NOT DESIGNATED FOR PUBLICATION
No. 123,643
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
SARAH FOX (f/k/a OZKAN),
Appellee,
v.
GURKAN OZKAN,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; PAUL W. BURMASTER, judge. Opinion filed June 17, 2022.
Appeal dismissed.
Gurkan Ozkan, appellant pro se.
Joseph W. Booth, of Lenexa, for appellee.
Before ATCHESON, P.J., HILL and GARDNER, JJ.
PER CURIAM: A divorced father appeals an order to pay a share of his children's
medical expenses and an award of attorney fees to his former wife. She raises two
procedural bars to the appeal: we lack jurisdiction due to his defective notice of appeal,
and he has acquiesced in the judgment since he has already paid the full amount through
an income withholding order. She is not correct on the first but is correct on the second.
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The case history
Gurkan Ozkan and Sarah Fox divorced in 2012. Since then, they have returned to
court with different child support and parenting time disputes. They have two children.
Fox lives in Kansas and Ozkan lives in Virginia. The children reside mainly with Fox.
The district court issued the current child support order in June 2019. It is relevant
to this appeal that the court ordered that Ozkan and Fox share the children's medical
expenses that were not covered by insurance in proportion to their incomes.
In March 2020, Ozkan, without benefit of counsel, asked for reimbursement of
$6,985 in medical expenses for the children. In response, Fox contended she did not owe
reimbursement to Ozkan because insurance premiums were supposed to be paid by him.
In turn, Fox sought reimbursement from Ozkan for a share of what she had paid for
medical expenses for the children that totaled $4,961.96. She requested Ozkan pay 47
percent, or $2,332.12, according to the child support worksheet adopted by the court.
Their motions were heard by a hearing officer. The hearing officer ruled that
insurance premiums were addressed by prior orders and included in the last child support
worksheet resulting in an adjustment downward in Ozkan's favor in owed child support.
Thus, he was not due any reimbursement for the premiums from Fox. The hearing officer
ruled Ozkan was entitled to reimbursement of $294.00 in other medical expenses. For
Fox's claim, the hearing officer reviewed the invoices and receipts presented by Fox and
found the expenses were appropriate and reasonable. The hearing officer entered
judgment against Ozkan for the claimed $2,332.12. The hearing officer ordered the
District Court Trustee to issue an immediate income withholding order to Ozkan's
employer.
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Ozkan filed a motion requesting a rehearing and reimbursement for time and legal
expenses he had incurred. He claimed he did not have enough opportunity to review and
verify Fox's claims for reimbursement before the hearing and, upon thorough review, he
had found many of Fox's claimed expenses lacked a corresponding invoice or receipt. He
also claimed Fox spent too much on medical care for the children, requested that she be
ordered to provide an Excel spreadsheet listing each expense paid, along with proof of
payment of each expense, and requested reconsideration of his request for reimbursement
of health insurance premiums. The hearing officer denied this motion.
Ozkan appealed the hearing officer's decisions to the district court. At the district
court hearings on the issues, Ozkan argued that Fox should have to provide proof of
payment for every expense. In turn, Fox argued that the court's order and the Kansas
Child Support Guidelines required only proof of an expense, not proof of payment of that
expense. The order was for the parents to share in the medical expenses. Ozkan further
sought payment for the cost of the children's medical insurance premiums from 2016 to
2019. He argued Fox got credit for paying the insurance premiums during that time and
the court overlooked this in its 2019 order. But he said he first raised this issue in his
March 2020 motion. Fox argued that the court did address insurance premiums for that
period in the 2019 ruling and that the court could not retroactively modify the amount of
child support owed before Ozkan filed his current motion, citing K.S.A. 2020 Supp. 23-
3005. Fox also sought an award of attorney fees under 2020 Supp. K.S.A. 23-2715.
The court denied Ozkan's request for reimbursement of time and legal expenses.
The court ruled Fox was not required to provide receipts showing payment of medical
expenses for which she sought reimbursement. The court did acknowledge a mistake of
$7.40 in the hearing officer's ruling and awarded that amount to Ozkan. Otherwise, the
court affirmed the award in favor of Fox. The court denied Ozkan's request that Fox
provide him an Excel spreadsheet of expenses noting that Fox already provided
exhaustive documentation to Ozkan. The court denied Ozkan's request for reimbursement
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of health insurance premiums. The court found that health insurance premiums were a
line item on the existing child support worksheet and ruled it could not make a retroactive
modification to child support under K.S.A. 2020 Supp. 23-3005(b). The court also ruled
that the issue had been already litigated and ruled on in the 2019 order and therefore res
judicata barred reconsideration. The court granted Fox's request for attorney fees in part,
noting some of Ozkan's requests "border on frivolous."
A motion to reconsider denied by the court affects one of our rulings.
In a combined motion, Ozkan moved to reconsider or grant relief from judgment
under K.S.A. 2020 Supp. 60-259 and K.S.A. 2020 Supp. 60-260. He again argued there
were discrepancies between Fox's claimed expenses and the documentation to support the
expenses. He argued the Guidelines require proof of payment of medical expenses sought
for reimbursement and that the court "misled all participants" by stating otherwise.
He again requested that Fox be ordered to provide a detailed breakdown of
claimed expenses in an Excel spreadsheet. He also requested reimbursement for health
insurance premiums. He claimed Fox's attorney tried to influence the court by stating,
"You do not have the authority" to retroactively modify child support. He argued that the
court's statement that some of his requests "'border[ed] on frivolous'" showed bias toward
Fox. He requested reconsideration of the attorney fee award. And he asked the court to
revisit his request for an award of time and legal fees. Fox argued the 2020 Guidelines
did not apply to enforcement of the 2019 child support order.
The court ruled that Kansas law on motions to reconsider do not allow a "second
bite at the apple" for the movant to simply reassert the same arguments to persuade the
court to rule differently. Ozkan presented no new evidence. As for Ozkan's claim that the
new Guidelines required proof of payment of medical expenses before reimbursement,
the court ruled:
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• the Guidelines in effect when the child support order was made control;
• even if the 2020 Guidelines applied, they do not require that a parent pay a
medical expense before the other parent is assessed liability; and
• the court has discretion under the Guidelines to enforce the claim for
reimbursement.
The court denied Ozkan's motion.
Ozkan filed a timely notice of appeal stating he "appeals from this judgment or
order, Order Denying Ozkan's Motion to Reconsider and/or Relief from Judgment, Case
No. 11CV2258, Division 14, to the Court of Appeals of the State of Kansas."
While this appeal was pending, Fox filed a Johnson County District Court Trustee
Pay Record showing Ozkan had satisfied the judgment here from his payments made
through an income withholding order by the hearing officer.
In this appeal, Ozkan contends that the facts do not support the court's decision. In
his view, the court abused its discretion when it said his requests "border on frivolous."
He argues that opposing counsel improperly influenced the judge when he argued that the
court lacked authority to order a retroactive payment of an expense. He also claims the
court erred when it granted Fox attorney fees. Finally, he argues the court erred when it
held that a party does not have to present proof of payment to obtain reimbursement
under the Guidelines.
Fox responds by arguing that because of the very specific wording of Ozkan's
notice of appeal, we lack jurisdiction. She contends that Ozkan has abandoned any claim
of error in denying his K.S.A. 2020 Supp. 60-260 motion because he failed to brief the
issue. Nor did the court err when it refused to grant him relief under K.S.A 2020 Supp.
60-259. She contends that the award of attorney fees was proper. And, finally, while not
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conceding jurisdiction, Fox argues that Ozkan has paid the disputed amount through an
income withholding order and, thus, we have no jurisdiction through the doctrine of
acquiescence.
We must first deal with Fox's arguments that we lack jurisdiction. We begin with
her claims about the notice of appeal.
Notices of appeal are important.
Fox contends this court lacks jurisdiction over the order for Ozkan to pay medical
expenses and attorney fees because his notice of appeal only covered the denial of his
motion to reconsider.
The right to appeal is created by statute and is not contained in the United States or
Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have
jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by
statutes. Wiechman v. Huddleston, 304 Kan. 80, 86-87, 370 P.3d 1194 (2016). The
Kansas statute states that a notice of appeal "shall designate the judgment or part thereof
appealed from." K.S.A. 2020 Supp. 60-2103(b). It is a fundamental proposition of Kansas
appellate procedure that "'an appellate court only obtains jurisdiction over the rulings
identified in the notice of appeal.' [Citation omitted.]" (Emphasis added.) Associated
Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074
(2011), cert. denied 133 S. Ct. 158 (2012); In re N.U., 52 Kan. App. 2d 561, 567, 369
P.3d 984 (2016).
Caselaw has recognized some leeway. A notice of appeal need not be overly
technical or detailed, and it should be broadly construed. Use of "catch-all" language such
as "from all underlying adverse rulings" is sufficient, but a clear omission of the
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judgment sought to be appealed deprives us of jurisdiction over that judgment. Gates v.
Goodyear, 37 Kan. App. 2d 623, 627-28, 155 P.3d 1196 (2007).
In practical terms, this boils down to whether Ozkan's notice of appeal of the
denial of his motion to reconsider sufficiently encompassed this judgment. Or must we
confine our review to the court's denial of the motion to reconsider? Can we decide
whether the district court was wrong in the first instance?
Three cases help explain this issue. The first is Key v. Hein, Ebert and Weir, Chtd.,
265 Kan. 124, 130, 960 P.2d 746 (1998), where the court liberally construed a pro se
litigant's notice of appeal to include an earlier order not specifically referenced in the
notice of appeal. Key appealed from "'the order made this 19th day of DECEMBER
1996.'" The notice of appeal further stated, "'Wherein the court did grant the defendant
Memorandum Decision order. And from each and every order entered contrary to
plaintiff.'" 265 Kan. at 128. The court's December 19, 1996, memorandum decision and
order was its ruling on Key's motion for a new trial or to amend the judgment. The
district court granted summary judgment to the defendants in an earlier order dated
December 1995. On appeal, the court found a liberal construction of the notice of appeal
appropriate because it was not drafted by counsel, it was the earlier order in which the
court "did grant" the defendant's motion, the notice of appeal included catch-all language,
and the two orders covered the same two issues. 265 Kan. at 128-30.
The second case is Gates, 37 Kan. App. 2d at 626. In this case, the court ruled it
did not have jurisdiction over an order not referenced in the appellant's notice of appeal
where the order that was referenced did not address the same issues. Gates' notice of
appeal stated that he appealed from "the judgment entered herein by order dated
November 16, 2005." 37 Kan. App. 2d at 626. That judgment did not address the issues
he raised on appeal because they had been addressed in prior proceedings and were
reflected in a prior journal entry, which was not appealed. The court held that it did not
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have jurisdiction over the issues because the notice of appeal omitted the judgments
containing the alleged errors, no catch-all language was used, and there was no
reasonable way Gates could have believed the judgment designated in the notice of
appeal included a reiteration of the earlier findings and conclusions. 37 Kan. App. 2d at
626-29.
The third case is Bowens v. Greenwood County Hospital, No. 122,532, 2021 WL
3042249, at *4-6 (Kan. App. 2021) (unpublished opinion), rev. denied 314 Kan. 854
(2021). In this case, a panel of this court ruled Bowens' notice of appeal seeking review
only of an order denying his motion to reconsider summary judgment, and containing no
catch-all language, was sufficient to give the panel jurisdiction over the summary
judgment order itself. The panel found that both orders involved the same issues, the trial
court's reasoning in denying the motion to reconsider hinged on the correctness of its
prior summary judgment order, and the panel would need to consider the original
summary judgment ruling to meaningfully review the trial court's denial of the motion to
reconsider. 2021 WL 3042249, at *4-6.
In our view, the facts here are more like those in Key and Bowens than those in
Gates. Ozkan is a pro se litigant that did not use any catch-all language in his notice of
appeal, and it cannot be construed to reference any order other than the order denying his
motion to reconsider. But the issues addressed in his motion to reconsider, and raised on
appeal, were the same issues addressed in this judgment. It was a motion asking the court
to reconsider its underlying judgment. In denying the motion, the court stated multiple
times that Ozkan was simply reasserting the same arguments he had made before. Thus,
Ozkan could have reasonably believed his notice of appeal included this judgment.
Liberally construing his notice of appeal, this court has jurisdiction to consider this
judgment on any issues referenced in the order denying Ozkan's motion to reconsider.
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Ozkan complained about the hearing officer's use of the opposing counsel's
conference system during trial. That issue was not raised in Ozkan's motion to reconsider
or in that judgment. Therefore, we will not address that issue since it was not mentioned
in the notice of appeal.
Ozkan paid the judgment, but should we consider the remaining issues anyway?
Fox contends Ozkan has acquiesced to this judgment for medical expenses. He
never objected to the income withholding order, and he has satisfied the judgment. In her
view, this matter is now moot. Ozkan asks us not to apply the doctrine of acquiescence.
He contends that, as a pro se litigant, he had understood the filing of a notice of appeal
would automatically stay the income withholding order. He also alleges he spoke with the
Office of the Trustee of the District Court and was told nothing could be done to stop the
income withholding order.
This is a well-established legal doctrine. Acquiescence to a judgment—which cuts
off the right of appellate review—occurs when a party voluntarily complies with a
judgment by assuming the burdens or accepting the benefits of the judgment contested on
appeal. A party that voluntarily complies with a judgment should not be permitted to
pursue an inconsistent position by appealing from that judgment. Alliance Mortgage Co.
v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006); Heartland Presbytery v.
Presbyterian Church of Stanley, Inc., 53 Kan. App. 2d 622, 635-36, 390 P.3d 581 (2017).
The key here is to decide whether a payment is voluntary. That decision depends
on the facts of the case and the intention on the part of the payer to waive their legal
rights, but "[t]he mere statement of an intent not to waive the right to appeal does not
make a payment involuntary." Varner v. Gulf Ins. Co., 254 Kan. 492, 497, 866 P.2d 1044
(1994); Security Bank of Kansas City v. Tripwire Operations Group, 55 Kan. App. 2d
295, 300, 412 P.3d 1030 (2018).
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Relevant here is the rule that while acquiescence cuts off the right of appeal, it is
not strictly applied in domestic cases when there are equitable considerations involved. In
re Marriage of Yount & Hulse, 34 Kan. App. 2d 660, 667, 122 P.3d 1175 (2005). Child
support payments made under a criminal-court restitution order and in response to
contempt proceedings do not constitute a voluntary acquiescence to this judgment.
Martin v. Phillips, 51 Kan. App. 2d 393, 400, 347 P.3d 1033 (2015). Because it involves
jurisdiction, whether a party acquiesced to a judgment is a question of law subject to
unlimited review. Alliance Mortgage Co., 281 Kan. at 1271; Security Bank of Kansas
City, 55 Kan. App. 2d at 299-300.
An older case illustrates our concerns. In Gordon v. Gordon, 218 Kan. 686, 693,
545 P.2d 328 (1976), the court held a wife's appeal for a greater alimony payment was
not barred by the fact that she had accepted periodic payments ordered by the district
court. The court reasoned that the wife needed the money for her support, it did not
appear that she intended to acquiesce in the judgment, the only issue on appeal was
whether she was entitled to a larger amount because the husband did not cross-appeal,
and the husband was not prejudiced by the wife receiving the money. 218 Kan. at 691-93.
In domestic cases, we recognize that this flow of money is ultimately to the benefit
of the children. But certain actions of the party owing the judgment can constitute
acquiescence. In Vanover v. Vanover, 26 Kan. App. 2d 186, 187-89, 987 P.2d 1105
(1999), the court held a husband's voluntary partial payment of a child support judgment
constituted acquiescence to the judgment where the husband posted a supersedeas bond,
but at his own request, a condition of the supersedeas bond was that he make partial
payment to the wife on the child support judgment.
If we look at cases outside the domestic context, courts have held that a
defendant's payment of a judgment was voluntary where the defendant was aware of the
plaintiff's intent to garnish, yet the defendant took no action to stay the execution or
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obtain a supersedeas bond. Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, 60-
61, 671 P.2d 1126 (1983). The court stated, "When faced with the choice of whether to
pay the judgment or to attempt to halt the execution of judgment, defendant affirmatively
chose the former. Under the circumstances of this case, such action can only be viewed as
voluntary." Vap, 9 Kan. App. 2d at 61. Therefore, the court held that the defendant
acquiesced to the judgment. Ozkan did nothing here to halt execution on the judgment.
We are not saying that the failure to post a supersedeas bond alone constitutes
acquiescence in a judgment. See Security Bank of Kansas City, 55 Kan. App. 2d at 299-
300. In that case, the bank did not give the appellant notice that it planned to withdraw
funds from their account to satisfy the judgment until after the funds had been withdrawn.
The court said, "we cannot say that Nichols voluntarily complied with the summary
judgment when he simply received a letter saying the Bank had taken his money out of
his account." 55 Kan. App. 2d at 300.
Although this court need not strictly apply the acquiescence rule since the
judgment at issue involves reimbursements for their children's medical expenses, it
appears Ozkan did voluntarily comply with the judgment under these facts. This case is
not like Gordon, where it was the party accepting payment that sought to appeal to get a
bigger alimony payment. This is also not a case in which the appellant made payment
under threat of criminal contempt. And this is not a case in which the appellant was given
notice after-the-fact that the bank had taken his funds out of his account to satisfy the
judgment.
The record shows that Ozkan was given notice of the income withholding order.
He admits he knew about the order. He filed nothing to stay the order. He did nothing to
stop his payment of the judgment. We cannot offer him relief simply because he had no
attorney. Pro se litigants in civil cases are held to the same rules as litigants represented
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by attorneys. O'Neill v. Herrington, 49 Kan. App. 2d 896, 906, 317 P.3d 139 (2014).
Therefore, Ozkan voluntarily acquiesced in the judgment and cannot now appeal.
Fox requested an award of attorney fees from our court under Supreme Court Rule
7.07 (2022 Kan. S. Ct. R. at 51). It is untimely. The parties were notified by letter dated
October 27, 2021, that their case was scheduled on our court's summary docket for
Thursday, January 13, 2022. Under our rule, a motion for attorney fees must be filed not
later than 14 days after the date of the letter assigning the case to a nonargued calendar.
Because Fox's motion for attorney fees is untimely, it is denied.
Appeal dismissed.
***
ATCHESON, J., concurring: I agree that Gurkan Ozkan gets no relief in his appeal
challenging the orders of the Johnson County District Court that he pay Sarah Fox for
unreimbursed medical expenses she incurred for their children following their divorce
and that he cover a portion of her attorney fees in the district court for litigating the issue.
It's not readily apparent to me, however, that Ozkan acquiesced in the payment order,
cutting off his right to appeal. An income withholding order was entered against Ozkan
for the medical expenses. The Income Withholding Act, K.S.A. 2020 Supp. 23-3101 et
seq., seems to substantially limit the ability of a person subject to such an order to keep
the withholding from going into effect. See K.S.A. 2020 Supp. 23-3106(a). The Act also
provides a narrowly tailored remedy if an obligor (such as Ozkan) establishes that some
portion of the withholding turns out to be wrongful. K.S.A. 2020 Supp. 23-3108. Under
these circumstances, Ozkan's payments may not have been voluntary in a way triggering
the acquiescence doctrine and cutting off his appeal. Younger v. Mitchell, 245 Kan. 204,
208-09, 777 P.2d 789 (1989) (acquiescence doctrine requires voluntary payment of
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judgment); Security Bank of Kansas City v. Tripwire Operations Group, LLC, 55 Kan.
App. 2d 295, 412 P.3d 1030 (2018).
Given the parties' briefing, the question looks to be close. But the victory for
Ozkan in avoiding dismissal for acquiescence would be no more than a procedural one.
On the merits, the distric3t court's order on reimbursement should be reviewed for an
abuse of discretion. In re Marriage of Thrailkill, 57 Kan. App. 2d 244, 257, 452 P.3d 392
(2019) (appellate courts review child support orders for abuse of discretion); In re K.B.,
No. 110,175, 2014 WL 1193440, at *7 (Kan. App. 2014) (unreimbursed medical
expenses for child). Abuse of judicial discretion is a particularly formidable hurdle to
clear on appeal. A district court abuses that authority only if it rules in a way no
reasonable judicial officer would under the circumstances, if it ignores controlling facts
or relies on unproven factual representations, or if it acts outside the legal framework
appropriate to the issue. See Biglow v. Eidenberg, 308 Kan 873, 893, 424 P.3d 515
(2018); Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296
P.3d 1106 (2013). Ozkan has failed to show that sort of error and, therefore, cannot fairly
claim any relief from us. With that assessment, I effectively reach the same ultimate
outcome as my colleagues.
I join in the denial of Fox's motion to recover her attorney fees on appeal from
Ozkan.
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