Mahone v. Mahone

• Decision Date: 08 December 1973
• Docket Number: No. 46986,46986
• Citation: 213 Kan. 346,517 P.2d 131
• Parties: Leslie Renee MAHONE et al., Appellees, v. Asie MAHONE, Jr., and John Corkhill, Executive Secretary, Kansas Public Employees Retirement System, Appellants.
• Court: Kansas Supreme Court

Page 131

517 P.2d 131

213 Kan. 346

Leslie Renee MAHONE et al., Appellees, v. Asie MAHONE, Jr., and John Corkhill, Executive Secretary Kansas Public Employees Retirement System, Appellants.

No. 46986.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1. A statute is not to be given an arbitrary construction, according to the strict letter, but one that will advance the sense and meaning fairly deducible from the context.

2. The whole purpose and policy of our exemption laws has been to secure to an unfortunate debtor the means to support himself and his family, to keep them from being reduced to absolute destitution and thereby public charges.

3. Accumulated funds presently due and owing from the Kansas Public Employees Retirement System to a member may be reached to satisfy child support payments due under a decree of divorce. In such case the statutory exemption provided by K.S.A. 74-4923 is not applicable.

Marshall Crowther, Sp. Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., and Dennis W. Moore, Asst. Atty. Gen., were with him on the brief for appellants.

Frederick K. Cross, of Cross, Serra & Turner, Chartered, Kansas City, argued the cause, and was on the brief for appellees.

PRAGER, Justice:

This is an action brought by three minor children against their father and the Kansas Public Employees Retirement System to provide for their support out of funds due and owing to the father as a member of the retirement system. The plaintiffs-appellees are Leslie Renee Mahone, Effie Denise Mahone and Asie Mahone, III. The action was brought on their behalf by their mother and next friend, Flora Mahone. In this opinion we will refer to them as the plaintiffs or the children. The children's father, Asie Mahone, Jr., was a named defendant in the district court. Although personally served with summons he has never appeared in the proceeding. The defendant-appellant in this court, Kansas Public Employees Retirement System, has appeared through its Executive Secretary, John Corkhill. We will refer to the appellant as the retirement system.

The case was submitted to the district court on a stipulation of facts. For purposes of this appeal we will assume that the following facts are true: Plaintiffs are three minor children of their next friend, mother and natural guardian, Flora Mahone, and of the defendant, Asie Mahone, Jr. The next friend, Flora Mahone, obtained judgment against the defendant, Asie Mahone, Jr., in the District Court of Wyandotte County, Kansas, on the 29th day of June 1971. At the time of the decree, there were owing to the said Flora Mahone certain delinquencies in support monies and since the divorce decree the defendant, Asie Mahone, has continued to accumulate delinquencies in child support. He has remarried and has left the jurisdiction, presently living in Jackson County, Missouri.

At the time of the decree of divorce, no mention was made by the defendant of his entitlement under the Kansas Public Employees Retirement System of sums set aside as a pension nor was any mention made of his intention to withdraw such monies in a lump sum. Exactly 121 days after the defendant was terminated from public employment (this is the waiting period statutorily set forth), he made application for withdrawal in a lump sum of all pension monies accruing in his behalf. Such application was made without notice to his former wife and without notifying the court and at a time when he was delinquent in child support. Plaintiffs first sought to bring an action in the District Court of Wyandotte County, Kansas, in an effort to minimize the expense of litigation. Such action is still pending although plaintiffs now concede that statutorily an action to enforce a judicial remedy against pension entitlements must be brought in Shawnee county where the instant case has been brought. Plaintiffs filed their action on November 10, 1971, seeking, among other things, that the pension monies vested in and accruing to the defendant, Asie Mahone, Jr., be restrained and that the sums be paid unto the Clerk of the District Court of Wyandotte County, Kansas, for a suitable accounting and application and credit toward the delinquent child support monies found to be due, together with court costs, attorney's fees and other relief. No answer has been made by the defendant, Asie Mahone, Jr., despite notice having been given to him and to his attorneys in Wyandotte County, Kansas, on several occasions. He is beyond the jurisdiction of the court so far as contempt citation is concerned, being in another state. Inasmuch as he secretes himself and his employment from his former wife, she is unable to exercies the ordinary post-judgment remedies of attachment, execution and garnishment. The next friend, Flora Mahone, has announced to the court her intention to pursue what remedies might be available to her under the Uniform Reciprocal Support Act, but has expressed the general ineffectiveness of such a remedy as between Wyandotte county and its contiguous sister county, Jackson County, Missouri.

Each of the parties filed a motion for summary judgment and the case was determined by the trial court on a single issue of law which may be stated as follows: Whether or not the accumulated funds of the defendant Mahone with the Kansas Public Employees Retirement System can be applied to past due child support of the defendant Mahone in light of K.S.A. 74-4923, which exempts said funds from execution, garnishment or attachment or any other process or claim whatsoever.

Before examining the contentions of the parties it would be helpful to bring more clearly into focus the provisions of the pertinent statute, K.S.A. 74-4923, which provides in part as follows:

'74-4923. Rights of members and beneficiaries not affected by change or repeal of act, exception; nonalienation of benefits; exemption from taxes and legal process.

Any annuity, benefits, funds, property, or rights created by, or accruing to any person under the provisions of K.S.A. 74-4901 et seq. or K.S.A. 74-4951 et seq., and any acts amendatory thereof or supplemental thereto, are hereby made and declared exempt from any tax of the state of Kansas or any political subdivision or taxing body thereof, and shall not be subject to execution, garnishment, or attachment, or any other process or claim whatsoever, and shall be unassignable, except as specifically provided by this act.' (Emphasis supplied.)

On this appeal the appellant retirement system contends in substance that the statutory exemption contained in 74-4923 is clear, precise and complete on its face and that the language in the statute provides an exemption from any type of claim whatsoever including claims by dependent minor children for child support. The retirement system further maintains that if an exception had been intended for claims involving child support, the legislature would have so provided and further that a court has no right to make an exception where the legislature failed to make one.

The minor children and the trial court took a different approach to the question. Here the children contend that statutory exemptions relating to civil pensions are inapplicable when in conflict with the enforcement of a decree for child support. They take the position that 74-4923 should be construed in accordance with the clear purpose and intent of the legislature, which is to protect not only the pensioner but also the members of his family from the claims of creditors which might take away from them all means for their support. The children futher maintain that the exemption statute must be interpreted in the light of K.S.A.1971 Supp. 60-1610(a) which places upon the district court in a divorce case a clear and unequivocal duty to provide for the support of the minor children of the parties. Stated in another way they contend that it was not the legislative intention to make the Kansas Public Employees Retirement System a haven for a runaway father to escape his obligation to support his minor dependent children.

At the outset we wish to emphasize that the children are not attempting to have sequestered for their support, accumulations in a pension system which are not at this time fully due and payable to their father. Under the stipulated facts the father, Asie Mahone, Jr., has made application for the withdrawal in a lump sum of all pension monies accumulated in his behalf, which amount to approximately $3,000. It is undisputed that the father is entitled to these funds as a matter of right both under his contractual relationship with the retirement system and the pertinent statutory rovisions. We do not have before us a factual situation where minor children are seeking to obtain for their support funds not yet due and payable under the retirement program.

The issue presented here is one of first impression in Kansas. However, the issue has been litigated many times in other jurisdictions where a substantial majority of the decisions have held in favor of the minor dependent children by making the father's pension...