In re Marriage of Cotter

Decision Date17 June 2011
Docket Number104,466.
PartiesIn the Matter of the MARRIAGE OF Lorri J. COTTER, Appellee, and Floyd E. Cotter, Appellant.
CourtKansas Court of Appeals

Editorial Note:

This case does not have precedential value under Kansas supreme court rule 7.04 (f) and may only be cited as persuasive authority on a material issue not addressed by a published Kansas appellate court decision.

Appeal from Franklin District Court; Thomas H. Sachse, Judge.

Richard W. Martin, Jr., of Martin & Wallentine, LLC, of Olathe, for appellant.

Sherri E. Loveland and Laura Seaton, of Stevens & Brand, L.L.P. of Lawrence, for appellee.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

MEMORANDUM OPINION

PER CURIAM.

Floyd E. Cotter (" Floyd" or " respondent" ) appeals from the district court's decision to deny his Motion for Sale of Real Property or, in the alternative Motion for Relief from Judgment. In the motion, Floyd asked the court to issue an order compelling Lorri J. Cotter (" Lorri" or " petitioner" ) to comply with a specific provision within the parties' property settlement agreement that ostensibly requires Lorri to sell or refinance certain real property set over to her in the divorce decree or, alternatively, to modify the terms of the settlement agreement to include such a requirement. For the reasons stated below, we affirm the district court's decision to deny Floyd's motion.

PROCEDURAL AND FACTUAL BACKGROUND

On November 15, 2006, Lorri filed a petition for legal separation from her husband Floyd. On December 1, 2006, Floyd filed a counterpetition for divorce. Trial originally was set for October 3, 2007, but ultimately was continued to January 22, 2008. The parties filed an Agreed Parenting Plan on October 26, 2007; thus, the only issues to be resolved at trial were property valuation and division of assets.

As is often the case, the parties came to an agreement regarding property valuation and division of assets just prior to trial. To that end, Lorri filed a Proposed Values/Divisions of Assets and Debts and an addendum thereto just prior to the January 22, 2008, trial setting. After informing the court that the parties had settled, Lorri's attorney referenced the pleadings filed that morning and then recited the terms and conditions of the parties' agreement into the record. A Journal Entry of Divorce Decree ultimately was filed on February 26, 2008, with the approval of both parties.

On September 18, 2008, Floyd filed a motion requesting Lorri be ordered to show cause why she should not be held in contempt for failing to refinance or sell the RB ranch property as required by the divorce decree. According to the docket notes in the record, Floyd withdrew the motion during a telephone conference held on October 15, 2008. On July 2, 2009, Floyd filed a motion requesting that the district court compel Lorri to refinance the RB ranch property so that his name would not appear as a responsible third party. It appears this motion was never resolved.

On February 26, 2010, Floyd filed the present motion for the sale of the RB ranch property or, in the alternative, relief from the judgment of the divorce decree. In support of this motion, Floyd argued that Lorri's failure to sell or refinance the RB ranch property as required by the divorce decree meant that he was still listed on the mortgage as a debtor, which in turn prevented him from borrowing money to buy his own home. In denying Floyd's request for an order compelling Lorri to sell the property, the district court found the divorce decree did not require Lorri to do so. In denying Floyd's request for relief from judgment, the district court determined it lacked jurisdiction to grant the relief requested. Finally, the court awarded Lorri attorney fees for expenses incurred to defend the motion. Floyd appeals the district court's decision to deny his motion and impose attorney fees.

ANALYSIS

Floyd's claims on appeal fall into three general categories: (1) The district court's decision to deny his Motion to Compel the sale or refinancing of the RB ranch property; (2) the district court's decision to deny his Motion for Relief from Judgment; and (3) the district court's decision to award attorney fees to Lorri.

(1) Motion to Compel

Floyd argues Lorri should be compelled to sell or refinance the RB ranch property as required by the express terms of the divorce decree itself. Alternatively, Floyd argues Lorri should be compelled to sell or refinance the RB ranch property as required by Lorri's Proposed Values/Divisions of Assets and Debts, which was incorporated by reference into the divorce decree.

The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Miller v. Westport Ins. Corp., 288 Kan. 27 32, 200 P.3d 419 (2009). " Regardless of the district court's construction of a written contract, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]" Shamberg, Johnson &amp Bergman, Chtd. v. Oliver, 289 Kan. 891, 900-01, 220 P.3d 333 (2009).

(a) The Divorce Decree

Floyd contends the following language found within paragraph 4 of the divorce decree requires Lorri to either sell or refinance the RB ranch property in order to remove Floyd's name on the loans:

" The RB ranch property, including all 899 acres, all residences, outbuildings and improvements on the land shall be set aside to the Petitioner, free and clear of any right, title or interest in respondent and subject to any and all mortgages, liens, taxes, permits, and/or contractual obligations which shall be the sole and separate responsibility of the petitioner." (Emphasis added.)

Relying on the language set forth in italics above, Floyd contends the common definition of the words " separate" and " responsibility" as used in this provision of the decree implicitly required Lorri to take whatever steps were necessary to assume sole legal accountability for the RB ranch property loans. We disagree. The legal obligations imposed upon the parties as a result of the language in paragraph 4 are both clear and distinct: The RB ranch will be set aside to Lorri, Floyd will no longer have any interest in the property, and Lorri will assume sole and separate responsibility for all mortgages, liens, taxes, permits, and/or contractual obligations on the property going forward.

(b) The Addendum to Lorri's Proposed Values/Divisions of Assets and Debts

Alternatively Floyd argues language within the addendum to Lorri's Proposed Values/Divisions of Assets and Debts, which was incorporated by reference into the divorce decree, required Lorri to sell or refinance the RB ranch property.

As a preliminary matter, we are not persuaded that the language cited by Floyd was incorporated by reference into the divorce decree. On the day trial was scheduled to begin, Lorri filed two pleadings with the court: (1) Petitioner's Proposed Values/Divisions of Assets and Debts; and (2) Addendum to Petitioner's Proposed Values/Divisions of Assets and Debts. In explaining why she filed two pleadings instead of one, Lorri's attorney informed the court on the record that she forgot to include the supplemental language and, instead of restructuring the first pleading, she decided it would be more efficient to present it in the form of an addendum pleading.

Relevant to the RB ranch property at issue in this appeal, the first pleading proposed the following property be set over to her:

RB Ranch— 760 acres $1,441,686
8% Real Estate Comm.
Balance owed on mortgage
Equity $ 709,542
RB Ranch— Lorri's Residence (37 acres) $ 230,000
Balance owed on first mortgage
Balance owed on second mortgage
Equity $ 13,641

The Addendum to Petitioner's Proposed Values/Divisions of Assets and Debts did not propose changes to either the value or the division of the RB ranch property, but instead provided:

" 1. Concerning the RB Farm (land), it is petitioner's intention that she will sell off sufficient acreage of this property that she can retire the marital debts against the property and remove Respondent's name from any further financial responsibility therefore,"
" 2. Petitioner has already contacted the bank and they have indicated a willingness to work with her on financing and refinancing the property to remove Respondent from any further responsibility for this property."

After explaining why there were two pleadings filed instead of one, Lorri's attorney informed the court that the parties had agreed to adopt Petitioner's Proposed Values/Divisions of Assets and Debts in its entirety, with the exception of three or four changes. Although Lorri's attorney proceeded to recite a summary of the parties' agreement into the record (including the proposed changes), Lorri's attorney did not make reference to, or recite any of the information set forth, in the addendum. After engaging Lorri and Floyd in the standard colloquy about their understanding of the proceedings, the district judge stated he

" [w]ould approve the division of property recited into the record as being fair, just and equitable after my review of the domestic relations affidavits and my review this morning before we came into court of the proposals from both sides and would approve those as the agreements of the court— or as the orders of the court."

In light of this approval, Lorri's attorney advised the court that she would prepare the divorce decree in the form of a journal entry and that the journal entry would set forth the agreement of the parties as approved by the court.

On January 29, 2008, Lorri's attorney sent a proposed Journal Entry of Divorce Decree and...

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