NOT DESIGNATED FOR PUBLICATION In the ... - Kansas divorce

NOT DESIGNATED FOR PUBLICATIONIn the Matter of the MARRIAGE OF Lula M. JOHNSON, Appellant,andConley O. JOHNSON, Appellee.No. 89,915.80 P.3d 1201 (Kan.App. 2003)Court of Appeals of KansasDecember 19, 2003Appeal from Sedgwick District Court; Bryce Abbott, judge. Opinion filed December19, 2003. Affirmed.Peter J. Orsi, of Wichita, for the appellant.Kelly Egli, of Ray Hodge & Associates, L.L.C., of Wichita, for the appellee.Before JOHNSON, P.J., GREEN, J., and BRAZIL, S.J.MEMORANDUM OPINIONPER CURIAM.Lula M. Johnson appeals the district court's denial of her motion to set aside theproperty settlement agreement, which was incorporated in the court's order that decreedher divorce from Conley O. Johnson. Contrary to the district court's rulings, Lulacontends the divorce decree was void pursuant to K.S.A. 60-260(b)(4) and the court hadjurisdiction to modify the property settlement agreement.We affirm.Conley O. Johnson and Lula M. Johnson were married on April 10, 1970, raising twochildren, Shannon and Michael, to adulthood. After 24 years of marriage, Lula filed apetition seeking an absolute decree of divorce on June 7, 1994. Included with the petition,Lula filed a domestic relations affidavit (DRA) bearing her signature and a propertysettlement agreement (PSA) signed by both she and Conley.On August 10, 1994, a judge pro tem entered a journal entry of judgment and divorcedecree which incorporated the property settlement agreement. No record was made of theproceeding which resulted in the final decree.In part, the PSA provided that Conley was to "retain the investment with [WesternReserve Life Assurance Company] and Nationwide for the purpose of retirement funds."As long as the Texas land set over to Conley produced sufficient income, each year hewas to place $500, for he and Lula apiece, into the "retirement investment." If there wasnot sufficient income from the land, Lula would be responsible for her annualcontribution. Conley's obligation for the annual $500 contribution ceased when the Texas

property was sold. When the "investment has reached its full potential" or Conleydecided to terminate the fund, the fund would be divided equally.Lula filed a petition for an accounting in 2001. At the hearing, the court orderedConley to provide an accounting for the $500 per year retirement investment and the$500 per year contribution to the Western Reserve Life Assurance Company (WRL) andNationwide Life Insurance (Nationwide), as set forth in the PSA.Lula filed a motion to set aside, in part, the journal entry of judgment and the PSA,pursuant to K.S.A. 60-260(b)(6) and In re Marriage of Kirk, 24 Kan.App.2d 31, 941 P.2d385, rev. denied 262 Kan. 961 (1997). Specifically, Lula requested the court to set asidethe specific provisions related to the WRL account, the Nationwide account, and theTexas land, and to make a valid, just, and equitable division of those assets.At the hearing, Lula orally added a request for relief pursuant to K.S.A. 60-260(b)(4). Because Conley was in the process of selling the Texas farmland, the courtordered the proceeds of the sale to be reserved. The court also ordered two annuityaccounts, Nationwide and WRL, to remain intact until the court rendered a decision.The judge who presided at the 260(b) hearing, filed a letter opinion denying relief toLula and instructing Conley's attorney to draft a journal entry.Eventually, a journal entry was signed by a different judge. It stated the PSA did notcontain any facts or other criteria from which the trial court could have discerned theagreement provided for a fair, just, and equitable division of the parties' assets andliabilities. The court pointed out the ambiguities surrounding the provisions for theretirement account and the WRL and Nationwide accounts. However, after setting forththe many failings of the PSA, the district court found it was not void ab inito. Further, thedistrict court found Lula waited an unreasonable time to file her 260(b) motion; thus, itdid not have jurisdiction to grant her motion and modify the parties' PSA.THE DIVORCE DECREEDuring oral arguments on Lula's 60-260(b) motion, her counsel argued that she wasentitled to relief under K.S.A. 60-260(b)(4), as the decree, incorporating the agreement,was void. Lula maintains in her brief that when the divorce was granted and the PSAapproved, the pro tern judge's failure to "perform his judicial duty" and to find, pursuantto K.S.A.2002 Supp. 60-1610(b)(3), that the agreement was valid, just, and equitabledeprived her of due process of law, rendering the judgment void.K.S.A. 60-260(b) provides a means for the district court to set aside a PSA and orderan equitable division of property. Richardson v. Richardson, 3 Kan.App.2d 610, 612, 599P.2d 320, rev. denied 226 Kan. 792 (1979). Relief is available under 260(b) where factsexisting at the time of the divorce decree, if known to the court, would have brought adifferent result. In re Marriage of Hunt, 10 Kan.App.2d 254, 1, 697 P.2d 80 (1985).

In pertinent part, K.S.A. 60-260(b) allows a party to move a court to relieve it from afinal judgment, order, or proceeding due to: "(1) mistake, inadvertence, surprise, orexcusable neglect;" "(2) newly discovered evidence;" "(3) fraud;" (4) a void judgment; ...or "(6) any other reason justifying relief from the operation of the judgment." The motionshall be made within a reasonable time, and for reasons (1), (2) and (3) not more than oneyear after judgment." K.S.A. 60-260(b).Ordinarily, a ruling on a motion for relief from a final judgment, filed pursuant toK.S.A. 60-260(b), rests within the sound discretion of the district court and will not bereversed absent a showing of abuse of discretion. In re Marriage of Hampshire, 261 Kan.854, 862, 934 P.2d 58 (1997).K.S.A.2001 Supp. 60-1610(b)(3) provides that "[i]f the parties have entered into aseparation agreement which this court finds to be valid, just and equitable, the agreementshall be incorporated in the decree." This provision "requires a district court to scrutinizea separation agreement before approving it. Such scrutiny includes a requirement that thedistrict court review evidence in the record sufficient to support the finding that theseparation agreement is valid, just, and equitable." In re Marriage of Kirk, 24Kan.App.2d 31, 36, 941 P.2d 385, rev. denied 262 Kan. 961 (1997). Mere agreement bythe parties does not vitiate the court's duty to scrutinize the agreement. If the agreement isnot valid, just, and equitable, the court should reject or alter it. Disclosure of pertinentfinancial information of the parties is integral to the court's duty in carefully reviewingthe agreement to ascertain if it is fair, just, and equitable.Lula further contends on appeal that 60-1610(b)(3) requires the court to carefullyscrutinize the PSA to guard against approving an agreement that is procured under fraudor oppression. Notably, Lula's claim seeking relief from the PSA due to fraud would beproperly made under K.S.A. 60-260(b)(3), not K.S.A. 60-260(b)(6). Accordingly, herclaim would be barred as the statute requires that a motion made for reason of fraud mustbe brought within 1 year after the judgment was taken. See K.S.A. 60-260(b).In his letter opinion, the district judge stated, "There are serious allegations in thiscase that suggest that the [PSA] may have been secured by oppression." He went on tomake the factual finding that, because Lula's primary interest at the time of the divorcewas to give Conley what he wanted and to escape the marriage, that a hearing on theterms and conditions of the divorce, or an affidavit or answers to interrogatories wouldnot have produced a different result. See In re Marriage of Hunt, 10 Kan.App.2d 254,Syl. 1, 697 P.2d 80. Lula's conduct as the petitioner, who retained the parties' soleattorney, and voluntarily signed the petition, DRA, and the separation agreement, as wellas statements in Lula's affidavit, support the district court's finding.Lula suggests that In re Marriage of Kirk, 24 Kan.App.2d 31, 941 P.2d 385, isdirectly on point. In Kirk, the trial judge approved the settlement agreement whichawarded each party their individual business interests, the husband his excavatingservice, and the wife her Mary Kay business, without first reviewing any evidence ofvalue for the businesses. In the absence of both parties, the settlement agreement was

submitted by an attorney to the district court for approval. The attorney signed thedivorce decree, without indicating that he represented either party. The district court laterdenied the wife's petition to set aside the divorce decree, rejecting the wife's argument therecord lacked sufficient documentation from which the judge could have determined thevalidity and justness of the separation agreement. We reversed, finding the district courthad not followed the guidance of K.S.A.2002 Supp. 60-1610(b)(3). 24 Kan.App.2d at 37,941 P.2d 385.Here, significant assets were omitted from Lula's DRA and the district court foundthe PSA "does not contain any facts of other criteria on which the Court could decide thatit provided for a fair, just and equitable division of the parties assets and liabilities."Without any supporting evidence of asset valuation, the trial judge nevertheless awardedthe property in the PSA. Kirk would support finding that Lula's motion should be grantedas the trial judge failed to review the PSA as required by K.S.A.2002 Supp. 60-1610(b)(3). See 24 Kan.App.2d at 37, 941 P.2d 385 (the record lacked evidence ordocumentation necessary to determine whether the agreement was fair, just, andequitable).The Kirk court further explained the absence of evidence to support a finding that theagreement is just and equitable constitutes "more than a technical defect." 24 Kan.App.2dat 35, 941 P.2d 385. Although a court has broad discretion in adjusting property rights,nonetheless, "[a]ction inconsistent with the limitations of judicial discretion amounts tomore than a 'technical defect." ' 24 Kan.App.2d at 36, 941 P.2d 385.Notably, the motion to set aside in Kirk was filed in less than 1 year, and the delay infiling was not raised as an issue. Conversely, Lula waited over 7 years to file her motionand Conley has raised Lula's delay in his defense.However, if Lula is correct that the original court's judgment is void, her failure tochallenge the judgment for more than 7 years does not prevent her from obtaining reliefunder 60-260(b)(4), as noted by the district court. Notwithstanding the language of 60-260(b), a void judgment is a nullity and may be vacated at any time. In re Marriage ofHampshire, 261 Kan. at 862, 934 P.2d 58.A judgment is void "only if the court that rendered it lacked jurisdiction of thesubject matter or of the parties or if the court acted in a manner inconsistent with dueprocess. [Citations omitted.]" In re Marriage of Cline, 17 Kan.App.2d 230, 233, 840 P.2d1198 (1992). A court acts in a manner inconsistent with due process when fundamentalprocedural requirements are not satisfied, such as notice and opportunity to be heard. SeeState v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000).Lula does not argue that the district court lacked subject matter or personaljurisdiction. While Kirk suggests that a court's failure to abide by K.S.A. 60-1610(b)(3)and find a separation agreement to be valid, just, and equitable constitutes more thantechnical defect, or irregularity in the judgment, it does not indicate the instant judgmentis void because it violated Lula's right to due process. See Cline, 17 Kan.App.2d at 233,

840 P.2d 1198. Lula does not claim that she did not have knowledge of or opportunity toappear at any stage of the proceeding; in fact, she was the petitioner. She signed and filedall of the necessary documents, and the sole attorney represented her.In summary, the district court did not abuse its discretion in ruling that K.S.A. 60-260(b)(4) did not provide adequate grounds to set aside the divorce decree. Substantialcompetent evidence supports the district court's finding the divorce court had personaland subject matter jurisdiction over the parties and that the court did not act in a mannerinconsistent with due process.THE PSALula contends in her brief that should this court agree the divorce decree whichincorporated the PSA is valid, we should nonetheless remand the PSA for interpretationand clarification of those provisions "pertaining to the division of debts, contribution toretirement accounts and management of the WRL and Nationwide funds."Lula filed her motion to set aside the journal entry of judgment and PSA 7 yearsafter the divorce decree was filed. After finding the journal entry and decree of divorcewere not void ab initio, the district court stated it did not have jurisdiction to modify thePSA, in spite of its noted deficiencies, because Lula did not file her 260(b) motion withina reasonable time.According to In re Marriage of Boldridge, 29 Kan.App.2d 581, 582, 29 P.3d 454,rev. denied 272 Kan. 1418 (2001), this court exercises de novo review of the questionwhether a trial court had jurisdiction to reopen a parties' property division, which waspart of the divorce decree. In Boldridge, the movant was unable to produce evidenceestablishing that property, in the form of a claim which later led to a substantial award,had been concealed at the time the divorce decree was entered. The court noted that thelawsuit was not even contemplated when the divorce was finalized. 29 Kan.App.2d at581-83, 29 P.3d 454. Based on those facts, the Boldridge court stated that "the passage of46 months from the time the divorce decree was filed to the time the motion was filed[was] an unreasonable period of time," leaving the court without jurisdiction to reopen adivorce decree and modify it. 29 Kan.App.2d at 583, 29 P.3d 454; see also In reMarriage of Bowers, 23 Kan.App.2d 641, 645-46, 933 P.2d 176 (1997) (noting that filinga 260[b][6] motion 4 years after the divorce decree is not a reasonable time absentextenuating circumstances).The Supreme Court has stated that what constitutes a reasonable delay under 60-260(b) "is a question left to the discretion of the trial court. The determination dependsupon the facts of each case, considering the interest in finality, the reasons for the delay,the ability of a litigant to learn earlier of the grounds relied upon, and any prejudice to theparties." In re Marriage of Larson, 257 Kan. 456, Syl. 3, 894 P.2d 809 (1995).The district court did not abuse its discretion in determining Lula waited anunreasonable amount of time in filing her 260(b) motion. See Varney Business Services,

Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002) ("Judicial discretion is abused onlywhen no reasonable person would take the view adopted by the trial court. [Citationsomitted.]") There is nothing in the record to indicate why Lula's motion was not filedearlier. Obviously, Lula's concern regarding Conley's annual $500 contribution to theretirement account should have arisen the first year following the divorce. Lula stated shesought therapy to address issues which plagued her marriage 2 years after the divorce, butshe waited 7 years to file a motion to set aside the PSA.Clearly, Conley relied upon the agreement in conducting his affairs. However,whether he should be able to reap the benefits of the agreement in the balance of Lula'sallegations is debatable. Nonetheless, the court has an interest in the finality of divorcejudgments. See Boldridge, 29 Kan.App.2d at 582, 29 P.3d 454 ("the finality of a divorcedecree is favored in this state by statute and by case law"). At the time this courtentertains Lula's request for relief, the divorce decree has been final for over 9 years.Also, as noted in Boldridge, the finality of a PSA, which has been incorporated in adivorce decree, is clearly provided for under K.S.A.2002 Supp. 60-1610(b)(3), whichstates that a PSA is not subject to subsequent modification by the court except asprescribed by the agreement or as subsequently consented to by the parties for mattersother than those pertaining to the legal custody, residency, visitation, parenting time,support, or education of the minor children. See 29 Kan.App.2d at 582, 29 P.3d 454.Here, the agreement did not provide for and Conley has not expressed any consent tosubsequent modification.Lula does not even argue the court erred in ruling that she did not file her motionwithin a reasonable time. Moreover, she does not contend that the PSA expresslyprovided for modification or that Conley consents to subsequent modification. Instead,her argument that this court should direct the "trial judge to interpret and clarify thecontradictions and ambiguities inherent in the Agreement" appears to be the sameargument rejected by the district court. Based on the district court's ruling that Lula didnot file her 260(b) motion within a reasonable time, she appears to be precluded from anyrelief.Affirmed.