Cook v. Cook

• Decision Date: 14 January 1982
• Docket Number: No. 52535,52535
• Citation: 7 Kan.App.2d 179,638 P.2d 980
• Parties: Keith W. COOK, Appellee, v. Eula A. COOK, Appellant.
• Court: Kansas Court of Appeals

Page 980

638 P.2d 980

7 Kan.App.2d 179

Keith W. COOK, Appellee, v.Eula A. COOK, Appellant.

No. 52535.

Court of Appeals of Kansas.

Jan. 14, 1982.

Syllabus by the Court

1.In divorce actions, strict compliance with Supreme Court Rule No. 164 (225 Kan. lxxi), which requires counsel to submit a written inventory and fact sheet, is not a requisite to the district court's jurisdiction.The rule mandates compliance by counsel, subject to the court's discretionary waiver.

2.Under K.S.A.1980 Supp. 60-1610(e ), settlement agreements are subject to scrutiny of the court to prevent fraud and oppression or unfair advantage, and this scrutiny is in accord with recognized principles to assure the agreement is valid, just and equitable.

3.Mere agreement by the parties does not vitiate the court's duty to scrutinize the settlement agreement to determine if it is valid, just and equitable under K.S.A.1980 Supp. 60-1610(e ).

4.The court improperly found the parties' settlement agreement valid, just and equitable under K.S.A.1980 Supp. 60-1610(e ) because the defendant produced some evidence of pressure to enter the agreement, her testimony evinced material reservations concerning the agreement, the only evidence of property values was the other party's testimony summarizing their respective shares, and the agreement failed to include the parties' interest in a large acreage they worked as tenant farmers.

5.The court improperly found defendant's attorney fees fair and reasonable when there was no evidence of the time spent preparing the case nor any other basis upon which to determine the value of the services nor any evidence that defendant had agreed to the amount her counsel told her his fee would be.

Jerry D. Fairbanks of Whalen & Fairbanks, P. A., Goodland, for appellant.

Floyd E. Jensen of Kite & Day, St. Francis, for appellee.

Before HERD, Justice presiding, SWINEHART, J., and LEWIS L. McLAUGHLIN, District JudgeRetired, Assigned.

LEWIS L. McLAUGHLIN, District JudgeRetired, Assigned:

This is a divorce action in which the defendant, Eula A. Cook, appeals from the district court's approval of the property settlement agreement.At the time of the filing of the divorce action, the parties had been married approximately thirty years and had accumulated substantial real and personal property, most of which is related to their farming operations.The parties had two children who were both adults at the time of the divorce.

Pursuant to defendant's motion and the resulting court order, plaintiff, Keith W. Cook, submitted a list of the parties' property.This list itemized the parties' assets but, with rare exception, did not recite the value of any.Because the parties could not initially reach a property settlement agreement, court-appointed appraisers were to commence appraising all the property May 20, 1980, the day of the divorce hearing.On May 19, 1980, however, the parties had a settlement agreement drafted which the defendant signed May 20.The agreement recites that it was drafted by an attorney who was employed by both parties with the knowledge of their respective counsel.The agreement divides the property primarily by reference to plaintiff's property list, provides that the plaintiff assumes all the parties' debts except defendant's attorney fees for this action, and releases both parties from any alimony obligations.

On May 20, 1980, the parties appeared in court and made no objection to the case being heard by Judge Jack L. Burr, in the absence of Judge Keith Willoughby who had previously been involved in the case.At that hearing defendant's counsel vigorously objected to the agreement on the grounds that it was inequitable and that defendant was coerced into signing it.

Plaintiff provided the court with the only evidence concerning the value of the assets.He testified that under the agreement he received approximately two million dollars in assets and assumed one million dollars of the parties' debts, and that defendant received approximately $900,000 in assets and no debts except her attorney fees.Defendant testified she had received four telephone calls from the plaintiff and one from her own brother urging her to settle in order to avoid the costs of a property appraisal, and that she signed the agreement to keep peace in the family.The defendant and the court engaged in the following colloquy:

"THE COURT: Very well.Mrs. Cook, you realize that you don't have to agree to this particular settlement, you understand that?

"MRS. COOK: There are several things that are involved now.My mother is very sick, Judge Burr, she's going to die one of these times and if there can be peace to where-that's all she asks for is peace, she says get it straightened out, if there can be peace, I want there to be peace.

"THE COURT: Well, there may be a lot of reasons behind why you wish to sign the agreement and why your husband wishes to sign the agreement, the thing is, I want you to make sure that you understand that you don't have to sign it, you know that?

"MRS. COOK: Isn't it already signed?

"THE COURT: Well, yes, but it would have to be approved by me, it has to be approved by this Court and the reason I'm asking you these questions is to decide whether or not I want to approve that property settlement.

"MRS. COOK: Okay.

"THE COURT: Now, you understand that you don't have to sign-you did not have to sign that agreement?

"MRS. COOK: I understand that.

"THE COURT: Okay.And you understand that before the agreement actually becomes and takes full force and effect this Court has to approve it?

"MRS. COOK: So I am at your mercy, Your Honor.

"THE COURT: No, that's the reason I'm asking you these questions, I want to make sure that you understand what you signed.

"MRS. COOK: Okay.

"THE COURT: And whether or not you did so voluntarily, okay?

"MRS. COOK: I thought that there were a few things that needed to be changed, but it seemed like this was the only way that there could be peace and so, I signed it.

"THE COURT: Did you feel that the only reason you signed it was because you felt like you were threatened or forced to sign it in any way?

"MRS. COOK: This is also affecting my children, it's affecting our work, divorce affects everything.

"THE COURT: Well, you're interested in getting the case finalized yourself, I assume, aren't you?

"MRS. COOK: If this is what it is going to take, I don't believe in divorce, but if this is what it's going to take.

....

"THE COURT: Mrs. Cook, you've been involved in the farming operation all during your marriage and have been involved in the accumulation of property and the buying and selling of livestock, in other words, you understand the operation, you're familiar with it?

"MRS. COOK: Yes, I am, most familiar.

"THE COURT: Then my next question is, in the property settlement agreement there is a substantial list of property, real estate and personal property, livestock and various farm machinery and so forth, do you feel that you are familiar enough with the operation to be able to know whether or not that agreement covers all the property?

"MRS. COOK: As far-now like on the tools and machinery that he may have purchased, I wouldn't have any knowledge as to that, but unless this has been changed from what was presented before, it appears to me to be a most complete copy.

"THE COURT: It covers the operation and the things that have been accumulated by the two of you during your marriage, is that correct?

"MRS. COOK: Yes, there are some other things that would be involved in this because there was nothing mentioned in the settlement with regard to the leased land and where ordinarily as a husband and wife team the tenant is entitled to two-thirds (2/3) of the growing crop and the landlord is entitled to a third (1/3), there's been no allowance made in regard to that.

"THE COURT: Well now, is this property that is leased by you that is farmed by you and your husband or property that you lease out to someone else to farm?

"MRS. COOK: No, it is property that has been leased by us, the lease itself is held in my husband's name.We've done business that way because it seemed reasonabler.(sp)

"THE COURT: And that is not included in any of the listings?

"MRS. COOK: No, not that I know of in this.

"THE COURT: Do you feel that it should be?

"MRS. COOK: I think there should be some allowance made for that through-because a major part of our income comes from that.I think if you will notice in some of the sales that have been made recently, I think there was a hundred and fifty-one thousand dollars ($151,000.00) worth of wheat.To me, that's a lot of money, Judge Burr.

"THE COURT: Well now, Mrs. Cook, what you're telling me, in effect, is that this agreement doesn't cover everything, in your opinion?

"MRS. COOK: About the business of running the farm, no, it doesn't.It may cover what we have actual ownership to, but it doesn't cover lease land where there is income from lease lands.

"THE COURT: Well, I don't want to get into a discussion about legally who is entitled to lease land, all I want to ask you is, are you satisfied with this property settlement agreement, do you want the divorce to be granted and this property settlement approved as it is now in front of you?

"MRS. COOK: With the exception of alimony, I would settle for this.

"THE COURT: Well now, if the property settlement agreement is approved, then there will be no alimony.

"MRS. COOK: Then otherwise may I ask you what choice I have, otherwise it will come up before the other Judge the 12th?

"THE COURT: You have a choice to continue on with the appraisal and have a hearing and the Court will make a decision.

"MRS. COOK: For the children's sake, I think it would be better to do this then.

"THE COURT: Well, that's what I'm asking you.

"MRS. COOK: Okay.

"THE COURT: Now, you don't have to agree to that, I'm not asking you to agree to it one way or the other, I just want...