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No. 112,786

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of:

VEARL E. CRAWFORD,

Appellee,

and

EUGENIA L. CRAWFORD,

Appellant.

SYLLABUS BY THE COURT

1.

Maintenance settled by a separation agreement which is later incorporated into a 

divorce decree is not subject to modification by the court except as provided for by the 

agreement or as subsequently agreed to by the parties.

2.

When a court has ordered maintenance, it retains the power to modify future 

maintenance payments that have not already become due, irrespective of whether the 

original divorce decree specifically states such retention of jurisdiction.

3.

The court may not modify maintenance 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.
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4.

If the original divorce 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.

5.

Reinstatement also means the extension of maintenance beyond the original term 

provided in the original divorce decree.

6.

A district court's retention of the power to modify maintenance in a divorce decree 

does not amount to the retention of the power to reinstate or extend maintenance beyond 

the term originally provided.

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed June 12, 2015. 

Affirmed.

Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellant.

Amy C. Coppola, of Crow & Associates, of Leavenworth, for appellee.

Before PIERRON, P.J., BUSER and POWELL, JJ.

POWELL, J.: Eugenia L. Crawford appeals the district court's denial of her motion 

to reinstate and extend maintenance, arguing the court had jurisdiction to modify 

maintenance under the terms of the divorce decree and should have considered the merits 

of her motion. We disagree and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Eugenia and Vearl E. Crawford were married in October 1996. In October 2009, 

as part of the parties' separate maintenance action, they executed a stipulation and 

property settlement agreement which obligated Vearl to pay Eugenia "$1025 per month 

commencing in the month that either party leaves the marital residence, with a like 

amount to follow each month thereafter [on] the 1st day of the month until further Order 

of the Court. . . . Duration of the maintenance shall be 55 months."

Vearl subsequently filed for divorce, and the matter proceeded to trial on 

November 19, 2010, with witnesses and testimony. According to the journal entry and 

decree of divorce filed on February 11, 2011, the district court found, inter alia, the 

following:

"5. The parties were separated by Separate Maintenance Action and the parties 

signed and entered into a settlement agreement on October 8, 2009. The parties 

indicated by their signatures that the Settlement Agreement entered into by both 

parties was fair, just and equitable and the agreement set forth obligations and 

maintenance.

"6. The parties followed this Settlement Agreement until April of 2010, wherein the 

parties orally modified this agreement indicating that [Vearl] would pay al [sic]

of [Eugenia's] bills in lieu of any maintenance payments provided for in 

paragraph 3 of the Settlement Agreement.

"7. As there was no provisions [sic] in the Settlement Agreement prohibiting an oral 

modification of said agreement, that is now the agreement of the parties.

"8. [Vearl] has alleged more than half of his income is going to [Eugenia] and that is 

not fair, just or equitable.

. . . .

"11. K.S.A. 60-1610(b)(2) allows for the Court to determine if maintenance payments 

are appropriate given a demonstrated need by [Eugenia]. The Court finds $1025 a 

month an appropriate award of maintenance to [Eugenia]. . . .
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"12. The Court will adopt the written Settlement Agreement regarding the 

maintenance and debt of the parties to be paid by [Vearl] as valid, just and 

equitable and incorporates it herein by reference as though more fully set forth 

herein.

"13. The Court further finds that for a period of up to two years, as per the Settlement 

Agreement, [Eugenia] will take the entire amount of the maintenance payments, 

the mortgage and the car debt as maintenance payments to [Eugenia] as taxable 

income, paid by [Vearl] as income reduction for tax purposes.

"14. The Court finds that the maintenance outlined in this Decree of Divorce is valid, 

just and equitable and further reserves jurisdiction concerning said maintenance 

and the real estate of the parties for modification if necessary.

"15. The maintenance duration shall remain the same as outlined in the Settlement 

Agreement, which shall be effective January 1, 2011. [Vearl] will be given credit 

for nine (9) months of maintenance payments made through the months of April 

through December."

The parties agree the 55-month maintenance period referred to in the settlement 

agreement expired in October 2014.

In June 2014, Eugenia filed her motion to reinstate and extend maintenance. A 

hearing on the motion was held in August 2014; after hearing arguments the district court 

held the settlement agreement did not have a provision regarding retaining or reserving 

jurisdiction. The district court found that the divorce decree did state jurisdiction was 

reserved "'concerning said maintenance . . . for modification if necessary.'" However, the 

district court held:

"Modification and reinstatement are not similar things. In this particular case, 

modification in the context of Kansas law means that the Court has the authority to 

reduce the maintenance and the amount—from the amount of $1,025 downward but the 

Court is without jurisdiction to increase the maintenance upwards or to lengthen the 

period of time."
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The district court's journal entry stated: "The Court did reserve jurisdiction for the 

modification of maintenance as provided in paragraph 14 of the Decree of Divorce but 

there was no reservation of jurisdiction to reinstate or extend maintenance."

Eugenia timely appeals.

DID THE DISTRICT COURT ERR IN RULING IT DID NOT HAVE JURISDICTION

TO CONSIDER EUGENIA'S REINSTATEMENT AND EXTENSION MOTION?

On appeal, Eugenia argues the district court erred in concluding it did not have 

jurisdiction to reinstate and extend maintenance. She asserts two main points in support 

of this argument: (1) Because Vearl objected to the settlement agreement's maintenance

provisions at the divorce hearing, the maintenance ordered by the district court was not 

pursuant to the agreement of the parties, making it court ordered and therefore subject to 

modification; and (2) even if the ordered maintenance was pursuant to the agreement of 

the parties, the parties agreed to the district court's modification of the agreement by not 

appealing the language in the decree of divorce reserving the district court's jurisdiction 

to modify the maintenance pursuant to K.S.A. 2013 Supp. 23-2904.

Vearl counters that even if the district court retained jurisdiction to modify 

maintenance, it did not retain jurisdiction to reinstate or extend maintenance past October 

2014. Whether jurisdiction exists is a question of law over which this court's scope of 

review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743-44, 295 P.3d 542 (2013).

It is well established that maintenance settled by a separation agreement which is 

later incorporated into a divorce decree is not subject to subsequent modification by the 

court except as provided for by the agreement or as subsequently agreed to by the parties. 

In re Marriage of Hedrick, 21 Kan. App. 2d 964, 967, 911 P.2d 192 (1996); see K.S.A. 

2013 Supp. 23-2712(b).
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Alternatively, when a court has ordered maintenance, it retains the power to 

modify future maintenance payments that have not already become due, irrespective of 

whether the original divorce decree specifically states such retention of jurisdiction. In re 

Marriage of Evans, 37 Kan. App. 2d 803, 805, 157 P.3d 666 (2007); In re Marriage of 

Ehinger, 34 Kan. App. 2d 583, Syl. ¶¶ 3, 8, 121 P.3d 467 (2005), rev. denied 280 Kan. 

982 (2006). However, the power to modify maintenance is limited to reducing such 

maintenance:

"'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. The court may not 

modify 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. Thus, maintenance may be reduced downward, but not 

increased upward.'" (Emphasis added.) Ehinger, 34 Kan. App. 2d at 587 (quoting 

Blaylock & Lambdin, Property Division and Maintenance, 1 Practitioner's Guide to 

Kansas Family Law § 4.68, p. 4-30 [Leben ed. 2004]).

See K.S.A. 2013 Supp. 23-2903.

K.S.A. 2013 Supp. 23-2904 allows a court to extend maintenance beyond the term 

in the original divorce decree provided such authority is specifically retained:

"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."

Parenthetically, we note the relevant statutory language remains unchanged 

between the filing of the divorce decree in February 2011, when K.S.A. 60-1610(b)(2) 
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was applicable, and the filing of Eugenia's motion for reinstatement and extension of 

maintenance in June 2014, when K.S.A. 2013 Supp. 23-2904 was applicable. In the 

context of the present case, reinstatement means the extension of maintenance beyond the 

original term provided in the original divorce decree. See In re Marriage of Diesel, No. 

93,730, 2005 WL 3289430, at *2 (Kan. App. 2005) (unpublished opinion).

In light of these authorities, we need not decide whether the district court's order in 

the original divorce decree amounted to an adoption of the parties' agreement concerning 

maintenance or its own order because in neither case was there a specific reservation of 

jurisdiction to reinstate or extend maintenance beyond the 55-month period. The 

settlement agreement itself contains no provision for court modification, and the divorce 

decree only stated "the maintenance outlined in this Decree of Divorce is valid, just and 

equitable and further reserves jurisdiction concerning said maintenance . . . for 

modification if necessary." (Emphasis added.)

Because the settlement agreement and the original divorce decree did not 

expressly state or contain language making it unmistakably clear that the district court 

had continuing jurisdiction to hear motions for reinstatement or extension of maintenance 

beyond the initial order, the district court lacked jurisdiction under K.S.A. 2013 Supp. 23-

2904 to reinstate or extend maintenance beyond October 2014.

Affirmed.