In re Marriage of Freeman

NOT DESIGNATED FOR PUBLICATION

No. 123,568

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

LINDSEY FREEMAN,
Appellant,

and

MATTHEW FREEMAN,
Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court; ERICA K. SCHOENIG, judge. Opinion filed April 15, 2022.
Affirmed.

Thomas R. Buchanan and William C. Odle, of McDowell, Rice, Smith & Buchanan, P.C., of
Kansas City, Missouri, for appellant.

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

Before GREEN, P.J., ATCHESON and HURST, JJ.

GREEN, J.: Lindsey Freeman appeals the trial court's downward modification of
her ex-husband Matthew Freeman's monthly maintenance obligation to her from $7,725
to $5,721. She argues that the trial court erred when it partially granted Matthew's
maintenance modification motion because Matthew relied solely on evidence of his
recently decreased income. According to Lindsey, Kansas caselaw holds that an ex-
spouse's decreased income alone cannot constitute a material change in circumstances
entitling that ex-spouse to the downward modification of his or her maintenance

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obligation. She also argues that the trial court erred because it modified Matthew's
maintenance obligation based on business losses that they had contemplated while
negotiating their separation agreement. She contends that Kansas caselaw holds that a
foreseeable event that ex-spouses contemplated while negotiating maintenance under a
separation agreement can never constitute a material change in circumstance that later
entitles an ex-spouse to the downward modification of his or her maintenance obligation.

Matthew counters Lindsey's arguments in a few ways, including that he was not
required to prove a material change in his circumstances to allow the trial court to modify
his maintenance obligation. Although he recognizes that Kansas caselaw has held that
maintenance controlled by K.S.A. 2020 Supp. 23-2903 hinges on an ex-spouse's showing
a material change in circumstances, he contends that in reaching these holdings courts
have misinterpreted Kansas' maintenance statutes. So, he asserts that we are not required
to consider Lindsey's arguments based on whether he established a material change in
circumstances as a matter of law. Thus, he asserts that we should affirm the trial court as
right for the wrong reason.

As considered below, we note problems with both Lindsey's and Matthew's
arguments. In short, Kansas caselaw does not support Lindsey's arguments. And
Matthew's arguments are improper and unpersuasive. We, however, cannot conclude that
the trial court abused its discretion in its downward modification of Matthew's monthly
maintenance obligation to Lindsey from $7,725 to $5,721. Thus, we affirm.

Yet, in doing so, we also note an error that the trial court made when recalculating
Matthew's maintenance obligation: It accidentally used Matthew's 2017 total income in
its recalculation when it believed it was using Matthew's 2018 total income. Although
Lindsey never points out this error that resulted in her receiving even less monthly
maintenance, we direct Lindsey to K.S.A. 2020 Supp. 60-260(a), which allows her to

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move for relief from the trial court's inadvertent mistake after we have fully decided her
appeal.

FACTS

After 11 years of marriage to Matthew, Lindsey petitioned the trial court for a
divorce in September 2017. Nearly a year later, in August 2018, the trial court granted
Lindsey's divorce petition in a decree that incorporated Lindsey and Matthew's separation
agreement. This separation agreement contained a maintenance provision requiring
Matthew to pay Lindsey $7,725 per month for 36 consecutive months. It stated that
Lindsey and Matthew "agree[d] and underst[ood] that [Matthew's] maintenance
obligation to [Lindsey should] be subject to future modification in accordance with
K.S.A. 23-2903." And it stated that the trial court retained jurisdiction to modify
Matthew's maintenance obligation to Lindsey to a just and reasonable amount should
Matthew ever go bankrupt. Outside of this language, though, the maintenance provision
did not address the circumstances in which Matthew could move to modify his
maintenance obligation to Lindsey. Nor did it explain why Lindsey and Matthew
ultimately agreed that Lindsey was entitled to $7,725 per month in maintenance.

In May 2020, Matthew moved for the downward modification of his monthly
maintenance obligation to Lindsey. In his maintenance modification motion, Matthew
never explained how much he wanted his monthly maintenance obligation reduced.
Instead, he noted that the maintenance provision in his and Lindsey's separation
agreement stated that his maintenance obligation to Lindsey was subject to future
modification in accordance with K.S.A. 2020 Supp. 23-2903. Then, relying on this
language, he asserted that the trial court should grant his maintenance modification
motion for the following reason:

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 "At the time of entering into [the separation agreement], it was well known by
both parties and counsel for the parties that [Matthew's] income from his business was
very fluid and likely to decrease in the near future due to changes in the industry that
were foreseeable as well as the expiration of a business contract [Matthew] had with a
client who provided a substantial portion of [Matthew's] income.
"As suspected, [Matthew's] income has substantially decreased since August
2018 due to changes in the industry in which [Matthew] does business and a loss of
clients. These changes are beyond the control of [Matthew]. This decrease is unfortunate
and certainly not something [Matthew] wanted but it is the reality.
"Additionally, [Lindsey's] income has increased since spousal maintenance was
agreed upon and awarded."

In her response to Matthew's motion, Lindsey agreed that when she and Matthew
entered into their separation agreement, Matthew had mentioned likely future business
losses. She also agreed that since entering into their separation agreement, her income of
$35,000 per year had increased "approximately $5,000 per year." So, in her response,
Lindsey admitted that her imputed income was currently $40,000 per year. All the same,
Lindsey argued that the trial court should deny Matthew's motion because his financial
circumstances had not deteriorated to the extent that he could no longer afford to pay her
$7,250 per month in maintenance as they had originally agreed in their separation
agreement.

Eventually, in September 2020, the trial court held a hearing on Matthew's
maintenance modification motion. At the start of this hearing, both Lindsey and Matthew
admitted several exhibits as proof of their past and current finances. Significantly, they
admitted these financial exhibits by agreement, both telling the trial court that although
they believed that each other's financial exhibits contained inaccuracies, they had no
objections to the admission of any exhibits.

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 Later in the hearing, Matthew clarified the arguments set forth in his written
maintenance modification motion. In addition to accusing Lindsey of hiding money and
having unreasonable expenses, he explained that when he and Lindsey entered into their
separation agreement, "[t]here was a lengthy discussion . . . and everyone was on notice
that . . . he was losing his biggest client as of January 1st, 2019." He suggested that at that
time, Lindsey also knew that his business was in decline because his business, which
provided telecom services to other businesses, had become technologically obsolete.

Then, Matthew addressed his sources of income. Matthew explained that from his
business, he paid himself a salary of $10,000 per month before taxes. And on top of this
monthly salary, he would distribute several thousand dollars in his business' dividends to
himself each month. Matthew asserted that in 2019, he distributed an average of
$14,398.75 in dividends to himself each month. This resulted in Matthew's total income
in 2019 being $292,785, which was about $400,000 less than his total income in 2018.
Matthew added that although he was unsure exactly how much his 2020 total income
would ultimately be, he projected that his 2020 total income would be about $100,000
less than his 2019 total income.

Next, Matthew noted that when they initially entered into their separation
agreement, he and Lindsey agreed that she was entitled to maintenance at a rate of 18
percent of the difference between their incomes. Using this rate, Matthew argued that the
trial court should reduce his monthly maintenance to $3,791.77 per month. Matthew
reached this figure by subtracting Lindsey's $40,000 imputed income from his 2019
income of $292,785 before multiplying this figure by the 18 percent rate and then
dividing it by 12 months.

Lindsey countered that Matthew had to prove that his financial circumstances had
materially changed to be entitled to the downward modification of his maintenance
obligation. She asserted that despite Matthew's arguments about his reduced income,

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Matthew had not met his burden of showing a material change in his financial
circumstances for three reasons.

First, Lindsey argued that Matthew could not seek the downward modification of
his monthly maintenance obligation to her based on his recent business losses since they
contemplated those business losses when entering into their separation agreement. Citing
In re Marriage of Santee, No. 117,222, 2018 WL 475477 (Kan. App. 2018) (unpublished
opinion), Lindsey alleged that foreseeable events considered when entering into a
separation agreement cannot constitute the basis for an ex-spouse's later motion to
modify maintenance. Second, Lindsey argued that while Matthew's maintenance
modification motion focused on his recently reduced income from his business losses, the
trial court needed to consider all of Matthew's income sources when evaluating
Matthew's motion. Third, Lindsey argued that the trial court should deny Matthew's
motion because he could still afford to pay her $7,725 per month in maintenance from his
income sources outside the losses incurred in his business. She alleged that Matthew's
assets outside of his business had increased about $1 million since their divorce. And as
evidence that Matthew's lifestyle had not materially changed, Lindsey stressed that
Matthew continued to spend lavishly. For instance, she noted that Matthew had recently
spent $16,000 on a vacation in Branson, Missouri.

Once Lindsey and Matthew made their arguments, the trial court went off the
record for 10 minutes to review their exhibits. When the trial court returned to the record,
it announced its decision to partly grant Matthew's maintenance modification motion,
modifying Matthew's monthly maintenance payments from $7,725 to $5,721 based on a
material change in Matthew's circumstances:

"What's at issue is whether or not the Court should modify maintenance
downward based on a material change of circumstances. The Court has reviewed the
parties' written agreement at the time of their divorce, the property settlement agreement,

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and as in any case there's always considerations made by both sides when they enter into
these settlement agreements, and this case sounds like it was no different.
"The parties agreed back in 2018 at the time of their divorce, based on the
information available to both sides as well as with the assistance of a mediator, they used
judge assisted mediation at the time, that husband's income would be put on the child
support worksheet and for maintenance purposes at 550,000 for the child support
worksheet in 2018. Additionally, the parties agreed that mother's income would be, or
wife's income would be, $35,000, and that was an imputed wage at the time. The Court
finds today that maintenance should be modified downward, and I've done something
maybe a little bit different here balancing the equities on both sides, and considering for
both sides not only wife's need for maintenance but husband's ability to pay that. And
considering everything Mr. Freeman has had his income go down significantly. That's
very clear from the evidence. The Court finds that his 2019 income was $292,785 based
on the evidence submitted, and that's the paper documentation, the tax returns, the tax
documents, the checking account statements. His income in 2018 was, for the actual end
of year, was higher than the parties put on the worksheet, but the Court has considered
that at the time of their divorce much of that information would have been know[n] by
both sides. They were divorced in August of 2018, so more than half the year was over.
But the Court[] has averaged Mr. Freeman's income from 2018 as put on the worksheet,
which is 550,000, with his 2019 income of $292,785 in calculating the modified
maintenance amount.
"The Court has also imputed an income of $40,000 to wife. The Court does find
that even by her own statement and her response her income had increased by at least
$5,000, if not more, since the time of the parties' divorce. The parties agreed at the time
of the divorce that her income would be imputed at 35,000 and so the Court has only
increased it by 5,000, even though there have been two years that have passed since the
decree was entered and the parties agreed on the 35,000.
"When I average those two amounts, the 550,000 the parties agreed in 2018 with
the 2019 income based on the exhibits, that is $842,785, and I've divided that by two for
a two-year average. That results in an income of $421,393 for Mr. Freeman for the
modified maintenance amount. I've subtracted from that number wife's imputed income
that's been increased by $5,000 based on the evidence and the information submitted and
that's a difference of $381,393. The Court has continued to use the 18 percent differential
that the parties utilized at the time of the settlement in this case for a . . . yearly

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 maintenance amount of $68,651. Dividing that by 12 the modified maintenance amount is
$5,721 a month.
"Both sides here have made different requests and the Court understands that, but
I'm balancing the equities. Both of them do live nice lifestyles, for lack of a better
description, so I've balanced that as well. And the Court has taken into account that in
August of 2020 Mr. Freeman did pay a significant amount on his credit card bill, so his
discretionary spending is still at a higher level. I don't think that it's equitable or fair . . .
to only use the 2019 income. He is a self-employed person. The parties it sounds like
knew and had contemplated the loss of the client at the end of 2018, beginning of 2019.
The Court has also—so I don't give as much weight to that because the parties knew
about that at the time of their negotiation. It did happen of course, but Mr. Freeman has
pointed out today through counsel that he expects to lose another approximately
$100,000 in business in 2020 alone based on the changing technology or the
advancement of technology and different types of things being utilized by his clients. So
I've tried to balance all equities in this case. I do think that Mr. Freeman has shown that
there is a basis here for maintenance to be modified. His income has definitely gone
down, and more than just what the parties were expecting in 2018 when they negotiated
the case. However to just base the modification on the 2019 change in income is not
equitable or fair. Again, he still has significant discretionary spending, and so the Court
has considered that as well in modifying the maintenance. So effective June 1st of 2020,
maintenance will be modified to $5,721 per month."

Lindsey timely appeals the trial court's modification of Matthew's monthly
maintenance obligation from $7,725 to $5,721.

ANALYSIS

Did the trial court err by modifying Matthew's monthly maintenance obligation to
Lindsey?

On appeal, Lindsey argues that the trial court erred by granting Matthew's
maintenance modification motion because Matthew never established a material change
in circumstances. As she did before the trial court, Lindsey asserts that generally, an ex-

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spouse's loss of income alone does not constitute a material change in circumstances.
Instead, for the downward modification of maintenance, the ex-spouse must prove that
his or her overall finances have changed so much that he or she can no longer afford to
pay maintenance as originally agreed. Likewise, Lindsey continues to argue that the trial
court erroneously reduced Matthew's monthly maintenance obligation based on his
foreseeable business losses. She contends that because she and Matthew contemplated his
future business losses when negotiating the maintenance provision in their separation
agreement, the trial court could not reduce Matthew's monthly maintenance obligation to
her just because he ultimately suffered those foreseeable business losses.

To support her arguments in her brief, Lindsey relies heavily on In re Marriage of
Strieby, 45 Kan. App. 2d 953, 255 P.3d 34 (2011), and In re Marriage of Santee, 2018
WL 475477. She argues that both cases stand for the proposition that "a decrease in
income alone cannot justify modification of a maintenance agreement." She further
argues that both cases stand for the proposition that "a foreseeable event . . . cannot
constitute a material change in [an ex-spouse's] financial circumstances." Pointing to this
caselaw, she maintains that her and Matthew's separation agreement did not allow the
trial court to modify his maintenance obligation to her based on his foreseeable business
losses that caused his recently decreased income. For these same reasons, she concludes
that the trial court lacked jurisdiction to modify Matthew's monthly maintenance
obligation to her.

Although Matthew recognizes that the trial court modified his monthly
maintenance obligation to Lindsey because it determined that there was a material change
in his financial circumstances, Matthew does not defend the trial court's ruling on appeal.
Rather, Matthew's main argument in his appeal brief is that the trial court could modify
his monthly maintenance obligation to Lindsey even if his circumstances had not
materially changed. According to Matthew, because his and Lindsey's separation
agreement stated that his maintenance obligation would be subject to future modification

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in accordance with K.S.A. 2020 Supp. 23-2903, he just needed to comply with the plain
language of K.S.A. 2020 Supp. 23-2903 to successfully move to modify his maintenance
obligation.
To support his argument, Matthew discusses some of Kansas' statutes and caselaw
concerning maintenance modification. He contends that this history proves that the term
"'[m]aterial [c]hange in [c]ircumstances'" is a "term of art specific to child custody and
child support modification[]" issues that has over time "whether by habit or by
inadvertence" worked its way into maintenance-related caselaw. He asserts that after this
court referenced the term material change in circumstances in In re Marriage of Hedrick,
21 Kan. App. 2d 964, 911 P.2d 192 (1996)—a case involving a separation agreement
containing the term material change in circumstances—other panels of this court have
mistakenly used the term as a test when considering maintenance modification disputes
controlled by K.S.A. 2020 Supp. 23-2903. In addition, he asserts that our Legislature's
2011 recodification of Kansas' maintenance statutes without the material change in
circumstances language shows that he was never statutorily required to prove a material
change in his circumstances.

In further support of this argument, Matthew interprets K.S.A. 2020 Supp. 23-
2903's plain language. In doing so, he stresses that K.S.A. 2020 Supp. 23-2903 states that
an ex-spouse's maintenance obligation may be modified "at any time." And he also points
out that K.S.A. 2020 Supp. 23-2902(a) states that the trial court may order an ex-spouse
to pay maintenance under a divorce decree "in an amount the court finds to be fair, just
and equitable under all of the circumstances." Reading this language together, he
contends that the trial court had jurisdiction to modify his maintenance obligation at any
time it determined modification was fair, just, and equitable under all of the
circumstances. Relying on this interpretation of K.S.A. 2020 Supp. 23-2903, he contends
in his brief that Lindsey's argument about the trial court wrongly reducing his
maintenance obligation based solely on his decreased income is irrelevant. Then, he
concludes that we should affirm the trial court's decision to partially grant his

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maintenance modification motion as right for the wrong reason because the trial court's
"use of a 'balance of the equities'" when ruling on his motion "merely applied the 'fair,
just, and equitable' statutory standard for maintenance."

Notwithstanding this argument, Matthew contends that Lindsey did not designate
a record supporting her claims of error because he objected to the admission of most of
her exhibits and the trial court "resolved the arguments regarding income" in his favor. It
seems that Matthew believes that because those things occurred, the only evidence
properly admitted at his motion hearing and in the record on appeal prove his reduced
finances. Thus, Matthew contends that we should not consider any of Lindsey's
arguments because she has not designated a record of properly admitted exhibits on
appeal.

Next, Matthew directly addresses Lindsey's argument about the trial court wrongly
modifying his monthly maintenance obligation to her based on his decreased income
alone. Matthew argues that Lindsey's reliance on In re Marriage of Strieby and In re
Marriage of Santee is misplaced. He complains that both cases are factually
distinguishable and that neither held that a loss of income alone can never justify the
downward modification of an ex-spouse's maintenance obligation. He also contends that
this court's holdings in In re Marriage of Ehinger, 34 Kan. App. 2d 583, 121 P.3d 467
(2005), support that a loss of income alone may support a downward modification of an
ex-spouse's maintenance obligation in some circumstances.

Of note, Matthew never directly addresses Lindsey's argument that the trial court
erred by partially granting his maintenance modification motion based on his foreseeable
business losses that were contemplated when they entered into their separation
agreement. Instead, the only other issue Matthew addresses in his brief is how the trial
court recalculated his maintenance obligation to Lindsey. He stresses that in her brief,
Lindsey never challenges the trial court's math when recalculating his maintenance

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obligation. Because Lindsey has not challenged the trial court's reduction of his monthly
maintenance obligation from $7,725 to exactly $5,721, Matthew argues that Lindsey has
abandoned any argument that she may have had regarding "the specific amount of the
maintenance award.'"

Our Standard of Review

Usually, when reviewing the trial court's decision to modify maintenance, "this
court examines the record to determine if there is substantial competent evidence to
support the trial court's ruling and whether the trial court abused its discretion." In re
Marriage of Strieby, 45 Kan. App. 2d at 961. "Substantial competent evidence constitutes
such legal and relevant evidence that a reasonable person might accept as sufficient to
support the trial court's conclusion." In re Marriage of Knoll, 52 Kan. App. 2d 930, 935,
381 P.3d 490 (2016). When engaging in this review, this court must not reweigh the
evidence or the trial court's credibility determinations. 52 Kan. App. 2d at 935. A trial
court abuses its discretion when its decision is based on an error of law, an error of fact,
or some unreasonable basis. In re Marriage of Traster, 301 Kan. 88, 109, 339 P.3d 778
(2014).

Because contract principles apply to issues involving separation agreement
interpretation, when analyzing a separation agreement, we must seek to "'ascertain and
give effect to the mutual intention of the parties at the time the contract was made.'" In re
Marriage of Knoll, 52 Kan. App. 2d at 940. When the ex-spouses' intent is ascertainable
from the plain language of their separation agreement, we must apply the ex-spouses'
separation agreement as unambiguously written. 52 Kan. App. 2d at 940. Although the
existence of a contract normally constitutes a question of fact, arguments involving
separation agreement interpretation constitute questions of law over which this court
exercises unlimited review. U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542
(2012); In re Marriage of Knoll, 52 Kan. App. 2d at 939.

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 When resolving separation agreement disputes, we also exercise unlimited review
over statutory interpretation issues. And when resolving statutory interpretation disputes,
the plain language of the statute controls our interpretation if its plain language is
unambiguous. In re Marriage of Strieby, 45 Kan. App. 2d at 976. Yet, when the statute's
language is ambiguous, we try to interpret the Legislature's intent by using the cannons of
statutory construction and reviewing the statute's legislative history. Nauheim v. City of
Topeka, 309 Kan. 145, 150, 432 P.3d 647 (2019). Under the canons of statutory
construction, we must avoid unreasonable statutory interpretations that would lead to
absurd results; we presume that the Legislature never intends to enact meaningless
legislation. In re Marriage of Traster, 301 Kan. at 98. When the Legislature takes some
legislative action, we generally presume that it does so with the full understanding of the
statutory subject at issue, including previous versions of a statute and the existing caselaw
analyzing that statutory subject. Ed DeWitte Ins. Agency v. Financial Assocs. Midwest,
308 Kan. 1065, 1071, 427 P.3d 25 (2018). Ordinarily, a revision to a statute creates the
presumption that our Legislature intended to make a substantive change to that revised
statute. Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 458, 264 P.3d 102
(2011). But "this presumption's strength, weakness, or validity changes according to the
circumstances." 293 Kan. at 458. When the Legislature makes no revisions to avoid the
standing judicial interpretation of a statute, though, we ordinarily presume that the
Legislature agreed with the standing judicial interpretation. In re Adoption of G.L.V., 286
Kan. 1034, 1052, 190 P.3d 245 (2008).

Finally, to the extent Lindsey's appeal concerns preservation issues, preservation
issues are questions of law over which we exercise unlimited review. Johnson v. Board of
Directors of Forest Lakes Master Assn, 61 Kan. App. 2d 386, 393, 503 P.3d 1038 (2021).

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 The Relevant Maintenance Law

Maintenance by divorce decree and maintenance settled by a separation agreement
are fundamentally different. Maintenance ordered by a divorce decree must be modified
by the trial court in accordance Kansas' maintenance modification statutes. In re
Marriage of Strieby, 45 Kan. App. 2d at 962. In contrast, when ex-spouses settle
maintenance as part of their separation agreement that is incorporated into their divorce
decree, the trial court cannot modify an ex-spouse's maintenance obligation "'except as
prescribed by the agreement or as subsequently consented to by the parties.'" 45 Kan.
App. 2d at 962. The trial court's jurisdiction to modify maintenance is limited by the
separation agreement's conditions on maintenance. In re Marriage of Ehinger, 34 Kan.
App. 2d at 588.

Here, Lindsey and Matthew had a maintenance provision within their separation
agreement that the trial court incorporated into their divorce decree. The maintenance
provision stated that Lindsey and Matthew agreed and understood that Matthew's
maintenance obligation to Lindsey should be subject to future modification in accordance
with K.S.A. 2020 Supp. 23-2903. It stated variations of this sentence twice. It also stated
that the trial court could modify maintenance to a just and reasonable amount should
either Lindsey or Matthew goes bankrupt. But this was the extent of the language within
Lindsey and Matthew's separation agreement concerning maintenance modification.

Thus, the plain language of Lindsey and Matthew's maintenance provision within
their separation agreement states that absent situations involving bankruptcy, all of
Lindsey and Matthew's requests for maintenance modification would be subject to future
modification in accordance with K.S.A. 2020 Supp. 23-2903. As a result, the plain
language of their separation agreement required the trial court to evaluate Matthew's
maintenance modification motion under K.S.A. 2020 Supp. 23-2903.

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 Next, as just noted, Lindsey and Matthew's divorce decree incorporated their
separation agreement. But in doing so, the divorce decree just repeated the language
within their separation agreement. In total, it stated:

"[Matthew] shall pay maintenance in the amount of $7,725.00 per month
beginning August 1, 2018, and for 36 months thereafter. The parties agree and understand
that [Matthew's] maintenance obligation to [Lindsey] shall be subject to future
modification in accordance with K.S.A. 23-2903."

Thus, their divorce decree, like their separation agreement, clearly required the trial court
to evaluate the merits of Matthew's maintenance modification motion in accordance with
K.S.A. 2020 Supp. 23-2903.

K.S.A. 2020 Supp. 23-2903 is Kansas' current statute governing maintenance
modification. But before 2011, all the rules governing maintenance, including
modification, were included under a single subsection of a single statute—K.S.A. 60-
1610(b)(2). K.S.A. 60-1610(b)(2), in its entirety, stated:

"Maintenance. The decree may award to either party an allowance for future
support denominated as maintenance, in an amount the court finds to be fair, just and
equitable under all of the circumstances. The decree may make the future payments
modifiable or terminable under circumstances prescribed in the decree. The court may
make a modification of maintenance retroactive to a date at least one month after the date
that the motion to modify was filed with the court. In any event, the court may not award
maintenance for a period of time in excess of 121 months. If the original court decree
reserves the power of the court to hear subsequent motions for reinstatement of
maintenance and such a motion is filed prior to the expiration of the stated period of time
for maintenance payments, the court shall have jurisdiction to hear a motion by the
recipient of the maintenance to reinstate the maintenance payments. Upon motion and
hearing, the court may reinstate the payments in whole or in part for a period of time,
conditioned upon any modifying or terminating circumstances prescribed by the court,

15
 but the reinstatement shall be limited to a period of time not exceeding 121 months. The
recipient may file subsequent motions for reinstatement of maintenance prior to the
expiration of subsequent periods of time for maintenance payments to be made, but no
single period of reinstatement ordered by the court may exceed 121 months. Maintenance
may be in a lump sum, in periodic payments, on a percentage of earnings or on any other
basis. At any time, on a hearing with reasonable notice to the party affected, the court
may modify the amounts or other conditions for the payment of any portion of the
maintenance originally awarded that has not already become due, but no modification
shall be made without the consent of the party liable for the maintenance, if it has the
effect of increasing or accelerating the liability for the unpaid maintenance beyond what
was prescribed in the original decree. Except for good cause shown, every order
requiring payment of maintenance under this section shall require that the maintenance be
paid through the central unit for collection and disbursement of support payments
designated pursuant to K.S.A. 23-4,118, and amendments thereto. A written agreement
between the parties to make direct maintenance payments to the obligee and not pay
through the central unit shall constitute good cause. If child support and maintenance
payments are both made to an obligee by the same obligor, and if the court has made a
determination concerning the manner of payment of child support, then maintenance
payments shall be paid in the same manner." (Emphases added.)

K.S.A. 60-1610 also addressed child support orders within a divorce decree.
K.S.A. 60-1610(a) specifically stated that for a child support modification motion made
within three years of the initial child support order, the trial court may modify a parent's
child support obligation "when a material change in circumstances is shown." The
material change in circumstances language, though, does not appear under K.S.A. 60-
1610(b)(2).

In 2011, our Legislature recodified many statutes related to domestic relations,
including K.S.A. 60-1610's rules on maintenance and child support. See L. 2011, ch. 26,
§ 15. Then, our Legislature separated the maintenance rules from the child support rules.
See K.S.A. 2020 Supp. 23-2901 et seq. (listing rules on establishment and modification
of maintenance) and K.S.A. 2020 Supp. 23-3001 et seq. (listing rules on establishment

16
and modification of child support). The language allowing the trial court to modify a
parent's child support obligation within three years of the initial child support order upon
a showing of a "material change in circumstances" is now under K.S.A. 2020 Supp. 23-
3005(a). On the other hand, the only new rule regarding maintenance is K.S.A. 2020
Supp. 23-2901's clarification that when interpreting the maintenance statutes, "the terms
'alimony' and 'maintenance' are synonymous." The remaining rules regarding
maintenance under K.S.A. 60-1610(b)(2) were just split into smaller sections and then
reenacted under K.S.A. 2020 Supp. 23-2902 through K.S.A. 2020 Supp. 23-2905.

Relevant to this appeal, K.S.A. 2020 Supp. 23-2902(a) states that a divorce decree
"may award to either party an allowance for future support denominated as maintenance,
in an amount the court finds to be fair, just and equitable under all of the circumstances."
K.S.A. 2020 Supp. 23-2902(c) states that a divorce decree "may make the future
[maintenance] payments modifiable or terminable under the circumstances prescribed in
the decree." And K.S.A. 2020 Supp. 23-2903, like the middle portion of K.S.A. 60-
1610(b)(2), states:

"At any time, on a hearing with reasonable notice to the party affected, the court
may modify the amounts or other conditions for the payment of any portion of the
maintenance originally awarded that has not already become due, but no modification
shall be made without the consent of the party liable for the maintenance, if it has the
effect of increasing or accelerating the liability for the unpaid maintenance beyond what
was prescribed in the original decree." K.S.A. 2020 Supp. 23-2903.

So, in summary, assuming there are no jurisdictional issues, K.S.A. 2020 Supp.
23-2903 provides that a trial court may modify an ex-spouse's future maintenance
obligation downward as long as the affected ex-spouse has reasonable notice. The plain
language of K.S.A. 2020 Supp. 23-2903 does not list any other conditions precedent for
an ex-spouse to successfully move for the downward modification of his or her
maintenance obligation. This means that the plain language of Kansas' maintenance

17
modification statute does not include a fact-based maintenance modification test. Instead,
K.S.A. 2020 Supp. 23-2903 includes procedural rules and limitations on when the trial
court may grant an ex-spouse's downward maintenance modification motion.

Yet, as explained, both Lindsey and Matthew's separation agreement and divorce
decree told the trial court to consider future modification motions in accordance with
K.S.A. 2020 Supp. 23-2903. Since the plain language of K.S.A. 2020 Supp. 23-2903 does
not contain a fact-based maintenance modification test, though, neither Lindsey and
Matthew's separation agreement, nor the trial court's divorce decree, nor the plain
language of K.S.A. 2020 Supp. 23-2903 says what Matthew must prove to successfully
move for the downward modification of his maintenance obligation to Lindsey. Thus, we
must advance our inquiry into K.S.A. 2020 Supp. 23-2903.

When our Legislature recodified the maintenance statutes, it only added a
definitional provision explaining that maintenance and alimony meant the same thing.
K.S.A. 2020 Supp. 23-2901. The other maintenance rules listed under K.S.A. 60-
1610(b)(2) were just split into smaller sections and then reenacted under K.S.A. 2020
Supp. 23-2902 through K.S.A. 2020 Supp. 23-2905. Therefore, although our Legislature
recodified Kansas' maintenance statutes in 2011, our Legislature made no substantive
changes in doing so. In fact, Kansas' maintenance modification rule has not substantively
changed since 1965. This was when our Legislature first included language under K.S.A.
60-1610 allowing an ex-spouse to move for the downward modification of his or her
maintenance obligation upon reasonable notice to the maintenance-obligee. See
Herzmark v. Herzmark, 199 Kan. 48, 51, 427 P.2d 465 (1967) (overruled on other
grounds by In re Marriage of Quint, 258 Kan. 666, 677, 907 P.2d 818 [1995]) (discussing
the 1965 amendments to Kansas' "divorce and alimony" law and analyzing K.S.A. 1965
Supp. 60-1610).

18
 Previously, while determining what entitles an ex-spouse to the downward
modification of his or her maintenance obligation, Kansas appellate courts have
interpreted Kansas' maintenance modification rule. In In re Marriage of Ehinger, for
instance, this court examined the plain language of K.S.A. 60-1610(b)(2) while
considering Sandra's argument that the trial court lacked jurisdiction to modify her ex-
husband Timothy's maintenance obligation because their divorce decree did not expressly
address his ability to move for the downward modification of his maintenance obligation.
34 Kan. App. 2d 583. She argued that because their divorce decree included several
provisions about maintenance but no explicit provision on maintenance modification, the
trial court lacked jurisdiction to modify Timothy's maintenance. 34 Kan. App. 2d at 584.

In rejecting Sandra's argument, the Ehinger court cited the maintenance
modification test as stated in 2 Elrod and Buchele, Kansas Law and Practice: Kansas
Family Law §§ 10.81 and 10.82, p. 51 (1999). It explained that handbook stated:

"'The court may retain the power to modify future maintenance payments which are court
ordered. K.S.A. 60-1610(b)(2) . . . Maintenance may be reduced upon a showing of a
material change in circumstances unless a court approved separation agreement prohibits
modification. Wright v. Wright, 209 Kan. 628, 498 P.2d 80 (1972); Grundy v. Grundy, 4
Kan. App. 2d 302, 605 P.2d 162 (1980).'" 34 Kan. App. 2d at 587.

Afterward, it held that "[t]he extended period maintenance runs in many cases suggests
modification of continued support is an economic issue which is subject to change and
should be revisited if the facts show a material change in circumstances." 34 Kan. App.
2d at 590.

At this juncture, it is worth pointing out that the Kansas Family Law handbook
passage, cited by the In re Marriage of Ehinger court for the proposition that downward
maintenance modification under K.S.A. 60-1610(b)(2) may occur upon an ex-spouse's
showing of a material change in circumstances, relied on our Supreme Court's Wright

19
decision and this court's decision in Grundy v Grundy, 4 Kan. App. 2d 302, 605 P.2d 162
(1980). In Wright, our Supreme Court held that remarriage creates a presumption of
maintenance termination unless the remarried ex-spouse rebuts the presumption by
proving that "special circumstances justify[] the continuance of [maintenance]" 209 Kan.
at 630. Eventually, our Supreme Court reversed this specific Wright holding about
remarriage merely creating a presumption of maintenance termination when the judgment
so provides. See Quint, 258 Kan. 677. Even so, the Wright court's analysis indicates that
a material change in circumstances—like remarriage—may result in the termination of an
ex-spouse's maintenance obligation unless the remarried spouse proves that special
circumstances justify continuing maintenance.

As for the Grundy decision, there, this court rejected ex-husband Gordon's
complaint about having to pay the remaining balance of his maintenance obligation to his
ex-wife Marsha. Marsha and Gordon's divorce decree required Gordon to pay Marsha
maintenance even if she remarried. It also contained an acceleration clause allowing
Marsha to seek immediate payment of Gordon's outstanding maintenance obligation
should he ever default. Gordon defaulted on March 1, 1973, and Marsha remarried on
March 23, 1973. 4 Kan. App. 2d at 303. When Marsha eventually invoked the
acceleration clause, Gordon argued that making him pay his outstanding maintenance
obligation was unfair since Marsha had remarried. This court held that it was irrelevant
whether Marsha remarried several days after Gordon's default because their divorce
decree stated that Gordon's entire maintenance obligation was due immediately upon his
default. In reaching this ruling, this court stressed that the trial court had discretion to
include the acceleration clause in Marsha and Gordon's divorce decree and that Gordon
never appealed their divorce decree. 4 Kan. App. 2d at 305.

Although the Grundy decision never expressly held that an ex-spouse moving for
maintenance modification under K.S.A. 1979 Supp. 60-1610 must prove a material
change in circumstances, Grundy's facts support that a material change in the ex-spouses'

20
circumstances is necessary for the trial court to grant that ex-spouse's downward
maintenance modification motion. Gordon's complaints about Marsha remarrying and the
effect of his default were addressed in his and Marsha's divorce decree. The divorce
decree created conditions barring the trial court from terminating his maintenance
obligation if Marsha ever remarried. At the same time, the divorce decree required the
trial court to accelerate Gordon's maintenance obligation should Marsha ask it to do so
after his default. So, it follows that Marsha's remarriage and Marsha's invocation of the
acceleration clause in their divorce decree could not constitute a material change in
circumstances entitling Gordon to either the modification or termination of his
maintenance obligation.

Returning our focus to the In re Marriage of Ehinger decision, we note that it is
important for us to consider Sandra's other argument: Timothy's financial circumstances
had not changed to an extent meriting the reduction of his maintenance obligation.
Although Sandra recognized that Timothy was now unemployed, making about $8,500
less per month than when the trial court entered their divorce, she argued that Timothy
was "merely us[ing] his retirement money without making more." 34 Kan. App. 2d at
590. Timothy countered that they both knew that he was going to lose his job when the
trial court entered their divorce decree. The Ehinger court ultimately rejected Sandra's
argument without addressing Timothy's argument. It found that because Sandra's income
had increased substantially while Timothy's income had decreased substantially, their
financial situations had changed. It concluded that given this material change in
circumstances, the trial court's downward modification of Timothy's maintenance
obligation was reasonable. 34 Kan. App. 2d at 590.

As a result, the Ehinger decision supports that when analyzing a maintenance
modification motion under K.S.A. 2020 Supp. 23-2901 et seq., absent language stating
otherwise, a trial court should consider whether the ex-spouses' financial situations have
changed to an extent that the moving ex-spouse's maintenance modification request is

21
reasonable. Said another way, the Ehinger decision supports the proposition that the trial
court should consider whether there has been a material change in circumstances. Indeed,
by focusing on whether there was a material change in Sandra's and Timothy's financial
situations, the Ehinger court suggested that when evaluating a request to modify
maintenance controlled by K.S.A. 2020 Supp. 23-2901 et seq., a key question is whether
either ex-spouse's financial situation has substantially changed. Additionally, given that
the Ehinger court's analysis mainly hinged on Timothy's reduced income, the Ehinger
decision also supports that a substantial decrease or increase in an ex-spouse's income
may constitute a material change in circumstances.

Since deciding Ehinger, this court has considered two maintenance modification
cases where the ex-spouses had separation agreements containing maintenance provisions
that are very similar to Lindsey and Matthew's maintenance provision. The first case that
this court considered was In re Marriage of Strieby. There, the only direct language
regarding maintenance modification in Linda and James' separation agreement stated:

"'The Court shall retain jurisdiction of maintenance pursuant to K.S.A. 60-
1610(b)(2) so that at any time, on hearing with reasonable notice to the party affected, the
court may modify the amounts or other conditions for the payment of any portion of the
maintenance originally awarded that has not already become due, no modification shall
be made without the consent of the party liable for the maintenance, if it has the effect of
increasing or accelerating the liability for the unpaid maintenance beyond what was
prescribed in the original decree." 45 Kan. App. 2d at 956.

Therefore, much like Lindsey and Matthew's maintenance provision, Linda and James'
maintenance provision simply quoted the modification language in K.S.A. 60-1610(b)(2),
now K.S.A. 2020 Supp. 23-2903.

In the Strieby case, James moved for the downward modification of his
maintenance obligation to Linda because since their divorce, his financial situation had

22
deteriorated. As evidence of his worsened financial condition, he alleged that he no
longer had severance pay from his former employer, that he had recently made bad
business investments, that he had recently moved to a region with a higher cost of living,
and that he had two mortgage payments. 45 Kan. App. 2d 956-57. He also argued that the
escalator clause in his and Linda's maintenance provision was illegal under K.S.A 60-
1610(b)(2) and otherwise unconscionable. 45 Kan. App. 2d 959. Linda responded that the
trial court lacked jurisdiction to either terminate or modify James' maintenance obligation
because "no change in circumstances had occurred since the divorce which would justify
a modification of maintenance." 45 Kan. App. 2d at 957. She asserted that she should not
be punished for James' poor financial decisions. 45 Kan. App. 2d at 957. And she argued
that it was too late for James to complain about the escalator clause since they had
already entered into the separation agreement with the escalator clause. 45 Kan. App. 2d
at 959-60.

The trial court agreed with Linda's arguments. It denied James' maintenance
modification motion, explaining that James had "failed to prove that circumstances had
changed since the divorce because Linda's need for maintenance had not changed and
James still had the ability to pay." 45 Kan. App. 2d at 958. It pointed out that granting
James' motion would be unfair to Linda based on James' decision to make poor financial
choices. 45 Kan. App. 2d at 958. Also, it found that his escalator clause arguments were
unreasonable. 45 Kan. App. 2d at 960.

James appealed, but the In re Marriage of Strieby court affirmed the trial court. In
doing so, it first emphasized:

"While maintenance by decree may be modified by the court upon a showing of material
change in circumstances, '[i]t is clear that maintenance settled by a separation agreement
that is incorporated into the divorce decree is not subject to subsequent modification by

23
 the court except as prescribed by the agreement or as subsequently consented to by the
parties.'" 45 Kan. App. 2d at 962.

Then, it ruled that because Linda and James' separation agreement stated that K.S.A. 60-
1610(b)(2) controlled maintenance modification, the trial court's jurisdiction to modify
James' maintenance obligation was necessarily controlled by K.S.A. 60-1610(b)(2). 45
Kan. App. 2d at 962-63. Afterward, it rejected James' argument that the escalator clause
violated K.S.A. 60-1610(b)(2) because our Supreme Court had already rejected this exact
argument in In re Marriage of Monslow, 259 Kan. 412, 418, 912 P.2d 735 (1996). 45
Kan. App. 2d at 964. Yet, it stressed that because James agreed to the escalator clause as
part of his and Linda's separation agreement, James had also created any error resulting
from the inclusion of the escalator clause in his separation agreement's maintenance
provision. 45 Kan. App. 2d at 965.

Additionally, the In re Marriage of Strieby court rejected James' argument that the
escalator clause was unconscionable because the clause's enforcement worsened his
finances so much that his circumstances had materially changed. 45 Kan. App. 2d at 966.
In reaching this ruling, the Strieby court once again emphasized that James willingly
entered into the separation agreement with an escalator clause. 45 Kan. App. 2d at 966.
Then, it determined that the trial court's denial of James' motion was appropriate since not
only did James fail to prove a material change in circumstances, but also the evidence
indicated that his financial circumstances had improved while Linda's had worsened since
they had entered their separation agreement. It further emphasized that "James' financial
losses relating to any investments were his own choice." 45 Kan. App. 2d at 967.

As a result, the In re Marriage of Strieby decision's use of the material change in
circumstances test supports that when an ex-spouse's ability to modify maintenance is
controlled by K.S.A. 2020 Supp. 23-2903, the trial court should consider whether there
has been a material change in circumstances. The Strieby decision supports that a

24
material change in circumstances is not an event already considered by the separation
agreement. It is not a financial condition imposed by the separation agreement. And it is
not an intentional but poor financial decision. Instead, a material change in circumstances
is something that changes the dynamics between the ex-spouses so that the continuation
of maintenance payments is unfair. Thus, in assessing whether the ex-spouses had proven
a material change in their circumstances, the Strieby court, like the Ehinger court,
compared the ex-spouses' current financial situations to the ex-spouses' financial
situations when they originally entered the separation agreement. In re Marriage of
Strieby, 45 Kan. App. 2d at 967; In re Marriage of Ehinger, 34 Kan. App. 2d at 590.

The other maintenance modification case where ex-spouses had a separation
agreement containing a maintenance provision that is very similar to Lindsey and
Matthew's maintenance provision is In re Marriage of Santee. There, Trena and Edward's
separation agreement had a maintenance provision stating that the trial court "reserve[d]
jurisdiction to reduce maintenance pursuant to K.S.A. 23-2903 downward only." 2018
WL 475477, at *1. About two years after their divorce, Edward moved for the downward
modification of his maintenance obligation to Trena, citing his decreased income and
Trena's increased income. Edward had lost his job and its accompanying salary. He
argued that because of this, his and Trena's circumstances had materially changed to an
extent that the trial court should modify his maintenance obligation to Trena downward.
2018 WL 475477, at *2-3.

Eventually, the trial court denied Edward's maintenance modification motion,
finding that Edward had failed to establish "a material change in circumstances
warranting a modification of maintenance." 2018 WL 475477, at *3. It explained that
after taking his and Trena's "'overall financial circumstances' . . . into account," Edward
had not shown that the combination of his decreased income and Trena's increased
income affected his standard of living or his ability to pay maintenance. 2018 WL
475477, at *3. It highlighted that Edward had other income outside of his lost salary that

25
enabled him to pay maintenance as agreed in the separation agreement. It further found
that "'[b]ecause fluctuation in [Edward's] income was foreseeable at the time the
Agreement was signed, particularly due to [Edward's] age, his loss of employment . . .
[was] not enough to rise to a material and permanent change in circumstances warranting
a modification of maintenance.'" 2018 WL 475477, at *9. Also, it found that Edward's
skills meant he could get a job if he wanted. 2018 WL 475477, at *9.

Edward appealed the denial of his maintenance modification motion, arguing that
he had proven a material change in circumstances by losing his salary. 2018 WL 475477,
at *9. In considering Edward's argument, the In re Marriage of Santee court pointed out
that in In re Marriage of Hedrick, this court "recognized that no case has precisely
defined 'change in circumstance' as it relates to the proposed modification of spousal
maintenance." In re Marriage of Santee, 2018 WL 475477, at *10. Still, it pointed out
that for purposes of child support modification, a material change in circumstances must
be a change "'of such a substantial and continuing nature as to make the terms of the
initial decree unreasonable.'" 2018 WL 475477, at *10. Then, it compared Edward's
circumstances to Timothy's circumstances in In re Marriage of Ehinger. It explained that
unlike Timothy, Edward's job loss did not deplete his income. Instead, Edward had other
income sources, like an investment account, an annual trust payout, and a contract worth
$56,000. 2018 WL 475477, at *11. So, the Santee court held that Edward's ability to pay
maintenance from his other income sources prevented him from proving a material
change in circumstances between him and Trena. 2018 WL 475477, at *11.

In addition to the preceding argument, Edward complained about the trial court's
review of his "'overall financial circumstances." In re Marriage of Santee, 2018 WL
475477, at *11. He asserted that because his prenuptial agreement with Trena stated that
Trena would never have any interest in certain property, the trial court abused its
discretion when it considered his overall financial record to evaluate his maintenance
modification motion. Yet, this court rejected this argument as well. It ruled that the trial

26
court did not abuse its discretion by considering Edward's overall financial circumstances
since in denying Edward's motion, the trial court found that "the fluctuations in income
from separate property 'were within the contemplation of the parties at the time of the
decree when they agreed upon a maintenance amount.'" 2018 WL 475477, at *12. It
indicated that it would be unfair to reverse the trial court since both Trena and Edward
had made conflicting arguments about whether Edward's overall financial record should
be considered. It added that Edward's argument was also unpersuasive because his and
Trena's separation agreement "did not limit what the trial court could consider in
determining whether maintenance should be modified." 2018 WL 475477, at *12.

Thus, as with the In re Marriage of Ehinger and In re Marriage of Strieby cases,
the In re Marriage of Santee court's use of the material change in circumstances test
supports that when an ex-spouse's ability to modify maintenance is controlled by K.S.A.
2020 Supp. 23-2903, the trial court should consider whether there has been a material
change in circumstances. The Santee court's awareness that there is no precise definition
for material change in circumstance supports that it knowingly used the material change
in circumstances test even though (1) it was not listed under K.S.A. 2020 Supp. 23-2903's
plain language and (2) it was not a maintenance modification condition under Trena and
Edward's separation agreement or divorce decree. It supports that a material change in
circumstance must be a substantial long-term change that makes an ex-spouse's
maintenance obligation under K.S.A. 2020 Supp. 23-2903 unreasonable. And it supports
that when the ex-spouses have entered a separation agreement with a maintenance
provision, unless that provision limits what circumstances that the trial court may
consider, nothing prevents the trial court from considering the ex-spouses' overall
financial record when ruling whether there has been a material change in circumstances.

Since this court decided Santee in 2018, it seems that neither our Supreme Court
nor this court have considered maintenance modification issues involving the
interpretation of K.S.A. 2020 Supp. 23-2903 or the application of the material change in

27
circumstances test. It is worth noting that in In re Marriage of Crainshaw, No. 114,470,
2017 WL 839521, at *7 (Kan. App. 2017), a maintenance modification case that is
factually and legally distinguishable from this case, this court also recognized that there is
no precise definition for the term material change in circumstances before affirming the
trial court's denial of an ex-husband's maintenance modification motion because he failed
to prove a material change in circumstances. Of additional note, in cases like In re
Marriage of Hedrick, this court has considered maintenance modification issues where
the ex-spouses' separation agreement contained a maintenance provision explicitly stating
that maintenance could be modified upon a material change in circumstances. 21 Kan.
App. 2d at 967.

The In re Marriage of Hedrick decision is important to our review for a few other
reasons as well. Again, it is the case that Matthew suggests other panels have wrongly
cited in support of evaluating maintenance modification motions controlled by K.S.A.
2020 Supp. 23-2903 under the material change in circumstances test. It is the case that
the In re Marriage of Santee court cited for the proposition that this court had previously
"recognized that no case has precisely defined 'change in circumstance' as it relates to the
proposed modification of spousal maintenance." 2018 WL 475477, at *10. Moreover, its
underlying facts are useful in analyzing Lindsey's argument about the trial court wrongly
reducing Matthew's maintenance obligation to her based on his foreseeable business
losses, as it addresses whether a foreseeable event discussed but not incorporated into a
separation agreement constitutes a reason for later reducing an ex-spouse's maintenance
obligation.

In In re Marriage of Hedrick, Judith and Bruce had a separation agreement that
stated the trial court retained jurisdiction "'to revise or modify the term or the amount of
maintenance as a result of a material change in circumstances.'" 21 Kan. App. 2d at 965.
When Judith and Bruce divorced, Judith was in law school. Several months after Judith
got a job as an attorney, Bruce moved to terminate or modify his maintenance obligation

28
to Judith because she was employed. Judith countered that because her eventual
employment as an attorney was "contemplated at the time the parties executed [their
settlement agreement]," her employment was not a material change in circumstances
entitling Bruce to the termination or modification of his maintenance obligation. 21 Kan.
App. 2d at 966. The trial court disagreed, reducing Bruce's monthly maintenance
obligation to Judith by about $800. 21 Kan. App. 2d at 965.

Judith appealed, repeating the argument she made before the trial court. She cited
Nebraska law and treatises for the following rule: "[T]he general rule is that where the
alleged change is one that the trial court expected and probably made allowances for
when entering the original decree, the change is not a ground for modification of the
decree.'" 21 Kan. App. 2d at 969. Bruce argued that because Judith's employment was
"not contemplated by the parties when the [settlement agreement] was signed and there is
nothing in the record that reveals the understanding of the parties on that issue," her
recent employment was a material change in circumstances. 21 Kan. App. 2d at 969.

In rejecting Judith's argument that her employment was not a material change in
circumstance, the In re Marriage of Hedrick court first defined the term material change
in circumstances. Like the In re Marriage of Santee and In re Marriage of Crainshaw
courts after it, in doing so, it explicitly noted that "[t]here is no Kansas case which
interprets the phrase 'material change in circumstances' as it relates to a modification of
maintenance." In re Marriage of Hedrick, 21 Kan. App. 2d at 968. So, the Hedrick court
looked to a child support modification case for the definition of material change in
circumstances. It then explained: "'What constitutes a material change [in circumstances]
depends on the case . . . Most courts agree that [the] change should be material,
involuntary, and permanent in nature.'" 21 Kan. App. 2d at 969 (quoting In re Marriage
of Case, 19 Kan. App. 2d 883, 889, 879 P.2d 632 [1994]). Afterward, it ruled that Judith's
reliance on Nebraska law and treatises was irrelevant because her settlement agreement
constituted a contract that fully controlled whether the trial court properly modified

29
Bruce's maintenance obligation to her. 21 Kan. App. 2d at 969-70. It rejected her
argument that her future employment was not a material change in circumstance based on
her contention that she and Bruce had contemplated her future employment when
entering the separation agreement because "[t]here [was] no evidence or law to support
her argument on this issue." (Emphasis added.) 21 Kan. App. 2d at 970. It also
determined that substantial competent evidence supported the trial court's downward
modification of Bruce's maintenance obligation because Judith's transition from having
no income as a student to having a stable income as an attorney constituted a material
change in circumstance. 21 Kan. App. 2d 971.

Hence, the Hedrick case is distinguishable from this case because it involved a
separation agreement that explicitly stated an ex-spouse must prove a material change in
circumstances to modify maintenance. Nevertheless, the Hedrick court's rejection of
Judith's argument about her foreseeable employment supports that a material change in
circumstance may be any circumstance that is not explicitly excluded as a material
change in circumstance within the ex-spouses' separation agreement or divorce decree.

So, what does the preceding review of Kansas' maintenance law establish? First, it
establishes that although Lindsey and Matthew's separation agreement and divorce decree
required the trial court to evaluate any maintenance modification motion under K.S.A.
2020 Supp. 23-2903, this statute contains no fact-based maintenance modification test.
Second, it establishes that our Legislature has not substantively changed any of the
maintenance modification rules since 1965. Third, it establishes that when reviewing
maintenance modification motions where K.S.A. 2020 Supp. 23-2903 controls
modification, we have used the material change in circumstances test while openly
recognizing that this language is not included within K.S.A. 2020 Supp. 23-2903. Fourth,
it establishes that unless language in a separation agreement or divorce decree says
otherwise, any situation that substantially alters the dynamics, especially the financial
dynamics, between ex-spouses may constitute a material change in circumstances.

30
Matthew's Right for the Wrong Reason Argument is Improper and Unpersuasive.

To review, Matthew contends that Lindsey's legal error arguments are irrelevant
because the trial court could modify his monthly maintenance obligation even if his
circumstances had not materially changed. He asserts that because his and Lindsey's
separation agreement did not include the term material change in circumstances, he was
not required to prove a material change in his circumstances to allow the trial court to
partially grant his motion. He cites Kansas' maintenance caselaw as the reason why the
trial court errantly applied the material change in circumstances test when evaluating his
motion. And he suggests that because K.S.A. 2020 Supp. 23-2901 et seq. does not use the
term material change in circumstances, the plain language of Kansas' maintenance
statutes also support that he was not required to prove a material change in circumstances
to permit the trial court to modify his maintenance obligation. Instead, he argues that
based on a combined reading of K.S.A. 2020 Supp. 23-2902(a) and K.S.A. 2020 Supp.
23-2903, he only needed to show that the downward modification of his maintenance was
fair, just, and equitable.

But Matthew's maintenance modification motion contained very little information.
Outside of noting that his and Lindsey's separation agreement's maintenance provision
stated that future modification of his maintenance obligation must be made in accordance
with K.S.A. 2020 Supp. 23-2903, Matthew's motion cited no law. His motion had no
guidance as to what conditions entitled him to the downward modification of his monthly
maintenance obligation. It did not even say how much Matthew wanted his monthly
maintenance obligation reduced. Instead, Matthew's motion merely noted that his
"income ha[d] substantially decreased."

Although Matthew clarified that he wanted his monthly maintenance obligation
reduced to $3,791,77 per month at his motion hearing, he cited no caselaw or statutes to
support his argument at his hearing either. Rather, at his motion hearing, his entire

31
argument focused on his decreased income because of business losses. During the
hearing, Lindsey's reference to In re Marriage of Santee was the only law cited. Neither
party even cited K.S.A. 2020 Supp. 23-2903.

Lindsey cited In re Marriage of Santee for the proposition that foreseeable
business losses that ex-spouses contemplated while negotiating maintenance under a
separation agreement could not constitute the basis for an ex-spouse's later modification
of his or her maintenance obligation. 2018 WL 475477, at *10-11. After Lindsey cited
Santee, Matthew never challenged the Santee court's reliance on the material change in
circumstances test. When given the chance to respond to Lindsey's argument, Matthew
merely questioned the accuracy of Lindsey's evidence regarding his current financial
situation. Likewise, after the trial court started its ruling by announcing that "[w]hat's at
issue [was] whether . . . the Court should modify maintenance downward based on a
material change of circumstances," Matthew never objected to the trial court's reliance on
the material change in circumstances test.

It is a well-known rule that a party who believes that the trial court made
inadequate fact-findings or conclusions of law must object to those inadequate fact-
findings and conclusions of law. The objection is necessary so the trial court has the
opportunity to correct those alleged errors. As a result, absent a timely objection to such
inadequacies, "omissions in findings will not be considered on appeal." Green v. Geer,
239 Kan. 305, 311, 720 P.2d 656 (1986).

In this case, even if we were to assume for argument's sake that the trial court
erred by using the material change in circumstances test, Matthew created this problem
by not arguing before the trial court that there existed an alternative method for assessing
his maintenance modification motion (based on the fair, just, and equitable test) and not
objecting to Lindsey's and the trial court's reliance on the material change in
circumstances test. Because Matthew was the moving party, he should have explained

32
what alternative law entitled him to the downward modification of his maintenance
obligation. Matthew failed to do this. He also failed to argue that Lindsey's reliance on In
re Marriage of Santee or citation of the material change in circumstances test was
misplaced. Then, he stood silent when the trial court relied on the material change in
circumstances test to partially grant his downward maintenance modification motion.
Clearly, Matthew's silence implied that he, at least, indirectly agreed with the material
change in circumstances test. His silence told the trial court that just like Lindsey, he
believed that the success of his maintenance modification motion hinged on whether he
had met his burden of proving a material change in his financial circumstances.

Given all of this, it is readily apparent that Matthew misled the trial court by
allowing it solely to use the material change in circumstances test in evaluating and
granting his maintenance modification motion. Because of his lack of candor about his
alternative legal test, it would be unfair to both Lindsey and the trial court to consider
Matthew's argument about affirming the trial court as right for the wrong reason.
Matthew's argument is unfair to Lindsey because her appellate arguments turn on the trial
court allegedly misapplying the material change in circumstances test. Also, it is apparent
that Matthew has argued that the material change in circumstances test is irrelevant to
avoid addressing Lindsey's entire appeal. Again, he never even directly responds to
Lindsey's argument that the trial court could not modify his maintenance obligation based
on his foreseeable business losses that were contemplated when entering into their
separation agreement.

Moreover, his argument is unfair to the trial court because Matthew remained
silent about the trial court's legal basis for partially granting his maintenance modification
motion below, but now on appeal complains that the trial court's legal basis for partially
granting his maintenance modification motion was wrong. By invoking this alleged legal
error of the trial court, Matthew has rendered the trial court helpless to judge the legal

33
relevance of his fair, just, and equitable test under K.S.A. 2020 Supp. 23-2902(a) and
K.S.A. 2020 Supp. 23-2903.

Also, by failing to raise his fair, just, and equitable test, he avoided the trial court
entering an adverse ruling against him on his alternative legal theory, which would have
required him to cross-appeal the trial court's rejection of his alternative legal theory under
K.S.A. 2020 Supp. 23-2902(a) and K.S.A. 2020 Supp. 23-2903. See K.S.A. 2020 Supp.
60-2103(h) (stating that appellees must cross-appeal "rulings and decisions of which such
appellee complains"). We decline Matthew's attempt to sandbag the trial court by
attacking the court's reliance on the change of circumstance legal test that he indirectly
suggested was correct by his silence. Moreover, we conclude that the change of
circumstance test was supported by the only authority cited to court. See Finnegan v.
Commissioner of Internal Revenue, 926 F.3d 1261, 1272-73 (11th Cir. 2019) (describing
raising new argument on appeal as sandbagging and declining to consider argument);
Raich v. Gonzales, 500 F.3d 850, 868 & n.18 (9th Cir. 2007).

Consequently, we decline to consider Matthew's argument about K.S.A. 2020
Supp. 23-2902(a)'s and K.S.A. 2020 Supp. 23-2903's plain language not requiring him to
show a material change in circumstances to successfully move for the downward
modification of his maintenance obligation.

Matthew's Argument About Lindsey Not Designating an Adequate Record is Baseless.

As for Matthew's apparent argument about Lindsey not designating a record on
appeal supporting her claims of error because he objected to the admission of most of her
exhibits and the trial court "resolved the arguments regarding income" in his favor,
Matthew's argument is imaginative. Matthew contends that he objected when he told the
trial court that Lindsey could '''put whatever [she] want[ed]'" on a spreadsheet and that
her exhibits were "'manipulated and doctored,'" "'inflated,'" and "'misleading.'" A review

34
of the motion hearing transcript establishes that Matthew's then-attorney made these
comments near the end of Matthew's motion hearing during her closing argument.

Nevertheless, at the start of Matthew's motion hearing, the following discussion
occurred between Matthew's attorney, the trial court, and Lindsey's attorney:

"[MATTHEW'S ATTORNEY]: One other thing that I did have is I don't know
how the Court wants to—I mean the Court has the exhibits. I don't know if [Lindsey's
attorney] objects to any of my exhibits, or if we are going to take up exhibit by exhibit as
far as objections, or if there's no objection, we might disagree with an exhibit, but if
there's no objection to the admission of an exhibit if we can just admit them all at once.
"THE COURT: And so, [Matthew's attorney], before I inquire of [Lindsey's
attorney,] do you have any objection to [Lindsey's] exhibits?
"[MATTHEW'S ATTORNEY]: I disagree with some of them but I don't have an
objection as far as the admission of them.
"THE COURT: Understood. [Lindsey's Attorney], what's your position on the
exhibits?
"[LINDSEY'S ATTORNEY]: Same position with respect to [Matthew's]
exhibit[s]. I don't have any objection. I may not agree with them. And so I agree with
counsel it would certainly expedite the hearing if they were all just admitted.
"THE COURT: Okay. All right, thank you both. For purposes of the record
[Lindsey's] Exhibits 1 through 27 all in consecutive order are admitted. And [Matthew's]
Exhibits 100 through 118 in consecutive order are admitted." (Emphasis added.)

K.S.A. 60-404 states that this court will not set aside the judgment or decision of
the trial court "by reason of the erroneous admission of evidence unless there appears of
record objection to the evidence timely interposed and so stated as to make clear the
specific ground of objection." As a result, a party must lodge a contemporaneous and
specific objection to preserve an argument about the trial court's erroneous admission of
evidence for appeal. Estate of Mills ex rel. Mills v. Mangosing, 44 Kan. App. 2d 399,
420, 238 P.3d 293 (2010). Also, as previously noted, a party cannot invite error and then

35
complain about that error on appeal. Water District No. 1 of Johnson County v. Prairie
Center Development, L.L.C., 304 Kan. 603, 618, 375 P.3d 304 (2016).

Here, not only did Matthew fail to object, but he actually agreed to the admission
of Lindsey's Exhibits 3, 15, and 23—the specific financial exhibits he evidently
complains are inaccurate based on a citation in his appellee's brief. In fact, Matthew's
attorney explicitly stated that Matthew agreed to those exhibits' admission knowing that
Matthew disagreed with the accuracy of some of those exhibits. Matthew's belated
complaint about the accuracy of Lindsey's exhibits during closing arguments does not
constitute an objection to the admission of those exhibits. But even if we assumed
Matthew's belated comments constituted an objection, that objection was not
contemporaneous since it occurred near the end of his hearing after the trial court had
already admitted the disputed exhibits. Besides, Matthew clearly created any error
resulting from the admission of the disputed exhibits by explicitly agreeing to their
admission while knowing that those exhibits included information that he disagreed with.

As a result, we reject Matthew's complaint about Lindsey not designating an
adequate record.

Lindsey's Argument about Reducing Maintenance Because of a Loss of Income Alone is
Contrary to Kansas Caselaw.

Lindsey argues that generally, an ex-spouse's decreased income alone does not
constitute a material change of circumstances entitling that ex-spouse to modification of
his or her maintenance obligation. She contends that the In re Marriage of Strieby and In
re Marriage of Santee decisions support her argument. Matthew responds that Lindsey's
argument misconstrues the Strieby and Santee decisions. He also argues that the In re
Marriage of Ehinger decision establishes that the trial court may modify an ex-spouse's
maintenance obligation downward based on that ex-spouse's decreased income alone.

36
 In Ehinger, Timothy's sole reason for moving for the downward modification of
his maintenance obligation was his loss of income. 34 Kan. App. 2d at 584-85. In the
end, the Ehinger court affirmed the trial court's downward modification of Timothy's
maintenance obligation because he was earning $8,500 less per month than when he and
Sandra entered their separation agreement. It found that this income decrease constituted
a material change in circumstances. 34 Kan. App. 2d at 590. In Strieby, although this
court considered James' argument that Linda's enforcement of their maintenance
provision's escalator clause deteriorated his finances so much that a material change in
circumstances had occurred, this court did not hold that a loss of income alone can never
justify the downward modification of an ex-spouse's maintenance obligation. Instead, this
court's rejection of James' argument emphasized that he agreed to the escalator clause
under his and Linda's maintenance agreement. His agreement to the escalator clause
meant that Linda's enforcement of the escalator clause was not a material change in his
circumstances. 45 Kan. App. 2d at 966-67.

As to the In re Marriage of Santee decision, that court upheld the trial court's
denial of Edward's maintenance modification motion based on Edward's failure "to show
how the loss of [his] job impacted his overall financial condition." 2018 WL 475477, at
*10. Nevertheless, in affirming the trial court, this court did not hold that a loss of income
alone can never justify the downward modification of an ex-spouse's maintenance
obligation. Rather, it did the following: (1) It held that the trial court's consideration of
Edward's overall financial circumstances was permissible since his and Sandra's
separation agreement did not specifically prohibit this, and (2) it distinguished Edward's
finances from Timothy's case in In re Marriage of Ehinger because unlike Timothy,
Edward had other sources of income from which he could still pay maintenance. 2018
WL 475477, at *10.

Because the Ehinger court reduced Timothy's maintenance obligation solely on his
decreased income, that decision strongly supports that a trial court may modify

37
maintenance controlled under K.S.A. 2020 Supp. 23-2903 based on an ex-spouse's
decreased income alone. Again, in Ehinger, Sandra and Timothy had no separation
agreement, meaning that the maintenance modification statute controlled the trial court's
modification. So the Ehinger decision suggests that when reviewing maintenance
modification motions controlled by K.S.A. 2020 Supp. 23-2903, the trial court may
modify an ex-spouse's maintenance obligation downward based on a decreased income
alone since K.S.A. 2020 Supp. 23-2903's plain language does not prohibit it. 34 Kan.
App. 2d at 588-89; see also In re Marriage of Underwood, No. 104,315, 2011 WL
6942931, at *1 (Kan. App. 2011) (unpublished opinion) (explaining that K.S.A. 60-
1610[b][2] "generally gives the district court the authority to reduce maintenance based
on a material change in circumstances, like loss of employment"). In turn, in this case,
Lindsey and Matthew's separation agreement's citation to K.S.A. 2020 Supp. 23-2903
supports that the trial court had jurisdiction to modify Matthew's maintenance obligation
based on his decreased income alone.

Next, because neither In re Marriage of Strieby nor In re Marriage of Santee held
that a loss of income alone cannot constitute a material change in circumstances,
Lindsey's reliance on Strieby and Santee is misplaced. Additionally, the Santee decision
supports that a loss of income, in and of itself, may constitute a material change in
circumstances as long as the separation agreement stating that maintenance is controlled
by statute does not also explicitly state that an ex-spouse's decreased income cannot
constitute a material change in circumstances. 2018 WL 475477, at *10. Thus, the fact
that, in this case, Lindsey and Matthew's separation agreement merely stated that future
maintenance modification is controlled by K.S.A. 2020 Supp. 23-2903 without explicit
language preventing the trial court from reducing Matthew's maintenance obligation
based on his decreased income alone also supports that the trial court had jurisdiction to
modify Matthew's maintenance obligation based on his decreased income alone.

38
 In short, Kansas caselaw supports that in some situations, an ex-spouse's loss of
income alone may constitute a material change in circumstances entitling that ex-spouse
to the downward modification of his or her maintenance obligation. As a result, Lindsey's
argument to the contrary is fatally flawed.

Lindsey's Argument about Reducing Maintenance Because of Foreseeable Future
Business Losses is Not Supported by Kansas Caselaw.

Next, Lindsey's contends that the trial court erred by reducing Matthew's
maintenance obligation based on his business losses that caused his decreased income.
She asserts that the trial court could not consider those business losses because she and
Matthew had already considered them when negotiating their separation agreement's
maintenance provision. According to Lindsey, the In re Marriage of Strieby and In re
Marriage of Santee decisions support the proposition that foreseeable events that were
contemplated by ex-spouses when negotiating maintenance under a separation agreement
cannot constitute a material change of circumstances that later entitles an ex-spouse to the
downward modification of his or her maintenance obligation. She argues that this is true
even when ex-spouses do not incorporate language about the foreseeable event into their
separation agreements' maintenance provisions.

Again, Matthew never directly addresses this argument in his brief. While before
the trial court, however, he openly admitted that he and Lindsey had a lengthy discussion
about his foreseeable future business losses. So, it is undisputed that Lindsey and
Matthew contemplated Matthew's future business losses when negotiating their
separation agreement's maintenance provision.

Nevertheless, neither the In re Marriage of Strieby nor the In re Marriage of
Santee decision support Lindsey's argument that foreseeable events that were
contemplated but not incorporated into a separation agreement cannot later constitute a

39
material change in circumstances entitling an ex-spouse to the modification of his or her
maintenance obligation. The Strieby decision simply does not support this conclusion at
all. In Santee, the trial court denied Edward's motion for the downward modification of
his maintenance obligation to Trena "'[b]ecause fluctuation in [Edward's] income was
foreseeable'" when he and Trena entered into their separation agreement. 2018 WL
475477, at *9. In her brief, Lindsey latches on to this language as evidence that the
Santee decision support that foreseeable events considered when negotiating maintenance
in a separation agreement cannot later constitute a material change in circumstances. But
she cites this language twice, attributing it once correctly to Santee and once wrongly to
Strieby. It is also the only language Lindsey attributes to Strieby as proof that the Strieby
decision supports her argument. The Strieby court, though, never held that foreseeable
events contemplated during maintenance negotiations but not incorporated into the
separation agreement cannot constitute a material change in circumstances entitling an
ex-spouse to maintenance modification.

As for the In re Marriage of Santee decision, that court did not affirm the trial
court's denial of Edward's maintenance modification motion based on the trial court's
finding that his decreased income was foreseeable when he and Trena entered the
separation agreement. Rather, after comparing Edward's financial situation to Timothy's
financial situation in In re Marriage of Ehinger, the Santee court held that it "[could not]
say that the trial court abused its discretion . . . in determining whether [Edward] had
experienced a material change in circumstances" because Edward had the ability to pay
maintenance as originally agreed to under his and Trena's separation agreement with his
separate income. In re Marriage of Santee, 2018 WL 475477, at *12.

So, neither of the cases that Lindsey cites support her proposition that foreseeable
events that were contemplated but not incorporated into a separation agreement cannot
later constitute a material change in circumstances entitling an ex-spouse to the
modification of his or her maintenance obligation. An appellant fails to adequately brief

40
all arguments that he or she fails to support with authority, resulting in abandonment of
that argument. In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018). By
failing to cite any authority supporting her argument that the trial court wrongly reduced
Matthew's maintenance obligation to her based on his foreseeable business losses,
Lindsey has abandoned this argument for appeal.

All the same, as a final point it is worth mentioning that our holdings in In re
Marriage of Hedrick also undermine Lindsey's argument. There, Judith raised an
argument like Lindsey's. Judith argued that "her future employment was 'a circumstance
that was known at the time the [separation agreement] was entered into and not
specifically addressed in the [separation agreement]' and cannot now be used as the basis
for a modification." 21 Kan. App. 2d at 970. The Hedrick court rejected Judith's
argument because "[t]here [was] no evidence or law to support her argument on this
issue." (Emphasis added.) 21 Kan. App. 2d at 970.

Here, although Lindsey has established that Matthew's future business losses were
contemplated when they entered into their separation agreement's maintenance provision,
she has not presented any law supporting her position. Yet, Kansas caselaw is abundantly
clear: "Maintenance settled by a separation agreement that is incorporated into the
divorce decree is not subject to subsequent modification by the court except as prescribed
by the agreement or as subsequently consented to by the parties." In re Marriage of
Hedrick, 21 Kan. App. 2d 964, Syl. ¶ 1; see In re Marriage of Strieby, 45 Kan. App. 2d at
962; In re Marriage of Ehinger, 34 Kan. App. 2d at 587; and In re Marriage of Santee,
2018 WL 475477, at *12. Nothing in Lindsey and Matthew's separation agreement's
maintenance provision specifically prevented the trial court from modifying Matthew's
maintenance obligation based on Matthew's future business losses. It merely directed the
trial court to consider Matthew's motion in accordance with K.S.A. 2020 Supp. 23-2903,
which meant the material change in circumstances test applied. The material change in
circumstances test is broad enough to include future business losses. Hence,

41
notwithstanding Lindsey's failure to support her argument with authority, the plain
language of her and Matthew's maintenance provision allowed the trial court to consider
Matthew's recent business losses as a material change in his circumstances.

Finally, we note that Matthew's 2019 1040 tax form all but confirms that the trial
court mistakenly averaged Matthew's 2017 total income with Matthew's 2019 total
income to recalculate Matthew's maintenance obligation. For example, according to
Matthew's 2019 1040 form, his total income in 2017 was $548,574 while his total income
in 2018 was $695,920. Given that Matthew's 2017 total income was nearly $550,000, it
follows that Lindsey and Matthew's 2018 child support worksheet relied on Matthew's
2017 total income when it listed his total income as $550,000. This makes sense why
there is about a $145,000 discrepancy between Matthew's total income as listed on the
August 2018 child support worksheet and Matthew's total income for tax-year 2018 as
listed in Matthew's 2019 1040 form. This, then, led to the trial court's unfounded
assumption that when entering into their separation agreement, Lindsey knew that
Matthew's 2018 income was about $145,000 greater than the amount listed on their
August 2018 child support worksheet.

But by never addressing this specific error, even in her reply brief, it follows that
Lindsey has abandoned her ability on appeal to complain about the trial court's mistaken
reliance on Matthew's 2017 total income rather than Matthew's 2018 total income when
computing the average. See In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d
1033 (2018) (holding that an issue not briefed by the appellant is deemed waived and
abandoned). Even so, following the guidance under In re Marriage of Sinks, No. 110,316,
2014 WL 4627495, at *5 (Kan. App. 2014) (unpublished opinion), we point out that
Lindsey may move to correct this mistake under K.S.A. 2020 Supp. 60-260(a) after we
have fully decided her appeal.

42
Matthew's Request for Appellate Attorney Fees is Denied.

For maintenance modification disputes, K.S.A. 2020 Supp. 23-2715 allows the
trial court to award attorney fees "as justice and equity require." Meanwhile, our Kansas
Supreme Court Rule 7.07(b)(1) (2022 Kan. S. Ct. R. at 51) allows us to award appellate
attorney fees in a case where the trial court had authority to award attorney fees. Under
Rule 7.07(c) (2022 Kan. S. Ct. R. at 52), we may also grant appellate attorney fees if we
find that "an appeal has been taken frivolously, or only for the purpose of harassment or
delay." Thus, an ex-spouse seeking attorney fees for an appeal involving a maintenance
modification dispute must establish that his or her request complies with both K.S.A.
2020 Supp. 23-2715 and Rule 7.07.

Following oral arguments, Matthew moved for appellate attorney fees. In his
motion, Matthew notes that several days before Lindsey filed her appellant's brief with
this court, Lindsey filed an upward maintenance modification motion with the trial court.
He alleges that in this motion, Lindsey never addressed the material change in
circumstances test. He notes that after he moved to dismiss this motion, Lindsey replied
by arguing that K.S.A. 2020 Supp. 23-2902 allowed her to move for maintenance
modification "[a]t any time." According to Matthew, by so doing, Lindsey recognized the
merits of his argument that K.S.A. 2020 Supp. 23-2902(a) and K.S.A. 2020 Supp. 23-
2903's combined language requires an ex-spouse to only show that the modification of
his or her maintenance obligation is fair, just, and equitable to obtain the downward
modification of his or her maintenance obligation.

Then, Matthew relies on this assertion to further argue that justice and equity as
meant under K.S.A. 2020 Supp. 23-2715 require us to grant his appellate attorney fees
motion since Lindsey's appeal was frivolous as meant under Rule 7.07(c). He concludes
that Lindsey's appeal had to be frivolous because she continued her appeal despite
recognizing the merits of his argument about the statutory inapplicability of the material

43
change in circumstances test. Also, he argues that Lindsey's decision to continue her
appeal supports that she appealed "for purposes of harassment or delay."

Lindsey did not timely respond to Matthew's motion for appellate attorney fees.
Also, although Lindsey filed an untimely response to Matthew's motion for appellate
attorney fees, her untimely response does not address Matthew's complaints about her
appeal being frivolous and being taken for purposes of harassment or delay. Instead, in
her untimely response, Lindsey makes irrelevant complaints about Matthew. Even so, we
deny Matthew's motion for appellate attorney fees because he has not established that he
is entitled to fees for several reasons.

First, Matthew's motion for appellate attorney fees suggests that Lindsey adopted
his argument that courts have wrongly applied the maintenance modification test for
years although K.S.A. 2020 Supp. 23-2902(a) and K.S.A. 2020 Supp. 23-2903's
combined language proves that upon an ex-spouse's motion, a trial court may modify an
ex-spouse's maintenance obligation whenever it is fair, just, and equitable to do so. But
Lindsey never adopted Matthew's preceding argument. Instead, in her upward
maintenance modification motion, Lindsey complained that Matthew's 2020 tax
documents proved that Matthew's 2020 finances were comparable to his 2019 finances.
She contended that because Matthew's financial circumstances remained unchanged
despite having argued otherwise to obtain the downward modification of his monthly
maintenance obligation from $7,725 to $5,721, the trial court should return Matthew's
monthly maintenance obligation to $7,725. As for Lindsey's reliance on the K.S.A. 2020
Supp. 23-2903's language allowing an ex-spouse to move for maintenance modification
at any time, we do not have Matthew's response to Lindsey's upward maintenance
modification motion. But from Lindsey's reply, we know that Matthew argued that the
trial court lacked jurisdiction to grant her motion. Hence, in her reply to Matthew's
response, Lindsey asserted that the trial court had jurisdiction to grant her motion because
it could modify maintenance at any time under K.S.A. 2020 Supp. 23-2903.

44
 So, in her upward maintenance modification motion, Lindsey neither conceded nor
suggested that Matthew's argument about the statutory inapplicability of the material
change in circumstances test had merit. Indeed, Lindsey's reply to Matthew's motion to
dismiss in which she cited caselaw stating that an ex-spouse must prove a change in
financial circumstances to modify maintenance either upward or downward clearly
proves that Lindsey never adopted Matthew's argument about the statutory inapplicability
of the material change in circumstances test. Therefore, although Matthew argues that
justice and equity as meant under K.S.A. 2020 Supp. 23-2715 require us to grant his
appellate attorney fees motion because Lindsey's appeal is frivolous as meant under Rule
7.07(c), his argument why Lindsey's appeal is frivolous is unpersuasive. If anything,
Matthew has made a frivolous argument by misrepresenting Lindsey's motion for upward
maintenance modification and her reply to his motion to dismiss.

Second, notwithstanding the preceding, Matthew's motion for appellate attorney
fees never addresses Lindsey's arguments on appeal. Again, on appeal, Lindsey argues
that the trial court erred by reducing Matthew's monthly maintenance obligation because
it did so (1) based on Matthew's loss of income alone and (2) based on foreseeable
business losses that she and Matthew considered when entering into their separation
agreement. Nobody contested the appropriateness of the trial court's application of the
material change in circumstances test until Matthew argued that this court should affirm
the trial court was right for the wrong reason in his appellee's brief. Matthew raised this
new argument to provide us with another reason to affirm the trial court's downward
modification of his monthly maintenance obligation to Lindsey.

Also, Matthew's decision to argue that the trial court was right for the wrong
reason is questionable because he—as the appellee—has strongly advocated that the trial
court erred in granting his motion for the downward modification of his monthly
maintenance obligation for a reason that Lindsey never addresses in her appellant's brief.
Generally, an appellee's argument about the trial court being right for the wrong reason is

45
the appellee's alternative argument—not primary argument—for affirming the trial court's
decision. See e.g., State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012)
(explaining that the appellee's third alternative argument was to uphold the trial court as
right for the wrong reason). And even then, the appellee usually makes a limited
concession that the trial court erred for the same reason the appellant argues that the trial
court erred. That is to say, the appellee does not invent an entirely new reason—a reason
that neither the appellee nor the appellant ever raised before—why the trial court was
wrong while also arguing that we should affirm the trial court as right for the wrong
reason. See e.g., Shaw v. Southwest Kansas Groundwater Management District Three, 42
Kan. App. 2d 994, 1000-01, 219 P.3d 857 (2009) (explaining that the appellee conceded
that the trial court erred as argued by appellant but offered an alternative reason why this
court should affirm the trial court as right for the wrong reason). So, if anything,
Matthew's argument that the trial court was right for the wrong reason has unnecessarily
complicated this appeal.

In his motion for appellate attorney fees, Matthew seems to have confused himself
with his right for the wrong reason argument. Matthew's sole complaint in his motion
concerns whether Lindsey's most recent filings with the trial court recognized the merits
of his statutory inapplicability of the material change in circumstances test argument. He
never mentions Lindsey's arguments about the trial court wrongly modifying his monthly
maintenance obligation downward based on his loss of income alone and based on
foreseeable business losses considered when he and Lindsey entered their separation
agreement. Therefore, in his motion, Matthew never addresses Lindsey's actual legal
error arguments.

By doing this, though, it necessarily follows that Matthew never explains why
Lindsey's specific legal error arguments within her appellant's brief are frivolous. Rather,
at best, he has explained why Lindsey's argument in her reply brief, contesting his
appellee brief arguments about the statutory inapplicability of the material change in

46
circumstances test, is frivolous. In turn, Matthew cannot establish that justice and equity
require us to grant his motion for appellate attorney fees as stated under K.S.A. 2020
Supp. 23-2715 because Lindsey's appeal is frivolous as meant under Rule 7.07(c). He has
argued that Lindsey's appeal was frivolous based on arguments that Lindsey did not raise.
See In re Marriage of Williams, 307 Kan. at 977 (holding that an issue not briefed is
deemed waived or abandoned).

Third, Matthew has included just one sentence in his motion alleging that
Lindsey's "continued pursuit of this appeal despite abandoning the material change in
circumstances standard also indicates the appeal was taken for the purposes of
harassment or delay." Even if Matthew had adequately addressed this argument, as just
explained, none of Lindsey's arguments within her upward maintenance modification
motion or reply to Matthew's motion to dismiss remotely support Matthew's assertion that
Lindsey adopted his argument about the statutory inapplicability of the material change in
circumstances test. So, Matthew's argument that Lindsey appealed to harass him and to
delay the trial court's judgment is baseless.

In summary, we deny Matthew's motion for appellate attorney fees because his
arguments are not supported by the record and are otherwise unpersuasive.

Affirmed.

***

ATCHESON, J., concurring: I concur in the results we reach in affirming the
Johnson County District Court's decision to reduce Matthew Freeman's monthly spousal
maintenance payments and in denying his request for attorney fees from Lindsey
Freeman for the appeal. I likewise agree that if either party believes the district court

47
made an arithmetic error in calculating the reduction, he or she may file a motion under
K.S.A. 2020 Supp. 60-260(a) identifying the purported error and the relief sought.

I venture further only to say that we review district court decisions initially setting
maintenance under K.S.A. 2020 Supp. 23-2902 and reducing maintenance under K.S.A.
2020 Supp. 23-2903 for abuse of judicial discretion. Maintenance is to be fixed in an
amount that is "fair, just[,] and equitable" as a component of the overall division of a
divorcing couple's marital property and financial obligations. K.S.A. 2020 Supp. 23-
2902(a). When maintenance includes periodic payments for a defined time—here, it was
for 36 months, a significant portion of which had passed—a district court may reduce the
amount if it has ceased to be fair, just, and equitable. I have difficulty conjuring up a real-
world example where that would be true without a material change in the parties'
financial circumstances. If there hasn't been a material change, then the maintenance
payments would continue to be fair.

As a practical matter, the extended debate over whether the "test" for a reduction is
based on a material change in circumstances or because the maintenance is no long fair
seems like an exercise in labelling without any real effect or purpose. It functionally
amounts to form over substance because maintenance will almost never (if ever) cease to
be fair without a material change in the parties' financial circumstances.

Here, Matthew had the burden to show the monthly maintenance payments were
no longer fair, warranting a reduction to an amount that would be. There was evidence in
the record supporting the district court's conclusion that his financial condition had
measurably declined. But given Matthew's multifaceted business interests, some of the
evidence could be construed to suggest no more than a modest decline. And Matthew
certainly was not impecunious at any point. By the same token, Lindsey received
substantial assets in the divorce decree apart from the spousal maintenance. Nothing in
the property settlement agreement precluded the requested modification of maintenance.

48
 While the district court might have been more expansive in explaining its decision
to reduce the remainder of the maintenance payments due Lindsey, the result did not fall
outside the judicial discretion conferred in such matters—an exceptionally broad
authority to which we accord great deference. See Biglow v. Eidenberg, 308 Kan 873,
893, 424 P.3d 515 (2018) (grounds constituting abuse of judicial discretion). Given that
deference, I cannot say the reduction exceeded the district court's authority. See State v.
Mulleneaux, No. 121,503, 2021 WL 3573777, at *4 (Kan. App.) (unpublished opinion)
(Atcheson, J., dissenting) (obligation of appellate judges to affirm district court decisions
they may disagree with when review hinges on abuse of judicial discretion), rev. granted
314 Kan. 858 (2021).

***

HURST, J., concurring: I concur in the judgment affirming the district court's
decision to decrease Matthew Freeman's maintenance payments to Lindsey Freeman and
likewise agree that Lindsey has the right to pursue a mathematically accurate calculation
of that decrease. I write separately only to state that the Kansas maintenance modification
statute does not set forth a hurdle or condition precedent to modification like the one
contained in the child support modification statute and emphasize that this court's
decision is confined by the stringent parameters of the review standard.

After determining there is substantial, competent evidence to support a district
court's division, distribution, adjustment, or modification of financial awards, including
modification of maintenance agreements, this court reviews the district court's ultimate
decision for an abuse of discretion. See In re Marriage of Monslow, 259 Kan. 412, 414,
912 P.2d 735 (1996); In re Marriage of Strieby, 45 Kan App. 2d 953, 961, 255 P.3d 34
(2011). So long as the district court's actions conform to the statutory requirements, "the
district court has wide discretion in adjusting the financial obligations of the parties in a
divorce action." Monslow, 259 Kan. at 915. After determining the district court had

49
substantial, competent evidence for its decision—which it did here—this court
determines only whether the district court's decision was based on a misunderstanding or
misapplication of the law, factual error, or was of such a nature that no reasonable person
would come to the same conclusion. In re Marriage of Traster, 301 Kan. 88, 108-09, 339
P.3d 778 (2014). This court is constrained by the standard of review and does not replace
the district court's judgment for its own—even where reasonable minds may differ as to
the result—and affords the district court great deference in these matters.

Here, the district court correctly determined it could modify the maintenance
obligations in accordance with the settlement agreement terms that provided "that
[Matthew Freeman's] maintenance obligation to [Lindsey Freeman] shall be subject to
future modification in accordance with K.S.A. 23-2903." This language, in conjunction
with other provisions of the agreement, unambiguously permit modification of the
maintenance in accordance with the cited statute. K.S.A. 2020 Supp. 23-2903 states that,
"the court may modify the amounts or other conditions for the payment of any portion of
the maintenance originally awarded that has not already become due. . . ." This statutory
language, unlike the language governing modification of child support, does not require a
showing of a "substantial change in circumstance" to support or justify the modification.
"[T]he court may modify any prior child support order . . . within three years of the date
of the original order or a modification order, when a material change in circumstances is
shown, irrespective of the present domicile of the child or the parents." K.S.A. 2020
Supp. 23-3005(a). Child support modification requires the party seeking modification to
overcome the initial hurdle of showing a material change in circumstance before the court
recalculates the amount considering "all relevant factors" including those specifically
listed in the statute. See K.S.A. 2020 Supp. 20-165 (listing criteria for determining child
support). In child custody, the showing of a material change in circumstance is a barrier
to the recalculation analysis—but that is not the case when modifying maintenance in
accordance with the applicable statute—which contains no such condition precedent.
This opinion does not address the parties' contractual ability to include conditions or

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requirements that must be met prior to modification. But when the maintenance
agreement is subject to modification pursuant to K.S.A. 2020 Supp. 23-2903, the party
seeking modification is not statutorily required to overcome the hurdle of showing a
material change in circumstance to permit modification.

A court may enter a maintenance order that is "fair, just and equitable under all the
circumstances." See K.S.A. 2020 Supp. 23-2902(a) (setting forth the criteria for
determining maintenance amounts). This court cannot say that the district court's use of a
material change in circumstances analysis as a means to determine if maintenance is fair,
just, and equitable—rather than an obstacle or condition precedent to modification—is an
abuse of the district court's broad discretion. Moreover, given the evidence in this case as
to the parties' intent, the plain language of their agreement, the statutory language, and
Matthew's decrease in income, the district court did not abuse its vast discretion to
determine that a material change in circumstances occurred making the original
maintenance no longer fair, just, and equitable.

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