dissenting: I disagree with the majority’s holding that incarceration of a parent is not a change in circumstances to justify the modification of an inmate’s child support obligation. Such a holding completely ignores reality. It may make one feel good, but it is simply an exercise in futility. I fail to see how such a ruling is in the best interests of the child. It certainly will not provide support for the child of an inmate and will make it harder, if not impossible, for the parent to pay adequate support after he or she is released from prison. It also exposes the parent to criminal contempt for failure to pay the child support. I would adopt the “complete-justification rule,” which would allow the trial court to modify the support obligation based upon the reality of the parent’s financial situation.
I further disagree with the majority’s treating this as a question of law. In my view, the applicable standard of review is abuse of discretion. The paramount question is what serves the best interests and welfare of the child. In determining the amount of the child support obligation, the court considers a number of factors— the most significant being the parent’s ability to pay support. That factor is no less significant if the parent’s inability to pay is due to sickness, loss of employment, or incarceration.
K.S.A. 1997 Supp. 60-1610 provides that the trial court may modify a child support order “when a material change in circumstances is shown.” Here, the trial court found that incarceration was a material change in circumstances to justify modification of the obligation to pay support. This court has found a change in lifestyle, moving out of state, moving to a different home, change *731in employment, and remarriage to be material changes in circumstances to justify a modification of a previous order of custody. In In re Marriage of Whipp (No. 76,766, this day decided), we hold that a “material change of circumstances is one that must be of a substantial and continuing nature to make the terms of the initial decree unreasonable.” Syl. ¶ 3. In my view, a reasonable person could hold incarceration of a parent is a material change of circumstances. I would affirm the district court.
Six, J., joins the foregoing dissenting opinion.