NOT DESIGNATED FOR PUBLICATION

No. 80,304

IN THE COURT OF APPEALS. OF THE STATE OF KANSAS

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In the Matter 'of the Marriage of

HALLECK RICHARDSON,

Appellee,
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and ~.

CLAUDINE DOMBROWSKI,
Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; JAt"\! VV. LEUENBERGER and JAMES P.
BUCHELE, judges. Opinion filed October 23, 1998. Affirmed.

Geary N. Gorup, of Render Kamas, L.e, of Wichita, for appellant.

Donald R. Hoffman, of Hoffman & Hoffman, of Topeka, for appellee.

Before MARQUARDT, P.J., GERNON and KNUDSON, IT.

Per Curiam: Claudine Dombrowski appeals from a divorce decree which

would require her to move back to the district court's jurisdiction or lose joint
custody of her minor child.

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Dombrowski argues that her constitutional rights were violated by the district
court's ruling and by the court's policy to compel settlement of domestic issues
before triaL She further contends the district court erred in limiting the number of
witnesses each side could present at triaL

Dombrowski and Halleck Richardson were married in 1995, and a petition for
divorce was filed 4 months later. At the time of their marriage, their child, RD.,
was 11 months old.

Custody and visitation issues were fiercely litigated. At some point,

Dombrowski sought and received the district court's approval to move from
Topeka, Kansas, to Great Bend, Kansas. Dombrowski alleged that the move was
necessary to avoid further abuse from Richardson and to obtain employment. She
also noted that while there was no statutory duty to obtain leave of the district court
to move from one county in Kansas to another, she sought permission to avoid any
concerns over the residential custody of RD.

The court awarded Dombrowski temporary placement of the child and

ordered that Richardson would have the child 1 week out of the month. The court
also ordered Dombrowski to move back to Topeka with RD. by a certain date or
Richardson would assume sole residential custody of the child. The court reserved
determining shared custody and appointing a residential parent until Dombrowski's
relocation deadline passed.

Dombrowski appeals.

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 Dombrowski argues that her constitutional rights were violated by the court's
arbitrary ruling that it was in the best interests of the child for her to return to
Topeka, Kansas. She further claims that the unique circumstances of this case
denied her a full and fair opportunity to defend and to present evidence on her
behalf.

Dombrowski did not file a motion for reconsideration or any other type of
post-judgment relief with the district court.

Dombrowski acknowledges that she failed to properly raise her contentions

but maintains this case falls within the exceptions to the general rule where the
theories involve only legal questions arising on proven facts and it is necessary to
serve the interests of justice or prevent the denial of fundamental rights. See In re
M.M.L., 258 Kan. 254,261,900 P.2d 813 (1995).

It is within the trial court's discretion to determine issues concerning child

custody and visitation. In re Marriage of McNeely, 15 Kan. App. 2d 762, 764, 815 P.2d
1125, rev. denied 249 Kan. 776 (1991); see In re Marriage of Bradley, 258 Kan. 39, 45,
899 P.2d 471 (1995). Discretion is abused when no reasonable person would agree
with the trial court's actions. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804,
897 P.2d 123 (1995).

'''In determining the right of custody of children between parents, the

primary consideration is the best interest and welfare of the children, and all other
issues are subordinate thereto.'" In re Guardianship of Williams, 254 Kan. 814, 819,
869 P.2d 661 (1994) (quoting Parish v. Parish, 220 Kan. 131, 132,551 P.2d 792 [1976]).

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"The trial court is in the best position to make the inquiry and determination, and
in the absence of abuse of sound judicial discretion, its judgment will not be
disturbed on appeal." Moran v. Moran, 196 Kan. 380, 386, 411 P.2d 677 (1966).

Here, the district court found the distance between the parents made it
virtually impossible for an individual therapist or counselor to work with the
family, for Richardson to have regular and frequent contact with the child, and for
the parents to resolve their conflicts. The court noted that if the long distance
visitation continued, it would take a toll on both the parents and the child. The
court concluded that Dombrowski should relocate to Topeka with R.D. because it
was in the child's best interests for her to reside in a location where both parents
would have access to her.

The court further rejected Dombrowski's assertion that her move to Western
Kansas was prompted by the closure of the Topeka State HospitaL The court
emphasized that no evidence was presented regarding her effort to find
employment in the Topeka vicinity and took judicial notice of the Topeka
newspaper which advertised six to ten nursing positions in the area each weekend.
The court concluded that Dombrowski's residence in Western Kansas was not
necessary for her employment.

Dombrowski does not challenge the court's finding regarding her daughter's
best interests. Even if Dombrowski disputed the finding, the testimony of the
guardian ad litem and the court services officer provides substantial competent
evidence to support the court's decision. Consequently, the mere fact that

 Dombrowski must decide whether to move or forfeit some of her rights to custody
does not establish an abuse of discretion.

Dombrowski next argues the district court violated her constitutional rights
by pressuring her into settlement negotiations the day of trial.

The trial judge held a conference on the day the case was scheduled for trial.
An apparent settlement of the issues involving the child was later announced to the

court. The alleged agreement basically provided for joint custody and required
Dombrowski to move back to Topeka by a certain date or lose residential custody of
the child. Once she moved to Topeka, each parent would share residential custody
of the child on a week-by-week basis. If she failed to move by: the certain time,
Richardson would assume full-time residential custody of the child, subject to
reasonable visitation. In the interim, residential custody would alternate weekly
between the parents. The district court subsequently approved the settlement
subject to the preparation of a journal entry. The next day, Dombrowski denied ever
agreeing to a settlement, and the oral agreement was never memorialized into a
written journal entry.

We find nothing in the record to support Dombrowski's contention of

coercion or a prejudice on the part of the trial judge.

The other issue raised by Dombrowski, the denial of a full hearing, would be
more troublesome and perhaps the basis for reversal had not the trial judge stated,
late in the hearing: "[E]ven though I limited you initially, I want the record clear,
and I hope you all agree, I gave you the opportunity to argue with me to open it up

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so you can submit further evidence." Both counsel agreed that the court allowed
them an opportunity.

In State v. Anderson, 243 Kan. 677, 678, 763 P.2d 597 (1988), our Supreme
Court recognized that W[a] trial judge has the power within proper limits, to impose
limitations upon the number of witnesses, and to control their examination."'

At the time of trial, the parties' attorneys apparently indicated that as many as
50 subpoenas would be filed. However, the newly assigned trial court judge decided
to limit the presentation of evidence and informed the parties that he would only
allow each party to present five witnesses at the divorce trial.

vVhile we agree with the power of the trial court to set limits, as recognized in
Anderson, we are also mindful of the language of Justice Lockett, writing in State ex
reI. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984), in which he stated:

"The constitutional guarantee of providing for open courts and

insuring a civil remedy for injuries to persons and property is a
statement of our philosophy and a general rule which can be used to
solve civil conflicts. This right is generally regarded as one of the most
sacred and essential constitutional guarantees. However, the guarantee
creates no new rights but merely is declaratory of our fundamental
principles. In light of this guarantee, it is the policy and the obligation
of the state to furnish and of the courts to give every litigant his day in
court and a full and ample opportunity to be heard. This right extends
to everyone who may be materially affected by the action of the court in
a legal proceeding. The guarantee secures and places every citizen
within the protection of the law of the land. It insures the right of
every person protected by it to seek remedy by court action for any
injuries done to him or his personal property. The guarantee entitles

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 the citizen to have justice administered according to the law without
denial or delay. A litigant is assured the right to prosecute or defend an
action, provided he prosecutes or defends the action as contemplated by
law. Since a prisoner can sue or be sued in this state he must be
afforded the right to his day in court.
liThe right to a day in court means the right to be afforded an
opportunity to be heard." ,

The record reveals the court file was replete with information that was both
favorable and unfavorable to each of the parties. Moreover, the trial court allowed
Dombrowski's attorney to call an additional witness and gave her several
opportunities to present additional evidence at triaL

Based on the record before us, we find no abuse of discretion in the limits the
trial judge set here.

Affirmed.

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