In the Matter of Marriage of Leedy, No. 90,378 (KS 4/22/2005)

• Decision Date: 22 April 2005
• Docket Number: No. 90,378,90,378
• Parties: IN THE MATTER OF THE MARRIAGE OF DANA L. LEEDY n/k/a DANA WASSAR, <I>Appellant/Cross-appellee,</I> and ROBERT D. LEEDY, <I>Appellee/Cross-appellant.</I>
• Court: Kansas Supreme Court

Page 1

IN THE MATTER OF THE MARRIAGE OF DANA L. LEEDY n/k/a DANA WASSAR, Appellant/Cross-appellee, and ROBERT D. LEEDY, Appellee/Cross-appellant.

No. 90,378

Supreme Court of Kansas

Opinion filed: April 22, 2005.

SYLLABUS BY THE COURT

1. A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. The trial court's ruling will not be reversed in the absence of a showing of abuse of discretion.

2. The express purpose of K.S.A. 60-260 is to provide relief from judgment. Hence, where relief is sought because of facts existing at the time of a decree which, if known to the court, would have brought about a different result, relief from a child support judgment is available under K.S.A. 60-260(b).

3. Pursuant to K.S.A. 60-260(a), the court is limited to making the journal entry speak the truth by correcting clerical errors arising from oversight or omission and it does not extend beyond such function.

4. The general rule applied by both state and federal courts is that the first five grounds of K.S.A. 60-260(b), that are specific, and the sixth, that is the general catch-all, are mutually exclusive. A party cannot circumvent the 1-year limitation applicable to the first three grounds of K.S.A. 60-260(b) by invoking the residual clause (subsection [6]). K.S.A. 60-260(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of K.S.A. 60-260(b).

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 2, 2004. Appeal from Sedgwick district court; DAVID J. KAUFMAN, judge. Judgment of the Court of Appeals affirming in part, reversing in part, and remanding is affirmed. Judgment of the district court is affirmed in part, reversed in part, and remanded. Opinion filed April 22, 2005.

Robb W. Rumsey, of Rumsey & Cleary Law Offices, of Wichita, argued the cause and was on the brief for appellant.

Charles F. Harris, of Kaplan, McMillan and Harris, of Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This is a postjudgment proceeding in a divorce action. Dana L. Leedy, n/k/a Dana Wassar appealed from the trial court's order recalculating Robert D. Leedy's child support arrearage. Leedy cross-appealed the trial court's award of attorney fees to Wassar in the contempt proceeding. The Court of Appeals, concluding that Leedy's relief is limited to 1 year by K.S.A. 60-260(b), reversed and remanded on the issue of recalculation and affirmed the award of attorney fees. We granted Leedy's petition for review.

There is no dispute about the facts.

Wassar and Leedy were married in 1990 and had three children—Kayla, Kyle, and Koby, born in 1993, 1995, and 1997. Wassar and Leedy were divorced in 1999. Wassar was given primary residential custody of the children, and Leedy was ordered to pay a fixed amount of child support beginning January 1, 1999.

There were a number of posttrial hearings on child support. In February 2002, the trial court found that Leedy owed $5,619 in unpaid child support and $874.05 in unpaid medical expenses and that Leedy was in contempt for failure to pay. The trial court ordered him to pay $857 in attorney fees to Wassar. The trial court denied Wassar's request for an order restraining Leedy from seeking information about her expenses.

In October 2002, Leedy filed a motion requesting the trial court set aside the child support portion of the February 2002 order. Leedy contended that the order was not supported by a child support worksheet and there were significant errors in the arrearage calculation. He requested that the historical child support be recalculated due to mathematical errors and material misstatements. Leedy amended his motion to include a request that Wassar be required to prove actual child care expenses since January 1, 1999.

At a November 2002 hearing on his motion, Leedy argued that Wassar had claimed significantly higher child care expenses than were actually expended, that in consequence the arrearage calculation was in error, and that the arrearage calculation could and should be revised pursuant to K.S.A. 60-260(b). Wassar admitted overstating child care expenses and the existence of errors and stated her lack of objection to the amounts for 2001 being set aside. The trial court sustained Leedy's motion to set aside the February 2002 order and directed the parties to recalculate the child support amount back to January 1, 2000, using actual child care and medical expenditures.

Wassar filed a motion to reconsider the November 2002 order. Leedy requested the trial court to set aside the February 2002 order for attorney fees.

In March 2003, the trial court denied Wassar's motion and found that Leedy had overpaid his child support in the sum of $1,730.77 as a result of the overstatement of day care costs. The trial court found that Wassar had overstated the costs beginning January 1, 2000, and had ceased to have any day care expenses after August 1, 2002. Finding that Wassar's overstatements of monthly day care costs constituted a significant mathematical error in the previous arrearage calculation and that Wassar should have disclosed the error as a matter of equity, the trial court adjusted Leedy's child support payments beginning February 1, 2003, to reflect the corrected figures. The trial court also corrected the amount owed by Leedy for the children's medical expenses from $874.05 to $364.93 and denied Leedy's request to set aside the order for attorney fees.

Wassar appealed the trial court's order recalculating child support and arrearage. Leedy cross-appealed the trial court's award of attorney fees to Wassar.

The Court of Appeals concluded that the trial court improperly recalculated Leedy's child support for approximately 3 years. The Court of Appeals remanded for further proceedings and with directions to limit relief to 1 retroactive year, pursuant to K.S.A. 60-260(b). The Court of Appeals affirmed the trial court's refusal to set aside the order for attorney fees.

Wassar first contended that the trial court retroactively modified the child support and that retroactive modification is prohibited by statute and case law. Leedy defended the trial court's action as a statutorily permissible recalculation of child support necessitated principally by mathematical errors. The Court of Appeals, although declaring its decision "not satisfying," agreed with Wassar that the trial court impermissibly modified the amount of child support for approximately 3 years retroactively. Slip op. at 9. The Court of Appeals remanded for further proceedings and with directions to limit relief to 1 retroactive year, pursuant to K.S.A. 60-260(b). Slip op. at 9.

A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court. The trial court's ruling will not be reversed in the absence of a showing of abuse of discretion. In re Marriage of Zodrow, 240 Kan, 65, Syl. ¶ 2, 727 P.2d 435 (1986); Logan v. Logan, 23 Kan. App. 2d 920, 930-31, 937 P.2d 967 (1997).

The trial court issued two orders that figure into this issue on appeal. First, on February 25, 2002, on Wassar's motion of accusation in contempt, the trial court made the following pertinent findings and ordered Leedy to pay accordingly:

"1. That [Leedy] shall be found in contempt for failure to pay the full amount [of] child support as ordered by this Court and for failure to pay his portion of uninsured medical expenses of the minor children.

"2. That [Leedy] shall pay [Wassar's] attorney fees in the amount of $875.00. The parties agree that attorney fees shall be included in child support arrearage and paid along with child support and medical reimbursement.

"3. That there is an existing arrearage of $7,350.05 which shall be paid at $200 per month until paid in full. That this amount includes unpaid child support of $5,619.00; unpaid medical expenses of $874.05; and attorney fees of $857.00."

Second, on March 7, 2003, the trial court made the following findings and ordered the parties to act accordingly:

"2. . . . [B]ased upon the Child Support Worksheets prepared . . . on behalf of [Leedy] and . . . [Wassar] . . . through January 8, 2003, [Leedy] has overpaid his child support in the sum of $1730.77 as a result of the overstatement in daycare costs.

"3. That [Leedy] overpaid his total child support obligation as a result of substantial overstatements of the monthly daycare in previous orders of the Court, going back to January 1, 2000, which the Court finds as a matter of equity, should have been disclosed by [Wassar], and which constitute a significant mathematical error in previous arrearage calculation.

"4. That the Court finds that [Wassar] stopped having any daycare expense August 1, 2002.

. . . .

"6. That the Court finds that the correct [amount] in medical expenses as of February 25, 2002, was $364.93.

"7. That the Court denies [Leedy's] request to set aside the order for attorney fees dated February 25, 2002, and further denies [Leedy's] request for an award of attorney fees incurred in prosecuting his motion to modify the arrearage."

Leedy contends that subsection (a) of 60-260, which permits corrections at any time, is the appropriate mechanism for correcting mathematical errors. K.S.A. 60-260(a) provides in part: "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." This provision does not limit relief to 1 year.

Leedy's rationale for the application of subsection (a) is that Wassar's incorrect child care costs were included in the child support worksheet, in the findings of the trial court, and the...