Ferguson v. Ferguson, 52151

Decision Date08 May 1981
Docket NumberNo. 52151,52151
Citation6 Kan.App.2d 287,628 P.2d 234
PartiesKaren LaJeanne FERGUSON, Appellee, v. Keith Dwain FERGUSON, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

In a divorce action wherein the trial court created a college educational fund, it is held (1) that this court has jurisdiction to decide the appeal; and (2) that the trial court did not err in requiring the parties to establish an educational fund in the manner and amount set forth in the opinion but, depending upon the trial court's intent in doing so, it may have abused its discretion in ordering any remaining funds, which had been contributed solely by defendant, to be divided equally between the parties.

Leonard M. Robinson, Topeka, and Hal D. Meltzer, of Turner & Boisseau, Chartered, Great Bend, for appellant.

Michael J. Friesen, of Friesen & Rintoul, P. A., Garden City, for appellee.

Before PRAGER, Justice Presiding, ABBOTT, J., and J. PATRICK BRAZIL, District Judge, Assigned.

ABBOTT, Judge:

This is an appeal in a divorce action from a judgment that created a trust fund to be used to educate the minor children of the parties. Three issues are presented.

The defendant, Keith Dwaine Ferguson, argues that the trial court had no jurisdiction to provide funds to be used by his children after they reached adulthood, and that all funds placed in trust and not expended for educational purposes during the children's minority should be returned to him and not equally divided between defendant and his ex-wife. He relies on Allison v. Allison, 188 Kan. 593, 363 P.2d 795 (1961). The plaintiff, Karen LaJeanne Ferguson, contends that this court has no jurisdiction to hear this appeal for the reason that defendant has failed to properly perfect it.

Plaintiff and defendant have two children. Jo Ellen was born August 9, 1962, and completed high school in December 1979. Cheryl Sue was born July 16, 1963, and completed high school in December 1980. This case was tried in the fall of 1979. The trial court divided the marital assets, awarded custody of the two children to plaintiff and provided for child support in the amount of $180 per month per child. Neither party complains about that part of the decision. Defendant complains because the trial court ordered life insurance policies and IDS stock (mutual funds) converted to cash and invested in an interest-bearing account to be used to help meet the educational expenses of the two children. The trial record indicates the testimony concerning the value of these assets came from the defendant who testified the IDS stock was worth $5,600 and one life insurance policy had a value of $3,800. It appears there were other life insurance policies that may have had some cash surrender value, but that fact is not clearly established in the record and there is no indication of their possible value. Defendant filed a motion after judgment was entered stating that the correct net value of the IDS stock was $9,000, not $5,600. In addition to the conversion of the IDS stock and life insurance policies, the trial court ordered the defendant to contribute an additional $6,000 to the educational fund. Defendant was given the option of transferring assets or waiting until the first child started to college and then paying $350 per month. If defendant had elected to pay $350 per month, the entire $6,000 would have been paid into the fund prior to the youngest child's reaching 18 years of age. The trial court retained jurisdiction over the fund for the express purpose of ensuring that it would be used equitably and fairly for the education of the two daughters. The judgment provided that if the children failed to satisfactorily pursue a college education, or if they dropped out of college, any remaining funds would be equally divided between plaintiff and defendant.

Defendant filed a motion which he labeled a motion to modify findings of fact. We are of the opinion that it also encompassed a motion to alter or amend the judgment. The trial judge refused to hear and determine the motion, and this appeal follows. We are satisfied we have jurisdiction to hear the appeal; K.S.A. 60-2103 provides that the running of time for appeal is terminated by a timely motion made pursuant to K.S.A. 60-252(b) (amend or make additional findings of fact), or to K.S.A. 60-259 (alter or amend the judgment).

The record before us does not specifically state that the trial judge intended the educational fund to be available, at least in part, to meet the financial requirements of the children's college education after their minority ceased. Defendant argues that it was so intended, but plaintiff concedes that existing case law prohibits the use of such funds after the period of minority. In essence, plaintiff argues that authority exists to set up such a fund, and that any funds not used for educational purposes should be divided equally between plaintiff and defendant.

Our Supreme Court has considered similar issues in a number of cases. The defendant relies on Allison v. Allison, 188 Kan. 593, 363 P.2d 795. There, the court required a father to establish a trust fund for the education of the minor child by paying a set sum per month for a set period which terminated, as it does in the case at bar, prior to the child's becoming an adult. The order provided that if the child failed to enroll in or withdrew from college, the money remaining in the fund was to be returned to the father, his heirs or assigns. The Supreme Court held that the trial court had power to order the father of a minor child to establish a trust fund to provide for the college education of the child. The court stated that statutory authority limited that power to the child's minority. G.S. 1959 Supp. 60-1510.

In Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967), the trial court ordered a father to establish a $6,000 trust fund to be used for a minor child's college education. The money was to be paid into the trust during the child's minority, and any of it that was not used for the child's education was to be returned to the father, his heirs or assigns. The payments to the daughter were to cease on her attaining legal majority. Herzmark was decided under the then relatively new Code of Civil Procedure (K.S.A. 1965 Supp. 60-1610). The father argued that 60-1610 related to support and education, but the provision for setting property apart referred only to support. The Supreme Court affirmed the trial court as to the trust fund, stating at pages 56-57, 427 P.2d 465:

"Such an educational fund may not extend beyond or make provision for a child of the marriage beyond minority. In event the child does not attend college for the period intended the fund should be made returnable to the funding party, his heirs or assigns. Such a plan must be definite and have for its purpose a suitable college education for the child. The plan must be reasonable within the parent's ability to provide."

In Clark v. Chipman, 212 Kan. 259, 267, 510 P.2d 1257 (1973), the Supreme Court ruled that a marriage settlement agreement that provided for the support and education of children past the age of majority was valid and binding upon the parties. The Supreme Court next had occasion to determine what effect the statutory shortening of the period of minority would have on an agreement to provide support for a child until the child attained the age of majority. K.S.A. 1972 Supp. 38-101. The court held in two cases that the duty to support ceased when the statutory age of majority was reached. Jungjohann v. Jungjohann, 213 Kan. 329, 516 P.2d 904 (1973); Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974).

Both parties to this appeal agree that the above line of cases is controlling, and that the father's obligation to provide a college education for the children ceased on their 18th birthday. We do note that in 1975, after the above line of cases had been decided, the legislature in considering House Bill No. 2212 amended K.S.A. 60-1610, which appears at first glance to be significant. The only change the bill originally was designed to make...

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3 cases
  • Thompson v. Thompson
    • United States
    • Missouri Court of Appeals
    • November 16, 1982
    ...support beyond age eighteen despite compelling circumstances. Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979); Ferguson v. Ferguson, 6 Kan.App.2d 287, 628 P.2d 234 (1981). The wife moved to Missouri, which was also the then residence of the husband. The parties were involved in a variety ......
  • In re Marriage of Wilson
    • United States
    • Kansas Court of Appeals
    • January 29, 2010
    ...could be used before Finley reaches 18. That would indeed have been within the district court's authority. See Ferguson v. Ferguson, 6 Kan.App.2d 287, 291, 628 P.2d 234 (1981). But that does not seem likely here given the lack of evidence of special educational needs at present, the amount ......
  • In re Williamson
    • United States
    • Kansas Court of Appeals
    • December 23, 2016
    ...the court to order payments into an educational trust fund limited that power to the child's minority.); Ferguson v. Ferguson , 6 Kan. App. 2d 287, 290–91, 628 P.2d 234 (1981) (If the legislature had intended to extend parental duties to require parents to provide for education for their ch......

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