Long v. Brooks, 52971
|Court of Appeals of Kansas
|6 Kan.App.2d 963,636 P.2d 242
|Richard H. LONG, Jr., Appellee, v. Bonnie K. BROOKS, nee Long, Appellant.
|25 November 1981
Syllabus by the Court
1. A property settlement agreement confirmed in a divorce decree, while retaining its character as a contract, becomes as well a judgment of the court.
2. A provision in a confirmed property settlement agreement requiring one spouse to pay debts of the marriage to third persons is a judgment in favor of the other spouse, effective and enforceable by that spouse upon the date the decree is entered.
3. A judgment contained in a divorce decree, such as that described in syllabus P 2, grows dormant if not enforced within five years and is wholly extinguished two years thereafter if not revived in the manner prescribed in K.S.A. 60-2404.
4. In a proceeding where a party to a divorce action was found in contempt it is held : it is not lawful to punish by contempt the failure of a spouse to pay an extinguished judgment contained in the divorce decree and the ruling of the trial court to the contrary was error.
Jim Lawing, Wichita, for appellant.
Clay Cox, Wichita, for appellee.
Before FOTH, C. J., Presiding, TERRY L. BULLOCK, District Judge, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.
After three years of marriage, Richard H. Long, Jr. sued his wife Bonnie for divorce on grounds of incompatibility. As part of that proceeding, the parties entered into an agreement covering, among other things, the payment of their debts and the division of their property. The provision of that agreement pertinent to this lawsuit reads:
"Bonnie K. Long shall assume the financial obligations with the Southwest National Bank, Dr. Don George, Sears and the attorney fees for Richard H. Long, Jr.'s attorney in the sum of $200.00 and hold Richard H. Long, Jr. harmless from payment of same."
In the divorce decree filed on September 27, 1973, the court found "that the rights, remedies and obligations of the parties contained in said agreement are fair and reasonable, and should be approved and ratified in all respects." Based upon this finding the court entered the following order: "The parties are hereby directed and ordered to comply in all respects with the terms of said agreement." The property division agreed to by the parties was then made an order of the court and custody of the couple's child was awarded to Bonnie.
For reasons not detailed in the decision below, Richard paid the obligations to Southwest National Bank and Sears in 1976 and 1977. The next court involvement with the case occurred on March 3, 1977, when the trial judge entered an order, on the joint motion of the parties, to transfer custody of the child to Richard. No further legal proceedings occurred until June 20, 1979, when Richard filed an affidavit in contempt alleging Bonnie had complied with neither the March, 1977 custody order nor the September, 1973 decree ordering Bonnie to pay the debts previously mentioned. On March 21, 1980, Bonnie was found in contempt of the court's prior orders. In lieu of the imposition of sentence, Bonnie was given the opportunity to purge herself of the contempt by reimbursing Richard at the rate of $100.00 per month for the sums he had paid to the Bank and Sears.
Bonnie moved for an amendment to that part of the court's March, 1980 contempt order relating to the parties' debts on the grounds that the judgment contained in the divorce decree was dormant. The trial court, in an order entered in December, 1980, found the agreement containing the agreement to pay debts constituted a contract which Bonnie had breached by not paying the obligations assigned to her, but that the judgment (the divorce decree) pertaining to the obligation to pay debts did not become effective until 1980 when it was reduced to a sum certain. Alternatively, the court concluded, even if the judgment were dormant, Bonnie had waived, was estopped, or was barred by laches from asserting the defense of dormancy because she had not raised the same in the original contempt hearing. On the basis of these conclusions, the finding of contempt and the conditions for purging were confirmed.
The significant questions presented by this appeal, as we view it, are four:
1. Did the terms of the property settlement agreement of the parties become a judgment of the court upon confirmation by the decree of divorce?
2. If the agreement became a judgment, is the provision requiring Bonnie to pay the Bank and Sears a judgment in favor of Richard?
3. If the decree is a judgment, and one in Richard's favor, did it grow dormant for want of enforcement for five years and did it become wholly extinguished when no motion for revivor and request for execution, attachment or garnishment was filed within two years thereafter?
4. If the order to pay the Bank and Sears is a judgment in Richard's favor which has become extinguished for want of enforcement and revivor, can Bonnie now be punished for contempt for failing to comply with that judgment?
The first three questions have been previously decided in our law. The last, insofar as we can...
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