In the Matter of the Marriage of JENNIFER SAUNDERS, Appellee, and JOHN BARRY GRZESINSKI, Appellant.
No. 127,028
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
December 5, 2025
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; LINDA D. KIRBY, judge. Submitted without oral argument. Opinion filed December 5, 2025. Reversed and remanded with directions.
Stephen M. Turley and Krystle M.S. Dalke, of Hinkle Law Firm LLC, of Wichita, for appellant.
Chris Randle, of Penner Lowe Law Group, LLC, of Wichita, for appellee.
Before HURST, P.J., ATCHESON and ISHERWOOD, JJ.
PER CURIAM: After fewer than five years of marriage, Jennifer Saunders filed a petition seeking a divorce from John Grzesinski. Throughout the proceedings, the parties generally disputed the property division and valuations. After trial, the district court issued an order dividing the property, but Grzesinski objected on several grounds, including the division of his military retirement pay, and twice moved to amend. In addressing part of Grzesinski‘s concerns, the district court ordered the parties to work with an attorney identified as an expert in military retirement benefits. Ultimately, the
Grzesinski is generally displeased with the district court‘s decision. On appeal, he claims the district court erred in its property division, violated his due process rights, and abused its discretion in ordering him to pay a portion of Saunders’ attorney fees. While district courts generally have broad discretion to divide assets in a divorce proceeding, that discretion is contingent on appropriate application of the law. Here, the district court misunderstood its broad discretion and in so doing erroneously bound itself to federal law in the valuation and division of Grzesinski‘s military retirement pay. Moreover, the district court erred in its identification of marital property related to the party‘s 401(k) accounts.
The property division through a divorce proceeding must be just and reasonable. This court provides no opinion as to whether the district court‘s ultimate division accomplished that requirement but finds that the court‘s legal reasoning was flawed. Accordingly, the district court‘s property division is reversed and remanded with directions as provided herein. The ultimate property division may well be identical or similar to what was previously decided, but in doing so that must be made with a full understanding of the applicable law.
FACTUAL AND PROCEDURAL BACKGROUND
The parties married in October 2014, at which time Grzesinski was serving in the United States Navy. Grzesinski continued his military service with the Naval Reserves throughout the marriage. On June 29, 2018, after almost four years of marriage, Saunders filed a petition for divorce.
On January 15, 2021, the district court issued a memorandum order and divorce decree in which it valued and divided the parties’ marital property and debt. The portion of the order dividing Grzesinski‘s military retirement pay provided:
“[Saunders] is awarded the portion of any military or reserve military pension and/or retirement due to [Grzesinski], whether payable currently or in the future, in proportion to the length of the marriage as permitted by federal law. [Saunders‘] attorney is directed to draft such domestic relations order. [Grzesinski] is ordered to provide any requested information regarding such retirement and/or pension timely. The court retains jurisdiction to enforce such award.” (Emphasis added.)
The district court‘s order also made the following divisions of certain financial accounts:
“Home bank account ending in (4110) is marital property and allocated to [Grzesinski] at value of $451.
“Home bank account ending in (4228) is marital property and allocated to [Grzesinski] at value of $4,445.
. . . .
“[Saunders‘] MGM resorts 401(k) is valued at $86,432.57 and the total is reduced by 20% for taxes. Of the reduced total value, $43,207.20 is found to be
[Saunders‘] premarital property and is not subject to division; and $25,938.87 is found to be marital property and assigned to [Saunders]. . . . .
“[Grzesinski‘s] Spirit 401(k) valued at $19,437 reduced by 20% for taxes is marital property and assigned to [Grzesinski] at value of $17,919.01.”
The district court allocated the marital home to Saunders and credited her for the mortgage payments she made during the pendency of the case.
Saunders prepared a proposed domestic relations order as directed by the court, but the parties could not agree on some of the final language. Thus, on June 3, 2021, under
On June 16, 2021, the district court sent a letter to address Grzesinski‘s “objections to third draft of Journal Entry that was submitted by” Saunders’ counsel. In its letter, the district court addressed the division of Grzesinski‘s military retirement pay:
“The court awarded [Saunders] the military pension and/or retirement due [Grzesinski]…. in proportion to the length of marriage. The length of the marriage is 82 months, which is to be divided by the number of months that [Grzesinski] served and divided by 2 (for 20 years of service 82 would be divided by 240 months and again by 2 for award of 17.08%). The conventions used by the military to calculate may make these calculations. [Saunders] is awarded the full amount to which the federal laws and guidelines provide. Counsel is directed to consult with administrator of military pensions to determine the formula for such calculation.” (Emphasis added.)
“In addition, [Grzesinski] served 28.1 years in the military not 20 year[s] and there was very little increase in his pension amount after the marriage due to his full-time military service prior to the marriage. In the court‘s memorandum, it simply stated that whatever military retirement division rules allowable by law be used. In calculating the percentage, the correct figures need to be used. Also, [Saunders] made up a figure of 20% and put it in the order. The court‘s memorandum ruling language is the language that should be used in the journal entry.”
Notwithstanding Grzesinski‘s objections, the district court‘s subsequent journal entry provided:
“[Saunders] is awarded the portion of any military or reserve military pension and/or retirement due to [Grzesinski], whether payable currently or in the future, in proportion to the length of the marriage as permitted by federal law, to wit, [Saunders] is awarded 17% of the Respondent‘s military retirement.”
On August 10, 2021, Grzesinski filed a motion to alter or amend the judgment, attached to which was a declaration and record of Grzesinski‘s retirement points accrued during his service with the Navy—evidence that was not presented to the court at trial. In his motion, Grzesinski argued the district court undercounted his length of military service and overcounted the length of the marriage. Specifically, Grzesinski asserted that the length of the marriage should be measured from the date of marriage to the date Saunders filed for divorce—a period of 44 months—and not the 82 months the district court used in its calculation. Grzesinski emphasized that “all other assets divided between the parties, including the retirement accounts of petitioner, the date of filing the divorce was used as the valuation date.” Grzesinski claimed Saunders was only entitled to the
On March 9, 2023, the district court ruled on Grzesinski‘s motion. Responding to Grzesinski‘s statement that the district court‘s decision “would also allow [Saunders] to receive a portion of [Grzesinski‘s] military pension accrued before marriage,” the district court found Grzesinski “did not raise this issue at the time of trial” and made no persuasive argument that granting Saunders a portion of his military pension was not “proper or equitable.” The court stated that the award of vested or unvested retirement pay was contemplated in
The district court amended its memorandum order and divorce decree as to its determination of the length of the parties’ marriage: “The parties were married on October 11, 2014 and were divorced by decree on January 15, 2021. The duration of the marriage was 84 months and 14 days. Petitioner filed for divorce on June 29, 2018.” The district court relied upon
At the end of its ruling, the district court noted that it created confusion between language from its Journal Entry and Decree of Divorce and a poorly labeled example used in the letter to the parties addressing Grzesinski‘s objections to the proposed journal
“Military Retirement and Pension. [Saunders] is awarded the portion of any military or reserve military pension and/or retirement due to [Grzesinski], whether payable currently or in the future, in proportion to the length of the marriage as permitted by federal law.”
The district court also ordered the parties to secure assistance of a “qualified expert in military retirement law, to calculate the full award due to [Saunders] under federal military law . . . and draft the Retirement Benefit Court Order to be reviewed by [Grzesinski‘s] counsel per Rule 170.” Because it found Grzesinski failed to “provide the necessary information at time of trial making the order for a subsequent calculation necessary,” the district court also ordered Grzesinski to pay for the expert‘s services.
On April 6, 2023, Grzesinski filed a second motion to alter or amend in response to the district court‘s order on his previous motion. In this second motion, Grzesinski objected “to the Court‘s March 9, 2023, order that require[d] him to pay for the services of Marshall S. Willick of the Willick Law Group to calculate the portion of his military pension awarded” to Saunders, and to the court‘s statement that Grzesinski failed to provide necessary information at trial necessitating the later calculation. Grzesinski argued he presented evidence of the length of his military service at trial and that the record of his retirement points was not available at trial because he had not yet retired. Additionally, Grzesinski objected to the court‘s order that he pay the military retirement expert‘s fee and requested the court to amend its ruling to strike the statement that
The district court denied Grzesinski‘s second motion to amend, reasoning in part that it “was [Grzesinski]‘s burden alone to provide to the court at trial a credible calculation of the amount or proportion he claimed as pre-marital property. He failed to do so. The costs of employing such expert are properly allocated to [Grzesinski] and have provided a benefit to him.” In the same order, the district court explained:
“The court ordered [Grzesinski]‘s military retirement to be divided between premarital and marital portions according to federal law pertaining to division of military retirements. Per federal law, the marital portion is determined from the date of marriage to the date of divorce and not to the date of filing for divorce. The federal law pertaining to military retirements was enacted by the federal government specifically to address multiple policy issues regarding service members and their spouses. [Grzesinski] did not object to application of federal law at trial or in his first motion to alter or amend nor did he provide statutory, case law, facts, or persuasive reasoning to show the court why the federal law should be applied in all aspects of the calculation of federal military benefits except to the length of the marriage. The court denies [Grzesinski‘s] motion to alter or amend the order that federal law will apply to the calculation of the premarital and marital portions of [Grzesinski]‘s Military Retirement.”
The district court thereafter adopted the expert‘s proposed division award.
The military retirement expert identified 18.5808% of Grzesinski‘s military retirement pay as marital property subject to division and, therefore, that Saunders should be awarded 9.2904%. The district court‘s order did not explain how the expert arrived at these figures. It ordered Grzesinski “to pay [Saunders] directly 9.2904% of each military retirement benefit payment he receives” and provided other requirements relating to cost
The district court filed an additional order in which it “set out terms dividing the military retirement benefits, in sufficient detail to correctly allocate [Saunders‘] time-rule percentage in accordance with the parties’ Decree of Divorce.” It “determined that [Saunders] is entitled to her time-rule percentage of [Grzesinski]‘s military retirement benefits.” The district court divided the total number of retirement points Grzesinski accrued during the marriage (1,076) by the total number of retirement points he had earned by the date of divorce (5,468) to yield 19.6781% of marital property. It then halved that amount to determine Saunders’ percentage of Grzesinski‘s military retirement pay: “[Saunders] is entitled to 9.8391% of [Grzesinski]‘s military retirement benefits.”
Grzesinski appeals.
DISCUSSION
On appeal, Grzesinski alleges that the district court erred: (1) in its division of his military retirement pay; (2) in its division of two bank accounts; (3) in its calculation of the value of the parties’ 401(k) retirement accounts; (4) by crediting Saunders with the mortgage payments made after the temporary order; (5) by requiring an outside expert, requiring Grzesinski to pay the expert fee, and accepting the expert‘s opinion regarding division of the military retirement pay without a hearing; and (6) when it ordered Grzesinski to pay Saunders’ attorney fees. Grzesinski does not object to the district court‘s property division regarding other property nor does Saunders file a cross-appeal alleging any errors.
In Kansas, the district court has broad discretion to divide marital property in a divorce proceeding, and this court will not disturb such an award absent a clear showing of abuse of that broad discretion. In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002). The district court‘s authority to divide property includes military retirement benefits. See
A district court abuses its discretion when its judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Einsel v. Einsel, 304 Kan. 567, Syl. ¶ 1, 374 P.3d 612 (2016). An error of law occurs when the district court‘s decision is guided by erroneous legal standards or conclusions. 304 Kan. 567, Syl. ¶ 1. Therefore, even when applying the abuse of discretion standard, this court applies de novo review to the district court‘s legal conclusions. See State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006) (applying de novo review to statutory interpretation in an abuse of discretion review). In other words, this court gives no deference to the district court‘s legal analysis and has unlimited review to determine whether the district court made an error of law when it exercised its broad discretion. See In re Marriage of Meek, 64 Kan. App. 2d 270, Syl. ¶ 2, 551 P.3d 127 (2024) (The district court‘s determination about which property is defined as marital property pursuant to
The first step in determining a property division award is to identify the marital property. See
The second step in determining a property division award is to consider all marital property and make a just and reasonable division of that property. See
“(1) The age of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the allowance of maintenance or lack thereof; (8) dissipation of assets; (9) the tax consequences of the property division upon the respective economic circumstances of the parties; and (10)
such other factors as the court considers necessary to make a just and reasonable division of property.” (Emphasis added.) K.S.A. 23-2802(c) .
In its overall property division, then, the district court must consider the “time, source and manner of acquisition of property,” which could include whether the property was owned by one party before the marriage or was acquired with funds from only one party. See
Having explained the process, this court must address whether the district court abused its discretion as to the specific property issues raised on appeal.
a. Military retirement pay
Grzesinski generally argues that the district court erred in three ways when dividing his military retirement pay: (1) the district court misunderstood its discretionary authority to award the military retirement pay; (2) the district court lacked jurisdiction to award Saunders any portion of Grzesinski‘s military retirement pay accrued after Saunders filed her petition for divorce; and (3) the district court incorrectly used multiple dates of valuation in dividing the parties’ marital property.
The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes any state court to treat “disposable retired pay payable to a member” of the
Kansas law explicitly includes military retirement pay as marital property subject to equitable division. Under
Grzesinski‘s primary complaint is that the district court “misinterpreted the law and tried to mechanically apply a federal law that does not exist.” Therefore, Grzesinski argues that the district court erroneously applied the law because it failed to exercise its discretionary authority to determine how to award Grzesinski‘s military retirement pay to Saunders. While Saunders concedes that the USFSPA does not require a state court to use a specific formula to divide military retirement pay in divorce, she contends that the district court did not claim to be constrained by the federal formula. Rather, Saunders asserts that the award was made within the “permissible and legal framework.”
There are multiple instances that suggest the district court believed federal law controlled its division of Grzesinski‘s military retirement pay. For example, in its letter to the parties addressing Grzesinski‘s objections to the proposed journal entry, the district court stated Saunders “is awarded the full amount to which the federal laws and guidelines provide” and directed the counsel to “consult with administrator of military pensions to determine the formula for such calculation.” (Emphases added.) Additionally, in its denial of Grzesinski‘s first motion to amend, the district court stated, ”The conventions used by the military, including duration of the marriage, are to be used to calculate [Saunders‘] interest in [Grzesinski]‘s pension. [Saunders] was ‘awarded the amount to which federal laws and guidelines provide.‘” (Emphases added.) Finally, in its final order, the district court stated, “The share of the military retired pay that each party is entitled should be determined pursuant to the ‘time-rule’ formula which designates the number of points earned during the marriage as a numerator, and the total number of points earned by [Grzesinski] at the Date of Division as the denominator.”
While these statements strongly suggest the district court believed that federal law prescribed a specific formula for its division and award of Grzesinski‘s military retirement pay, it is possible that the district court was also aware—or at some point became aware—that it was not required to apply this formula but embraced the formula
The district court valued most of the property as of the filing date of the divorce petition, but used the date of the divorce decree, which was about two years later, for valuing Grzesinski‘s military pay. Grzesinski argues this valuation date was an error in three ways.
First, Grzesinski argues the district court erred in believing federal law required it to use the divorce decree date to value the military retirement pay. The term “disposable retired pay” is the “total monthly retired pay to which a member is entitled.” (Emphasis added.)
Second, Grzesinski contends the district court erred in using the divorce decree date because it lacked jurisdiction over any increase in the value of the military retirement between the date of the divorce petition and the date of the divorce decree. In support of this, Grzesinski argues that the use of present tense in the statute defining “marital property” means only the amount or value of the retirement account at the time of the divorce petition filing is considered marital property. Not only does this argument lack legal and factual support, it would also mean that Kansas courts could only value marital property at a date later than the divorce petition, which is contrary to the plain statutory language and well-established law. See
Marital property frequently includes accounts that fluctuate in value based on market conditions or inputs or deductions, including investment accounts; insurance products; retirement accounts; and even real property. Although the district court must identify the marital property existing as of the date of the divorce petition, the court may
Third, Grzesinski claims the district court must value all the marital property as of the same date. See, e.g., In re Marriage of Cray, 254 Kan. 376, Syl. ¶ 3, 867 P.2d 291 (1994). According to the Kansas Supreme Court‘s opinion in Cray, “When the time of valuation becomes an issue in a contested case,” the trial court should set the valuation date and “all the marital assets shall be valued as of the same date.” 254 Kan. 376, Syl. ¶ 3. However, as panels of this court have noted, the applicable statutory language regarding how district courts must set property values in a divorce proceeding has changed since the court‘s decision in Cray. See In re Marriage of Thrailkill, 57 Kan. App. 2d 244, 261-62, 452 P.3d 392 (2019) (finding no abuse of discretion where court treated loan taken out after valuation date as marital debt); In re Marriage of Wood, No. 122,211, 2020 WL 6685537, at *11 (Kan. App. 2020) (unpublished opinion). While valuing all the marital property on the same date might make sense because it provides some consistency in comparison, the current statute allows the district court to consider “evidence regarding changes in value of various assets before and after the valuation date in making the division of property.”
b. Home Bank accounts ending in 4110 and 4228
The district court‘s order identifies two Home Bank accounts, 4110 and 4228, as marital property and then allocates the amount in both to Grzesinski. In doing so, Grzesinski argues the district court abused its discretion because there was no substantial competent evidence presented that supported a factual finding that those accounts belonged to him. Rather, Grzesinski contends, all the evidence in the record supports a finding that those accounts belong to Saunders and therefore the accounts should have been allocated to her. Saunders’ brief does not specifically address these claims.
In reviewing a district court‘s findings under an abuse of discretion standard, the district court commits an error of fact when its factual findings are not supported by substantial competent evidence. See Einsel, 304 Kan. 567, Syl. ¶ 1. “Substantial competent evidence is such legal and relevant evidence as a reasonable person might
The evidence about the bank accounts was mixed. Recent bank statements for both accounts were admitted into evidence at trial: account 4110 listed Grzesinski as an account holder and account 4228 identified Saunders as the account holder. But Saunders’ name was also included in the mailing address for account 4110, and the district court noted that it was identified in Exhibit 62 as a joint account. Grzesinski testified that account 4228 was Saunders’ individual account but never testified that the account ending in 4110 belonged exclusively to Saunders.
The evidence supports a factual finding that account 4110 was a joint account but that Saunders likely had exclusive use of account 4228. However, a spouse‘s ownership or exclusive use of a bank account is not the only criterion for determining how to divide the property. See
Having identified no error of law or fact, the district court‘s division of that property only constitutes an abuse of discretion if “no reasonable person would have taken the view adopted by the trial court” to assign the amounts from both accounts to Grzesinski. In re Marriage of Wherrell, 274 Kan. at 986 (property division is reviewed for abuse of discretion); Einsel, 304 Kan. 567, Syl. ¶ 1 (explaining the abuse of discretion standard). After identifying the marital property, the court has broad discretion to divide that property in a just and reasonable manner. While it appears Saunders exclusively used account 4228 during their marriage, that does not mean the court‘s allocation of that property to Grzesinski is unreasonable under the circumstances. In dividing property, courts frequently make balancing determinations to reach a just and reasonable division, and Grzesinski fails to demonstrate the unreasonableness of that decision. This court
c. The parties’ 401(k) plans
Grzesinski contends that the district court erred in its valuation of the parties’ 401(k) plans and its mathematical calculations. While Grzesinski appears to primarily object to the district court‘s mathematical calculation of Saunders’ MGM 401(k), his resulting claim is that the court erred in the amount included as marital property. In response, Saunders fails to respond to Grzesinski‘s claim but justifies the ultimate result by pointing to different values than the court used to justify its result. However, the legal error in the court‘s decision regarding Saunders’ MGM 401(k) makes any mathematical computation errors irrelevant.
The district court‘s memorandum order carved out a significant portion of Saunder‘s MGM 401(k) as “premarital property” that “is not subject to division.” The court then set forth amounts from Saunders’ Mohawk 401(k) and Grzesinski‘s Spirit 401(k) as marital property. However, contrary to the district court‘s designation, the entire value of both parties’ 401(k) accounts are marital property subject to division in the divorce proceedings. See
Marital property is “[a]ll property owned by married persons . . . whether described in
Therefore, the district court erred as a matter of law in identifying portions of Saunders’ MGM 401(k) as “premarital property” that was “not subject to division.” Additionally, if the district court similarly designated any portions of Grzesinski‘s 401(k) accounts as nonmarital property, that was an error. The entire amount of both parties’ 401(k) plans and military retirement pay—whether vested or unvested—is marital property subject to division in a divorce proceeding. Once identified as marital property, the district court must then consider the elements in
On remand, the district court must address the division of the parties’ entire 401(k) accounts pursuant to
Again, on remand the district court might determine that the designation of the entire value of both parties’ 401(k) accounts as marital property does not alter the district
d. Mortgage payments
Finally, Grzesinski contends that the district court abused its discretion when it credited Saunders for her postpetition mortgage payments and awarded her the marital residence without adjusting the value of the home‘s equity during the same period. The district court awarded Saunders the marital home and credited her with $27,388 in mortgage payments and an additional $10,439 in back property taxes that she paid during the pendency of the divorce proceedings. According to Grzesinski, the district court permitted Saunders a double recovery because Saunders received the “value associated with the parties’ marital residence twice: Once when the trial court awarded the marital residence to [Saunders], and a second time when the trial court gave [Saunders] credit for payments she made towards the mortgage debt encumbering the same property.”
In determining the equalization value of the marital home, the district court averaged the 2019 county appraisal of $284,000 and the February 2019 independent appraisal of $272,000. According to the district court‘s memorandum order, Grzesinski argued that the property should have been valued at $315,397 by citing to a “Zestimate” of $312,201 printed from the Zillow website. The court calculated the mortgage principal owed averaging the parties’ very similar submitted amounts of $178,135 and $178,467. In this opinion, the amount owed necessary to pay off the mortgage principal is referred to as the mortgage debt and the amount paid each month toward the mortgage principal that also includes an amount toward the taxes, interest, and insurance is referred to as the mortgage payment.
In Grzesinski‘s July 13, 2021 objections to the journal entry, he argued the district court erred by valuing the property as of 2019 rather than closer to the date of the divorce
Here, unlike in Elfgren, the district court did not credit Saunders with the amount that the mortgage payments she made reduced the mortgage principal. The total credit awarded Saunders of $37,827 does not represent a reduction in the mortgage principal like in Elfgren. Of the total credit, $10,439 represents back taxes that are marital debt and the remaining $27,388 includes mortgage principal, property taxes, and property insurance during the pendency of the divorce proceeding that Saunders paid.
Grzesinski does not claim the district court made an error of fact or law in its value determination or calculations. Rather, he merely argues the district court‘s decision to credit Saunders for her payments while applying the values from the 2019 appraisals and the debt set forth by the parties is unreasonable. Grzesinski cites no evidence in the record refuting the district court‘s property value or mortgage debt findings. Instead, in making this argument both to the district court and on appeal, Grzesinski asks the court to make two major assumptions in his favor—that the mortgage debt decreased by an unidentified amount and that the property value increased from the values submitted to
While one could logically assume that Saunders’ mortgage payments reduced the mortgage debt by some amount, Grzesinski cites no evidence of that reduction. Instead, in his objections to the district court‘s journal entry, Grzesinski stated the mortgage debt “should be reduced by the additional mortgage payments in the amount of $27,388.00” and then stated the “estimated new value should be $150,863,” apparently concluding—with no support—that every dollar paid in mortgage payments during the pendency of the divorce reduced the mortgage debt owed. Nothing in the record supports a finding that the parties’ mortgage payments resulted in a dollar-for-dollar reduction in mortgage debt.
In contrast, Saunders cites to similarly dubious calculations to assert that the mortgage payments resulted in virtually no reduction in mortgage debt—less than $1,000. This court‘s understanding of mortgage interest and basic math leads to an estimated mortgage principal reduction closer to $6,000-$9,000. Yet, even if that reduction occurred as of the date of the divorce decree, nothing in the record demonstrates the property‘s value at that same time. Although both parties have access to the actual reduction in mortgage principal and could have obtained updated credible property valuations closer to the divorce decree, neither provided such to the district court.
This court is tasked with determining whether the district court‘s decision constitutes an abuse of discretion based on the record available to the district court. See, e.g., In re Marriage of Cray, 254 Kan. at 391 (“the selection of a valuation date rests in the sound discretion of the trial court under the facts and circumstances before the court” [emphasis added]). Grzesinski does not direct this court to any evidence in the record that undermines or contradicts the district court‘s factual findings regarding either the property value or the mortgage debt. Saunders’ mortgage payments went to more than mortgage principal reduction and included other debt payments such as taxes, interest, and
Rather than changing the mortgage valuation, Grzesinski might be contending that the district court should simply not credit Saunders for any of the mortgage payments. It appears Grzesinski‘s true complaint is that by crediting Saunders with the total mortgage payment (including principal, taxes, interest, and insurance), she received credit for her living expenses during the pendency of the divorce. Or perhaps he believes that the taxes and insurance paid through the mortgage payment should have been split between them. But, Grzesinski fails to make either argument, and only argues that the district court created a double credit by awarding Saunders the marital home and credit for mortgage payments. But nothing in the record demonstrates that the mortgage payments reduced the mortgage debt compared to the home‘s value at that same time such that it would have created an unreasonable double award. While crediting the party awarded a residential property with the amount that same party paid in mortgage payments during the pending divorce likely results in some amount of debt shifting, the court may shift assets and liabilities to reach a just and equitable result considering the parties’ overall financial positions. Grzesinksi has failed to show the district court‘s decision constituted an abuse of discretion.
II. GRZESINSKI‘S DUE PROCESS CLAIMS
Grzesinski claims he was denied due process when the district court ordered Saunders to engage the services of an expert to calculate his military retirement pay, relied on the expert‘s proposed calculations without a hearing, and ordered Grzesinski to pay the expert‘s fees. Contrary to his contentions, Grzesinski did not object to the appointment of the expert at trial but merely objected to the district court ordering him to pay the expert‘s fees. Generally, issues not raised before the district court cannot be raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022).
Grzesinski had ample opportunity through his numerous motions and objections to notify the district court of his objection to the use of an expert, but he chose not to do so. Perhaps that was a strategic choice in hopes that the expert‘s opinion would benefit him or to obtain the expert‘s associated work product. Grzesinski did not seek to prevent the district court‘s use of the expert until he received the benefit of knowing the expert‘s opinion, and he now seeks to second guess that through an unpreserved due process claim. Where, as here, the appellant had an opportunity to object to the district court but neglected or chose not to, this court cannot say it is necessary to extend prudential review of the unpreserved claim to prevent a denial of a fundamental right. Moreover, because this opinion reverses and remands the district court‘s property division, Grzesinski‘s underlying concern is addressed.
III. THE DISTRICT COURT‘S ATTORNEY FEE AWARD
Finally, Grzesinski appeals the district court‘s award of $2,094.60 in attorney fees to Saunders. In so doing, the court stated that Grzesinski caused Saunders “to incur unnecessary attorney fees, interest and damages for delay related to” his second motion to alter or amend. While Grzesinski concedes that district courts generally have authority to
“The Kansas Family Law Code authorizes Kansas courts to award attorney fees in divorce, separate property, or annulment cases ‘to either party as justice and equity require.‘” In re Marriage of Williams, 307 Kan. at 982; see In re Marriage of Nelson, 58 Kan. App. 2d 920, Syl. ¶ 11, 475 P.3d 1284 (2020) (“District courts have broad discretion to award costs and attorney fees to either party in a divorce case as justice and equity require.“); see also
Grzesinski argues, in part, that the district court abused its discretion in awarding Saunders attorney fees because his motion correctly identified the district court‘s errors and should have been meritorious. Therefore, according to Grzesinski, Saunders should not be entitled to attorney fees for responding to a nonfrivolous motion. Grzesinski cites no authority prohibiting the award of attorney fees in divorce proceedings when the fees resulted from permissible or even meritorious proceedings. Moreover, a district court‘s error in its application or understanding of the law should not be imputed to a party such that it prevents an otherwise appropriate award of attorney fees.
The district court‘s criteria for awarding attorney fees is merely whether the award is required by justice and equity. See
Even if a reasonable person—or this court—might not have awarded attorney fees in this circumstance, that is insufficient to warrant reversal. Given the totality of this litigation, the court cannot say that no reasonable person would have agreed with the district court‘s determination that equity and justice required that Grzesinksi pay Saunders $2,094.60 in attorney fees. Grzesinski failed to show that the district court abused its wide discretion in awarding attorney fees to Saunders.
CONCLUSION
The district court‘s property division is reversed and remanded with directions. The district court erred in its determination that it was legally required to follow a federal formula for the division and valuation date of Grzesinski‘s military retirement pay. The
Additionally, the district court erred in designating portions of the parties’ 401(k) accounts as premarital property not subject to division. While this court recognizes that district courts may use the term “separate property” colloquially and still consider that property in its equitable property division under
The district court‘s fundamental task is to fairly and equitably allocate the divorcing parties’ assets and liabilities, consistent with the statutory directives. The overall distribution must achieve that fairness and equity. If a district court errs in how it allocates a particular asset or liability, the overall equitable balance has been disturbed. On remand, the district court has the authority and obligation to reassess all of the other individual allocations. Therefore, the district court should consider the full property division to ensure its ruling accurately identifies the marital property, properly considers the statutory criteria, and reaches a just and reasonable result. That does not mean, however, that those allocations must be modified. But they should be reconsidered with the aim of reaching the required overall equitable apportionment.
Finally, Grzesinksi failed to preserve his due process claim or demonstrate the court abused its discretion in awarding attorney fees.
Reversed and remanded with directions.