In re Marriage of Shafer ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,529
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
LISA MICHELLE SHAFER (nka Webster),
Appellant,
and
JON FRANCIS SHAFER,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; K. CHRISTOPHER JAYARAM, judge. Opinion filed September
23, 2022. Reversed and remanded with directions.
Bruce W. Beye, of Overland Park, for appellant.
Ronald W. Nelson, of Ronald W. Nelson, PA, of Overland Park, and Joseph A. DeWoskin, of
Kansas City, for appellee.
Before GREEN P.J., ISHERWOOD and COBLE, JJ.
PER CURIAM: Lisa Shaffer, now Lisa Webster, appeals the district court's denial
of her motion seeking clarification of the decree it entered in 2006 following her divorce
from her former husband, Jon Shaffer. Lisa contends the district court erroneously
concluded that any such motions needed to be filed within one year of entry of its order,
so the parties' divorce judgment was now dormant and the court was without jurisdiction
to rule on Lisa's request. We agree that error occurred. Because the provision in the
decree addressing the division of Jon's military retirement pay contained an incomplete
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calculation mechanism, the order was not susceptible to enforcement and was therefore
not subject to dormancy. The decision of the district court is reversed, and the matter
remanded with directions to consider the merits of Lisa's motion for clarification.
FACTUAL AND PROCEDURAL BACKGROUND
Lisa and Jon Shafer divorced in 2005 after roughly 13 years of marriage. The
district court filed its divorce decree in 2006 which included a division of assets and
liabilities. According to that order, Lisa would receive a share of Jon's Army Reserve and
National Guard retirement pay, equal to "50% of months of marriage divided by the total
months in the Reserves [and Guard]." The precise length of the parties' marriage was not
readily discernible from either the decree or the division of assets.
Jon retired from the service around 15 years after the divorce was finalized. Lisa
contacted the Defense Financial Accounting Services office (DFAS) soon afterward
intending to collect her assigned share of Jon's retirement pay. She provided the office
with copies of the decree along with the court's division of assets, but her request was
denied because neither document identified the length of time, in months, that the parties
were married. According to DFAS, given the language of the documentation, it could not
breathe life into the court's order until that number was known.
Lisa returned to the district court and filed a motion for clarification requesting
that the court refine its earlier order by identifying the number of months the parties were
married in order to effectuate its intent for Lisa to receive a precise portion of Jon's
retirement pay. The court conducted a hearing on the motion at which time Jon countered
Lisa's request with the assertion that K.S.A. 2020 Supp. 60-260 prohibited her from
seeking enforcement of the court's 15-year-old order. The court found Jon's argument
persuasive and denied Lisa's motion because K.S.A. 2020 Supp. 60-260(b) required her
to bring her request within one year of entry of the judgment. It advised Lisa that while it
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empathized with her plight, it nevertheless lacked "any legal basis, given the significant
lapse in time during which no action was taken, to amend, alter, or modify its prior
judgment."
Lisa now brings the matter before us to resolve whether the district court reached
its conclusion in error.
ANALYSIS
THE DISTRICT COURT ERRED WHEN IT HELD THE KANSAS DORMANCY STATUTE
PROHIBITED IT FROM CLARIFYING THE PARTIES' DIVORCE DECREE
Whether a district court's order is a final judgment is a legal question we review de
novo. In re Marriage of Doud and Modrcin, 59 Kan. App. 2d 244, 251, 480 P.3d 800(2020). Resolution of this question requires an analysis of whether the order at issue
"finally decides and disposes of the entire merits of the controversy and reserves no
further questions or directions for the future or further action of the court." Plains
Petroleum Co. v. First Nat. Bank of Lamar, 274 Kan. 74, Syl. ¶ 4, 49 P.3d 432 (2002).
The format of the court's judgment should reflect its decision with a reasonable degree of
clarity so the parties can "ascertain the extent to which their rights and obligations are
fixed, and so that the judgment is susceptible of enforcement." Bandel v. Bandel, 211
Kan. 672, Syl. ¶ 3, 508 P.2d 487 (1973).
Lisa essentially argues that because she did not request a modification of the
material terms of the divorce decree, but merely sought clarification of the language the
court employed in its original decree so that provision would be workable, then K.S.A.
2020 Supp. 60-260(b) provided the district court with an avenue by which to lawfully
grant her request. By contrast, to allow the specific number of months the parties were
married to remain an unknown would consistently frustrate the district court's intention
because DFAS would continually be unable to release the funds.
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K.S.A. 2020 Supp. 60-260(b) and (c) state:
"(b) On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
....
(6) any other reason that justifies relief.
"(c) . . . A motion under subsection (b) must be made within a reasonable time,
and for reasons under paragraphs (b)(1), (2) and (3) no more than one year after the entry
of the judgment or order, or the date of the proceeding."
Subsection (b)(6) vests a trial court with broad discretionary power to relieve a
party from a final judgment for any reason that justifies such relief as long as discretion is
exercised within a reasonable time. "[W]here relief is sought because of facts existing at
the time of the decree which, if known to the court, would have brought about a different
result, relief is available under K.S.A. 60-260(b)." In re Marriage of Hunt, 10 Kan. App.
2d 254, 259, 697 P.2d 80 (1985). The rule is meant to nurture the legal objective of
deciding cases on their merits and must be given a liberal construction to prevent
miscarriage of justice. Wichita City Teachers Credit Union v. Rider, 203 Kan. 552, 555,
456 P.2d 42 (1969).
This court was asked to consider an issue strikingly similar to Lisa's in In re
Marriage of Purdie, No. 106,055, 2012 WL 924853 (Kan. App. 2012) (unpublished
opinion). In that case, Colon and Wendy Purdie were married from 1988 to 2003 and
throughout their entire union Colon served in the United States Army. The final divorce
decree filed by the district court determined that "'[a]ll contributions made to Petitioner's
[Colon's] retirement account between March 4, 1988, and May 19, 2003, shall be split
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equally between the parties or as allowed by military law.'" 2012 WL 924853, at *1. It
was undisputed that Colon needed to fulfill 20 years of military service before he would
be eligible to receive payments from the account.
When Wendy sought to collect Colon's retirement pay at the appropriate point in
time, however, much like Lisa experienced here, Wendy was informed that the language
in the parties' divorce decree was not sufficient and the district court must first insert the
requisite language before she could receive any distributions. Like Lisa, Wendy promptly
filed a motion with the district court essentially seeking to add the specific equation to the
divorce decree that would give effect to its original order. The district court granted the
motion over Colon's objection.
Colon brought his dissatisfaction to this court and argued that insertion of Wendy's
requested language constituted an impermissible and untimely amendment of the divorce
decree, given that it was filed well after one year of the final decree. Much like this case,
Wendy countered that the matter prompting the need for clarification was not yet known
to the parties. A panel of this court rejected Colon's argument, and properly so. It
concluded that because Wendy sought to gain nothing more than clarity for the original
order and did so promptly after learning of the inadequacies in that decree, the district
court did not abuse its discretion in granting Wendy's request through the operation of
K.S.A. 60-260(b). 2012 WL 924853, at *2-3.
Although more of an analogue than a case in the same vein, we also derive a
measure of guidance from In re Marriage of Lida, No. 90,411, 2004 WL 719888 (Kan.
App. 2004) (unpublished opinion). In that case, Bonnie and Robert Lida divorced in 1994
and when the divorce decree was filed, the precise property equalization sum was not
capable of calculation. Thus, the court ordered Robert to make monthly payments to
Bonnie in the amount of $1,000 until the equalization was established. Things did not go
according to plan. Robert's diligence in honoring the monthly payments trickled off after
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three years and the equalization process stalled despite Bonnie's persistent efforts
throughout the years to finalize the matter.
In November 2001, seven years after the finalization of the parties' divorce,
Bonnie filed a motion seeking a final determination of what Robert owed and a formal
judgment for the same. Robert responded that because Bonnie did not seek to compel
enforcement of the decree at any point during the preceding seven years, the judgment
should be declared dormant. Bonnie countered that the dormancy statute was inapplicable
because the court never entered a specific enforceable final judgment. The district court
agreed and awarded Bonnie a judgment of $52,391.87. Robert pursued an appeal to this
court, and the judgment of the district court was affirmed. 2004 WL 719888, at *2, 5. The
panel found the provision at issue from the decree "did not articulate the precise
obligations of the parties," but "merely put Robert on notice that he would owe some
amount to Bonnie to equalize the property division," therefore the dormancy statute was
inapplicable. 2004 WL 719888, at *4-5.
Jon contends this case is better suited for an analysis which mirrors that
undertaken in In re Marriage of Larimore, 52 Kan. App. 2d 31, 362 P.3d 843 (2015).
When Janice and David Larimore divorced, they agreed to split David's government
retirement account, but neglected to file a qualified domestic relations order (QDRO)—
the approved method for retirement accounts governed by the federal Employee
Retirement Income Security Act of 1974 (ERISA). Roughly 12 years later, Janice
requested that the district court enter a QDRO and David responded the judgment was
dormant. The district court denied Janice's motion and she pursued an appeal.
A panel of this court affirmed finding that the divorce decree amounted not only to
a final determination of Janice's rights in David's retirement account, but also a final
judgment subject to dormancy under K.S.A. 2014 Supp. 60-2403. 52 Kan. App. 2d at 44.
See Bandell, 211 Kan. at 677 (A final judgment is "complete and certain in itself" and "is
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susceptible of enforcement in the manner provided by law."). Any final judgment of any
court grows dormant in five years, if not enforced by execution, garnishment, or
proceeding in aid of execution; it is not enforceable in perpetuity. K.S.A. 2021 Supp 60-
2403(a)(1). A party can endeavor to revive a dormant judgment, i.e., make it enforceable
once more, by diligently following the path laid out at K.S.A. 2021 Supp. 60-2403 and
K.S.A. 60-2404 for accomplishing that task. Yet that action must be taken within two
years after the judgment has fallen into dormancy. K.S.A. 2021 Supp. 60-2403(a)(1)
mandates the release of judgments that are dormant for two years, which has the effect of
rendering those judgments "absolutely extinguished and unenforceable." Cyr v. Cyr, 249
Kan. 94, Syl. ¶ 1, 815 P.2d 97 (1991).
Larimore contemplates a particularized, two-part situation in which a divorce
judgment establishes a spouse's right to receive benefits under their partner's ERISA
retirement plan. The mandated QDRO essentially recognizes that right. Because of
ERISA's exacting requirements, Janice's right to receive benefits under David's plan was
not enforceable until the administrator of his retirement plan approved Janice's QDRO.
Larimore, 52 Kan. App. 2d at 41 (quoting Jordan v. Jordan, 147 S.W. 3d 255, 261
[Tenn. App. 2004]). In situations like Larimore that involve ERISA pension plans, entry
of the divorce decree alone cannot by itself accomplish the distribution awarded by the
court. So, Janice's QDRO was the key that would allow her access to the portion of
David's account that the court awarded her. Stated another way, it is the manner of
enforcement of the divorce decree provided by law. Janice's efforts fell short because she
needed to take the affirmative step to execute the district court's final judgment in the
parties' divorce by filing a QDRO in order to trigger enforcement of her right to receive
benefits under David's retirement accounts. Larimore, 52 Kan. App. 2d at 41. Her failure
to take any steps toward execution for nearly 12 years left her without a judgment to
enforce. See also In re Marriage of Smith, No. 105,365, 2012 WL 1649835, at *4-5 (Kan.
App. 2012) (unpublished opinion) (The district court's decision to deny a former spouse's
motion to file a QDRO about 10 years after the filing of the divorce decree was affirmed
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where the filing of a QDRO is the federally mandated means for executing upon a
division of retirement benefits.).
The issue Lisa brought to us for resolution falls in line with Purdie and Lida
because she merely requested clarification of a self-contained order. As drafted, the
parties' divorce decree lacked information critical to its enforcement. Thus, it did not
"finally decide[ ] and dispose[ ] of the entire merits of the controversy." Plains Petroleum
Co., 274 Kan. 74, Syl. ¶ 4. The district court erred in classifying the decree as a final
judgment subject to dormancy and that it was without jurisdiction to rule on Lisa's
motion. Lisa is entitled to a hearing where the merits of her claim can be afforded proper
consideration.
JON IS NOT ENTITLED TO ATTORNEY FEES
Jon claims he is entitled to attorney fees because "the issues in this case have been
decided numerous times in the past decade in both published and unpublished appellate
court decisions." The district court did not award attorney fees.
Appellate courts may award attorney fees for services on appeal when the district
court had authority to award attorney fees. In re Marriage of Nelson, 58 Kan. App. 2d
920, Syl. ¶ 10, 475 P.3d 1284 (2020). In domestic relations actions, courts may award
attorney fees as justice and equity require. K.S.A. 2021 Supp. 23-2715. Jon argues that
payment of his attorney fees is warranted under Kansas Supreme Court Rule 7.07(c)
(Kan. S. Ct. R. at 52), which allows the court to award fees when the issues raised on
appeal are frivolous. But when the appellant prevails on all the relevant issues in an
appeal, typically an award of attorney fees to the appellee is not appropriate. See In re
Marriage of Knoll, 52 Kan. App. 2d 930, 942, 381 P.3d 490 (2016).
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As reflected by our research and reasoning above, Lisa prevails on the issue she
raised on appeal. Thus, Jon's request for the attorney fees expended to respond to a
purportedly frivolous appeal is denied.
Reversed and remanded with directions.
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