Harder v. Towns, 48803

• Citation: 573 P.2d 625,1 Kan.App.2d 667
• Decision Date: 18 November 1977
• Docket Number: No. 48803,48803
• Parties: Robert C. HARDER, Secretary, Kansas State Department of Social and Rehabilitation Services, Appellant, v. Donald Vern TOWNS, Appellee.
• Court: Kansas Court of Appeals

Page 625

573 P.2d 625

1 Kan.App.2d 667

Robert C. HARDER, Secretary, Kansas State Department of

Social and Rehabilitation Services, Appellant, v. Donald Vern TOWNS, Appellee.

No. 48803.

Court of Appeals of Kansas.

Nov. 18, 1977.

Review Denied Jan. 25, 1978.

Syllabus by the Court

1. When the time period allowed for filing an appeal is legislatively shortened, unless the legislature evidences a clear intent that the new enactment have retrospective operation, an appeal from a judgment rendered before the effective date of the new procedure may be filed within the period allowed by the new statute, the period beginning to run on the effective date of the statute, except that in no case may an appeal be filed after the last date for filing under the prior statute.

2. A parent released from his duty to contribute to the support of his minor children by an existing court order may not be sued under K.S.A. 39-718a for reimbursement of funds expended as aid for dependent children.

3. The validity of a court order terminating child support payments may not be collaterally attacked in an action under K.S.A. 39-718a to collect from a parent funds expended under the aid to dependent children program.

Evan Nightingale, Ulysses, for appellant.

William B. Bolin, Garden City, for appellee.

Before FOTH, P. J., and PARKS and SWINEHART, JJ.

SWINEHART, Judge.

This action was commenced under K.S.A. 39-718a for recovery of monies expended by the State for the care of the defendant's children.

Defendant and his wife were divorced in 1972. The decree of divorce gave custody of the children to the wife, visitation to the defendant husband, and provided for child support from the defendant husband. In 1974, the defendant's ex-wife filed contempt against defendant concerning non-payment of support by defendant. The defendant filed a contempt citation to enforce his visitation rights. Both parties were represented by counsel in this stage of the proceedings. Before the matters were presented to the court, said parties entered into an agreement settling their problems. The net result was that the wife would not seek to have the defendant contribute to the support of the children, and the defendant husband would accept limited visitation rights. The parties to the divorce action and their counsel appeared before the court and the court approved their agreement, incorporating it into a journal entry terminating the defendant husband's obligation to support the children and setting forth limited rights of visitation. The respective contempt citations were dismissed. The wife later received aid for the children from the State of Kansas through the Department of Social and Rehabilitation Services.

The plaintiff, Department of Social and Rehabilitation Services (hereinafter SRS) sued defendant for the monies expended by the State in this action, and the defendant answered. The court found for the defendant, stating that the defendant did not have a duty to support the children because of the agreement made between himself and his ex-wife and approved by the court.

SRS appeals on the grounds that said order was invalid for the reasons that it was not in compliance with K.S.A. 60-1610, was against public policy, was not supported by the facts, and constituted abuse of discretion by the court. The defendant moved that the appeal be dismissed because it was filed out of time.

We first consider the timeliness of the plaintiff's appeal. The statute which establishes the time within which to file an appeal is K.S.A. 60-2103. The version of K.S.A. 60-2103 in effect on December 5, 1976 (the date on which judgment was entered by the trial court) allowed the State or one of its agencies 60 days within which to file notice of appeal. On January 10, 1977, the current version of K.S.A. 60-2103 became effective. The new statute shortens the filing period for the State and its agencies to 30 days. SRS filed its notice of appeal on February 2, 1977, well within the 60-day period provided by the previous version of the statute, but beyond the 30-day limit imposed by the 1977 version of the statute. The timeliness of the appeal clearly depends on which version of the statute controls: the one in effect on the date judgment was rendered, or the one in effect on the date that notice of appeal was filed.

The statute itself contains no provision regarding its retrospective or prospective effect. Case law, as enunciated in Kansas City v. Dore, 75 Kan. 23, 88 P. 539, and Bowen v. Wilson, 93 Kan. 351, 144 P. 251, establishes the rule that a statute reducing the time allowed for an appeal applies to an existing judgment even though the entire time allowed for filing the appeal under the new statute has expired when the new act takes effect. The rationale for this rule is that "there is no vested right to an appeal, and that the legislature may take away from the defeated party the privilege before his appeal has been taken." Bowen, supra, 353, 144 P. 251.

The Kansas rule is contrary to the majority rule. Regarding the retrospective application of a new statute shortening the time for perfecting an appeal, Am.Jur. states the rule to be as follows:

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