, and c) the date of the trial. An initial

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 list of witnesses, exhibits, and issues/contentions must be included. Witnesses and
exhibits may be amended up to 10 days before trial. In any case where property division
is an issue, the parties must include an initial list of proposed division of debts and assets.
The list of property to be divided may be updated at will up to 10 days prior to trial. The
proposed values and division of property may be updated until the time of trial." Local
Rule 411(e).

Similarly, Sedgwick County Local Court Family Law Rule 412(a) provides that
"[n]o case can proceed to trial without a Mandatory Settlement Conference or a Judicial
Settlement Conference being held, unless waived by the Court." The rule then reiterates
that there must be a pretrial conference order on file before a mandatory or judicial
settlement conference begins, "including a proposed division of assets and debts when
property division is an issue." Local Rule 412(c), (f). Local Rule 412(f) also provides that
"Mandatory Settlement Conferences shall be held approximately three weeks before the
trial, on Mondays at 8:45 a.m." Then at the eventual trial, Sedgwick County Local Court
Family Law Rule 414(c) provides that "[a]ll parties are limited by the issues, contentions,
witnesses, and exhibits as listed in the final Pre-Trial Conference Order."

According to Steven, the district court violated these rules because the record
lacks any documents to show that the court ever held a pretrial conference or issued a
pretrial conference order. He mentions that there are only transcripts available from two
hearings in the record, which consist of the evidentiary hearing in March 2019 and then a
hearing in September 2019 on his then-counsel's motion to withdraw. Yet he
acknowledges that Marlouise referenced a pretrial conference order as an exhibit
stipulated by the parties at the trial and that the court mentioned the same in its later
orders of divorce and division of property.

Further review of the record contradicts Steven's assertion about the lack of a
pretrial conference or resulting order. The Register of Actions report shows that the
district court held a pretrial conference on July 16, 2018, at which the hearing result
10
reflects two events occurred: (1) the filing of a "Civil Pretrial Conference Order," and (2)
the scheduling of a "Mandatory Settlement Conference" to occur the next month. Steven
does not address these entries in his appellate brief. Although there are no transcripts
from the "hearing" to confirm either party's presence, it seems likely that the court
complied with Local Rule 411(c) and did not require either party's attendance because
they had submitted a joint pretrial conference order that day. That said, Steven's concerns
that the record included no pretrial conference order when he submitted his brief are well
taken.

But after submitting an initial brief, Marlouise apparently recognized that the
record lacked a copy of the pretrial conference order submitted in July 2018, so she
moved to add "Petitioner's Exhibit 1"—a copy of the order referenced at the trial—to the
record on appeal under Supreme Court Rule 3.02(d) (2020 Kan. S. Ct. R. 19). About two
weeks later, she sought leave to amend her brief with citations to the addition, noting that
"[t]he requested additions to the record on appeal have been made." This court allowed
the amended brief over Steven's objection.

Steven then filed a reply brief, challenging whether the exhibit was ever properly
made part of the record mainly because it was "withdrawn" at the close of the trial. He
also argued that Marlouise failed to follow the proper procedure for making an addition
to the appellate record by failing to file the request with the appellate court or serve a
copy of the request on the court reporter. Simply put, Steven's attempts to prevent the
exhibit from being included in the record are unavailing.

To start, Supreme Court Rule 3.01(a) (2020 Kan. S. Ct. R. 19) says that the "entire
record" includes "all original papers and exhibits filed in the district court." Under
Supreme Court Rule 3.02(d)(3) (2020 Kan. S. Ct. R. 21), a party can request "any part of
the entire record under Rule 3.01(a)" be added to an appellate record that "has not been
transmitted to the clerk of the appellate courts" subject to these rules:
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 "(A) The party requesting the addition must serve the request on the clerk of the
district court and—if the requested addition is an exhibit that was offered or
admitted into evidence and is in a court reporter's custody—on the reporter, who
promptly must deliver the exhibit to the clerk of the district court for inclusion in
the record on appeal.
"(B) The clerk must add the requested addition to the record on appeal. No court order
is required."

Subsection (d)(4) addresses additions to the record on appeal where the record
"has been transmitted to the clerk of the appellate courts," and requires that "[a]n addition
to the record on appeal may be made only on an order of the clerk of the appellate courts
or an appellate justice or judge." Supreme Court Rule 3.02(d)(4) (2020 Kan. S. Ct. R.
21).

Here, the Clerk of the Appellate Court did not request the record from the district
court until August 7, 2020, and it was received 10 days later. Marlouise requested her
addition on May 20, 2020, so her request falls under Rule 3.02(d)(3) since the record had
not been transmitted to the Clerk of the Appellate Court. See Supreme Court Rule 3.07(a)
(2020 Kan. S. Ct. R. 25) (authorizing appellate clerk to request transmission upon
expiration of time for filing briefs or any extensions and requiring compliance within
seven days of receipt of the request). As a result, Steven's argument that Marlouise erred
by not filing her request with this court fails because the record was not transmitted yet
and thus Rule 3.02(d)(3) applied to her request.

Steven next argues that Marlouise failed to serve a copy of her request on the court
reporter, as required by Rule 3.02(d)(3)(A). He notes that the exhibit was withdrawn at
the end of the trial, thus meaning that the court reporter did not have custody of the
exhibit anymore. That appears to be true here, since Marlouise's request conveyed that
"[t]he requested addition is being uploaded separately as part of this filing." So it stands
to reason that the document was not in the court reporter's custody because Marlouise

12
would not have needed to upload the document if the reporter already had access.
Although Steven is correct that Rule 3.02(d)(3)(A) requires service of a request on the
court reporter, a different rule seems to apply in this situation.

Under Supreme Court Rule 3.04(b) (2020 Kan. S. Ct. R. 23),

"[i]f an exhibit offered, admitted, or excluded in a hearing or trial is unavailable, a party
to an appeal may prepare a photocopy or any facsimile that accurately duplicates the
original exhibit. The substitute exhibit must be served on all parties, who may serve an
objection or proposed amendment no later than 14 days after being served. The substitute
exhibit and any objection or proposed amendment then must be submitted to the district
court for settlement and approval. As settled and approved, the substitute exhibit must be
included by the clerk of the district court in the record on appeal." (Emphases added.)

Steven asserts emphatically that adding the exhibit to the record on appeal "is
tantamount to making something appear where it never existed before" because it was
"never actually admitted into evidence." But Rule 3.02(d)(3)(A) indicates that exhibits
offered at a previous hearing can be added to the record on appeal. See Supreme Court
Rule 3.01(a) (2020 Kan. S. Ct. R. 19) ("The entire record consists of . . . all original
papers and exhibits filed in the district court."). Moreover, he acknowledges that the
parties stipulated to the exhibit's inclusion at the trial and did not object to its
consideration by the court at that time.

Admittedly, whether the district court complied with Rule 3.04(b) and gave Steven
14 days to object or propose an amendment is unclear, because the electronic file stamps
for Marlouise's request and the exhibit are exactly the same. But that would also make
sense if Marlouise uploaded the exhibit at the same time as her request. Marlouise also
certified that she sent a copy of the request to Steven's counsel—and presumably the
attached exhibit—that same day. But she did not move to file her amended brief until two
weeks later and at that time noted "[t]he requested additions to the record on appeal have

13
been made." The only indication of an objection came in the form of Steven's response to
the request to file an amended brief on June 12, 2020, in which he raised the same
challenges as in his reply brief—that the record had been transmitted and she had failed
to file the request in the appellate court to have the exhibit added to the record. That leads
to the primary reason why Steven's challenge must fail.

Generally, as Marlouise notes, issues not raised before the trial court cannot be
raised for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403,
266 P.3d 516 (2011). Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires an
appellant to explain why an issue that was not raised below should be considered for the
first time on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the
Supreme Court held that litigants who fail to comply with this rule risk a ruling that the
issue is improperly briefed, and the issue will be deemed waived or abandoned.
Thereafter, the Supreme Court held that Rule 6.02(a)(5) would be strictly enforced. State
v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). In short, because Steven does
not explain why he failed to object at any point during the underlying proceedings about
the lack of a pretrial conference order being on file, that issue is deemed abandoned.
Similarly, because he failed to assert any objections to the exhibit's addition to the record
on appeal in the district court, Steven has waived that challenge.

For these reasons, we conclude that Marlouise followed the correct procedures
outlined in the Supreme Court Rules for adding an exhibit to the record on appeal and
that there was no abuse of discretion by the district court. For these reasons, we can
consider the exhibit as proof that the district court complied with Sedgwick County local
rules requiring that a pretrial conference order be on file before proceeding to trial.

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The district court did not err in dividing the parties' property.

Steven also argues the district court erred when distributing the marital property in
two critical ways: (1) by failing to set a specific valuation date for the marital property,
and (2) by characterizing his spending activity after his retirement as "dissipation" under
K.S.A. 2019 Supp. 23-2802(c)(8). In response, Marlouise contends that the district court
had discretion to account for changes in value and the evidence supported a general
valuation date of 2008. Marlouise also asserts that the court properly considered Steven's
actions as dissipation of the marital estate.

The district court's property division is reviewed for abuse of discretion.

A district court's division of property in a divorce action is governed by K.S.A.
2019 Supp. 23-2801 et seq. A district court has broad discretion when adjusting the
property rights of the parties involved in a divorce action. As a result, the district court's
property division is reviewed for abuse of discretion. In re Marriage of Wherrell, 274
Kan. 984, 986, 58 P.3d 734 (2002); In re Marriage of Vandenberg, 43 Kan. App. 2d 697,
715, 229 P.3d 1187 (2010). A judicial action constitutes an abuse of discretion if (1) it is
arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on
an error of fact. Biglow, 308 Kan. at 893. As the appellant, Steven bears the burden of
showing such abuse of discretion. Gannon, 305 Kan. at 868. To the extent that resolving
this question requires interpretation of a statute, that presents a question of law subject to
unlimited review. Nauheim, 309 Kan. at 149.

Steven challenges the district court's property division ruling in two ways. First, he
argues that the court erred by not setting a precise valuation date and using inconsistent
valuations for certain marital assets. Next, he argues that the court's characterization of
his spending activity as "dissipation" conflicted with K.S.A. 2019 Supp. 23-2802(c)(8).
These arguments will be addressed in turn.
15
 The district court did not abuse its discretion regarding its valuation
determinations.

Kansas law requires the district court to "set a valuation date to be used for all
assets at trial" in divorce cases, at the request of either party. K.S.A. 2019 Supp. 23-
2802(b). The statute allows the court to choose between "the date of separation, filing or
trial as the facts and circumstances of the case may dictate." K.S.A. 2019 Supp. 23-
2802(b). After setting the valuation date, "[t]he trial court may consider evidence
regarding changes in value of various assets before and after the valuation date in making
the division of property." K.S.A. 2019 Supp. 23-2802(b).

On this point, Steven asserts that "disputes over the date of valuation of the marital
assets are to [be] worked out in a pretrial conference." But our Supreme Court has long
held:

"The trial court has discretion to value the marital assets at the time of separation, at the
time the divorce petition is filed, at the time of the divorce hearing, or as the facts in each
case dictate. When the time of valuation becomes an issue in a contested case, the trial
court at the pretrial conference should set the valuation date. In doing so, all the marital
assets shall be valued as of the same date." In re Marriage of Cray, 254 Kan. 376, 387,
867 P.2d 291 (1994).

The court then concluded that substantial competent evidence supported the trial court's
decision to use the date of separation as the appropriate valuation date. 254 Kan. at 388;
see In re Marriage of Schwien, 17 Kan. App. 2d 498, 509, 839 P.3d 541 (1992)
(reviewing district court's valuation of marital property for substantial competent
evidence). Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as adequate to support a conclusion. Geer v. Eby, 309
Kan. 182, 190, 432 P.3d 1001 (2019).

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 Steven now contends that the district court abused its discretion by (1) not setting
out a valuation date in a pretrial conference order; (2) choosing a broad valuation date
that was not supported by substantial evidence; and (3) valuing some of the marital assets
using different dates.

The district court did not abuse its discretion in failing to set a valuation
date in the pretrial conference order.

To start, as discussed above, Steven incorrectly asserts that the district court did
not hold a pretrial conference and that there was no pretrial conference order. The parties
submitted a pretrial conference order to the court in July 2018, which was later offered at
the trial as a stipulated exhibit and then added to the record on appeal. The order
indicated a valuation date of "07/31/2017"—which was the date Marlouise filed the
amended petition—but that Steven requested a valuation date of "2008 when the parties
separated." Under "ADDITIONAL CONTENTIONS," Steven asserted that "[t]he parties
have been separated for the last ten years." Yet again, in his proposed division, Steven
asserted that "[e]ach should pay any debts they have incurred since the[y] separated 10
years ago."

But the portion of In re Marriage of Cray Steven now relies on did not set out a
mandatory requirement that a district court must set a valuation date at a pretrial
conference. Rather, the relevant portion of In re Marriage of Cray held that "[w]hen the
time of valuation becomes an issue in a contested case, the trial court at the pretrial
conference should set the valuation date." (Emphases added.) 254 Kan. at 387. Until
Steven's conflicting testimony at trial about the separation date, there did not appear to be
any dispute about the correct valuation date. As Marlouise notes, the district court
ultimately chose the valuation date Steven originally requested, so he cannot now
complain of an error that he essentially invited.

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 Moreover, In re Marriage of Cray dealt with a prior version of the property
division statute. Nothing in the current statute required the district court to set a valuation
date at the pretrial conference, nor does Steven provide any other authority requiring the
court to set a valuation date in a pretrial order. See In re Adoption of T.M.M.H., 307 Kan.
902, 912, 416 P.3d 999 (2018) (not supporting a point with pertinent authority or in the
face of contrary authority is akin to failing to brief the issue). Doing so would go against
K.S.A. 2019 Supp. 23-2802(b), which anticipates that parties could submit evidence at
trial "regarding changes in value of various assets before and after the valuation date in
making the division of property." As a result, Steven has failed to show the court abused
its discretion by not choosing a valuation date in the pretrial conference order.

The district court's chosen valuation date was supported by substantial
evidence.

Steven points out that there was conflicting testimony presented at the evidentiary
hearing about the party's separation date and that the district court failed to establish a
precise valuation date. The court ordered the valuation date "from the date of separation
in 2008," but Steven contends that choosing the entire year of 2008 was "vague and
indeterminate." But a review of the court's property division ruling reveals that the court
treated the date of Steven's retirement as the separation date. In short, the district court
seems to have used the exact valuation date Steven originally requested but that he now
asserts should have been more specifically defined.

The main marital asset was Steven's Textron 401(k) retirement account, which the
court valued at $133,513.06 on January 1, 2008. There were two withdrawals in
September 2008 totaling $110,267.26, and only $35,702.75 remained in the account on
December 31, 2008. The court noted that Marlouise testified that she did not know about
this account until discovery in this divorce action, which the court found was uncontested
and credible. As a result, the court determined she was entitled to half of the funds but
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allocated some of the amounts paid toward marital debts from the account based on
Steven's testimony. The court then divided the remaining amount on December 31 to the
parties equally, applied a 20% reduction for taxes, and concluded that Marlouise was
entitled to $33,725.40 from the account.

Next, the district court discussed Steven's Cessna pension accounts, which he
began receiving upon his retirement. Steven testified that he received $324.23 per month
from a 10-year certain annuity and $1,758.81 per month from his main pension account.
He also testified that he began giving Marlouise $350 per month about two months after
his retirement and continued doing so for the next 10 years. Based on these amounts, the
court found that Steven had received $211,069 "in the 10 years that he testified that
pensions were paid" and that Marlouise was entitled to half of this amount with a $42,000
reduction for the payments Steven testified he made to her, for a total of $63,534.50.

Steven also asserts that the district court should have chosen a valuation date of
2005, which is when he testified that he believed they separated. He even said that he
considered filing for divorce in 2005 and consulted a lawyer at that time but ultimately
chose not to file. According to Steven, if his retirement plan "were valued three years
prior along with his other two pensions, the marital estate would be considerably less,
considering [he] retired at a higher position than he had for most of his career." But the
only evidence presented at trial was about the value of his retirement plan in 2008. The
burden is on the party making a claim to designate a record sufficient to present its points
to the appellate court and to establish its claims. Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013); Supreme Court Rule 6.02(a)(4). More
importantly, Steven also never testified about a specific date he believed they separated in
2005, so his preferred separation date is supported by even less evidence than the date
chosen by the court.

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 For these reasons, we conclude that the district court's chosen valuation date of the
date the parties separated in 2008 was supported by substantial evidence. Although the
court did not identify a particular date in its order, reasonable persons could agree that the
evidence showed they separated when he retired in 2008 and that the property division
ruling clearly treated Steven's retirement date as the valuation date. Therefore, Steven has
failed to show that the district court abused its discretion.

The district court did not abuse its discretion by valuing some of the
marital assets based on present estimated values.

Steven also challenges the district court's valuation of the vehicles, arguing that
they were not based on 2008 valuations. Again, relying on In re Marriage of Cray, he
contends that the court abused its discretion by assigning values to the vehicles based on
their present worth as estimated by the parties. See 254 Kan. at 387 (noting that "all the
marital assets should be valued as of the same date").

As Marlouise points out, the Legislature has since amended the statute governing
division of marital property. The current statute provides that "[t]he trial court may
consider evidence regarding changes in value of various assets before and after the
valuation date in making the division of property." K.S.A. 2019 Supp. 23-2802(b); see In
re Marriage of Thrailkill, 57 Kan. App. 2d 244, 261-62, 452 P.3d 392 (2019) (finding no
abuse of discretion where court treated loan taken out after valuation date as marital
debt).

Similarly, we find no abuse of discretion by the district court in considering the
changes in value to the vehicles after the valuation date, which was their date of
separation. Although Steven testified that he bought the Big Dog motorcycle for $28,000
in 2008, his DRA assigned a current value of only $1,000. His testimony at the trial
established that the motorcycle needed substantial repairs, which would be difficult
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because the manufacturer had gone bankrupt and parts were difficult to obtain. As for the
other vehicles, the court assigned values based on Steven's own estimates and testimony.
No other evidence was presented to suggest the vehicles were worth more than Steven set
out in his DRA or his testimony at trial. So just as with Steven's previous argument, this
claim must fail because he has failed to designate a record sufficient to support his claim.

In sum, a reasonable person could agree with the district court's valuation
determinations in this case. Steven has failed to establish that the court abused its
discretion.

The court did not abuse its discretion by treating Steven's spending activity as
dissipation of the marital estate.

Steven also challenges the district court's treatment of his spending activity after
the parties' separation as "dissipation" under K.S.A. 2019 Supp. 23-2802(c)(8). He argues
that the court gave that term a "unique and genuine significance that was both beyond the
literal definition . . . and went against all rules of statutory construction." Marlouise
responds that the court found Steven had wrongfully concealed the size of his retirement
accounts and pension from her, thus falling within the "wide latitude" granted to district
courts in dividing marital property.

Both parties cite In re Marriage of Rodriguez, 266 Kan. 347, 969 P.2d 880 (1998),
as the controlling case for dissipation of assets in Kansas. After reviewing the definitions
of dissipation as interpreted in other states, the Kansas Supreme Court held that the then-
existing statute plainly and unambiguously gave a trial judge "wide latitude to divide
marital property and this latitude provides the judge with discretion to consider whether
marital assets were lost as a result of the wrongful conduct of one of the parties to the
marriage." 266 Kan. at 352. The court noted:

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 "To 'dissipate' has a defined and accepted meaning. Black's Law Dictionary 473
(6th ed. 1990) defines dissipate as '[t]o destroy or waste, as to expend funds foolishly.'
Webster's New Collegiate Dictionary 366 (9th ed. 1991) defines the term as 'a: to expend
aimlessly or foolishly b: to use up esp. foolishly or heedlessly.'" 266 Kan. at 352.

The current property division statute remains largely unchanged from the previous
version interpreted in In re Marriage of Rodriguez. This court is duty bound to follow
Kansas Supreme Court precedent unless there is some indication that the Kansas
Supreme Court is departing from its previous position. State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017). In fact, the updated dictionary definitions of "dissipate"
and "dissipation" bolster the In re Marriage of Rodriguez holding. Black's Law
Dictionary 595 (11th ed. 2019) defines "dissipation" as "[t]he use of an asset for an illegal
or inequitable purpose, such as a spouse's use of community property for personal benefit
when a divorce is imminent." Webster's New World College Dictionary 425 (5th ed.
2014) defines "dissipate" as "1: to break up and scatter; dispel; disperse 2: to drive
completely away; make disappear 3 to waste or squander."

Here, the district court found that Steven had concealed "most of the marital
assets" from Marlouise and "intentionally deprived [her] of substantial property to which
she had a legal right." Specifically, the court found that Marlouise lacked sufficient
information to validly consent to a $350 monthly spousal maintenance as a result of the
concealment, and that Steven had withdrawn $110,267.26 of the $133,513.06 in the
401(k) shortly after his retirement. He then made purchases from the funds that benefitted
him alone, including: $28,000 on a motorcycle and $13,100 on improvements at his
brother's property, including building a single car garage and carport for himself and his
girlfriend.

Despite Steven's insistence that the district court applied a "strict construction" of
the term "dissipation," his own testimony shows that he concealed and later used the

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funds from his retirement account for his personal benefit and Marlouise received
substantially less than she was entitled for that marital asset. A reasonable person could
agree with the court's conclusion that Steven's actions constituted dissipation based on his
wrongful conduct, so the court did not abuse its discretion.

In sum, we find that the property division ruling was fair under Kansas law.
Steven has not shown the district court abused its discretion or that no reasonable person
would make a similar distribution based on the available evidence.

Affirmed.

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