Scott v. Hall

• Decision Date: 17 May 1969
• Docket Number: No. 45315,45315
• Citation: 454 P.2d 449,203 Kan. 331
• Parties: Wm. E. SCOTT, Appellee, v. Charles William HALL, Appellant.
• Court: Kansas Supreme Court

Page 449

454 P.2d 449

203 Kan. 331

Wm. E. SCOTT, Appellee, v. Charles William HALL, Appellant.

No. 45315.

Supreme Court of Kansas.

May 17, 1969.

Syllabus by the Court

1. K.S.A. 60-308(a) provides that personal service of summons may be made upon any party outside the state of Kansas, and, if made upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within the state.

2. K.S.A. 60-308(b) relates to the process of submitting to jurisdiction of the courts of this state, and the provisions of subsection (6) thereof are examined, construed and applied, and it is held that living in marital relationship in Kansas is sufficient minimum contact with the state so as to confer jurisdiction of the courts of this state over the person of the leaving spouse as to all obligations arising for alimony, child support, or property settlement under Article 16, where the other party to the marital relationship continues to reside in this state.

3. The record in an action to recover attorney's fee as more fully set forth in the opinion, is examined, and it is held: the district court did not apply the provisions of K.S.A. 60-308(b) retroactively to the claim for relief as alleged in the first count of the plaintiff's petition and as admitted in the defendant's answer, and under the facts and circumstances, the district court acquired jurisdiction over the subject matter of the action and the person of the defendant pursuant to 60-308(b)(6) so as to render a valid in personam judgment against him.

Frederick K. Cross, Kansas City, argued the cause, and Felix G. Kancel, Kansas City, was with him on brief for appellant.

Donald W. Vasos, Kansas City, argued the cause, and Wm. E. Scott and LaVone A. Daily, Kansas City, were with him on brief for appellee.

FATZER, Justice.

The plaintiff, Wm. E. Scott, commenced this action against Charles William Hall, to recover a money judgment for legal services rendered in a Kansas divorce proceeding. The action is based upon the property settlement and divorce decree entered in the case entitled Charles William Hall, plaintiff, versus Betty Arlene Hall, defendant, Wyandotte district court, which settlement and decree were before this court in Woodring v. Hall, 200 Kan. 597, 438 P.2d 135. The plaintiff Scott was awarded judgment and the defendant Hall has appealed, and they are hereafter referred to as the plaintiff and defendant.

On December 1, 1966, the plaintiff, a member of the Bar of this state, filed his petition in the district court of Wyandotte County, which was in two counts. The first alleged the defendant's indebtedness based upon the plaintiff's representation of Mrs. Hall in the divorce action and of his negotiating a property settlement, contractual in nature, which provided that on April 17, 1962, the plaintiff was to receive as reasonable compensation for his professional services, the sum of $2,500. The second count alleged that on February 25, 1966, judgment was duly entered in the divorce action on matters concerning child custody and child support of the minor children of the Halls, wherein the defendant was ordered to pay the plaintiff the sum of $500 as an additional attorney's fee for professional services rendered Mrs. Hall. The prayer was to recover the sum of $3,000 plus interest and costs.

The plaintiff's praecipe directed the clerk of the district court to issue summons returnable according to law to the sheriff of Harris County, Texas, for services upon the defendant at his residence at 4846 Creek Bend, Houston, Texas.

Summons for personal service outside the state of Kansas as authorized by K.S.A. 60-308, was issued by the clerk on December 8, 1966, and personal service thereof, together with a copy of the plaintiff's petition, was duly made upon the defendant by the sheriff of Harris County, Texas, at 1:00 p. m. on January 30, 1967, at the Baylor College of Medicine, Houston, and the sheriff's verified return of the service of summons was duly filed in the office of the clerk of the Wyandotte district court.

On March 2, 1967, the defendant entered his special appearance challenging the jurisdiction of the district court, and moved the court to quash and dismiss all writs and processes issued against him upon the ground that it lacked jurisdiction of the subject matter and the person of the defendant, and that the summons was neither issued, served, nor returned in the manner provided by law.

On June 1, 1967, the district court, after hearing statements of counsel and examining the pleadings and documents in the court's file and briefs submitted, overruled the defendant's motion to dismiss the action for the reasons alleged.

Following the filing of the defendant's answer on June 27, 1967, which admitted all the allegations of the plaintiff's petition, except the amounts alleged to be due, the plaintiff filed his motion for summary judgment on the ground there existed no genuine issue as to any material fact in the action.

On October 31, 1967, the district court made findings of fact and conclusions of law, and those pertinent to this appeal are quoted in toto:

'FINDINGS OF FACT

'2. That on December 31, 1960, Charles William Hall, defendant herein filed his verified petition for divorce entitled Charles William Hall v. Betty Arlene Hall, No. 6760-B, District Court of Wyandotte County, Kansas, alleging inter alia that he had been a resident in good faith of the State of Kansas for more than one (1) year preceding the filing of his petition for divorce.

'3. That William E. Scott, plaintiff herein, represented Betty Arlene Hall in said divorce action and successfully negotiated a property settlement, contractual in nature, acceptable and agreeable to the parties, by the terms of which, Charles William Hall agreed to pay a fee of $2,500.00 to William E. Scott, as compensation for certain valuable and extensive professional services rendered to Betty Arlene Hall.

'4. That on April 17, 1962, said divorce action proceeded to trial and judgment, and the trial court therein found, inter alia, that:

(a) a settlement, contractual in nature had been reached acceptable and agreeable to both parties and their respective counsel, and that said contractual settlement should be incorporated in and made a part of the trial court's judgment and decree;

(b) Charles William Hall and Betty Arlene Hall were residents in good faith of the State of Kansas and County of Wyandotte for more than one year next preceding the filing of the action for divorce and that the court had jurisdiction of the parties and the subject matter;

(c) William E. Scott should be allowed the sum of $2,500.00 as his attorney's fee;

(d) the agreement and settlement of the parties to the divorce action, as set out in the court's findings, are made a part of the judgment and may be enforced as a judgment or as a contract at the option of the defendant, Betty Arlene Hall.

'5. That sometime subsequent to the trial of said divorce action and prior to the filing of the Journal Entry of Divorce on June 19, 1962, Charles William Hall and Betty Arlene Hall affixed their respective signatures to page 5 of said Journal Entry under the words 'Approved as to contractual and settlement matters included above.'

'6. That sometime in July, 1967 (sic), Charles William Hall procured an ex parte order granting him the custody of his minor children which order was attacked by Betty Arlene Hall and eventually set aside and custody of the children restored to Betty Arlene Hall; that thereafter on February 25, 1966, Charles William Hall, defendant herein, filed a motion in said divorce action, No. 6760, requesting credit or reimbursement on his child support payments. As part of the court's finding and judgment:

"4. Plaintiff (Charles William Hall) be and hereby is ordered and directed to pay defendant's attorney, William E. Scott, the sum of $500.00 at the rate of $30.00 per month beginning April 1, 1966, through the Clerk of this Court, in accordance with the findings of this Court.'

'7. William E. Scott, plaintiff herein, has not received, and Charles William Hall, defendant herein, has not paid to plaintiff, William E. Scott, any part of the $2,500.00 attorney's fee prayed for in Count I of plaintiff's petition.

'8. William E. Scott, plaintiff herein, has not received, and Charles William Hall, defendant herein, has not paid to plaintiff, William E. Scott, any part of the $500.00 attorney's fee prayed for in Count II of plaintiff's petition.

'9. That plaintiff, William E. Scott, has, at all times, performed and completed all the stipulations, conditions and agreements to be performed on his part, but that defendant Charles William Hall, has failed and refused, and still fails and refuses to perform his side although demand therefor has been duly made by plaintiff.

'10. That the reasonable value of the professional services rendered by plaintiff, William E. Scott, are in the sum of at least $3,000.00, and were so found by Judge Wm. H. McHale.

'11. That defendant, Charles William Hall, is indebted to plaintiff, William E. Scott, in the amount of $3,000.00.

'12. That on December 1, 1966, William E. Scott filed this action numbered 26128-B in the District Court of Wyandotte County, Kansas against Charles William Hall for the recovery of said $3,000.00 attorney's fee.

'13. That at the time plaintiff filed his petition herein on December 1, 1966, defendant, Charles William Hall, resided and had his domicile at 4846 Creek Bend, Houston, Harris County, Texas.

'14. That defendant was personally served in Harris County, Texas with a summons and copy of plaintiff's petition by the Sheriff of Harris County, Texas on January 30, 1967.

'15. That sometime after the trial of said divorce action, No. 6760-B, on April 17, 1962, Charles William Hall departed from the State of Kansas,...