Lazarus v. Lazarus

• Decision Date: 05 October 2012
• Docket Number: No. 106,139.,106,139.
• Citation: 286 P.3d 239
• Parties: In the MATTER OF the Marriage of Keith E. LAZARUS, Appellant, and Amanda J. Lazarus, Appellee.
• Court: Kansas Court of Appeals

286 P.3d 239

In the MATTER OF the Marriage of Keith E. LAZARUS, Appellant, and Amanda J. Lazarus, Appellee.

No. 106,139.

Court of Appeals of Kansas.

Oct. 5, 2012.

Appeal from Johnson District Court; Thomas E. Foster, Judge.

Aaron C. McKee, of McKee Law, L.L.C., of Olathe, for appellant.

Shannon L. Kelman and Scott M. Mann, of Evans & Mullinix, P.A., of Shawnee, for appellee.

Before LEBEN, P.J., ATCHESON, J., and BUKATY, S.J.

MEMORANDUM OPINION

PER CURIAM.

The divorce settlement agreement between Keith and Amanda Lazarus awarded Amanda $10,485 to equalize the division of property, and the payment was to be accomplished with funds from Keith's pensions in the United Kingdom. When—a year later—Keith hadn't paid Amanda that sum, she filed a motion to enforce the agreement because the payment hadn't been completed. The district court concluded that payment should have been made within a reasonable time and that a reasonable time had already been given, so it awarded judgment against Keith.

Keith has appealed, claiming that the district court's order amounted to a modification of the parties' settlement agreement that the district court wasn't authorized to make. But the parties stipulated in their agreement that the court retained jurisdiction to enter “any further orders” until the pension transfer had been completed, and the district court properly concluded that the payment was to have been made within a reasonable time. Accordingly, the district court didn't improperly modify the parties' agreement when it entered a judgment against Keith.

Keith also contends that the district court shouldn't have awarded attorney fees against him and that the fee award was excessive. But the parties' agreement provided that the prevailing party would be entitled to attorney fees in an action to enforce the agreement, and we find nothing unreasonable in the amount of fees awarded by the district court. We therefore affirm its judgment.

Factual Background

In September 2009, the district court granted Keith and Amanda a divorce. The divorce decree incorporated the parties' settlement agreement and parenting plan. The settlement agreement awarded Amanda $10,485 as a means to equalize the division of property, and it provided that the funds would come from one or more of Keith's pension plans located in the United Kingdom. The agreement included a stipulation by the parties that the district court retained jurisdiction “to enter any further orders” until the payment had been made. It also provided that if either party filed an action to enforce the agreement, the prevailing party in the dispute would be awarded attorney fees from the person found to be responsible.

Our record shows that the parties received conflicting advice from solicitors (attorneys) in the United Kingdom about whether some of Keith's pension funds there could be transferred to Amanda. In October 2009, the first solicitor Keith retained advised that it was unlikely that the pension transfer could be accomplished. In May 2010, another solicitor, Caroline Elliott, advised Keith that the pension transfer could be completed within 4 months. In June 2010, Elliott, writing on Keith's behalf, told Amanda that the pension-transfer application couldn't be made in Keith's name because he was about to be remarried. Elliott advised Amanda that she could apply for the pension transfer in her name, but Amanda declined. In August 2010, a third U.K. solicitor, engaged by Amanda, advised that the pension-transfer application was unlikely to be successful.

In September 2010, Amanda filed a motion for enforcement of the settlement agreement and requested a judgment against Keith for the amount owed. In October 2010, the district court ordered Amanda to apply for the pension transfer in her name and scheduled a hearing for February 2011 to allow the parties time to complete the transfer. But even with Amanda's signature on that affidavit, the pension transfer hadn't been completed by February 2011. Keith reported that there was a hearing about the pension-transfer application scheduled for March 2011 in the United Kingdom, and he moved for a continuance of the February 2011 hearing, but the district court denied Keith's continuance motion and entered judgment against him. On April 6, 2011, the district court filed a journal entry and judgment that granted Amanda's motion to enforce the settlement agreement and entered judgment in Amanda's favor against Keith for $10,485. The district court also awarded Amanda $7,650 in attorney fees.

Keith has appealed to this court.

Analysis

I. The District Court Properly Entered Judgment Against Keith.

Keith's primary argument on appeal is that the district court didn't have authority to modify the marital settlement agreement. Specifically, Keith argues that the court didn't retain jurisdiction to render a judgment against him instead of allowing him to continue to try to transfer money from one of his U.K. pensions. Amanda contends that the settlement agreement provided that the district court had continuing jurisdiction to enter orders related to the payment to equalize property. The district court agreed with Amanda.

Both parties agree that this court has unlimited review over the interpretation and legal effect of written instruments. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 263, 225 P.3d 707 (2010). We therefore interpret the parties' settlement agreement, which is subject to the normal rules of contract interpretation, independently, without any required deference to the district court. Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972); In re Marriage of Strieby, 45 Kan.App.2d 953, 961, 255 P.3d 34 (2011). We also independently review questions of jurisdiction. Woods v. Unified Gov't of Wyandotte County/KCK, 294 Kan. 292, 295, 275 P.3d 46 (2012).

Matters settled by an agreement incorporated into a divorce decree—other than matters pertaining to the legal custody, residency, visitation, parenting time, support, or education of the minor children—cannot later be modified by the court except as prescribed by the agreement or as later consented to by the parties. K.S.A.2010 Supp. 60–1610(b)(3); see K.S.A.2011 Supp. 23–2712(b). For example, a trial court doesn't have subject-matter jurisdiction to modify a maintenance agreement if the agreement specifies the only manner by which it can be modified. In re Marriage of Gurganus, 34 Kan.App.2d 713, 716–17, 124 P.3d 92 (2005).

Amanda points to the provision of the settlement agreement regarding the pension payment under the heading “Division of Property,” which concluded with the court retaining jurisdiction “to enter any further orders” until the pension transfer or award had been completed:

“7. Wife is awarded as property division equalization a total of exactly £ 7,436.00, the equivalent of $10,485.00 at the exchange rate of $1.41 to £1.00, in net value or amount received from one or a combination of more than one of Husband's below-described pension plans or schemes located in the United Kingdom, valued as of June 25, 2009. The parties shall jointly comply with any requirements of the pension plan administrator regarding the transfer of this net award into Wife's sole name. Husband shall be solely responsible for the first $500.00 in any actual out-of-pocket fees or costs ..., including any attorney's fees, associated with effectuating this transfer of the above net amount from his pension benefits to Wife, and the parties shall equally share in any actual out-of-pocket fees or costs beyond $500.00. ‘Out-of-pocket’ costs or fees do not include fees or costs that may be charged by the pension plan towards the pension benefits or account value of Husband, which shall be charged to Husband's remaining account or benefit value and shall not be charged against Wife's net award, as an administrative cost of effectuating this transfer to Wife. In the event that the plan awards Wife less than the total net amount awarded to her in this provision, Husband shall be liable to Wife for the difference, payable in lump sum within 30 days after the above transfer. The parties stipulate that the Court shall retain jurisdiction to enter any further orders until this pension transfer or award has been completed[.]”

Amanda argues that the parties' stipulation that the court retain jurisdiction until the transfer has been completed gave the district court authority to enter judgment against Keith when the transfer or payment wasn't made within a reasonable time.

Here, the question turns on the effect of this sentence: “The parties stipulate that the Court shall retain jurisdiction to enter any further orders until this pension transfer or award has been completed.” A settlement agreement is subject to the normal rules of contract interpretation. Drummond, 209 Kan. at 91;Strieby, 45 Kan.App.2d at 961. “The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.” Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).

The provision seems to anticipate that the court should retain jurisdiction until Amanda receives the $10,485. The provision gave the district court authority “to enter any further orders” until the payment is complete. The parties' agreement doesn't explain “any further orders,” and there is no language limiting its scope. Thus, the broad contract language seems to do what it literally says—give the district court authority to enter “any further orders” related to the property-division-equalization award. Under that interpretation, the district court's order entering judgment against Keith in favor of Amanda in the amount of $10,485 falls within the scope of any further order related to the award. The parties do not dispute that neither a pension transfer nor...