Marriage of Larson, Matter of, 70968

• Decision Date: 26 August 1994
• Docket Number: No. 70968,70968
• Citation: 19 Kan.App.2d 986,880 P.2d 1279
• Parties: In the Matter of MARRIAGE OF Craig W. LARSON, Appellant, and Marla J. Larson, Appellee.
• Court: Kansas Court of Appeals

Page 1279

880 P.2d 1279

19 Kan.App.2d 986

In the Matter of MARRIAGE OF Craig W. LARSON, Appellant and Marla J. Larson, Appellee.

No. 70968.

Court of Appeals of Kansas.

Aug. 26, 1994.

Review Granted Nov. 8, 1994.

Syllabus by the Court

1. A motion to modify filed pursuant to K.S.A. 60-260(b)(1), (2), and (3) must be filed within a reasonable time and not more than one year after the judgment, order, or proceeding sought to be modified was entered or taken.

2. The one-year time limit referred to in K.S.A. 60-260(b) represents the extreme time limit within which a motion must be filed.

3. A motion under K.S.A. 60-260(b)(1), (2), and (3) may be rejected as untimely if not filed within a "reasonable time" even though the one-year period referred to in the statute had not expired when it was filed.

4. What constitutes a "reasonable time" within which to file a motion under K.S.A. 60-260(b) is a question left to the discretion of the trial court. The determination depends upon the facts of each case, taking into consideration the interests in finality, the reasons for the delay, the ability of a litigant to learn earlier of the grounds relied upon, and the prejudice to the parties.

5. As the delay in filing a motion to modify judgment pursuant to K.S.A. 60-260(b)(1), (2), and (3) approaches one year, the burden on the movant to show that the delay was reasonable increases.

Charles A. Peckham, of Brown, Creighton & Peckham, Atwood, for appellant.

Allen Shelton, of Clark, Shelton & Pratt, P.A., Oberlin, for appellee.

Before LEWIS, P.J. and LARSON and GERNON, JJ.

LEWIS, Presiding Judge:

Craig W. Larson and Marla J. Larson were divorced on January 9, 1992. On that same date, the parties entered into a written property settlement agreement, which was incorporated into their decree of divorce. The terms of this agreement were negotiated by the parties, and it was presented to the trial court for approval. On January 8, 1993, Craig filed a motion seeking to modify the property settlement agreement. The trial court denied the motion, holding that it was not filed within a reasonable time under K.S.A. 60-260(b). Craig appeals from that determination.

Craig and Marla were the parents of four minor children, who ranged in age from 14 to 2 years at the time of the divorce. The parties were granted joint custody of the children, with the residential custody being awarded to Marla. There are no issues on this appeal concerning the custody or support of the minor children. We note by way of information only that subsequent to this appeal, the trial court modified the agreement insofar as child support is concerned.

The property settlement agreement obligated Craig to pay Marla maintenance in the total amount of $50,000 at the rate of $1,000 per month. In his motion, Craig requested modification of the maintenance decree. The trial court denied the motion as to maintenance. Although this issue is described in the notice of appeal, it was neither briefed nor argued to this court. Accordingly, we conclude that any issue concerning the propriety of the order denying modification of maintenance has been waived.

The central issue to this appeal is the modification of the property settlement portion of the agreement.

Under the property settlement agreement, Marla was awarded, as her sole and separate property, "the motor vehicles, household goods, appliances, clothing, personal effects and furniture now in her possession." In addition, Marla was to have all "bank accounts, saving accounts and the like now held or owned by her."

The balance of the property owned or accumulated by the parties was awarded to Craig. This included all real estate, farm machinery, stock in a feedlot operation, etc. We do not have a detailed listing of the property awarded to Craig or its value.

In order to even up the distribution of property, Craig agreed to pay Marla, as division of property, the sum of $209,150. This amount of money was to be paid over a period of time. The sum of $5,000 was to be paid within three months of the divorce. The sum of $37,500 was to be paid in annual installments of $2,500 each, beginning November 1, 1992, and being due and payable on the first day of November of each year thereafter for the next 14 years. Craig agreed to pay the remaining $166,650 in monthly installments. These monthly installments are to begin on April 1, 1996. The last monthly installment is due and payable on June 1, 2006. The installments begin at $1,000 per month, then increase to $1,225 per month, then to $1,450 per month, and finally top out at $1,675 per month, which is the amount due on the last 19 installments. The payout of the property settlement amount was structured so that the total monthly amount due from Craig for child support, alimony, and property settlement payments would not exceed $1,900. For that reason, the only property settlement payments due from Craig until April 1996 are the $5,000 payment due within the first three months of the divorce and the $2,500 payments due on November 1 of each year. By April 1996, all of the maintenance will be paid, and Craig will begin monthly installments on the property division owed to Marla.

This agreement was signed and the divorce was granted on January 9, 1992. On January 8, 1993, one day less than one year from the date of the divorce decree, the motion to modify was filed.

After conducting a full hearing on the motion to modify, the trial court denied the motion. The trial court held, among other reasons, that the motion was not filed within a reasonable time from the date of the divorce decree. The reasons offered in support of the motion will be discussed later in this opinion.

TIMELINESS OF MOTION

Craig announced to the court that his motion was based on K.S.A. 60-260(b)(1) and (2). Specifically, Craig appears to rely on the grounds of excusable neglect and newly discovered evidence.

K.S.A. 60-260(b) reads as follows:

"On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. " (Emphasis added.)

Craig argues that a motion filed under 60-260(b)(1) or (2) is timely if filed within one year after the "judgment, order, or proceeding was entered or taken." It is obvious that the motion of January 8, 1993, was filed within one year of the divorce decree. Thus, Craig argues, his motion was timely and the trial court erred in requiring that it also be filed within a reasonable time. We do not agree.

We are unable to find a Kansas decision directly on point, and the matter is one of first impression in this state. We do have decisions which deal with the timeliness of a 60-260(b) motion, but none which involve the precise issue presented on this appeal.

We view the statute as plain and unambiguous. It says: "The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken." (Emphasis added.) As we read the statute, a period of one year from the date of judgment is the extreme outer limit of time in which a motion under 60-260(b)(1)-(3) may be filed. Not only must the motion be filed within one year of the date of the judgment, it must be also filed "within a reasonable time." As we construe the statute, a motion could be held as not filed within a reasonable time even though it was filed within the extreme time limit of one year from the date of judgment.

In Beal v. Rent-a-Center of America, Inc., 13 Kan.App.2d 375, 376, 771 P.2d 553, rev. denied 245 Kan. 782 (1989), we said: "The motion to reconsider, however, specifically stated that it was filed pursuant to K.S.A. 60-260(b), and the only time limitation for the filing of such a motion is that it be filed within a 'reasonable time' and not more than one year after the order was entered. " (Emphasis added.) This is a correct statement of the law, although the Beal decision may not be considered conclusive since it did not involve the questions presented here.

In 3 Vernon's Kansas C.Civ.Proc. § 60-260.4, pp. 522-23 (1964), we find the following:

"Six grounds for a motion for relief from judgment are set forth in Rule 260(b). The overall requirement is that any such motion be brought within 'a reasonable time.' A further limitation requires that a motion on the first three grounds be made within one year from entry of judgment. These requirements are cumulative; that is, a motion on the ground of alleged 'excusable neglect,' the first ground, may be untimely because not brought within a 'reasonable time' although brought within the one-year period."

Rule 60(b) of the Federal Rules of Civil Procedure is identical to K.S.A. 60-260(b). The federal decisions on the subject are relevant to our consideration and appear to be unanimous in holding that a motion under Rule 60(b)(1) and (2) must be filed within a reasonable time and in no event later than one year from the date of judgment. Wilson v. Wilson, 16 Kan.App.2d 651, 657, 827 P.2d 788, rev. denied 250 Kan. 808 (1992).

At 11 Wright & Miller, Federal...