IN THE COURT OF APPEALS OF THE STATE OF KANSAS
IN THE MATTER OF THE CONSERVATORSHIP OF:
ETHAN JOHN CHAPMAN, A Minor.
IN THE MATTER OF THE CONSERVATORSHIP OF:
MATTHEW ALAN CHAPMAN, A Minor.
IN THE MATTER OF THE CONSERVATORSHIP OF:
JARED SCOTT CHAPMAN, A Minor.
SYLLABUS BY THE COURT
Court of Appeals
1. Any right that a parent may acquire to reduce his or her court-ordered child support
payment in a divorce proceeding because of the child's separate share of the parent's
disability or retirement benefits does not automatically translate into a right to take the
child's conservatorship funds or assets to pay the full amount of court-ordered child
support notwithstanding the source of the conservatorship assets.
2. A conservator is precluded from using any amount of the assets of a minor's
conservatorship estate to pay any portion of a parent's court-ordered child support
obligation without specific approval of the court that is supervising the conservatorship.
3. When a conservator, without specific court approval, withdraws funds from a minor's
conservatorship estate to use for the court-ordered child support payment for that minor,
the supervising court must order that the conservator repay the conservatorship estate no
less than the amount of those misused funds.
4. K.S.A. 59-3088(f) and K.S.A. 59-3089(d) contemplate that any of the costs to recover
misused conservatorship funds or assets allowed by the district court are to be paid to the
Appeal from Sedgwick District Court; MICHAEL CORRIGAN, judge. Opinion filed
October 20, 2006.
Affirmed in part and reversed in part.
T. Michael Wilson, Douglas C. Cranmer, and Jeffrey N.
Lowe, of Stinson, Lasswell & Wilson, L.C., of
Wichita, for appellant.
Jon S. Womack, of Wichita, for appellee.
Before JOHNSON, P.J., ELLIOTT and BUSER, JJ.
JOHNSON, J.: This is a consolidated appeal from orders entered in the probate
proceedings involving three conservatorships, one for each of the children of Thomas Chapman
and Deborah Chapman. The overarching question presented is whether Thomas could withdraw
funds from the children's conservatorship estates to pay his child support obligations which were
court-ordered in a separate divorce proceeding. Finding that Thomas, as conservator of his
children's estates, misused conservatorship funds, we reverse and remand.
Our issues arise because of the interface of two scenarios: Thomas' injury and retirement
from the Derby Police Department and the marital discord between Thomas and Deborah.
Thomas' injury eventually led to the establishment of conservatorships to receive the children's
separate share of Thomas' disability/retirement benefits. Thomas' child support obligations were
established in two divorce proceedings.
Deborah and Thomas first married in December 1984; their first child, Ethan, was born in
April 1989. Effective July 15, 1989, Thomas retired from his job as a police officer with the City
of Derby Police Department after an injury left him disabled. Thomas' retirement due to disability
entitled him to receive benefits from the Kansas Police and Firemen's Retirement System
(KP&F), which is administered by the Kansas Public Employees Retirement System
See K.S.A. 74-4953(1) (creating KP&F as a division of KPERS).
Thomas' benefits as a member of KP&F were computed at 50% of his final average
salary. KP&F provided a separate benefit to Ethan initially equal to 10% of Thomas' final
average salary. The benefits payable to a member's child or children is in addition to and does not
diminish the member's disability/retirement amount. Further, the total benefits paid to a member
and his or her children cannot exceed 75% of the predisability salary. See K.S.A. 74-4960(1)(c).
Thus, under the statute where a member has three or more children, each child will receive a pro
rata share of 25%, rather than 10% each.
Deborah filed for divorce on August 20, 1991, and the decree was filed February 12,
1992. Thomas was ordered to pay monthly child support of $441.
In 1992, the legislature amended K.S.A. 74-4960 to require that KP&F benefits
payable to a minor must be made to a conservator. L. 1992, ch. 321, sec. 14. Accordingly,
November 13, 1992, Thomas filed a petition to be appointed as Ethan's conservator, and the
petition was heard forthwith. Thomas did not give, and the district court did not require, legal
notice to any other person, including Deborah. The court did not appoint a guardian ad litem to
represent Ethan's interests. Thomas was appointed as Ethan's conservator but was not required to
file a surety bond.
Thereafter, Thomas used Ethan's conservatorship funds to pay his $441 monthly child
support obligation. Additionally, Thomas reimbursed himself from the conservatorship estate for
the child's medical insurance costs.
Thomas and Deborah subsequently reconciled, and Thomas discontinued paying child
support from Ethan's conservatorship. On June 21, 1995, the couple had a second child,
Matthew. On September 11, 1995, Thomas filed a petition and obtained an order forthwith
appointing himself as conservator for Matthew without bond. Thomas reimbursed himself from
Matthew's conservatorship for his one-half of the medical bills associated with Matthew's birth.
Thereafter, he took the monthly cost of Matthew's health insurance from the child's
On March 3, 1997, Thomas and Deborah remarried. A third child, Jared, was born on
May 2, 1997. A second divorce action was filed on August 22, 1997. In October 1997, Thomas
began withdrawing $200 per month from each of the existing conservatorship estates to apply
toward his child support obligation. Thomas' child support obligation the second time around
was ultimately set at $775 per month.
On November 20, 1998, Thomas effected a summary, same-day appointment as Jared's
conservator, without bond. Thereafter, Thomas took $200 per month from Jared's
conservatorship also. The $600 withdrawn from the three conservatorship estates was deposited
into Thomas' personal checking account, from which he then paid his child support obligation.
During the period of December 1992 through December 2003, Thomas made
disbursements from Ethan's conservatorship for child support and health insurance purposes
totaling $36,088.42. During the period of January 1995 through December 2003, Thomas made
disbursements from Matthew's conservatorship for child support, health insurance, medical bills,
and conservatorship charges totaling $19,560.02. During the period of April 1999 through
December 2003, Thomas made disbursements from Jared's conservatorship for child support
purposes totaling $11,800.
In January 2004, Deborah filed petitions in each of the conservatorship proceedings,
seeking to remove Thomas as conservator for failing to fulfill his conservatorship duties,
including wrongfully using the conservatees' assets to pay his personal court-ordered child
support obligation. Deborah also requested that Thomas be ordered to reimburse any funds found
to have been innocently misused or, in the alternative, to charge Thomas double the value of any
funds which were found to have been embezzled or converted for Thomas' personal use. The
petition included an additional prayer for lost earnings and the costs to recover the funds or
assets, including attorney fees.
Deborah also sought relief in the divorce proceeding. In July 2004, Deborah obtained an
income withholding order to effect the payment of all of the child support from Thomas' own
share of the KP&F benefits. The following month, a hearing officer ruled the money
the children's conservatorships as a result of Thomas' disability should "be
credited/paid/authorized for child support." Deborah appealed to the district court, which
reversed the hearing officer's decision in a letter ruling dated September 28, 2004. Specifically,
the district court found: "Monies from [Thomas'] disability designated for children cannot and
shall not be credited towards [Thomas'] child support obligation prospectively."
For simplicity, we will refer to the district court as the divorce court when referring to
actions taken in the divorce proceedings and as the probate court when referring to actions taken
in the conservatorship proceedings.
On September 27 and November 2, 2004, the probate court conducted a hearing on
Deborah's petition, during which the parties proffered the basic underlying facts. Importantly,
Thomas testified and conceded that he never sought or obtained the probate court's approval to
use money from the children's conservatorships to satisfy his child support obligations.
Although the probate court acknowledged the divorce court's contrary finding, the probate
court nonetheless ruled Thomas "can and should receive credit for the payment of his child
support obligation in the amount deposited in the Conservatorship from KPERS for the benefit of
each of the children." In doing so, the probate court likened the factual scenario to that found in
Andler v. Andler, 217 Kan. 538, 538 P.2d 649 (1975), and In re Marriage of
Martin, 32 Kan.
App. 2d 1141, 95 P.3d 130 (2004). Apparently equating a right to offset against a child support
obligation with the right to withdraw funds from the children's conservatorship estates, the
probate court ultimately denied Deborah's requests to remove Thomas as conservator, to appoint
a successor conservator, and to order the reimbursement of funds withdrawn by Thomas.
On appeal, Deborah raises four issues, claiming the probate court erred by: (1) finding
that the children's KP&F benefits can be used as a credit against Thomas' child support
obligation; (2) denying the requested removal of Thomas as conservator and the requested
appointment of a successor; (3) refusing to order Thomas to reimburse the conservatorship
estates for the monies withdrawn by him to pay his court-ordered obligations; and (4) refusing to
order Thomas to pay Deborah's legal fees and expenses. Thomas did not appeal the divorce
court's rulings, and he does not cross-appeal any of the probate court's rulings.
CREDIT AGAINST CHILD SUPPORT OBLIGATION
Deborah begins by challenging the probate court's finding that Thomas was entitled to a
credit against his divorce court child support obligations for the amount of KP&F benefits
payable to his children. She essentially attacks the finding on two levels. First, she contends that
the probate court was collaterally estopped from relitigating the issue after the divorce court had
ruled that no credit was due. Secondly, Deborah argues that the probate court improperly relied
upon the Andler and Martin decisions.
Whether the doctrine of collateral estoppel applies is a question of law providing this
court with unlimited review. O'Keefe v. Merrill Lynch & Co., 32 Kan. App. 2d
474, 479, 84 P.3d
613, rev. denied 278 Kan. 846 (2004). However, we need not separately analyze the
elements of collateral estoppel. See O'Keefe, 32 Kan. App. 2d at 483 (reciting the
apply collateral estoppel). Deborah did not specifically ask the probate court to apply the
doctrine. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62
(2003) (issue not raised before district court cannot be raised on appeal); In re Marriage of
Vargas, 20 Kan. App. 2d 480, 487, 891 P.2d 462 (1994), rev. denied 257 Kan.
(collateral estoppel argument deemed waived where appellant failed to raise issue prior to district
Additionally, the salutary purposes of collateral estoppel are "(1) to avoid the expense and
vexation attending multiple lawsuits, (2) to conserve judicial resources, and (3) to foster reliance
on judicial action by minimizing the possibility of inconsistent decisions. [Citation omitted.]"
KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 669, 941 P.2d 1321
Deborah initiated both proceedings, thus causing the expense of concurrent multiple lawsuits and
opening the door for inconsistent rulings. Applying collateral estoppel in this scenario to protect
Deborah against the problems she created or facilitated would not serve the purposes of that
Application of Andler and Martin
The parties agree that the issue of whether Thomas was entitled to a credit against his
child support obligation for payments made by KP&F to the children's conservatorships is
first impression in Kansas that presents a question of law subject to de novo review. See
v. KPERS, 35 Kan. App. 2d 311, 315, 130 P.3d 117 (2006) (proper application of
provision is question of law providing appellate court with unlimited review). Cf.
Kan. at 542 (whether Social Security disability payments made for benefit of children of disabled
father constituted satisfaction of father's child support obligation is question of law to be resolved
by courts). However, given the Andler decision, the issue does not come to us in a
In Andler, a divorced father was ordered to pay child support. After the
final, the mother, as the children's custodial parent, began receiving monthly Social Security
disability benefits for the benefit of the minor children as a result of the father's disability.
Subsequently, the father stopped making child support payments, prompting the mother to file a
motion for a citation in contempt and for a determination of child support arrearage. The district
court declined to find the father in contempt and ordered the child support payments terminated
because the mother was receiving Social Security disability payments for the benefit of the
children in an amount that exceeded the father's child support obligation.
Ultimately, our Supreme Court likened Social Security to a private insurance contract
"wherein a father insures against his possible future disability and loss of gainful employment by
providing for the fulfillment of his moral and legal obligations to his children." 217 Kan. at 542.
The Andler court then held:
"[W]here a father who has been ordered to make child support payments becomes totally
permanently disabled, and unconditional Social Security payments for the benefit of the minor
children are paid to the divorced mother, the father is entitled to credit for such payments by the
government against his liability for child support under the divorce decree. The father is entitled
credit, however, only up to the extent of his obligation for monthly payments of child support,
not exceeding it." 217 Kan. at 544.
Similarly, at issue in Martin was whether a divorced father could receive
his child support obligation for Social Security payments received by his children as a result of
his retirement, rather than his disability. As in Andler, the minor children received
Social Security payments as a result of the father's status, and those payments were sent directly
to the mother as the children's custodial parent. The Martin court applied
Andler to allow the
father credit against child support, adopting the reasoning set forth in McClaskey v.
543 S.W.2d 832, 834 (Mo. App. 1976), which determined that the manner of the child support
payment was irrelevant because the nature of the funds was the same. 32 Kan. App. 2d at 1146.
Deborah argues that Andler and its progeny are inapplicable here because of
distinctions. She attempts to explain how the KP&F benefits differ from Social Security
Her arguments are unpersuasive. Deborah also argues that the KP&F requirement that the
children's benefits must be paid to a conservatorship distinguishes those payments from Social
Security disability or retirement benefits. Although that requirement has implications which will
be addressed below, it does not change the character or nature of the KP&F
Deborah's most persuasive argument involves the practical result of granting Thomas a
child support credit. That is, the children had their money taken from them simply because their
parents could not live together compatibly, i.e., the children funded the divorce. As
points out, during the period when she and Thomas were reconciled, the children received and
kept all of their benefits. Presumably, during the period of cohabitation, a portion of Thomas'
own share of the disability benefits was utilized to comply with his legal duty to support the
children in his household. After the parents separated, the children's individual benefits were
used to satisfy Thomas' legal support obligation, while Thomas got to keep nearly all of his own
In that context, the Andler holding is logical only if the disabled parent's
obligation is based on his or her predisability income, i.e., the disability occurred
amount of child support was set. To illustrate, suppose that a parent was making $2,000 per
month when the child support was computed, but subsequently had his or her income reduced to
$1,000 per month post-injury disability income, with the children collectively receiving $250 per
month separate disability benefits. The children's separate $250 in disability benefits could
reasonably be viewed as an insurance payment designed to replace their portion of the $1,000 of
monthly income which the parent lost due to disability. In that scenario, it makes sense to
subtract the children's disability benefits from the child support obligation which was based in
part on the lost income. In contrast, when the child support calculation is based on the post-injury
income of $1,000 per month and the children's $250 is used to fund that reduced child support,
the children have not only been deprived of their share of the "lost" income, but also lose at least
a portion of their rightful share of the remaining income.
The child support guidelines utilize the parent's income to arrive at an amount of support
which that parent is legally obligated to pay. If an injured parent makes one-half of what he or
she formerly made, the child support calculation based upon the post-disability income will
reflect that change. Further, if the disability creates an unusual financial hardship for the parent,
the guidelines provide for adjustments for special circumstances. It should make no difference
whether the current income is derived from KP&F benefits or from working at a relatively
low-paying job. It makes scant sense to require a laborer to pay all of the calculated child support
certain amount of income, while allowing a disability recipient making the same income to avoid
paying most, if not all, of his or her calculated legal support obligation. As suggested, the
children are receiving additional benefits designed to replace the income lost because of their
parent's injury. Crediting the children's share of their parent's former salary against the parent's
post-injury child support obligation is unfair to the children and an improper windfall to the
Nevertheless, Deborah appears to overlook the most distinguishing aspect of this case.
Andler and Martin were appeals in divorce proceedings involving the
question of whether a
parent could reduce or discontinue making the court-ordered child support payments. Here, the
child support that was paid to Deborah, as the custodial parent, was not reduced or eliminated.
Presumably, the Chapmans' divorce proceeding records would reflect that Thomas is paid in full.
Thomas did not ask the divorce court to reduce his support obligation, and he did not attempt to
take any self-help credit by paying a reduced amount. Rather, Thomas fully paid his child support
each month by taking money from his children's conservatorships.
The distinction is significant, both practically and legally. If Thomas had taken a credit
against child support, Deborah would have contemporaneously received significantly less money
through the divorce proceedings. She would not have had access to the children's KP&F
because those monies were going into conservatorships over which Deborah had no control.
Thus, as a practical matter, a child support credit would have squarely placed the issues on the
table in the beginning, over a decade before Deborah instituted this action.
Legally, the difference is significant for the children. Notwithstanding that a credit against
child support would have left their mother with less money, the children would still have all of
their accumulated share of KP&F benefits, plus whatever income the funds would have
over the years. If extreme hardship would have necessitated using some of the children's money
for their support, disbursements from the conservatorships would have been subject to court
approval and oversight. As it is, we have no way of knowing whether the money taken from the
children and given to Deborah was actually used for the children's benefit.
As noted, the divorce court's ruling that Thomas was not due any credit for the children's
benefits has not been appealed. The probate court's ruling on that issue was not germane to the
issues presented in the conservatorship proceedings. Any right Thomas may have acquired to
reduce his court-ordered child support payments in the divorce proceeding because of his
children's separate KP&F benefits did not automatically translate into a right to take the
children's conservatorship money to pay the full amount of court-ordered child support
notwithstanding that the KP&F benefits were paid into the conservatorships. Therefore, we
proceed to consider the questions which were properly before the probate court.
WITHDRAWALS OF CONSERVATORSHIP FUNDS
Deborah argues that the probate court erred in refusing to remove Thomas as conservator.
She claims that Thomas failed to faithfully and diligently carry out his fiduciary duties and
responsibilities as conservator. Principally, she complains that Thomas wrongfully withdrew
funds from the conservatorship estates to pay his personal child support obligation without
obtaining the requisite court approval. In a separate issue, Deborah contends the probate court
should have ordered Thomas to reimburse the conservatorships for the wrongfully withdrawn
funds. Both issues hinge upon a determination of whether Thomas violated his conservatorship
duties by misusing or converting funds from the conservatorship estates. Neither removal nor
reimbursement was required if Thomas' actions were authorized.
Shortly before oral arguments on appeal, the probate court accepted Thomas' resignation
as conservator of each child's estate and appointed a successor conservator. The order specifically
provided that Thomas was not released from any liability for his acts as conservator. Thus,
although the removal question is now moot, much of the discussion on that point is still germane
to the liability question.
The parties do not agree on the applicable standard of review. We can perceive of no
dispute as to the material facts, but rather view the case as turning upon the resolution of legal
questions requiring statutory interpretation. Accordingly, our review is unlimited. See
Kan. App. 2d at 315; In re Estate of Briley, 16 Kan. App. 2d 546, 547, 825 P.2d
Our obvious starting point is to review a conservator's statutory duties, responsibilities,
and powers, which are set forth in K.S.A. 59-3078. A conservator is required to carry out his or
her duties and responsibilities "diligently and in good faith" and is at all times subject to a court's
control and direction. K.S.A. 59-3078(a)(1). "A conservator shall at all times act in the best
interests of the conservatee and shall exercise reasonable care, diligence and prudence." K.S.A.
59-3078(a)(2). Specific provisions applicable here are:
"(b) A conservator shall have the following general duties, responsibilities,
(1) To pay the reasonable charges for the support, maintenance, care, treatment,
habilitation and education of the conservatee in a manner suitable to the conservatee's station in
life and the value of the conservatee's estate; but nothing herein shall be construed to
natural guardian from the ordinary obligations imposed by law for the support, maintenance,
care, treatment, habilitation and education of the natural guardian's minor children;
. . . .
"(f) A conservator shall not have the power:
(1) To use the assets of a minor's estate to pay any obligation imposed by
law upon the
minor's natural guardian or natural guardians, including the support, maintenance, care,
treatment, habilitation or education of the minor, except with the specific approval of the court
granted upon a showing of extreme hardship." (Emphasis added.) K.S.A. 59-3078.
Thomas, as a parent of Ethan, Matthew, and Jared, is a "natural guardian" of those
conservatees. See K.S.A. 59-3051(l) (defining "natural guardian"). As a parent, Thomas has a
duty to support his minor children. See Keller v. Guernsey, 227 Kan. 480, 486, 608
(1980). Likewise, the divorce court child support orders were obligations imposed by law upon
Thomas to provide for his children's support, maintenance, care, treatment, habilitation, and
K.S.A. 59-3078(b)(1) clearly provides that Thomas' legal duty to support Ethan, Matthew,
and Jared was unaffected by the establishment of their conservatorships. See also K.S.A.
59-3053(b) ("Nothing in this [conservatorship] act shall be construed to relieve a natural
any obligation imposed by law for the support, maintenance, care, treatment, habilitation or
education of that natural guardian's minor child."). Emphasizing and clarifying that point, K.S.A.
59-3078(f)(1) specifically denied Thomas the power to use any of the conservatorship funds to
pay for his children's support without the probate court's specific approval.
Thomas admitted that he used conservatorship funds to pay court-ordered child support,
i.e., he proceeded "[t]o use the assets of a minor's estate to pay [a support] obligation
law upon [him as] the minor's natural guardian." Thomas admitted that he did not attempt to
make a showing of extreme hardship in order to obtain the specific approval of the probate court,
and he admits that he did not have specific court approval to use conservatorship funds to pay for
the children's support. Those admissions place Thomas squarely in violation of the statutory
prohibitions on the use of conservatorship funds. In other words, Thomas has admitted to
misusing the assets of the conservatorship estates.
Thomas contends that his entitlement to a credit against the court-ordered child-support
invested him, as conservator, with the authority to use the conservatorship funds for child
support, notwithstanding that such authority is clearly and specifically withheld in K.S.A.
59-3078(f)(1). To the contrary, the conservatorship provisions are unaffected by the
amount of the
support obligation imposed by law upon a natural guardian. Accordingly, the probate court had
no reason to question the efficacy or propriety of the amount of child support imposed by law
upon Thomas. Rather, the probate court's job was to protect the conservatees' estates and assure
that no amount of conservatorship funds was used to pay Thomas' child support.
district court erred in finding that a parent's right to reduce his or her child support payment by
the amount of separate KP&F disability/retirement benefits paid to his or her children
an independent authorization to use the assets of the minor's conservatorship estate to pay the
parent's legal support obligation.
Thomas suggests that he had court approval for the withdrawals, pointing to the probate
court findings that the conservatorship files contained journal entries of periodic review in which
the court found that the conservator was serving the needs of the conservatee. Apparently, the
periodic reviews were undertaken by the court, sua sponte, without notice to any of
parties. The procedure followed is distinguishable from that in which a conservator petitions for
court approval of his or her accountings after proper notice and a hearing. Therefore, we find that
the journal entries did not provide Thomas with specific approval to pay his child support with
Likewise, we are unpersuaded by Thomas' argument that "[a]ll of the money received
through the disability payments from KPERS was used for the children in some way." The 1992
legislative requirement that a minor's KP&F benefits must be paid to a conservatorship was
response to a request from KPERS because of its concern that such benefits might not be actually
used for the child's benefit. That rationale is effected if the supervising court requires proof that
expenditures are made to vendors or service providers for items that directly benefit the child.
However, permitting the money to be paid to the custodial parent circumvents the initial purpose
of requiring a conservatorship and resurrects the concerns which prompted the 1992 amendment.
We have no proof that Deborah actually used the child support money for the direct benefit of her
children, any more than KPERS knew whether KP&F children's benefits paid directly to
custodial parents were being used for the children's benefit.
Having determined that Thomas misused conservatorship funds, we turn to the
appropriate remedy or sanction to be imposed. Again, the legislature has given the district court
explicit directions. K.S.A. 59-3088 addresses the procedure for the resignation or removal of a
conservator and provides, in relevant part:
"(e) At the conclusion of the hearing, if the court finds, by a preponderance of the
evidence, that the guardian or conservator, or both, should be permitted to resign, or should be
removed for failure to fulfill the duties or responsibilities of being a guardian or conservator, or
for the manner in which the guardian or conservator has exercised the powers or authorities
granted to the guardian or conservator, the court may so order and in such case shall revoke the
letters of guardianship or conservatorship, or both, previously issued pursuant to K.S.A. 59-3069,
and amendments thereto. The court may appoint a successor guardian or conservator, or both. In
making any such appointments, the court shall