Gerleman v. Gerleman

• Decision Date: 28 December 2018
• Docket Number: No. 117,913,117,913
• Parties: In the MATTER OF the MARRIAGE OF Robert M. GERLEMAN, Appellant, and Jeannette M. Gerleman, Appellee.
• Court: Kansas Court of Appeals

56 Kan.App.2d 578

435 P.3d 552

In the MATTER OF the MARRIAGE OF Robert M. GERLEMAN, Appellant,

and

Jeannette M. Gerleman, Appellee.

No. 117,913

Court of Appeals of Kansas.

Opinion filed December 28, 2018.

Robert M. Gerleman, appellant pro se.

Curtis G. Barnhill and Adina F. Morse, of Barnhill & Morse, P.A., of Lawrence, for appellee.

Before Schroeder, P.J., Standridge, J., and Walker, S.J.

Schroeder, J.:

This contentious divorce action returns to our court following our remand in In re Marriage of Gerleman , No. 114855, 2017 WL 66339 (Kan. App. 2017) (unpublished opinion) ( Gerleman II ). In Gerleman II , we found Robert and Jeannette Gerleman's property settlement agreement incorporated into the divorce decree was ambiguous on the division of Robert's military retirement pay. We remanded for the district court to determine how it understood the parties agreed to divide his military retirement pay. Now, Robert argues the district court erred when it found the parties intended to divide the marital portion of Robert's military retirement pay equally. Robert on remand for the first time also argued the decree was void. Finally, Robert argues the district court erred when it determined the amount of maintenance he had to pay was not modifiable.

We find the law of the case doctrine precludes Robert's arguments regarding whether the decree is void and find substantial competent evidence supports the district court's finding the parties intended to divide Robert's military retirement pay equally. However, we find the amount of maintenance Robert owed to Jeannette was not a matter settled by an agreement incorporated in the divorce decree and, as a result, maintenance was modifiable. Thus, we affirm in part, reverse in part, and remand.

Gerleman II sets forth in detail the tortuous history of this case. Because we find the law of the case doctrine precludes Robert's voidness argument, we will only briefly summarize the facts leading to our opinion in Gerleman II .

In 2012, after 20 years of marriage, Robert petitioned for divorce from Jeannette. In July 2013, the district court entered a divorce decree with an attached summary of division of property, which divided the parties' marital property in table format. In relevant part, it states:

                               Item                          Husband                        Wife
                  US Military Pension         Divided at husband's retirement   Divided at husband's retirement
                  5/9/13 (handwritten)        based on military formula = #     based on military formula = #
                                              years of marital service/total    years of marital service/total
                                              months of military service        months of military service
                                              TBD                               TBD
                

Jeannette appealed the divorce decree and Robert cross-appealed. In re Marriage of Gerleman , No. 110461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion) ( Gerleman I ). The parties settled the issues, however, and jointly dismissed their appeals. Later, Jeannette filed a proposed qualified domestic relations order (QDRO) dividing Robert's military retirement pay. A different district court judge than the one who presided over the divorce heard arguments about what language to use in the QDRO. Based on the summary of division of property, the district court filed a QDRO dividing military retirement pay stating:

"Amount of Payments to Former Spouse. The Former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 226 months of marriage during the Service Member's creditable service, divided by the Service Member's total months of creditable service."

Robert appealed the QDRO. This court found the summary of division of property was ambiguous and remanded to the district court to determine how the summary of division of property assigned the pension between Robert and Jeannette upon Robert's retirement.

While the case was pending before this court, Robert moved for relief under K.S.A. 2017 Supp. 60-260(b)(4), arguing the decree was void because there was no valid agreement between the parties, the court acted inconsistently with due process, and the alleged agreement was reached through mediation but was not reduced to writing or signed by the parties. Robert also asked the district court to find maintenance was modifiable or terminable because the decree did not incorporate an agreement on maintenance.

In March 2017, the district court heard argument on whether the decree was void and whether a maintenance agreement was incorporated in the decree. A month later, the district court heard argument on how the district court had intended to divide the retirement pay. At that hearing, Jeannette testified she agreed to the "standard military formula" for the division of his military pay. She understood this to be the number of years they were married while he was active military divided by the number of years he was in the military, multiplied by 50 percent. Jeannette recalled no discussion of her portion of Robert's military retirement pay being something other than 50 percent, and she would not have agreed to it if it had been suggested. Jeannette testified she believed her portion of Robert's monthly military retirement pay was roughly $1,800 per month. Jeannette also explained that she believed she and Robert had agreed on all the items—including military retirement pay—necessary to complete the property settlement agreement. Robert testified he did not agree to the formula presented to the court and emphasized he objected several times. Without identifying any, Robert suggested they had discussed other multipliers during negotiations. After argument, the district court took the matter under advisement.

The district court filed a memorandum decision May 12, 2017. It found the law of the case barred Robert's voidness argument because he should have incorporated it in his original appeal of the decree. The district court found the issue was settled when Robert dismissed his cross-appeal. It found the division of Robert's military retirement "was intended to be, and was ordered to be, equal" and determined Robert owed $61,123.25 in unpaid military retirement pay. The district court denied his motion for relief or to terminate maintenance because the decree "adopted what it found to be the agreement of the parties on the issue of maintenance." As a result, the district court found Robert in contempt for failing to pay maintenance because he had stopped paying maintenance in July 2016.

Robert appealed.

The property settlement and maintenance provisions are not void.

Robert argues the divorce decree's provisions related to the property settlement and maintenance are void. " ‘A judgment is void if the court that rendered it lacked jurisdiction of the parties, or if its actions resulted in a denial of due process.’ " Sramek v. Sramek , 17 Kan. App. 2d 573, 576, 840 P.2d 553 (1992). As a result, a void judgment may be vacated at any time. In re Marriage of Hampshire , 261 Kan. 854, 862, 934 P.2d 58 (1997). Because a judgment is either valid or void as a matter of law, appellate courts have unlimited review. In re Adoption of A.A.T. , 287 Kan. 590, 598, 196 P.3d 1180 (2008).

Robert contends the district court erred when it concluded the law of the case precluded a finding that the decree was void. Whether the law of the case doctrine applies is a question of law, and this court has unlimited review. State v. Parry , 305 Kan. 1189, 1194, 390 P.3d 879 (2017). The law of the case doctrine exists " ‘ "to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts." ’ " 305 Kan. at 1194, 390 P.3d 879. When a subsequent appeal is brought in the same case, the issues are generally not reconsidered because the prior decision is the law of the case on all questions involved in the first appeal. 305 Kan. at 1195, 390 P.3d 879. Similarly, the law of the case doctrine requires a trial court, acting on remand from an appellate court, proceed in accordance with the mandate and law of the case as established on appeal. 305 Kan. at 1195, 390 P.3d 879.

Robert contends the district court erred in finding the law of the case precluded a finding the decree was void because there is no appellate case finding the decree is not void. That said, this argument ignores one aspect of the law of the case doctrine: it also applies to issues a party did not raise, but could have raised, in a prior proceeding. Parry , 305 Kan. at 1195, 390 P.3d 879. Robert contends the division of property and maintenance orders are void because the district court: failed to find the division of property was valid, just, and equitable; violated K.S.A. 2017 Supp. 23-2902 ; erroneously bound the parties to an unsigned mediated agreement; and lacked the jurisdiction to bind the parties to a mediated agreement before it was reduced to writing and signed by the parties. He could have raised all of these arguments in Gerleman I or Gerleman II. The law of the case doctrine would normally apply to Robert's arguments.

That said, a void judgment may be set aside at any time. Sramek , 17 Kan. App. 2d at 576, 840 P.2d 553 ; Barkley v. Toland , 7 Kan. App. 2d 625, 630, 646 P.2d 1124 (1982). Similarly, a party cannot acquiesce in a void judgment. Sramek , 17 Kan. App. 2d at 577, 840 P.2d 553. The question then is whether the law of the case doctrine precludes an argument that the judgment is void.

Robert contends it does not. He asserts a motion to set aside a void judgment "may be made after prior appeals or after the time for appeal has run." Robert cites two cases to support his argument: Sramek and In re Marriage of Sumpter , No. 96256, 2007 WL...