In re the Marriage of Williams

Green, J.:

I dissent for the following reasons.

The question presented is to what extent did the Kansas Legislature grant to the trial court the authority to divide the residency of Dalton and Ashley. K.S.A. 2003 Supp. 60-1610(a)(5)(B) sets up a legal condition precedent that exceptional circumstances must exist before the trial court may divide the residency of siblings. As a result, the issue is whether the evidence established that this was “an exceptional case.” Both the trial court and the majority answered yes. I disagree and would reverse the trial court’s judgment dividing the custody of Dalton and Ashley.

Exceptional Case Requirement

K.S.A. 2003 Supp. 60-1610(a)(5)(B) states: “In an exceptional case, the court may order a residential arrangement in which one or more children reside with each parent and have parenting time with the other.” (Emphasis added). Appellate courts review the record to determine whether a trial court’s findings in a case were supported by substantial competent evidence and whether the findings were sufficient to support the trial court’s conclusions of law. Appellate review of a trial court’s conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).

As I have previously stated, this appeal hinges on whether the evidence established that this was “an exceptional case” under K.S.A. 2003 Supp. 60-1610(a)(5)(B). Both parties cite the case of LaGrone v. LaGrone, 238 Kan. 630, 713 P.2d 474 (1986). In LaGrone, the trial court, under an earlier statute, divided the custody of two sisters. Our Supreme Court affirmed the trial court’s decision. In reaching this determination, our Supreme Court noted that a trial court is required to consider all relevant factors under K.S.A. 60-1610(a)(3)(B) in determining custody issues. Our Supreme Court stated that one factor to be considered is which parent has had the actual care and custody of the child during the child’s lifetime. 238 Kan. at 633. Significantly, in this case, Katrina has had the residential care and custody of Dalton since the parties were divorced in 1996.

*851In dissenting from the majority’s decision in LaGrone, Justice Lockett maintained that there were no exceptional circumstances that required the custody division. Justice Lockett stated:

“Where there are no exceptional circumstances, the children of divorced or unwed parents, especially those children of tender years should not be separated by awarding custody of one child to the mother and custody of the other child to the father. Family ties between children of the same parents should not be treated lightly.” 238 Kan. at 635.

It is well-established that in a child custody case there is a presumption that siblings should remain together. In recognizing that siblings should not be separated except for the most compelling case, the Florida court in Henderson v. Henderson, 537 So. 2d 125, 128 (Fla. Dist. App. 1988), stated: “Whenever possible the family unit should not be further fractured as a consequence of a marriage being dissolved.” Similarly, the South Dakota Supreme Court stated in Mayer v. Mayer, 397 N.W.2d 638, 644 (S.D. 1986): “Justice requires that society exercise its moral duty to insure that children in a family enjoy the right to remain together, to share each other’s lives, and to grow up together, until such time as necessity and the welfare of the children, itself, requires their separation. [Citation omitted.].” By including the phrase “exceptional case” in K.S.A. 2003 Supp. 60-1610(a)(5)(B), the legislature clearly intended to significantly restrict the separation of siblings.

The words of a statute are the main source for determining a legislative purpose. Webster’s New Collegiate Dictionary 398 (1976) defines “exceptional” as “forming an exception: rare.” “[I]n construing statutes, statutory words are presumed to have been and should be treated as consciously chosen with an understanding of their ordinary and common meaning and with the legislature having meant what it said. [Citation omitted.]” International Ass’n of Firefighters v. City of Kansas City, 264 Kan. 17, 31, 954 P.2d 1079 (1998). K.S.A. 2003 Supp. 60-1610(a)(5)(B) was enacted to prevent the separation of siblings except for the most compelling reasons.

Nevertheless, the majority states that “when the children’s own welfare is implicated, the nonseparation rule is subordinate to the best interests of the child rule.” The majority’s approach would have the effect of turning a divided siblings’ case into an ordinary *852child custody case. Moreover, the majority’s approach would eliminate the legislature’s legal condition precedent under K.S.A. 2003 Supp. 60-1610(a)(5)(B): the requirement that exceptional circumstances must exist before the trial court may divide the residency of siblings. No part of a statute is to be treated as irrelevant.

As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). The majority’s construction of K.S.A. 2003 Supp. 60-1610(a)(5)(B) would render meaningless the Kansas Legislature’s requirement that “an exceptional case” must exist before siblings may be divided.

Nevertheless, assuming arguendo that the majority’s “best interest of the child rule” may be invoked to determine when “an exceptional case” exists, the trial court misapplied the majority’s test. Here, in concluding that this was “an exceptional case,” die trial court ignored counterevidence that it was not in Dalton’s best interests to be separated from his sister. K.S.A. 2003 Supp. 60-1610(a)(3)(B) requires the trial court to consider the factors listed under that statute when determining child custody, residency of the child, and parenting time. The trial court’s findings omitted evidence pertaining to two objective factors: (1) Dalton’s adjustment to his home and (2) spousal abuse between Patrick and Lori. See K.S.A. 2003 Supp. 60-1610(a)(3)(B)(v) and (vii).

Normally, a litigant must object to inadequate findings of fact and conclusions of law at the trial court level in order to preserve the issue for appeal. See Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). In this case, Katrina objected to the trial court’s failure to describe the findings of fact that made this matter “an exceptional case.”

Furthermore, K.S.A. 2003 Supp. 60-252(b) states:

‘When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of tire evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.”

*853Katrina’s argument on appeal essentially relates to whether there was sufficient evidence for the trial court to find that this was “an exceptional case” under K.S.A. 2003 Supp. 60-1610(a)(5)(B). As a result, these omitted findings, even in the absence of an objection to the trial court’s findings, may be considered. See also In re Marriage of Bradley, 258 Kan. 39, 50, 899 P.2d 471 (1995) (finding that in all actions under 60-252 and Supreme Court Rule 165 [2003 Kan. Ct. R. Annot. 202], it is unnecessary to object to the trial court’s findings in order to question the sufficiency of the evidence on appeal).

Turning our attention to the omitted factors, the trial court failed to address evidence of Dalton’s adjustment to his home, school, and community in Oklahoma as required by K.S.A. 2003 Supp. 60-1610(a)(3)(B)(v). Regarding this factor, the evidence showed that Dalton had lived with Katrina and Ashley in Oklahoma for tire last 6 years, had just completed his third-grade year, had made significant improvements in reading, and had earned A and B grades. Dalton was involved in several extracurricular activities, including cub scouts, soccer, 4-H, and church activities. In addition, Katrina planned to enroll Dalton in football for the next school year', and she had recently acquired a lamb for Dalton to show in 4-H activities. Ashley was also involved in showing sheep for 4-H activities, and she and Dalton spent time together caring for their sheep. Therapist Cheryl Legg testified that Ashley and Dalton have a very strong bond and depend on each other emotionally.

In addition, tire trial court failed to mention the spousal abuse that had occurred between Patrick and Lori. Spousal abuse is a factor required to be considered under K.S.A. 2003 Supp. 60-1610(a)(3)(B)(vii). Patrick and Lori became involved in a verbal dispute while Dalton and Ashley were visiting them, and a police officer was called to their house. Ashley and Dalton later told Legg that they had hard feelings about this fight. Dalton felt like he was in the middle of the fight. The trial court, however, did not explicitly consider the effect that this type of arguing between Patrick and Lori would have on Dalton once he began living with Patrick.

Clearly, this counterevidence would render the trial court’s holding that this was “an exceptional case” questionable. Here, the trial *854court omitted from its findings two important objective factors listed under K.S.A. 2003 Supp. 60-1610(a)(3)(B). Because the trial court failed to evaluate these two important factors along with its other findings, the trial court’s findings were inadequate.

Consequently, even by applying the majority’s “best interest of the child” test to determine when “an exceptional case” exists, the trial court’s findings were insufficient to support the trial court’s conclusion of law that this was “an exceptional case.”

Trial Court’s Findings

Turning our attention to the trial court’s findings, the majority states that “[w]hen a district court makes a finding, supported by substantial competent evidence, that divided custody is in a child’s best interests, the court has met the ‘exceptional case’ requirement of K.S.A. 2003 Supp. 60-1610(a)(5)(B).” In this case, the trial court concluded that all of the facts together made this “an exceptional case.” The trial court made the following 23 findings in determining that Dalton should reside with his father:

“1. That the parties are the parents of the minor children, to-wit: Ashley M. Williams born June 30, 1989; and Dalton K. Williams bom August 1, 1994.
“2. That the parties have joint custody of the two (2) minor children, and the Petitioner is now the residential custodian of both.
“3. That both parents love their children.
“4. That there is a presumption that the Court should keep siblings together, unless there is an exceptional case.
“5. That this Court considers tire history of this case and it began with a lack of cooperation by the custodial parent and that it was exacerbated by her move to Oklahoma.
“6. That her response to a Motion for change of custody was to attempt to take jurisdiction from Kansas and place it in Oklahoma, so that it would be more difficult for the Respondent to participate in any litigation that may have occurred regarding visitation or custody.
“7. That the near desperate effort to obtain counseling and a professional opinion in support of her position indicates an effort to not directly address the problem as it arose, but rather to assist her effort in refuting the Motion to Change Custody.
“8. That the truth is that there has been friction in tire relationship between Dalton and Ashley, even though they love one another.
“9. That there has been an expressed preference by Dalton, in a neutral setting, when there was not a motion pending, that he stay with his father, and there were rational reasons.
*855“10. That those rational reasons were:
a. That he viewed his mother’s parenting role as geared toward his older sister.
b. That he was discriminated against in a way that caused him to be considered less in the family relationship than his sister was.
c. That he had a preference to stay with his father, who apparently had the ability to show attention when necessary, and also participate in activities that Dalton apparently identified with and benefitted from.
“11. That the physical structures of the homes favor the Respondent’s arrangement and the space available for Dalton is more favorable opposed to Petitioner’s home.
“12. That the motivation to maintain a long term view of the parenting roles for both parents would be promoted by allowing Dalton to live with his father.
“13. That there is no persuasive evidence that the sibling relationship will be damaged.
“14. That there has been a lack of communication between the parties that can be improved, if the children are living in each home.
“15. That there is evidence that is persuasive that there has been a tug-of-war existing and that Dalton feels he is in the middle of it, and that it exists because there is a conflict regarding where he’s going to reside. It can be resolved by changing his residence.
“16. That it would be in Dalton’s best interests if he were to reside with his father.
“17. That all of the facts together, from the beginning of the case, do constitute a material change of circumstances to make that change of custody for Dalton.
“18. That the parties shall all continue in counseling to address communication among yourselves, and encourage the children to express their thoughts and feelings with you, and with one another.
“19. That this custody arrangement will promote the additional benefit of parenting inputs of both parents.
“20. That the exchange of Dalton shall take place on August 16, 2003, in El Reno, Oklahoma.
“21. That visitation/parenting time should occur in a manner that will allow the children to be together on weekends and holidays.
“22. That the parties should attempt to prepare a visitation/parenting time schedule to accommodate the order, however, should they be unable, they shall submit themselves to mediation.
“23. That the parties shall exchange child support worksheets.”

Katrina objected to these findings and asked the trial court to malte or identify those findings which made the case exceptional. As a result, the trial court made this holding:

*856“2. That pursuant to K.S.A. 60-1610(a)(5)(B), this is an exceptional case which justifies a divided custody order.”

In addition, the trial court made these findings:

“3. That generally all the facts together constitute an exceptional case.
“4. That specifically, the preference expressed by Dalton Williams to reside with his father, and the reasons given therefor [w]as the primary factor in determining that this is an exceptional case." (Emphasis added.)

The first two findings merely set forth Dalton’s and Ashley’s dates of birth and describe their custodial arrangement. From this information, we know that Ashley was 14 years old and Dalton was 9 years old at the time of the hearing. Although Patrick and Katrina had joint custody of the children, Katrina had been the residential custodian of both Dalton and Ashley since she and Patrick divorced in 1996.

In its third finding, the trial court acknowledged that both Katrina and Patrick love Dalton and Ashley. Finding 4 states the presumption “that the Court should keep siblings together, unless there is an exceptional case.”

Finding 5 states “[tjhat this Court considers the history of this case and it began with a lack of cooperation by the custodial parent and that it was exacerbated by her move to Oklahoma.” I was unable to find any evidence that Katrina was uncooperative in a manner that would have any bearing on the current custody determination. In fact, Katrina and Patrick were able to cooperate and work out a visitation schedule for summer 2003.

Although Katrina moved to Oklahoma during February 1997, this move occurred so that Katrina could be near her family and happened more than 6 years before the custody hearing. Katrina went to work for her family, remarried, and had another child in Oklahoma. Dalton and Ashley attend school in Oklahoma and are involved in numerous extracurricular activities. Under K.S.A. 2003 Supp. 60-1620(c), a move may be a material change of circumstances which allows the trial court to modify a prior custody order. In this case, however, tire evidence indicates that Patrick did not object at the time of the move. By not objecting when the move occurred, Patrick acquiesced in Katrina’s decision to establish a life *857for Dalton and Ashley in Oklahoma. Consequently, this finding was not supported by the record.

Finding 6 states that Katrina’s “response to a Motion for change of custody was to attempt to take jurisdiction from Kansas and place it in Oklahoma, so that it would be more difficult for the Respondent to participate in any litigation that may have occurred regarding visitation or custody.” At die time Katrina filed this motion, Dalton and Ashley had been residing with her for over 6 years in Oklahoma. Dalton was involved in several extracurricular activities and was attending school in Oklahoma. Because Dalton had significant contacts with Oklahoma, it is apparent that Oklahoma would have been a more appropriate forum for the presentation of evidence relating to Dalton. See K.S.A. 38-1354. For that reason, Katrina’s decision to move for the transfer of jurisdiction from Kansas to Oklahoma was reasonable and was irrelevant in determining whether this case was exceptional.

In finding 7, the trial court states “[tjhat the near desperate effort to obtain counseling and a professional opinion in support of her position indicates an effort to not directly address the problem as it arose, but rather to assist her effort in refuting the Motion to Change Custody.” This finding does not articulate “the problem” that Katrina should have addressed. The majority seems to refer to the “attempted fire-setting incident” as the problem, stating that the “incident occurred prior to Dalton’s March visitation with his father.” Katrina testified that she learned about the fire incident 2 days after it had occurred. She discovered some matches, sticks shaped in the form of a teepee around a bandana, and a scorched area on the siding of the house. Katrina further testified that she and Troy punished Dalton by spanking him and taking away some of his privileges.

Katrina testified that she contacted the school counselor in March about talking with Dalton. When she found out that a counselor at school could not see him, there were only 2 weeks remaining before Dalton left for Patrick’s house. Katrina and Patrick went to mediation in June, at which time the mediator recommended counseling for Dalton. Katrina testified that after talking with Patrick and the mediator, she felt that there probably were *858some concerns as far as Dalton’s emotional well-being. At that point, Katrina made an appointment with therapist Legg. Katrina testified that Dalton did not show any signs of being depressed at her home and was a happy child who played with his friends.

Dalton was at Patrick’s house from May 24, 2003, to June 8, 2003, and from June 21, 2003, to July 26, 2003. Two days after Dalton returned to Katrina’s house in July, Katrina took him to see Legg. As a result, the evidence does not support the trial court’s finding that Katrina made a “near desperate effort” to obtain counseling and did not address the “problem” as it arose.

In finding 8, the trial court acknowledged that Dalton and Ashley love one another but stated that there had been friction in their relationship. Ashley had commented that Dalton was hateful and rude and that her friends could not stand him. In addition, Patrick indicated that Ashley tried to parent Dalton. There was also evidence that Dalton was jealous of Ashley. From this evidence, I am unable to conclude that Ashley and Dalton were engaged in anything other than sibling rivalry that is a normal part of learning how to get along with others.

Finding 9 states “[tjhat there has been an expressed preference by Dalton, in a neutral setting, when there was not a motion pending, that he stay with his father, and there were rational reasons.” The trial court found that Dalton’s expressed preference to live with his father and the reasons given therefor was the primary factor in determining this was “an exceptional case.”

Dalton told therapist Steve Cagle and Patrick on several occasions that he wanted to live with Patrick. When Dalton visited with Cagle at the start of the summer, however, Dalton said: “ T don’t know if I want to live with my Dad as bad as what I said I did, but I still want him to go ahead and go to Court.’ ” In addition, Katrina testified that when she picked up Dalton from his visit with Patrick in March, Dalton stated: “ T might want to live with my dad, I don’t know for sure.’ ” By the time they got home, however, Dalton said: “ ‘Mom, I don’t want to live with Dad.’ ” When Legg spoke with Dalton at the end of the summer, Dalton said that he wanted to live with Ashley. Dalton told Legg that he was afraid to really talk to Cagle because of the information going back to Patrick. Legg *859testified that Dalton felt like he was torn between his parents and wanted to please both his mother and his father. Dalton’s statements to Patrick, Cagle, Legg, and Katrina indicate that he changed his preference about where he wanted to live depending on the person to whom he was talking.

Under finding 10, the rational reasons for Dalton’s expressed preference to live with his father were: (1) that he viewed Katrina’s parenting role as geared toward his older sister; (2) that he was discriminated against in a way that caused him to be considered less in the family relationship than his sister was; (3) that his father had the ability to show attention when necessary and also participate in activities that Dalton apparently identified with and benefitted from. The first two reasons for Dalton’s expressed preference for Hving with his father seem to be the type of normal feelings and conflicts that occur in most family relationships. Dalton told Cagle that he felt like his mom preferred Ashley over him and that he was bored and unhappy. Katrina testified that they spent a lot of time helping Ashley with her sheep. Nevertheless, Katrina and Troy made efforts to involve Dalton in several activities, including family activities with Ashley.

Turning my attention to the third reason, Patrick testified that Dalton would be able to play football at his school in Kansas and participate in other activities. In addition, Patrick had a flexible work schedule. Katrina, however, worked for her parents and was able to take care of the children after school. Dalton would also be able to play football the next school year in Oklahoma and was already involved in several other activities.

In finding 11, the trial court determined “[t]hat the physical structures of the homes favor the Respondent’s arrangement and the space available for Dalton is more favorable opposed to Petitioner’s home.” Dalton would have his own room at Patrick’s house as opposed to sharing a room with his half-brother at Katrina’s house. Aside from this aspect, Patrick’s house was located in town, and Patrick testified that Dalton would be able to play with the neighborhood children after school. In contrast, Katrina’s house was located in a rural area where their neighbors were about a mile away. Patrick testified that it was just Dalton, Ashley, and Robert *860together after school in Oklahoma. At Katrina’s house, however, the children were able to raise their livestock for 4-H shows. The evidence indicates that both types of living, city living versus country living, had advantages and disadvantages for Dalton.

The trial court again considered the relationship between Ashley and Dalton in finding 13 when it stated “[t]hat there is no persuasive evidence that the sibling relationship will be damaged.” This finding sets forth an unproved assumption that tire sibling relationship will not be damaged by the separation. To the contrary, Legg testified that Ashley and Dalton depended on each other emotionally and that this separation would be detrimental to both of them.

Findings 12, 14, 15, and 19 contain unproved assumptions that Patrick and Katrina will be motivated to maintain a long-term view of parenting if Dalton is sent to live with his father (finding 12), that the lack of communication between Patrick and Katrina will be improved if Dalton and Ashley are divided (finding 14), that changing Dalton’s residence will resolve his feelings about being in the middle of his parents’ conflict (finding 15), and that dividing Dalton and Ashley will promote the additional benefit of parenting inputs of both parents (finding 19).

I believe that the majority has conceded that findings 12,13,14, 15, and 19 are not actual factual findings but are rather opinions. At present, however, they remain tentative hypotheses which might very well prove false when additional evidence is collected. As a result, these findings were not supported by the record.

The remainder of the trial court’s findings were imperatives and legal conclusions. Specifically, the trial court concluded that it would be in Dalton’s best interests to reside with his father (finding 16) and that all of tire facts constituted a material change of circumstances to change Dalton’s custody (finding 17). The trial court directed that the parties continue in counseling (finding 18), that the exchange of Dalton should take place in El Reno, Oklahoma, on August 16, 2003 (finding 20), that visitation should allow Dalton and Ashley to be together on weekends and holidays (finding 21), that the parties should prepare a visitation schedule or go to mediation (finding 22), and that the parties should exchange child *861support worksheets (finding 23). Because these statements were imperatives and legal conclusions, they offer no support for the trial court’s conclusion that this was “an exceptional case.” Therefore, it is unnecessary to address them any further.

I note that the majority states that Dalton was “a disturbed child.” Nevertheless, in all the trial court’s findings of fact, the trial court never stated that Dalton was a disturbed child. Appellate courts make no findings of fact on review of a trial court’s judgment. See Craig v. Hamilton, 221 Kan. 311, 312, 559 P.2d 796 (1977) (It is not a function of the appellate court to make findings of fact.). Moreover, it is not the function of an appellate court to reweigh the evidence. Barrett v. Ninnescah Bow Hunters Ass’n, 15 Kan. App. 2d 241, 247, 806 P.2d 485, rev. denied 248 Kan. 994 (1991).

After reviewing die trial court’s 23 findings, I believe that the only findings that were relevant to the trial court’s holding that this was “an exceptional case” were those relating to Dalton’s expressed preference to live with his father and the rational reasons for this preference (findings 9 and 10), and to the physical structure of Patrick’s home (finding 11).

These findings were insufficient to support the trial court’s conclusion of law that this was “an exceptional case.” Although Dalton had expressed a preference to live with his father (finding 9), he wavered in these statements depending on the person with whom he was talking. Dalton was 8 years old at the time he made these statements. 24A Am. Jur. 2d, Divorce and Separation § 932 instructs: “When a child is of sufficient age and has intelligence and discretion to exercise judgments as to his or her future welfare, based upon facts and not mere whims, tiróse wishes are one factor that, within context, should be considered by the trial judge in determining custody.” In this case, Dalton’s young age combined with his inconsistent statements about where he wanted to live indicated that he was not of sufficient age and intellect to make a rational decision concerning his residency.

Our Supreme Court in Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263 (1968), made the following statements about a child’s preference in custody issues:

*862“A child’s preference in custody matters may, of course, be considered as an aid to the court in making a proper order. [Citation omitted.] Such preference, however, is always subordinate to the over-all best interests and welfare of the child. Thus, when there are objective factors affecting the child’s welfare that are contrary to his wishes, the latter must yield to the former. [Citation omitted.]”

Because the trial court omitted consideration of the previously mentioned objective statutory factors listed under K.S.A. 2003 Supp. 60-1610(a)(3)(B) from its findings and because the evidence was insufficient to establish that this was “an exceptional case,” I would reverse.