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23-2707. Interlocutory orders; permissible orders; ex parte orders; support orders; service of process. (a) Permissible orders. After the filing of a petition for divorce, annulment or separate maintenance, and during the pendency of the action until the entry of final judgment the judge assigned to hear the action may, without requiring bond, make, modify, vacate and enforce by attachment, orders that:

(1) Jointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person's location, movement or travel patterns;

(2) restrain the parties from molesting or interfering with the privacy or rights of each other, including, but not limited to, utilizing any electronic tracking system or acquiring tracking information to determine the other person's location, movement or travel patterns;

(3) provide for the legal custody and residency of and parenting time with the minor children and the support, if necessary, of either party and of the minor children during the pendency of the action;

(4) require mediation between the parties on issues, including, but not limited to, child custody, residency, division of property, parenting time and development of a parenting plan;

(5) make provisions, if necessary, for the expenses of the suit, including reasonable attorney's fees, that will insure to either party efficient preparation for the trial of the case;

(6) require an investigation by court service officers into any issue arising in the action; or

(7) require that each parent execute any and all documents, including any releases, necessary so that both parents may obtain information from and to communicate with any health insurance provider regarding the health insurance coverage provided by such health insurance provider to the child. The provisions of this paragraph shall apply irrespective of which parent owns, subscribes or pays for such health insurance coverage.

(b) Ex parte orders. Orders authorized by subsections (a)(1), (2), (3), (4) and (7) may be entered after ex parte hearing upon compliance with rules of the supreme court, except that no ex parte order shall have the effect of changing the residency of a minor child from the parent who has had the sole de facto residency of the child to the other parent unless there is sworn testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued ex parte, the court shall hear a motion to vacate or modify the order within 14 days of the date on which a party requests a hearing whether to vacate or modify the order. In the absence, disability, or disqualification of the judge assigned to hear the action, any other judge of the district court may make any order authorized by this section, including vacation or modification or any order issued by the judge assigned to hear the action.

(c) Support orders. (1) An order of support obtained pursuant to this section may be enforced by an order of garnishment as provided in this section.

(2) No order of garnishment shall be issued under this section unless: (A) Fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and (B) the order of support contained a notice that the order of support may be enforced by garnishment and that the party has a right to request an opportunity for a hearing to contest the issuance of an order of garnishment, if the hearing is requested by motion filed within seven days after service of the order of support upon the party. If a hearing is requested, the court shall hold the hearing within seven days after the motion requesting the hearing is filed with the court or at a later date agreed to by the parties.

(3) No bond shall be required for the issuance of an order of garnishment pursuant to this section. Except as provided in this section, garnishments authorized by this section shall be subject to the procedures and limitations applicable to other orders of garnishment authorized by law.

(4) A party desiring to have the order of garnishment issued shall file an affidavit with the clerk of the district court stating that:

(A) The order of support contained the notice required by this subsection;

(B) fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and

(C) either no hearing was requested on the issuance of an order of garnishment within the seven days after service of the order of support upon the party required to pay the same or a hearing was requested and held and the court did not prohibit the issuance of an order of garnishment.

(d) If an interlocutory order for legal custody, residency or parenting time is sought, the party seeking such order shall file a proposed temporary parenting plan as provided by K.S.A. 23-3211, and amendments thereto, at the time such order is sought. If any motion is filed to modify any such interlocutory orders, or in opposition to a request for issuance of interlocutory orders, that party shall attach to such motion or opposition a proposed alternative parenting plan.

(e) Service of process. Service of process served under subsection (a)(1) and (2) shall be by personal service and not by certified mail return receipt requested.

History: L. 1963, ch. 303, 60-1607; L. 1976, ch. 251, § 25; L. 1977, ch. 204, § 2; L. 1979, ch. 183, § 3; L. 1982, ch. 152, § 7; L. 1990, ch. 202, § 32; L. 1998, ch. 162, § 2; L. 2000, ch. 171, § 14; L. 2008, ch. 127, § 1; L. 2010, ch. 135, § 176; L. 2014, ch. 116, § 6; L. 2023, ch. 78, § 3; July 1.

Source or Prior Law:

G.S. 1868, ch. 80, § 644; L. 1889, ch. 107, § 4; L. 1905, ch. 331, § 1; L. 1909, ch. 182, § 669; L. 1919, ch. 236, § 1; R.S. 1923, 60-1507, 60-1607.

Cross References to Related Sections:

Violation of restraining order as constituting criminal trespass, see 21-5808.

Findings by court, see 60-252.

Law Review and Bar Journal References:

"Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 203 (1962).

"Divorce and Alimony Under the New Code," Dan Hopson, Jr., 12 K.L.R. 27, 34, 35 (1963).

Amount paid under temporary support order hereunder included in wife's gross income, Bruce E. Moore, 35 J.B.A.K. 175, 208 (1966).

"Court Unification: Judicial Reform Revisited, Part III," Robert A. Coldsnow, 45 J.B.A.K. 117, 121 (1976).

"Practicing Law in a Unified Kansas Court System," Linda Diane Henry Elrod, 16 W.L.J. 260, 266 (1977).

"The Best Interests of the Child in Custody Controversies Between Natural Parents: Interpretations and Trends," Edward L. Barker and Cathryn L. Hamman, 18 W.L.J. 482, 496 (1979).

"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 552, 561 (1979).

"Survey of Kansas Law: Family Law," Camilla Klein Haviland, 27 K.L.R. 241, 242, 249 (1979).

"Garnishment in Kansas: A Procedural Paradox," Leon B. Graves, 49 J.B.A.K. 129, 136 (1980).

"1979 Family Law Legislation," H. Reed Walker, 3 J.K.T.L.A. No. 4, 20, 22 (1980).

"Reform in Kansas Domestic Violence Legislation," David J. Gottlieb and L. Eric Johnson, 31 K.L.R. 527, 557, 560 (1983).

"Kansas Enacts New Provisions for Child Support Enforcement—Mandatory Wage Withholding," Yvonne C. Anderson, Richard A. Forster, 25 W.L.J. 91, 102 (1985).

"Service of Process by Certified Mail," Robert C. Casad, 59 J.K.B.A. No. 10, 25, 27 (1990).

"Dissolution of Non-Marital Relationships," Charles F. Harris, J.K.T.L.A. Vol. XXII, No. 2, 18 (1998).

"Some issues concerning the property of married persons in Kansas," John C. Peck, 68 J.K.B.A. No. 8, 18 (1999).

"Protecting due process: avoiding ex parte communications," Prof. Sheila Reynolds, 74 J.K.B.A. No. 5, 8 (2004).

Attorney General's Opinions:

Restraining orders violations; criminal trespass; probable cause for arrest. 94-74.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, K.S.A. 60-1507 and the 1961 Supplement thereto.

1. District court has wide discretion in allowance of attorney fees; held excessive. Craig v. Craig, 197 Kan. 345, 349, 416 P.2d 297.

2. Amount and recipient of allowance of attorney fees in divorce action is within discretion of trial court. Brooker v. Brooker, 199 K 783, 786, 433 P.2d 363.

3. Subsection (d) considered; refusing to tax expert witness fees as costs not an abuse of discretion. Winn v. Winn, 206 Kan. 737, 739, 740, 482 P.2d 16.

4. Inclusion of award of temporary support in the judgment held to be error. Marshall v. Marshall, 208 Kan. 63, 67, 490 P.2d 388.

5. In the absence of a court order both parents have equal right to custody of their minor children. State v. Al-Turck, 220 Kan. 557, 558, 552 P.2d 1375.

6. Fees based on divorce action; not collateral proceedings. Scimeca v. Scimeca, 1 Kan. App. 2d 70, 72, 73, 561 P.2d 904.

7. Attorney fees may be awarded even though divorce action dismissed. Scimeca v. Scimeca, 1 Kan. App. 2d 70, 72, 73, 561 P.2d 904.

8. A home study investigative report in a child custody dispute is relevant evidence, and the parties must be given access to the report during discovery. Eastman v. Eastman, 6 Kan. App. 2d 137, 626 P.2d 1238.

9. Change of beneficiary of life insurance policy prohibited by restraining order issued after petition for divorce. Willoughby v. Willoughby, 758 F. Supp. 646, 648, 649 (1990).

10. Judgment sua sponte awarding arrearages for temporary alimony first awarded in 1981 reversed; temporary maintenance ceased upon divorce in 1984. Dube v. Dube, 15 Kan. App. 2d 511, 514, 809 P.2d 1245 (1991).

11. Proof required by petitioner to obtain injunctive relief from prospective injury examined. Sampel v. Balberni, 20 Kan. App. 2d 527, 529, 889 P.2d 804 (1995).

12. Restraining order pending divorce prohibiting either party from disposing of property invalidates efforts of now deceased husband to transfer assets to children of his first marriage. Nicholas v. Nicholas, 31 Kan. App. 2d 457, 66 P.3d 929 (2003).

13. No violation of restraining order by changing beneficiaries on life insurance or pay on death designations. Nicholas v. Nicholas, 277 Kan. 171, 83 P.3d 214 (2004).

14. Statute applies only to temporary orders entered "during the pendency of the [divorce] action prior to final judgment," but does not apply to orders made after final judgment. State v. Hendricks, 52 Kan. App. 2d 737, 738, 372 P.3d 437 (2016).


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