Mullokandova v. Kikirov

• Decision Date: 27 September 2013
• Docket Number: No. 108,601.,108,601.
• Citation: 309 P.3d 974
• Parties: In the Matter of the MARRIAGE of Ella MULLOKANDOVA, Appellee, and Nison KIKIROV, Appellant.
• Court: Kansas Court of Appeals

309 P.3d 974

In the Matter of the MARRIAGE of Ella MULLOKANDOVA, Appellee, and Nison KIKIROV, Appellant.

No. 108,601.

Court of Appeals of Kansas.

Sept. 27, 2013.

Appeal from Johnson District Court; Allen R. Slater and John E. Sanders, judges. Opinion filed September 27, 2013. Affirmed.

Judith C. Hedrick, of Lenexa, for appellant.

Ronald W. Nelson, of Ronald W. Nelson, PA, of Lenexa, for appellee.

Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Nison Kikirov appeals to us complaining that he never got a fair hearing in the divorce action Ella Mullokandova filed against him in Johnson County District Court and that, as a result, he has been saddled with questionable financial obligations. Kikirov didn't respond to the divorce petition, and a decree was entered by default. Only then did Kikirov take action by trying to set aside the default. Based on the record evidence, he could not have demonstrated sufficient legal grounds to do so. We, therefore, affirm the rulings of the district court in entering the default decree and in denying Kikirov's efforts to vacate that decree.

Kikirov contends the way he was treated in the district court violated his constitutional right to due process, failed to conform to the statutory requirements for entry of default judgments, and improperly rejected his motions to set the judgment aside. In resolving those contentions, we take the facts and the law in a light favoring Kikirov. We do so not necessarily because that is the correct standard—we don't decide the standard and simply assume it—but because Kikirov could be entitled to no more favorable a standard. In other words, we give Kikirov the best shot he possibly could have whether the law requires it or not. As we have already indicated, even with that deferential consideration, he fails.

In keeping with our approach, we recount the facts favorably to Kikirov. Kikirov and Mullokandova were married in New York City in 2007 and lived there. They had two young children. Kikirov owned and operated a furniture store specializing in futons, while Mullokandova worked as a dental hygienist. Their relationship became strained, so in March 2011 Mullokandova and the children moved to Overland Park in Johnson County, where her parents reside.

Kikirov hired a New York lawyer to try to secure the return of the children. The lawyer wrote Mullokandova a letter dated June 8, 2011, demanding that she bring the children back to New York to live with Kikirov. The lawyer sent a similar letter dated November 7, 2011.

Mullokandova filed a petition for divorce in Johnson County District Court on November 8, 2011, and unsuccessfully attempted to serve Kikirov by mail. She filed an amended petition later that month and had a special process server appointed. Shortly before Christmas, Kikirov traveled to Johnson County ostensibly to visit the children. Mullokandova asked that they meet at a shopping mall in Overland Park. When Kikirov arrived there, he was served with the divorce petition and a summons. The next day, Kikirov and Mullokandova had dinner together to discuss their marriage. In an affidavit filed later in the divorce proceeding, Kikirov stated that he left the dinner with “hope” that he and his wife might reconcile. He also stated he was “confused” and unsure whether Mullokandova “was serious about getting a divorce.”

Kikirov did not file an answer or otherwise respond to the divorce petition. In his affidavit Kikirov explained: “I did not consult with any attorney after being served the papers because I was not very happy with the attorney I had retained, as she had still not filed anything that would help get my children back to New York.” He also stated that he “sincerely believed that if [Mullokandova] was going through with the divorce I would receive some notice of a court hearing.”

By not responding, Kikirov was in default in the divorce action. The district court held a hearing on February 13, 2012, to grant the divorce, to fix child custody, to establish spousal maintenance and child support, and to enter a division of property. Kikirov did not appear in person or through a lawyer. Mullokandova and her lawyer were there, and Mullokandova testified as to the couple's financial affairs and other matters. She valued the futon store at $100,000. The district court awarded her $50,000, reflecting half that value. She also testified that she had paid off a $100,000 loan Kikirov had obtained from his relatives before their marriage. The district court ordered Kikirov to pay Mullokandova that amount, although no documentary evidence supported the existence of the loan. Based on Mullokandova's representations as to Kikirov's annual income as roughly $100,000 and her own as $36,600, the district court set spousal maintenance at just over $1,000 a month for 18 months and child support at $2,339 a month. Mullokandova was given custody of the children.

After learning of the decree and the obligations it imposed on him, Kikirov hired a Johnson County lawyer. On March 22, 2012, the lawyer filed a motion to set aside the default judgment. The motion was scheduled for a “nonevidentiary hearing” on May 31, 2012, at which the district court heard argument from counsel for each party. Kikirov's lawyer tried to submit evidence, and the district court rebuffed that effort because the hearing had not been set for that purpose. The lawyer didn't proffer the evidence; but, based on the discussion in the record, it appeared to include documents related to Kikirov's income and the family's finances. The district court denied the motion to set aside from the bench and later signed a journal entry to that effect.

Kikirov then filed a motion to reconsider. His affidavit was attached to that motion as an exhibit. A visiting district court judge denied the motion to reconsider on August 20, 2012, after a hearing at which counsel for the parties argued their respective positions. A third district court judge signed a one-paragraph journal entry about a week later. Kikirov has timely appealed the denial of his motion to set aside the default judgment and his request for reconsideration.

The Kansas Code of Civil Procedure addresses defaults in K.S.A. 60–255 and permits a district court set them aside for “good cause” as permitted in K.S.A. 60–260(b). In turn, K.S.A. 60–260(b) contains five specific grounds and a sixth catch-all ground warranting a district court in granting a party relief from a final judgment “upon terms that are just.” In this case, Kikirov sought to set aside the default under K.S.A. 60–260(b)(1) based on his “mistake, inadvertence, surprise, or excusable neglect” in failing to respond in a timely fashion to the divorce petition that had been served on him. He focuses on excusable neglect, although each of the bases in K.S.A. 60–260(b)(l) is governed by the same standard. He made an alternative argument the judgment was void under K.S.A. 60–260(b)(4).

To show excusable neglect of the sort justifying setting aside a judgment, the moving party must establish: (1) the party having obtained the judgment will not be prejudiced by reopening the case; (2) the defaulting party can advance a meritorious defense; and (3) the default was not the result of inexcusable neglect or willful conduct. State exrel. Stovall v. Alivio, 275 Kan. 169, 172–73, 61 P.3d 687 (2003); First Nat'l Bank in Belleville v. Sankey Motors, Inc., 41 Kan.App.2d 629, 634, 204 P.3d 1167 (2009). Those enumerated criteria are not treated as factors to be considered in an evaluation of the totality of the circumstances, such that relief might be granted even if one of them favored the party with the judgment. They are, rather, effectively elements, meaning each of them must be proven to set aside a default judgment. Alivio, 275 Kan. at 173;First Nat'l Bank, 41 Kan.App.2d at 634.

There is some tension in Kansas law as to the burden of proof on the party seeking to set aside a default judgment in marshalling evidence on those elements in the district court. In First Management v. Topeka Investment Group, 47 Kan.App.2d 233, 239, 277 P.3d 1150 (2012), this court stated they must be proven by clear and convincing evidence. But the single case the court cited for that proposition, Montez v. Tonkawa Village Apartments, 215 Kan. 59, 64, 523 P.2d 351 (1974), simply outlines what must be shown and ascribes no burden of proof. In First Nat'l Bank in Belleville, 41 Kan.App.2d at 634, another panel noted the moving party had the burden “to show all three elements” but didn't describe the burden. The failure to mention the burden strongly suggests it is the typical civil requirement of a preponderance of the evidence. In Lee v. Brown, 210 Kan. 168, 170, 499 P.2d 1076 (1972), the Kansas Supreme Court stated that the grounds for a motion under K.S.A. 60–260(b) must proven by clear and convincing evidence and cited generally Cool v. Cool, 203 Kan. 749, 457 P.2d 60 (1969). But Cool dealt with relief under K.S.A. 60–260(b)(3) based on fraud. 203 Kan. 749, Syl. ¶ 6. Fraud typically must be proven by clear and convincing evidence, and K.S.A. 60–260(b)(3) is no exception. 203 Kan. at 755. Nonetheless, the overly broad generalization in Lee has crept into Kansas caselaw. At the same time, the Kansas Supreme Court has recognized that a district court “should resolve any doubt in favor of [a] motion” to set aside a judgment under K.S.A. 60–260(b)(1). Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989), cert. denied495 U.S. 932 (1990).

When applying K.S.A. 60–260, the Kansas appellate courts have frequently relied on persuasive federal authority construing Federal Rule of Civil Procedure 60, a nearly identical provision. See Montez, 215 Kan. at 62–64;In re Marriage of Larson, 19 Kan.App.2d 986, 990, 880 P.2d 1279 (1994), aff'd257 Kan. 456, 894 P.2d 809 (1995). The United States Court of Appeals for the Tenth Circuit...