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No. 121,605

COURT OF APPEALS OF THE STATE OF KANSAS

IN THE MATTER OF THE MARRIAGE OF

STEVEN P. WELTER,

Appellant,

and

KIERA J. WELTER,

Appellee.

SYLLABUS BY THE COURT

1.

Spousal maintenance payments automatically cease upon the payee's cohabitation 

when the judgment awarding maintenance so provides, in the absence of statutory 

provisions to the contrary.

2.

When a divorce decree states that a certain event shall terminate maintenance and 

the district court finds that the terminating event occurs, the district court lacks the power 

to modify rather than terminate maintenance.

3.

The district court has wide discretion to adjust the financial obligations of the 

parties in initially determining maintenance, within the limits of the statutes governing 

maintenance. But once a divorce decree is filed, the court's ability to "do equity" is 

curtailed by the express provisions of the divorce decree and by the governing statutes.

So a district court abuses its discretion by trying to do under its equitable powers that 

which is contrary to the terms of the divorce decree or the maintenance statutes.
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Appeal from Miami District Court; STEVEN C. MONTGOMERY, judge. Opinion filed September 

11, 2020. Reversed and remanded with directions. 

Courtney J. Whiteley, of Cordell & Cordell, P.C., of Independence, MO, for appellant.

Lewanna Bell-Lloyd, of Olathe, for appellee. 

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

GARDNER, J.: Steven Welter appeals the district court's denial of his motion to 

terminate spousal maintenance to his ex-wife, Keira Welter. Steven argues that his duty 

to pay spousal maintenance automatically terminated in accordance with the terms of 

their divorce decree when Keira cohabited with another person, so the district court 

abused its discretion by modifying payments rather than terminating them. We agree.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2016, Steven petitioned to divorce Keira. At the divorce trial, the parties 

disputed how much spousal maintenance Steven would provide Keira. Steven claimed 

that Keira earned $48,000 a year and asked the district court to set maintenance at $500 a 

month for a year. Keira requested $1,457 a month for 76 months. 

The divorce decree ordered Steven to provide maintenance of $781 for 73 months 

through income withholding. The decree, which was not the product of a settlement 

agreement, included these conditions of termination:

"The spousal maintenance payments shall terminate upon any of the following: the 

expiration of the term period set above; the death of either party; remarriage of [Keira]; 

or [Keira's] 'cohabitation,' defined as living with a non-relative adult for substantially 
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consecutive periods of time in excess of thirty (30) days, even if said relationship does 

not amount to marriage-like 'cohabitation' under the common law of Kansas." 

The decree's only other language regarding spousal maintenance stated: "Spousal 

maintenance shall be modifiable pursuant to K.S.A. 23-2901 through 23-2904, but may 

not be modified or reviewed more than one (1) occasion every two (2) years. For the 

[Court] to hear a motion to modify, there must exist a departure of at least ten percent 

(10%)." 

In early 2018, contrary to a court order, Keira refused to sign closing documents 

for the sale of the marital home. So, on February 1, 2018, the district court temporarily 

suspended Steven's payment of maintenance and ordered Keira to begin making the 

mortgage payments. After a hearing, the district court made those orders permanent until 

Keira executed the necessary closing documents. But Keira never signed the documents, 

the buyer rescinded the contract, and the sale of the house fell through. 

In June 2018, the district court found Keira in contempt of court because she had

 violated his order to execute the closing documents;

 violated his order that she make monthly mortgage payments;

 removed items from the house that were not hers; and

 trashed the house. 

The district court ordered Kiera to pay Steven's attorney fees associated with her 

contempt, to reimburse her court-appointed attorney's fees, and to report to the county jail 

if she failed to sign closing documents on another offer for the house. 

Keira apparently signed the closing documents, as the house later sold. The district 

court then decided how to distribute the proceeds. To account for money Keira owed 
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Steven, the district court vacated Steven's monthly maintenance payments from 

November 2018 through March 2019. 

In December 2018, Steven moved to terminate spousal support. He asserted that 

Keira had been cohabitating with her boyfriend, Todd McGhee, and relied on the clause 

in the divorce decree that "spousal maintenance payments shall terminate upon . . .

cohabitation." In May 2019, the district court held a hearing on the matter. 

During the hearing, Keira argued that it would be inequitable to terminate spousal 

support. She lived with McGhee only because she was not then receiving maintenance 

payments and could not live on her own or with a family member. Keira was unemployed 

from June 2017 to December 7, 2018. She fell behind on rent in December 2017 and was 

evicted in May 2018. The parties stipulated that Keira had resided with McGhee from 

June 2018 until February 2019. For a short time, Keira lived with her mother in Joplin, 

Missouri but that was not a long-term option. So McGhee, whom Kiera had been dating, 

invited her to live with him. She did so for around nine months, then moved into an 

apartment in February 2019.

While living with McGhee, Keira did not pay rent or pay utilities. While McGhee 

was at work, Keira would babysit his minor son without compensation. She made meals 

for him and did household chores. She spent Independence Day and Christmas with 

McGhee and his son. McGhee paid for Keira's cellphone, car insurance, and gas. Keira 

admitted that she received a material financial gain or benefit from her relationship and 

residence with McGhee. 

After hearing the testimony, the district court denied Steven's motion to terminate 

maintenance. Yet the district court found that Keira had violated the cohabitation 

termination condition in the divorce decree during the nine months she lived with 

McGhee. It also found that she cohabited in a marital-like relationship as in In re 
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Marriage of Kuzanek, 279 Kan. 156, 158-62, 105 P.3d 1253 (2005) (applying the 

definition of "cohabitation" from In re Marriage of Kopac, 30 Kan. App. 2d 735, 737, 47 

P.3d 425 [2002]). Although it found that Keira met the cohabitation terms of the divorce 

decree, the district court decided not to terminate maintenance. Rather, it merely reduced 

the term of Steven's maintenance payments by nine months—the time Keira had 

cohabited with McGhee. 

The district court styled its order as a modification of the terms of spousal 

maintenance to balance the equities:

"It's not escaping the Court here that wife continues to, I'm just going to say in a 

train wreck like fashion, make these decisions that just causes her untold consequences."

"Now, this is a decision I've made today that husband is probably going to have a 

long talk with his lawyer about appealing it. Because, I mean, you read these facts of 

Kuzanek, and I'm finding that, consistent with Kuzanek, she lived and cohabited in this 

marital-like relationship during the period of time. I mean, the facts you can overlay 

them. There are some differences and distinctions, but I think those are not significant. 

Husband may well—may well want to appeal it. I don't know."

"But from wife's perspective, she can't keep making the decisions that she has

made postdivorce without consequence. It absolutely violates the specific language as 

well as the intent of the Court's orders. We can't undo the things that have been done. But 

I'm going to style my ruling today as a modification of the spousal maintenance orders in 

this case insofar as the term has been reduced as I have indicated."

. . . .

"So, in my own verbiage, wife dodged a bullet here. She really dodged a bullet. I 

came very close to following exactly what Kuzanek says, but I didn't. I just reduced the 

term. If this comes up again, I'll be more inclined than I am today to cut it off completely. 

I can't emphasize this strongly enough. Wife needs to make better decisions. There's 
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consequences. If this comes up again, the consequences will likely be more severe than 

they are—for her.

"I mean, I realize I have two parties here, you know. Husband is sitting over 

there saying, well, gees, the Judge just said she was cohabitating in violation of the 30 

days, how come that doesn't end it all. I mean, he's sitting over there. I'm trying to 

balance the equities here, and that's my ruling." 

Steven timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REDUCING SPOUSAL 

MAINTENANCE RATHER THAN TERMINATING IT?

On appeal, Steven argues the district court abused its discretion by not terminating 

spousal maintenance after it found that Keira had cohabited with McGhee, meeting that 

termination condition in the divorce decree. Steven asserts his duty to pay spousal 

maintenance automatically terminated when Keira lived with McGhee for thirty days, 

citing in In re Marriage of Quint, 258 Kan. 666, Syl. ¶ 2, 907 P.2d 818 (1995) and In re 

Marriage of Knoll, 52 Kan. App. 2d 930, 940, 381 P.3d 490 (2016). Thus, the district 

court lacked the power to modify the divorce decree under K.S.A. 2019 Supp. 23-2903. 

We note that neither party contends that the divorce decree retained jurisdiction 

under K.S.A. 2019 Supp. 23-2904 for the district court to reinstate maintenance, or that 

the district court reinstated maintenance after it had terminated. The parties focus their 

arguments on modification, not reinstatement, of maintenance. We do the same.

Steven contends that maintenance automatically terminated when Keira cohabited, 

as set forth in the divorce decree. Keira counters that because the district court had 

suspended or vacated maintenance during the time she lived with McGhee, her acts had 

no effect on Steven's duty to pay maintenance. In the alternative, Keira claims that under 
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K.S.A. 2019 Supp. 23-2903, the district court can modify a maintenance obligation at any 

time. Lastly, she claims the district court properly exercised its equitable discretion in 

reducing, rather than terminating, maintenance. 

STANDARD OF REVIEW

This court reviews a denial of a motion to terminate spousal support under the 

same standard as a review of a motion to modify maintenance, thus we apply a bifurcated 

standard. See Knoll, 52 Kan. App. 2d at 935. We review whether the trial court's factual 

findings are supported by substantial competent evidence and whether the trial court 

abused its discretion. 52 Kan. App. 2d at 935.

Steven does not dispute any of the district court's factual findings. And Keira does 

not dispute the district court's finding that she violated the cohabitation termination 

condition of the divorce decree by living with McGhee from June 2018 to February 2019. 

Thus we review this case only for an abuse of discretion. A judicial action constitutes an 

abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an 

error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 

893, 424 P.3d 515 (2018). "[F]or a district court decision to receive a full measure of . . . 

deference under the abuse of discretion standard, it must have been based upon a correct 

understanding of the law." State v. Hulett, 293 Kan. 312, 318-19, 263 P.3d 153 (2011).

ANALYSIS

Spousal maintenance, formally called alimony, is a discretionary order the district 

court may impose to obligate one spouse to pay the other spouse for future support. See 

K.S.A. 2019 Supp. 23-2901 et seq. A district court may award spousal maintenance, as 

well as set conditions for modification and termination of future maintenance, in a 

divorce decree. K.S.A. 2019 Supp. 23-2711(a)(3); K.S.A. 2019 Supp. 23-2902. This 

divorce decree was by order of the court without an underlying settlement agreement by 
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the parties. The district court thus has wide discretion to adjust the financial obligations 

of the parties in initially determining maintenance, within the constraints of the statutes 

governing spousal maintenance. See In re Marriage of Monslow, 259 Kan. 412, 414, 912 

P.2d 735 (1996). Steven argues that the district court abused its discretion because its 

modification of the initial maintenance terms did not conform to those statutes. See 

K.S.A. 2019 Supp. 23-2901 et seq.

Maintenance Automatically Terminated as Stated in Divorce Decree

Steven claims that his maintenance obligation automatically terminated under the 

divorce decree when Keira cohabited with McGhee. The divorce decree states:

"The spousal maintenance payments shall terminate upon . . . : [Keira's] 'cohabitation,' 

defined as living with a non-relative adult for substantially consecutive periods of time in 

excess of thirty (30) days, even if said relationship does not amount to marriage-like 

'cohabitation' under the common law of Kansas." 

The district court found, and Keira does not dispute, that these terms were met. Steven

relies on the plain language of the decree, stating that the maintenance payments shall 

terminate upon Keira's cohabitation.

Steven also relies on Quint. There, the Kansas Supreme Court held that 

maintenance payments automatically ceased upon the payee's remarriage. The divorce 

decree there ordered the husband to pay spousal maintenance for 30 months "'so long as 

the petitioner [did] not remarry or cohabitate with a member of the opposite sex.'" 258 

Kan. at 666. Six months later, the ex-wife remarried. Husband then filed her marriage 

license with the district court but did not move to modify or terminate spousal 

maintenance. Instead, he simply stopped paying maintenance. 
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Two and a half years later, the ex-wife obtained a garnishment order to recover 

unpaid spousal support from her ex-husband. But husband moved to set aside the 

garnishment, arguing his maintenance had automatically terminated upon wife's 

remarriage. The district court agreed. 258 Kan. at 667.

Our Supreme Court affirmed that decision, holding that maintenance automatically 

terminates upon the occurrence of a termination condition set out in the divorce decree, 

under K.S.A. 1995 Supp. 60-1610(b)(2). That statute shares identical language with 

K.S.A. 2019 Supp. 23-2901 et seq., although the new statute is reorganized. The court 

held: 

"Maintenance payments automatically cease upon the payee's remarriage when 

the judgment awarding maintenance so provides, in the absence of statutory provisions to 

the contrary and subject to the payee showing the alleged remarriage is void. Thus, we 

find [husband's] maintenance obligation automatically terminated upon [wife's] 

remarriage." 258 Kan. at 677. 

The court reasoned: "The parties are well aware of the terminating event, and it seems 

inherently unfair to require the payor to constantly monitor the payee's marital status and 

for the payee to profit by not revealing the occurrence of a terminating event." 258 Kan. 

at 673.

The Court relied on the fairness rationale in Dodd v. Dodd, 210 Kan. 50, 55, 499 

P.2d 518 (1972): "'Certainly [the payee] must have understood that by remarrying she 

was abandoning her claim for support under the agreement, for better or for worse in 

favor of whatever support would be furnished by her new spouse. [The payee] remarried 

and the alimony ceased.'" 258 Kan. at 676 (holding that the payor's maintenance 

obligation terminated upon the payee's remarriage even though the marriage was 

voidable).
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The Quint court also found that although the termination conditions in Dodd were 

defined in a separation agreement while the termination conditions in In re Marriage of 

Quint were ordered in a divorce decree, this distinction was irrelevant. 258 Kan. at 676. 

Thus, it makes no difference whether the termination conditions were defined in a 

separation agreement later incorporated into a divorce decree or rather were ordered in a 

divorce decree without any underlying separation agreement. The plain language of the 

document is the same, regardless of its source. And the binding effect of a divorce decree 

without an underlying separation agreement is no less than the effect of a divorce decree 

with an underlying separation agreement. 

Our cases have consistently applied Quint where the divorce decree explicitly 

states that the duty to pay maintenance shall terminate on a specific condition. Thus, in

Knoll, 52 Kan. App. 2d at 940, where the provision stated that husband's maintenance 

obligation would terminate once wife began cohabitating with another person, a panel of 

this court found "[t]he term 'shall' demonstrates that termination is mandatory, not 

discretionary. Consequently, the trial judge erred when he determined that he had 

discretion in determining the date when [husband's] maintenance obligation would 

terminate." The same is true here. The divorce decree's use of the term "shall" creates a 

mandatory duty for the judge to terminate maintenance. The decree did not use the term 

"may," which is permissive and would give the judge discretion to terminate maintenance 

or not.

Similarly, in Saroff v. Haun, 28 Kan. App. 2d 471, 473-74, 17 P.3d 943 (2001), a 

panel of this court reaffirmed that spousal maintenance terminates automatically upon 

remarriage when so provided for by separation agreement. See In re Marriage of 

Seymour, No. 106,124, 2012 WL 309332, at *5 (Kan. App. 2012) (unpublished opinion) 

(holding maintenance automatically terminated on wife's remarriage when the divorce 

decree stated that maintenance shall be terminated by wife's remarriage). 
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Although some cases involve remarriage instead of cohabitation, "the rule should 

apply equally to both situations: the obligation to pay maintenance terminates 

automatically the moment one party commits an act that requires the termination of 

maintenance under the separation agreement." Knoll, 52 Kan. App. 2d at 940. Of course, 

remarriage can be simple to determine and prove. But see Seymour, 2012 WL 309332 at 

*3-5 (disputing proof of a common-law marriage). Whether cohabitation has occurred for 

the stated time period and within the definition of that term in the divorce decree could be 

harder to prove than remarriage. But not here. The parties' stipulations, the uncontested 

evidence, and the district court's findings all agree Keira cohabited, as defined in the 

decree, and for the time stated in the decree, by late June 2018. Under these facts, given 

the cohabitation termination clause in the divorce decree, maintenance terminated 

automatically on that date. Steven was no longer responsible to pay spousal maintenance 

after June 2018.

Cases without automatic termination clauses are distinguishable.

Quint distinguished cases in which express termination conditions were not 

included in a divorce decree—in those cases spousal maintenance did not automatically 

terminate upon remarriage. 258 Kan. at 671-77. Thus, in Herzmark v. Herzmark, 199 

Kan. 48, 54, 427 P.2d 465 (1967), when an award of alimony was made payable until 

further order of the court, remarriage made "a prima facie case which requires the court 

to end it, in the absence of proof of some extraordinary circumstances justifying its 

continuance." 199 Kan. at 54. The court held that an award of alimony should not have 

continued after the wife's valid remarriage, where the wife failed to meet her burden of 

proving special circumstances of need justifying any continuance of alimony. 199 Kan. at 

55.

Similarly, in Wright v. Wright, 209 Kan. 628, 629-31, 498 P.2d 80 (1972), when 

the wife remarried, the court held it was error to refuse to terminate alimony payments 
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originally awarded which had not already become due as of the date husband moved to 

modify the decree, even though the decree specifically provided that alimony "shall not 

terminate because of the death or remarriage of the wife." Relying on Herzmark, the 

Wright court found that the district court cannot make alimony incapable of modification 

or termination upon death or remarriage, and that remarriage creates a prima facie case 

for termination. 209 Kan. at 630-31. The court found "no special circumstances or strong 

and compelling reasons in the appellee's situation which should place upon the appellant 

the burden of her continued support." 209 Kan. at 630.

Quint also distinguished Beck v. Beck, 208 Kan. 148, 490 P.2d 628 (1971) and In 

re Marriage of Cray, 18 Kan. App. 2d 15, 30, 846 P.2d 944 (1993), rev'd in part, 254 

Kan. 376 (1994), in the same way, as neither divorce decree included remarriage as an 

express termination condition. 258 Kan. at 674-75.

Yet the divorce decree here did contain specific termination conditions. The 

district court determined when drafting the divorce decree that cohabitation was an 

appropriate event warranting termination of maintenance. The termination conditions 

were clearly stated in the decree and were thus well known to Keira. Keira met that 

condition of termination in the divorce decree when she cohabited with McGhee. 

Although Keira could have disputed the fact of cohabitation, see Quint, (permitting the 

payee to show the alleged remarriage is void), Keira instead stipulated that she lived with 

McGhee from June 2018 through February 2019. And the district court found that she 

violated this termination condition of the divorce decree by cohabitating with McGhee 

for over 30 days. Under Quint, Steven's maintenance obligation automatically terminated 

when Keira violated this condition. 
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The district court's previous suspension of Steven's duty is immaterial.

Keira argues that, because the district court had suspended or vacated Steven's 

maintenance order for other reasons during her cohabitation with McGhee, "there could 

have been no acts [on her part] which would have caused the obligation to terminate." 

Yet she cites no authority to support her position. Failure to support a point with pertinent 

authority or to show why it is sound despite a lack of supporting authority or in the face 

of contrary authority is like failing to brief the issue. In re Adoption of T.M.M.H., 307 

Kan. 902, 912, 416 P.3d 999 (2018). This issue was not adequately briefed so was waived 

or abandoned. In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018).

And Keira's position has little logical appeal. We see no reason why a court's 

suspension of one party's duty to pay maintenance would relieve a different party from a 

separate duty under the decree (the duty not to cohabite or to suffer the automatic result 

of cohabitating). Nor would the district court's temporary suspension of Steven's duty to 

pay maintenance create some new right in Keira to ignore the plain terms of the divorce 

decree. 

The district court lacks power to modify after a terminating event.

After finding Keira in violation of the divorce decree's termination conditions, the 

district court "modif[ied] the terms of spousal maintenance" and found Steven did not 

have to pay maintenance payments for the nine months that Keira cohabited with 

McGhee. The district court stated that it had "jurisdiction to modify its Decree of Divorce 

as it relates to the payment of spousal maintenance so long as the obligation of the 

Petitioner is not increased." Steven contends this was an abuse of discretion. We agree.
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K.S.A. 2019 Supp. 23-2903 provides that a district court may reduce a 

maintenance award or lessen the conditions of payment in a divorce decree without 

consent of the burdened party on certain conditions:

"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."

The district court relied on this statute in modifying maintenance. But the divorce 

decree did not empower the district court to modify maintenance payments sua sponte as 

the district court did here. Rather, the decree contemplated a motion to modify—"For the 

[Court] to hear a motion to modify, there must exist a departure of at least ten percent 

(10%)." 

Nor do the relevant statutes give the court the power to modify maintenance sua 

sponte. Instead, the maintenance statutes contemplate that a party will file a motion to 

modify with the court. See K.S.A. 2019 Supp. 23-2904 (stating, "[t]he 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").

And we cannot reasonably construe Steven's motion to terminate maintenance as a 

motion to modify maintenance. That motion asked the court to enforce the terms of the 

original divorce decree, which said the spousal maintenance payments "shall terminate" 

upon Keira's cohabitation. Steven moved the court to enforce the original terms of the 

divorce decree, not to change them. See Seymour, 2012 WL 309332, at *5. 
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But even if a court can sometimes modify sua sponte, the court's modification of 

maintenance here was still prohibited by K.S.A. 2019 Supp. 23-2903. This is because the 

modification was done without Steven's consent, as shown by his appeal of the court's 

modification of maintenance, and the court's modification did not reduce Steven's 

payments; instead, the modification had "the effect of increasing or accelerating the 

liability for the unpaid maintenance beyond what was prescribed in the original decree." 

The original decree prescribed that Steven would have no liability for any unpaid 

maintenance after Keira's cohabitation, but the district court found that Steven had to pay 

maintenance after Keira's cohabitation ended. The district court thus altered the terms of 

the original decree, increasing Steven's liability for maintenance beyond the date 

maintenance terminated according to the original terms of the decree. Cf. Quint, 258 Kan. 

at 670. The district court lacked the power to modify the original decree in that way 

under K.S.A. 2019 Supp. 23-2903 ("[N]o 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.").

And, as noted above, our caselaw establishes that the district court cannot modify 

maintenance once a terminating event has occurred. Knoll, 52 Kan. App. 2d at 940

(finding the trial judge erred by determining that he had discretion to terminate husband's 

maintenance obligation on a date other than the date in the divorce decree). See Beck, 208 

Kan. at 148-50 (finding court's order of modification should have been an outright 

termination of alimony when wife remarried).

Equitable argument fails

Keira also makes an equitable argument, stating the result was fair and equitable 

considering the circumstances. She argues that the court's orders in essence forced her 

into a position where she had no choice but to reside with a third party, so it would be 

inequitable for the court to then terminate maintenance.
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We are unpersuaded by this equitable argument for five reasons. First, because the 

termination of maintenance was automatic, ending Steven's legal duty to pay 

maintenance neither required a motion by Steven nor provided an opportunity for Kiera 

to argue a defense of special circumstances or inequities. Compare Quint, 258 Kan. at 

671-677 (rejecting the argument that the payee may have a defense to the remarriage 

which should be heard before the maintenance is terminated when the decree specifically 

states remarriage is a termination condition) with Herzmark, 199 Kan. 48 at 51-54 

(finding a payee's remarriage does not necessarily terminate maintenance if special 

circumstances justify continuation of the maintenance, where decree ordered the payor to 

pay maintenance "until the further order of the court" and did not include remarriage as a 

termination condition in the decree). Although Herzmark and Wright permit a payee to 

show "special circumstances," that exception does not apply here. Those circumstances 

are presented by way of defense to refute a prima facie case of remarriage where a decree 

orders payment until further order of the court or the decree does not include specific 

termination conditions. But the decree here does not order payment of maintenance until 

further court order. Instead, it states maintenance shall terminate upon wife's 

cohabitation. Because maintenance terminates automatically, no defense of special 

circumstances is permitted. 

Second, even if a defense were permitted, the special circumstances contemplated 

in Herzmark and Wright are only "special circumstances of need." Herzmark, 199 Kan. at 

53-54. Herzmark found "proof of a valid remarriage does make a prima facie case which 

requires the court to end [alimony], in the absence of proof of some extraordinary 

circumstance justifying its continuance." 199 Kan. at 54. Similarly, Wright, 209 Kan. at 

630, found "no special circumstances or strong and compelling reasons in the appellee's 

situation which should place upon the appellant the burden of her continued support." 

Keira makes no attempt to show she had extraordinary need justifying continuance of the 

maintenance payments. Instead, the record refutes such a need. By the date the court 

ordered Steven's modified maintenance to begin, Keira had a job, her own income, an 
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apartment, a car, and a boyfriend who had demonstrated his willingness to help as 

needed.

Third, the record does not support Kiera's factual contention that the court forced 

her into cohabitation. Keira was responsible to make her own choices and to bear the 

consequences of her decisions. The district court suspended maintenance—Keira's only 

source of income for a time—only because she chose to defy a court order. And it 

reduced her proceeds from the sale of the family home because of fines resulting from 

her contempt of court. Keira knew that maintenance would end if she cohabited with 

McGhee. See Quint, 258 Kan. at 673; Dodd, 210 Kan. at 55 (holding spouse responsible 

for violating known conditions in the divorce decree's termination clause). No inequity 

arises from enforcing the unambiguous termination clause in the divorce decree.

Fourth, a district court must follow the law, even if doing so may create what one 

party may consider to be an inequitable circumstance. The relevant law provides 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. 2019 Supp. 23-2902(a). This statute shows that a district court's 

opportunity to do equity is not when asked to enforce a decree's automatic termination 

clause—it is when the district court first determines the amount of maintenance, if any, to 

award in a divorce decree. The district court here had already found the divorce decree 

and its cohabitation termination provision to be valid, just, and equitable. The court must 

exercise its powers within the limits of the jurisdiction conferred by statute, and this 

statute limits the exercise of equity powers to the initial determination of maintenance.

Once a divorce decree is filed, the court's ability to "do equity" is curtailed by the 

express provisions of the divorce decree. Obviously, the district court may exercise its 

equitable powers to enforce provisions of the decree or to craft a remedy under 

circumstances not provided for in the decree. But Keira shows no authority for the 
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proposition that the district court may exercise its equitable powers to contradict express 

provisions of the decree, as the court did here. The district court abuses its discretion by 

trying to do, under its equitable powers, something contrary to the very terms of the 

decree it drafted. So the district court could not equitably refuse to terminate Steven's 

maintenance after finding the termination condition in the divorce decree had occurred.

Fifth, although the district court could have stated in the divorce decree that 

cohabitation would modify, instead of terminate, future maintenance payments, it did not 

do so. See K.S.A. 2019 Supp. 23-2902(c) (providing that a divorce decree "may make the 

future payments modifiable or terminable under circumstances prescribed in the decree"). 

Instead, the divorce decree stated solely that "spousal maintenance payments shall 

terminate" upon cohabitation. 

CONCLUSION

The district court abused its discretion, by error of law, because it lacked the 

authority to modify spousal maintenance. The district court should have enforced the 

original divorce decree and terminated Steven's duty to pay spousal maintenance after 

June 2018. We remand with directions for the district court to do so.

Reversed and remanded with directions.

* * *

ATCHESON, J., dissenting: This case has become one about the statutory authority 

and judicial discretion of district courts to manage and modify spousal maintenance 

orders as part of a calibrated division of a divorcing couple's financial obligations and 

resources. The majority throttles that authority and discretion into near legal lifelessness 

when it comes to modifying maintenance orders by erroneously reading the governing 
19

statutes in a way that squeezes fairness and equity out of those judicial decisions. In this 

case, the district court acted within what should be recognized as its proper statutory 

discretion to modify rather than terminate the maintenance payments. I, therefore, 

respectfully dissent and would affirm the district court's ruling. 

Here, the district court twice modified its original order on spousal maintenance, 

consistent with K.S.A. 2019 Supp. 23-2903, first to adjust the conditions of payment and 

later the total amount to be paid. Those rulings benefited the former husband as the party 

obligated to pay maintenance. The district court later exercised that same statutory 

authority to deny the former husband's motion to terminate the maintenance and instead 

reduced the number of payments due—the decision prompting this appeal. All of those 

rulings fell within a district court's properly defined statutory authority and discretion and 

should be reviewed for abuse of that broad latitude. I see no such judicial overreach and 

would affirm the district court's decision to limit rather than terminate the maintenance it 

had ordered. 

The majority reverses the district court ostensibly for having stepped outside the 

appropriate legal framework. But the majority has recrafted that framework by clipping 

the authority of district courts to adjust maintenance obligations to account for evolving 

circumstances after a divorce decree has been entered. In this case, the new legal rule 

relieves the former husband of his obligation to pay maintenance and, thus, imposes a 

reciprocal detriment on the former wife. To reach that result, the majority effected a 

systemic change that grossly curtails district courts' flexibility to adjust spousal 

maintenance in future cases.

Underlying Facts and Governing Statutes

Some salient facts and related legal rules should be set out to place the dispute and 

the consequences of its resolution in a proper context:
20

⦁ In the decree granting a divorce to Steven P. Welter and Keira J. Welter, the 

Miami County District Court ordered Steven to pay $781 a month in maintenance to 

Keira for 73 months. The district court fashioned the amount and duration of the 

maintenance as one component of a financial accounting of their relationship, including 

their earning capacities, to make an equitable allocation of the marital assets and 

liabilities. See K.S.A. 2019 Supp. 23-2711(a)(2) (in divorce decree, district court may 

order "an equitable division of the parties' property"); K.S.A. 2019 Supp. 23-2802(a) 

(district court may order one party "to pay a just and proper sum" in rendering a fair 

division of property); In re Marriage of Thrailkill, 57 Kan. App. 2d 244, 246, 452 P.3d 

392 (2019) ("district court has broad authority in a divorce action to divide the parties' 

assets and debts equitably"). 

The maintenance award was not a product of a separation agreement between 

Steven and Keira that the district court then incorporated into the divorce decree. 

Contrary to the majority's suggestion, that does make a difference. An incorporated 

separation agreement is both an order of the district court and a contract between the 

parties. Once the district court has reviewed a separation agreement and found it to be 

fair, the terms of the agreement incorporated into the divorce decree generally cannot be 

modified except by mutual agreement of the parties, consistent with its contractual 

character. K.S.A. 2019 Supp. 23-2712 (no modification of court-approved agreement 

except as provided in agreement itself or as the parties later agree).

⦁ The decree provides that spousal maintenance terminates upon the death of 

either Steven or Keira or Keira's remarriage or her "'cohabitation,' defined as living with a 

non-relative adult for substantially consecutive periods of time in excess of thirty (30) 

days, even if said relationship does not amount to marriage-like 'cohabitation' under the 

common law of Kansas." The decree also provides that maintenance may be modified 

consistent with K.S.A. 2019 Supp. 23-2901 through K.S.A. 2019 Supp. 23-2904. But 

payments "may not be modified or reviewed more than one (1) occasion every two (2) 
21

years" and for "a motion to modify, there must exist a departure of at least ten percent 

(10%)."

Under K.S.A. 2019 Supp. 23-2903, a district court can "[a]t any time" with 

reasonable notice "modify the amounts or other conditions for the payment of any portion 

of the maintenance originally awarded that has not already become due." But the district 

court cannot "increas[e] or accelerat[e]" the payment of maintenance without the consent 

of the party obligated to pay. K.S.A. 2019 Supp. 23-2903. Here, the district court clearly 

retained the liberal authority to modify spousal maintenance established in K.S.A. 2019 

Supp. 23-2903 by explicitly incorporating into the decree the statutes applicable to 

maintenance. The remaining language in the decree limiting modification regulates 

motions of the parties rather than independent actions of the district court.[*]

[*] I presume a district court would retain the authority over spousal maintenance 

vested in K.S.A. 2019 Supp. 23-2901 through K.S.A. 2019 Supp. 23-2904 without 

specifically reserving that authority in the decree. Conversely, a district court probably 

could expressly curtail or relinquish that authority. And as I have mentioned, a district 

court is statutorily precluded from modifying maintenance set out in a separation 

agreement of the parties then incorporated into the divorce decree. K.S.A. 2019 Supp. 23-

2712(b). Here, the district court's explicit recitation of its statutory authority marks a clear 

counterpoint to the limitations on motions from the parties. 

⦁ For purposes of this appeal, Keira's residency with Todd McGhee, who is 

described in the record as her boyfriend, met the definition of cohabitation in the decree. 

The definition, however, is arguably ambiguous or could lead to unintended 

consequences in other factual circumstances, underscoring the desirability of judicial 

discretion and flexibility. The verb "cohabit" can mean either "to live together as husband 

and wife . . . when not legally married" or "to live or exist together; share the same 

place." Webster's New World College Dictionary 290 (5th ed.) (defining "cohabit"). The 

former connotes an intimate relationship; the latter does not. The decree, by including 

relationships that are not "marriage-like," quite arguably would cover Keira being a 

boarder in someone else's home or even a long-term guest.
22

⦁ In allocating assets and liabilities in this case, the district court ordered the 

marital residence sold and directed how the proceeds should be divided. That's not at 

issue here. But the record demonstrates Keira deliberately confounded the process in 

ways that caused one potential sale to fall through and reduced the net amount realized 

from a later sale. And significantly here, the district court excused Steven from paying 

spousal maintenance to Keira beginning in February 2018 as a means of coercing Keira 

to cooperate in selling the house. After the sale, the district court terminated the 

maintenance payments due from November 2018 through March 2019 to even out the 

overall financial distribution. Those orders plainly modified to Steven's benefit the 

amount and conditions for payment of spousal maintenance set out in the decree.

⦁ When the district court entered its orders, Keira was not otherwise employed and 

depended on the maintenance payments. After the district court suspended the payments, 

Keira was evicted from her apartment and lived briefly with her mother. She moved in 

with McGhee in June 2018. Steven filed a motion in December 2018 to terminate the 

maintenance because Keira was cohabitating with McGhee. The district court held a 

hearing on the motion in May 2019. By the time of the hearing, Keira had gotten a job 

and had moved out of McGhee's house. For purposes of the hearing, the parties stipulated 

that Keira had resided with McGhee from June 2018 until February 2019. And they 

agreed the arrangement constituted cohabitation as defined in the decree.

After hearing evidence on Steven's motion, the district court again modified the 

original maintenance order by shortening the payment period by nine months. The 

reduction corresponded to the time Keira lived in McGhee's home and reflected the 

district court's deliberate and studied determination of how to fairly assess spousal 

maintenance going forward as part of the overall financial reconciliation between Steven 

and Keira necessitated by their divorce. Steven appealed the district court's ruling, and 

the majority has reversed it. I now turn to the legal analysis of these circumstances.
23

District Court Properly Exercised its Statutory Authority

The decision of a district court to modify spousal maintenance entails an exercise 

of judicial discretion and should be reviewed on appeal for an abuse of that broad 

authority. In re Marriage of Hair, 40 Kan. App. 2d 475, Syl. ¶ 2, 193 P.3d 504 (2008)

("The district court has wide discretion regarding spousal maintenance, and an appellate 

court will only disturb a judgment regarding maintenance if there was a clear abuse 

of discretion."); In re Marriage of Santee, No. 117,222, 2018 WL 475477, at *10 (Kan. 

App. 2018) (unpublished opinion). A district court can overstep in three ways: (1) 

coming to a conclusion no reasonable judicial officer would under the circumstances; (2) 

ignoring controlling facts or relying on unproven factual representations; or (3) acting 

outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. 

ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward, 

292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). 

On appeal, nobody has suggested the district court failed to grasp the relevant 

facts, and the majority does not premise its decision on some factual misunderstanding by 

the district court. I agree. An abuse of discretion cannot rest on that ground. The district 

court's serial modifications of the maintenance payments over the course of the case 

conform to the authority granted in K.S.A. 2019 Supp. 23-2903 and, therefore, fit within 

the governing legal framework. In sum, the district court here retained the discretionary 

authority granted in K.S.A. 2019 Supp. 23-2903 to modify the payments and conditions 

governing spousal maintenance. As I explain in laying out the majority's misreading of In 

re Marriage of Quint, 258 Kan. 666, 907 P.2d 818 (1995), that authority extended to the 

termination-on-cohabitation clause the district court included in the decree. 

With those givens, I cannot say the district court's decision to shorten the 

maintenance period rather than to terminate the maintenance in response to Steven's 

motion was unreasonable. Nothing in the record suggests the parties' relative financial 
24

circumstances had so dramatically shifted between the entry of the decree and the hearing 

on the motion to warrant the outright termination of maintenance for that reason. Steven 

makes no alternative argument for reversing the district court on that basis. 

When the district court heard Steven's motion, it considered all of the 

circumstances, including its earlier decisions cutting off maintenance to Keira, the 

repercussions of those decisions, and the comparative financial circumstances of Steven 

and Keira. Taking account of those facts, the district court concluded that terminating the 

remainder of the maintenance would be inequitable and, instead, reduced the duration of 

Steven's continuing obligation by a period corresponding to the time Keira resided with 

McGhee. The district court had the legal authority to revise its own maintenance order in 

the decree to preserve the overall financial equities it sought to implement at that time. So 

I see no abuse of discretion and would affirm the district court, especially under that 

standard of review. 

The majority, however, constructs an errant legal framework and declares the 

district court to have deviated from the governing rules it has created. As I explain, the 

majority's approach both conflicts with the statutes applicable to maintenance and

misreads caselaw, most notably Marriage of Quint. The result is a marked and 

unjustifiable restriction on district court authority when it comes to regulating spousal 

maintenance. Because the majority devises its own legal rules for adjusting maintenance 

awards and relies on them to reverse, it never really considers whether the district court's 

decision to shorten the period Steven had to pay maintenance was so off the mark as to be 

intrinsically unreasonable. 
25

Majority's Rationale Considered

A. Misconstruing and Misapplying In re Marriage of Quint 

The majority relies heavily on Marriage of Quint, as has Steven. In that case, the 

Kansas Supreme Court held that a provision in a divorce decree terminating spousal 

maintenance for remarriage is self-effectuating upon the marriage and requires no judicial 

order. 258 Kan. at 677. So the obligated party can simply stop paying. Handing parties 

largely unregulated authority to abandon court orders upon a condition subsequent seems 

like a fraught proposition, but that is not for me to say when it comes to remarriage 

clauses in divorce decrees. Correlatively, Marriage of Quint establishes that a district 

court cannot modify or mitigate a clause terminating support upon remarriage. The 

majority cites other Kansas cases decided after Marriage of Quint that have applied those 

principles when the recipient of maintenance has remarried. 

But Marriage of Quint is materially distinguishable here in two respects. First, of 

course, it deals with remarriage rather than cohabitation, and both the reasoning and the 

holding of the decision are confined to remarriage. There are substantive differences that 

weigh against extending the rule of Marriage of Quint to cohabitation. As the decision 

points out, someone who has gotten married typically creates a discernible document trail 

leading up to and confirming the event. Except in comparatively rare instances where 

legal capacity might be in dispute, the fact of remarriage will be clear cut and easily 

determined. (And the court recognized a limited exception permitting a hearing if there 

were a colorable claim of incapacity or some other circumstance rendering the remarriage 

void.) Proof of cohabitation, however, commonly won't be nearly as tidy, especially if, as 

here, the definition in the decree is itself untidy. 

Furthermore, civil marriage carries with it recognized legal duties, generally 

including spousal support at least for necessities. See Williams v. GEICO General Ins. 
26

Co., 311 Kan. 78, 83-84, 456 P.3d 222 (2020). Remarriage, then, reasonably replaces a 

former spouse's obligation to pay maintenance with the duty of the new spouse to 

financially secure the household. The same is not true of cohabitation in this state. A 

district court has the statutory authority under K.S.A. 2019 Supp. 23-2903 to enforce a 

termination-upon-cohabitation clause upon notice and hearing. Potential remedies would 

include orders or judgments for repayment of maintenance wrongfully received after the 

impermissible cohabitation had begun. That's sufficient in dealing with potentially hazy 

circumstances bound up in what the party obligated to pay support alleges to be the 

recipient's cohabitation. 

Self-help and legal untidiness are ingredients in a recipe not only for messy 

litigation but for the abusive or vindictive withholding of maintenance payments based on 

the recipient's purported cohabitation. A district court awards spousal maintenance as part 

of a fair and equitable allocation of financial obligations and resources between partners 

in a marriage when they decided to end their partnership. By design, then, maintenance 

functions as an integral part of the recipient's economic stability. A decision of the 

obligated party to unilaterally cut off those payments would commonly inflict some 

substantial degree of financial harm. The risk of an unwarranted self-help termination of 

maintenance—whether through misperception or spite—would be much greater with a 

claim of cohabitation than remarriage. And an obligated party's claim of good-faith error 

would be more difficult to disprove in a case of cohabitation than remarriage. In turn, the 

incentive to act with comparative impunity from later court sanctions would be greater. 

In short, the near absolute rule laid down in Marriage of Quint on the effect of 

remarriage doesn't translate well to cohabitation. The Quint decision rather conspicuously 

does not invite or encourage that translation, even though the clause in the decree 

conditioned termination on remarriage or cohabitation. The majority has no obligation to 

extend Marriage of Quint to this case, and the decision to do so represents a bad idea and 

poor policy.
27

Both the majority and Steven suggest we did apply Marriage of Quint to 

cohabitation clauses in divorce decrees in In re Marriage of Knoll, 52 Kan. App. 2d 930, 

381 P.3d 490 (2016), but that isn't really correct. The court in Knoll recognized that it 

should enforce without modification a clause terminating maintenance upon cohabitation 

specifically because the parties had included it in their negotiated settlement agreement 

then incorporated into the decree. 53 Kan. App. 2d at 939-40; see also K.S.A. 2019 Supp. 

23-2712 (precluding modification of settlement agreements incorporated into decrees, 

except as to child custody and support). The dispute in Knoll centered on what the parties 

meant by the undefined term "cohabitation" and whether the ex-wife had cohabitated 

within the meaning of their settlement agreement. Here, Steven and Keira had no 

settlement agreement, so the district court was not similarly constrained in modifying the 

divorce decree's treatment of maintenance under K.S.A. 2019 Supp. 23-2903. 

The second and perhaps more significant difference between this case and 

Marriage of Quint is the district court's intervention substantially reducing the 

maintenance due Keira both before she moved in with McGhee and while she resided in 

his house. Those rulings helped to precipitate and prolong Keira's living arrangements, 

setting this case apart from Marriage of Quint and the remarriage there. 

The parties have not questioned the district court's authority to have modified the 

maintenance payments twice before Steven filed his motion to terminate them. Nor do I. 

The district court initially suspended the payments as a means of pressuring Keira to sign 

documents and otherwise take the steps necessary to complete the sale of the marital 

residence in conformity with the divorce decree. In doing so, the district court reasonably 

concluded the loss of maintenance would inflict an economic injury on Keira of sufficient 

gravity to prompt her compliance with the decree. The ruling operated as a sanction in 

civil contempt to compel adherence to the district court's orders. And it fit within the 

statutory authority afforded the district court to modify maintenance in K.S.A. 2019 

Supp. 23-2903.
28

After the sale of the marital residence, the district court again suspended Steven's 

obligation to pay maintenance as an equitable setoff against the diminution in net 

proceeds from the transaction directly attributable to Keira's wrongful conduct. See In re 

Estate of Heiman, 44 Kan. App. 2d 764, 772, 241 P.3d 161 (2010) (recognizing setoff as 

equitable remedy). The district court's modification of the maintenance amount and 

conditions for that purpose also came within its authority under K.S.A. 2019 Supp. 23-

2903. That seems particularly true when the setoff aimed to restore the fair disposition of 

the house as a marital asset. 

Those rulings directly and adversely affected Keira's financial situation, and they 

played some part in her living arrangements. After the district court first suspended the 

maintenance payments, Keira was evicted from her apartment for nonpayment. She lived 

briefly with her mother and then resided with McGhee. Those choices were, of course, 

volitional broadly speaking. Keira had other options—she could have stayed in a shelter 

or a flophouse. More realistically, she might have aggressively sought gainful 

employment sooner. And Keira invites no sympathy, since her own contumacious 

behavior set in motion the entire sequence of events. None of that was lost on the district 

court. 

The circumstances stand apart from those in Marriage of Quint; there were no 

district court rulings in that case adversely affecting either the spousal maintenance 

originally ordered or other terms of the decree. In that sense, the decision to remarry was 

pristine and unaffected by any district court orders or actions. The Quint court did not 

speculate that its analysis or ultimate determination would have been influenced, let alone 

changed, if the district court had temporarily cut off maintenance payments before the 

remarriage. One might infer not, but that would be more of a guess than a reasoned 

inference, since the bulk of the opinion consists of a point and counterpoint narration of 

the parties' arguments with little in the way of an enunciated rationale for the result. And 
29

to reiterate, the court assiduously avoided even mentioning cohabitation, further 

removing that case from this one.

Majority's Five Reasons for its Ruling Fall Short

In addition to extending Marriage of Quint, the majority crafts a quintet of reasons 

it says supports reversing the district court. Those reasons effectively eliminate the 

statutory discretion in K.S.A. 2019 Supp. 23-2903 to regulate maintenance. And they 

suggest district courts cannot modify maintenance to preserve fairness and equity in the 

parties' overall financial reconciliation. Basically, the majority holds this district court 

and all district courts in similar situations have no equitable or discretionary authority to 

act. The negation of that authority is surprising, sweeping, and quite troubling. I take up 

the arguments as the majority presents them:

⦁ The majority says termination of Steven's obligation to pay maintenance was 

automatic and again cites Marriage of Quint. This is not really an additional reason and 

simply summarizes the majority's principal reliance on that case. It remains mistaken 

precisely because Marriage of Quint and the other cases involving remarriage are 

inapposite and because the district court here otherwise retained the discretion under 

K.S.A. 2019 Supp. 23-2903 to modify the terms and conditions governing the 

maintenance it had ordered in the decree. 

⦁ The majority says Keira showed no "special circumstances" warranting relief. It 

points out that by the time the district court heard Steven's motion, Keira had a job and 

had moved out of McGhee's house. Those are two different considerations, neither of 

which is persuasive. 

Kansas appellate cases more or less presume maintenance should terminate if the 

recipient remarries even though the decree generically permits termination only upon 
30

further order of the district court. Those cases suggest a district court might find special 

circumstances in some rare situation to continue maintenance after remarriage. 

Without resorting to a special circumstances exception, I would find the district 

court's withholding of maintenance payments first as a contempt sanction against Keira 

and then as a setoff mechanism in favor of Steven to be a sufficient basis for the district 

court to then modify the termination-on-cohabitation clause. The district court made the 

last modification, in part, to account for the effects of its own actions in withholding 

maintenance earlier. 

As to Keira's financial condition at the time of the hearing, the district court 

factored that into its decision to continue Steven's obligation to pay maintenance while 

reducing the total amount. The decision reflects precisely the sort of discretion a district 

court is supposed to exercise in setting or later reevaluating an award of maintenance. As 

I have said, nobody has argued the comparative economic positions of Steven and Keira 

at the time of the hearing rendered some continuation of maintenance an abuse of 

discretion.

⦁ The majority says the district court did not "force" Keira into cohabitating with 

McGhee. That's certainly true in a literal sense. As I have discussed, the district court's 

orders halting the maintenance for an extended time were a precipitating factor, among 

others, leading to Keira's cohabitation. Keira had other choices, some of which would 

have been distinctly inconvenient and uncomfortable. As we all agree and have 

repeatedly recounted, Keira's own bad behavior kicked off the sequence of events that led 

to her cohabitation and Steven's motion to terminate spousal maintenance. But those 

circumstances did not negate the district court's statutory discretion under K.S.A. 2019 

Supp. 23-2903 to modify the maintenance it had ordered in the decree. They bear on the 

district court's exercise of its discretion—not the existence of the discretion. 
31

The argument really sounds a lot more like my colleagues suggesting they would 

have granted Steven's motion to terminate. And if they were district court judges that 

might not have been an abuse of discretion. But we don't substitute what we would have 

done for what the district court actually did in applying an abuse of discretion standard.

See State v. Grado, No. 119,288, 2020 WL 1223713, at *2 (Kan. App. 2020) 

(unpublished opinion) petition for rev. filed April 16, 2020; State v. Smith, No. 112,530, 

2015 WL 4580440, at *10 (Kan. App. 2015) (unpublished opinion) (Atcheson, J., 

concurring in part and dissenting in part) ("Disagreement with the district court—even 

strong disagreement—doesn't translate to an abuse of discretion."). On the facts and the 

law, this may be one of those cases in which the district court would not have abused its 

discretion with a ruling either way. See Arbor Lake, LLC v. Enterprise Bank & Trust, No. 

109,757, 2014 WL 4723732, at *4 (Kan. App. 2014) (unpublished opinion); Brick 

Masters, Inc. v. Murray & Sons Construction Co, Inc., No. 107,426, 2013 WL 1729249, 

at *3 (Kan. App. 2013) (unpublished opinion).

⦁ The majority's final two points both turn on K.S.A. 2019 Supp. 23-2902, 

governing inclusion of spousal maintenance in the divorce decree. Under K.S.A. 2019 

Supp. 23-2902(a), the district court may include maintenance in the decree "in an amount 

the court finds to be fair, just[,] and equitable under all of the circumstances." And under 

K.S.A. 2019 Supp. 23-2902(c), the district court "may . . . prescribe[] in the decree" 

circumstances permitting modification or termination of the payments. The majority 

reads those provisions in tandem to mean a district court can modify or terminate 

maintenance based only on conditions identified in the decree and cannot otherwise 

modify or terminate maintenance even if doing so would be fair and equitable. The 

majority fashions a wooden rule that inexplicably hobbles district courts in considering 

changes in maintenance to accommodate fluid and often unforeseen events that are the 

stuff of human endeavors. The rule strips away the broad discretion extended district 

courts in K.S.A. 2019 Supp. 23-2903 to modify or terminate maintenance and squeezes 

any consideration of fairness and equity from the exercise of that discretion. Those are 
32

decisions that ought to be grounded in the same fair, just, and equitable objectives that 

animated the original maintenance order.

Apart from not being especially sensible, the majority's position fails to fit well 

with canons of construction that guide our review of statutes. As a first principle, we are

to discern and then carry out the legislative intent behind a statute. In re Marriage of 

Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). We obviously turn to the statutory 

language as the preeminent source of legislative design. Bussman v. Safeco Ins. Co. of 

America, 298 Kan. 700, 725-26, 317 P.3d 70 (2014). But we should also consider a 

particular statutory provision alongside related statutes to see that they function 

reasonably together. If they don't, that's a strong signal something may be amiss in how

we are construing them. State v. James, 301 Kan. 898, 903, 349 P.3d 457 (2015) (court 

should construe statutes "to avoid unreasonable or absurd results").

So the requirement for fair and equitable consideration in setting spousal 

maintenance in the first instance under K.S.A. 2019 Supp. 23-2902(a) would also be 

applicable to any later modification or termination under K.S.A. 2019 Supp. 23-2903. 

The canon of in pari materia construction of statutes requires nothing less. Neighbor v. 

Westar Energy, Inc., 301 Kan. 916, 919, 349 P.3d 469 (2015) (in pari materia rule calls 

for related statutes to be construed harmoniously to effectuate legislative intent). The two 

statutes obviously are supposed to work together to cover the treatment of maintenance 

over the course of a divorce and the duration of the payments—a period that could be as 

long as 120 months. Until a recodification of domestic relations statutes in 2011, they 

both appeared in the same subsection of K.S.A. 60-1610 governing maintenance. See 

K.S.A. 60-1610(b)(2) (Furse). Their language and purpose were unchanged in the 

recodification. A reading of those statutes to direct that a district court ought to be guided 

by fairness, justice, and equity at the first but not later challenges both reason and good 

public policy. If at all possible, we ought to assume the Legislature acts with both in mind 

in designing statutory schemes or recodifying existing schemes. 
33

The majority compounds the error with a coordinate interpretation of K.S.A. 2019 

Supp. 23-2902(c) that turns the subsection's permissive language into a mandatory 

restriction on when a district court can modify or terminate maintenance. The subsection 

says a district court "may" include express grounds in the decree for modification or 

termination. The language, then, allows a district court to do so. But it need not. Here, for 

example, the district court included negative conditions, limiting the parties to motions to 

modify at no more than two-year intervals based on a defined change in financial 

circumstances. Those kinds of restrictions keep a party from continually filing for 

modification based on nominal changes—a situation that quickly would become abusive 

of the district court's time and the other party's resources. 

But the phrasing in K.S.A. 2019 Supp. 23-2902(c) does not limit a district court to 

later modifying or terminating maintenance only for conditions listed in the decree. The 

district court can also exercise discretionary authority under K.S.A. 2019 Supp. 23-2903 

to modify or terminate for other reason. This court so held in In re Marriage of Ehinger, 

34 Kan. App. 2d 583, Syl. ¶ 8, 121 P.3d 467 (2005) (Under identical language in K.S.A. 

60-1610[b][2] (Furse), "[a] district court retains the power to modify court-ordered 

maintenance at any time despite such right not specifically being mentioned in its ruling 

establishing such maintenance."). Again, that's a reasonable in pari materia reading of 

two integrated statutes the Legislature intended to operate in a coordinated fashion. The 

majority, however, junks those considerations in favor of making the inclusion of 

conditions under K.S.A. 2019 Supp. 23-2902(c) mandatory and exclusive rather than 

permissive. That reading, however, renders K.S.A. 2019 Supp. 23-2903 superfluous, 

since all changes to maintenance would have to be set out in the decree. Siruta v. Siruta, 

301 Kan. 757, 763, 348 P.3d 549 (2015) (statute should not be interpreted so part of it 

becomes surplusage). And if a decree included no conditions, then the maintenance 

could never be changed. The Legislature didn't intend to make maintenance such an 

inflexible financial obligation. The language in K.S.A. 2019 Supp. 23-2903 contemplates 

modification or even termination for reasons other than what may be set out in the decree, 
34

so long as the burden on the obligated party is not increased or accelerated without his or 

her consent and the district court provides notice of and an opportunity to be heard on any 

change. 

Similarly, the majority's construction renders K.S.A. 2019 Supp. 23-2712(b) a 

statutory dead letter. As I've mentioned, under that statute, a district court can modify 

spousal maintenance contained in the parties' separation agreement and then incorporated 

into the decree only in the manner set forth in the agreement. The agreement becomes 

part of the decree and dictates the conditions for modification or termination. The 

majority reads K.S.A. 2019 Supp. 23-2902(c) to limit the district court to the terms of 

modification set out in the decree whether or not they have originated in an incorporated 

settlement agreement. So K.S.A. 2019 Supp. 23-2712(b) accomplishes nothing that the 

majority's construction of K.S.A. 2019 Supp. 23-2902(c) would not already do.

That the majority's reading of the statutes regulating maintenance effectively 

renders a pair of them vestigial calls the reliability of the endeavor into question. 

Finally, if the majority's interpretation of those statutes were correct (and it isn't), 

the opinion fails to faithfully apply that construct here in reversing the district court. The 

majority simply ignores the first and second modifications the district court ordered to 

suspend the maintenance payments as a contempt sanction and as an equitable setoff. 

Neither would have been legally appropriate under the majority's newly fashioned limits 

on judicial discretion and equitable considerations in modifying maintenance payments. 

The decree did not expressly grant the district court the authority it exercised. And the 

majority's pronouncement draining K.S.A. 2019 Supp. 23-2903 of virtually all practical 

utility would preclude those rulings.

Under the majority's take, those orders suspending Steven's obligation for limited 

periods had no legal foundation and, therefore, should be considered wrongfully issued. 
35

Although those suspensions of maintenance did not compel Keira to cohabitate, the 

evidence shows that but for the resulting financial losses, she most probably would not 

have moved in with McGhee. Since the majority's rule should negate those orders, the 

proper remedy under that rule would restore the parties to the relative positions they held 

before those orders were entered and, thus, would give no legal effect to the direct 

consequences of those orders. See Bryan v. BellSouth Communications, Inc., 492 F.3d 

231, 241 (4th Cir. 2007) ("vacatur . . . returns the parties to their original positions, before 

the now-vacated order was issued"); Kelch v. Watson, 237 Ill. App. 3d 875, 878, 604 

N.E.2d 971 (1992) (vacating improperly entered order rendered order "nugatory" and 

"returned the parties to the status they held prior to [its] entry"); Deines v. Essex Corp., 

293 Neb. 577, 582, 879 N.W.2d 30 (2016) (vacating order of dismissal for failure to 

prosecute "put the parties back in the same posture as before the action was dismissed").

Fully applied to this case, the majority's rule would have required the district court 

to review Steven's motion to terminate maintenance based on the positions he and Keira 

would have occupied had it never modified the original order. From that perspective, the 

most reasonable scenario would not include Keira cohabitating with McGhee. So the 

motion ought to have been denied even under the majority's new legal framework.

The majority briefly stakes out a fallback position, regardless of the statutory 

language: The decree states that maintenance "shall terminate" upon cohabitation, so that 

mandatory language must control. But, of course, the district court has the statutory 

authority to revise its own order governing maintenance. Marriage of Ehinger, 34 Kan. 

App. 2d at 587. Especially with an order that is neither fixed nor truly final, the issuing 

court typically retains the inherent prerogative to modify its terms to accommodate 

changed circumstances. See Kelly v. Wengler, 822 F.3d 1085, 1098 (9th Cir. 2016) 

(recognizing longstanding "inherent power to modify court orders in changed 

circumstances"); David C. v. Leavitt, 242 F.3d 1206, 1210-11 (10th Cir. 2001). Here, 
36

Steven had no legally vested right in the original terms of the maintenance order that 

would preclude the district court from revising them. 

Conclusion

The district court acted within the judicial discretion statutorily granted it in 

modifying and terminating spousal maintenance. I see no abuse of that discretion under 

the circumstances—an array of district courts might have come to differing, though 

reasonable, dispositions of Steven's motion. Here, the district court provided Steven less 

relief than he requested by reducing rather than terminating the maintenance. Given the 

wide latitude of judicial discretion properly afforded district courts, I would affirm the 

district court, recognizing that authority not only in this case but for future cases.