Besse v. Besse, 48354

• Decision Date: 15 April 1977
• Docket Number: No. 48354,48354
• Citation: 563 P.2d 518,1 Kan.App.2d 217
• Parties: Donna L. BESSE, Appellee, v. Tommy L. BESSE, Appellant.
• Court: Kansas Court of Appeals

Page 518

563 P.2d 518

1 Kan.App.2d 217

Donna L. BESSE, Appellee, v. Tommy L. BESSE, Appellant.

No. 48354.

Court of Appeals of Kansas.

April 15, 1977.

SYLLABUS BY THE COURT

1. Rules applicable to the granting of relief from a final judgment under K.S.A. 60-260(b) are stated.

2. In a proceeding for relief from a support money judgment where paternity of a child remains in dispute and new evidence would be available upon a rehearing, the judgment is vacated and the cause remanded for reconsideration.

Michael T. Mills and William S. Mills, of Mills & Mills, McPherson, for appellant.

Edward D. Embers, of Weelborg, Embers & Ferguson, McPherson, for appellee.

Before HARMAN, C. J., and ABBOTT and PARKS, JJ.

HARMAN, Chief Judge.

This is an appeal from an order by way of summary judgment dismissing a motion pursuant to K.S.A. 60-260(b) which requested relief from a divorce decree directing movant to pay support for a child born during the marriage, who was not movant's natural or adoptive child.

Certain facts are undisputed. The case had its inception with the marriage December 20, 1968, of appellee Donna L. Besse and appellant Tommy L. Besse. Appellee gave birth to the child in question, Vance Reid Besse, on February 26, 1969. Both parties knew at the time of their marriage that appellant Tommy was not the biological father of the child. Tommy was listed as the father in the child's birth certificate issued March 18, 1969 (in one of his answers to interrogatories Tommy states this was done with his permission-in another he states he never gave consent to be named the father on the birth certificate).

On August 23, 1972, appellee Donna filed her petition for divorce alleging, among other things:

'4. That one child was born to plaintiff and defendant, to-wit: Vance Reid Besse, born February 26, 1969.'

She sought temporary and permanent custody of the child and temporary and permanent child support. Tommy filed his answer in which he stated:

'THIRD: Defendant admits the birth of Vance Reid Besse as alleged in paragraph 4 of plaintiff's Petition.'

January 12, 1973, the parties executed a written property settlement agreement which provided for monthly child support to be paid by Tommy for the minor child. Each of the parties was represented by legal counsel. This instrument was filed in the trial court January 19, 1973, at which time the action was heard and divorce was granted. The decree found that one child Vance Reid Besse, had been born to the parties, that appellee should be awarded its custody and appellant should pay $95.00 per month toward its support as provided in the settlement agreement, which was specifically approved. At this hearing both parties were present in person and by their attorneys.

For one year after the divorce appellant paid the support money agreed upon. Then he quit. On February 10, 1975, appellant filed a motion seeking relief from the january 19, 1973, decree under K.S.A. 60-260(b)(3), (4), (5) and/or (6) on the ground he was not the natural or adoptive father of Vance Reid Besse and alleging that his duties toward the child were only those of stepfather.

Thereafter, by means of answers to interrogatories to each of the parties the facts already related were established. Further appellant stated the facts upon which he relied for relief to be:

'I am not Vance Besse's father, and can prove it if needed. Donna L. Besse has admitted this in her answers to Interrogatories. I never gave my consent that I be named as father of Vance Reid Besse on the birth certificate. Donna and I had no agreements about the child before we got married or afterwards. I was willing to marry Donna and assume the duties of a step-parent to her child, but I never really discussed the child with Donna because it was a sore subject. My lawyer, Tom Reid, strongly urged me to be named as the real father of Vance Reid Besse for the best interests of the child; and that it would not help to bring this matter up in court because every child must have a father. After about a year, I got fed up with having to pay support for someone else's child, and I stopped paying it. Donna L Besse knows who the child's father is, and has told me who it is.'

Thereafter appellee filed her motion for summary judgment which was sustained by the trial court. Appellant's principal argument for relief appears to have been that both parties' conduct at the time the divorce was granted constituted fraud upon the court. The trial court also stated it would entertain no further motions and it assessed appellee's attorney fees against appellant.

In its oral statements the court concluded that 260(b) was not provided in order to relieve a party from free, calculated and deliberate choices he had made; that a party remains under a duty to take legal steps to protect his interests; that appellant's motion was not made until more than two years after the judgment complained of and this was not within a reasonable time as required by law. The court also commented it almost appeared that appellant was 'playing games' with the court in that he had known everything relevant to the issues at all times and had been represented by counsel. It also commented upon the desirability of finality in litigation after parties have had their day in court.

Appellant now raises several points but in view of our ultimate determination not all need be discussed. In Neagle v. Brooks, 203 Kan. 323 454 P.2d 544, the court held:

'A motion for relief from a final judgment under K.S.A. 60-260(b) is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion. (Syl. 3) The broad language of K.S.A. 60-260(b)(6) authorizing relief for 'any other reason justifying relief from the operation of the judgment' gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. This power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. (Syl. 5) A motion for relief from a judgment under K.S.A. 60-260(b)(6) must be made within a reasonable time.' (Syl. 6.)

Based upon the facts the trial court had before it at the time it...