Ward v. Hahn

• Decision Date: 28 July 2017
• Docket Number: No. 116,654,116,654
• Citation: 400 P.3d 669
• Parties: Cheri WARD, f/k/a Cheri R. Hahn, Appellee, v. Clifford HAHN, Iris A. Hahn, and Kirk L. Hahn, Appellants.
• Court: Kansas Court of Appeals

400 P.3d 669

Cheri WARD, f/k/a Cheri R. Hahn, Appellee,

v.Clifford HAHN, Iris A. Hahn, and Kirk L. Hahn, Appellants.

No. 116,654

Court of Appeals of Kansas.

Opinion filed July 28, 2017

Richard E. Dietz, of Dietz & Hardman Law Office, of Osborne, for appellants.

Terry L. Rogers, of Terry L. Rogers Law Firm, of Lincoln, Nebraska, for appellee.

Before Gardner, P.J., Pierron, J., and Burgess, S.J.

Gardner, J.:

This appeal asks whether a Kansas district court may enforce, under the principle of comity, a Nebraska district court's direct assignment of title to Kansas real estate in a decree of dissolution of marriage. Because we find that doing so violates Kansas public policy, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Kirk Hahn and Cheri Ward were married to each other and lived together in Nebraska. Hahn owned a one-half undivided interest in real property located in Osborne County, Kansas. Title to his one-half undivided interest was in his name alone. Hahn's parents, Clifford and Iris Hahn, owned the other one-half undivided interest in that property.

When Ward filed for divorce in Nebraska, the Nebraska court equitably divided Hahn's and Ward's property and directly assigned the Kansas land to Ward. The Kansas district court's order found that Hahn "failed to sign a deed" and that Hahn "has failed to ... deed the ... property to [Ward]." Ward's brief inaccurately characterizes this as Hahn's "refusal" to deed the property to Ward, as the record does not suggest that the Nebraska court ever ordered Hahn to do so. Instead, the Nebraska court directly awarded the Kansas property to Ward, stating: "The above-described real estate is now the property of [Ward]," and its order "shall be recorded in the real estate records of Osborne County, Kansas to effectuate the transfer of the ... real estate to [Ward]."

Ward subsequently petitioned the Kansas district court to enforce the Nebraska district court's order and to partition the land between her and Hahn's parents. The district court acknowledged that the Nebraska district court did not have subject matter jurisdiction to directly transfer legal title of Kansas land to Ward and had erred in so doing. Accordingly, it found that the Nebraska district court's order assigning the Kansas real estate to Ward had no effect on the legal title to the Kansas real estate and was not entitled to enforcement under the Full Faith and Credit Clause of the United States Constitution. We note that only judgments entitledto full faith and credit in Kansas may be enforced under our Foreign Judgments Act, K.S.A. 60–3001 et seq.

Nonetheless, the district court enforced the Nebraska order under the principle of comity, stating: "The parties have given no reason, and this Court can think of no reason, why enforcing the Nebraska order would violate the public policy of Kansas." Accordingly, the district court partitioned the land, assigning a one-half undivided interest to Ward and the other one-half undivided interest to Clifford and Iris Hahn. The Hahns appeal.

The Hahns assert that the district court abused its discretion by enforcing the Nebraska property division under the doctrine of comity because allowing foreign courts to assign Kansas land is repugnant to Kansas public policy and would disrupt real estate markets. The parties agree that the Nebraska court had personal jurisdiction over Hahn and could have ordered him to transfer the property to Ward, effecting an indirect transfer of title to the land.

KANSAS FOLLOWS THE GENERAL RULE THAT A SISTER STATE CANNOT DIRECTLY TRANSFER TITLE TO LAND IN ANOTHER STATE

Kansas precedent on this issue, although time-honored, remains valid. In Hoppe v. Hoppe , 181 Kan. 428, 312 P.2d 215 (1957), a husband contended that the Kansas court erred in failing to set aside certain Pennsylvania real estate to him, citing the statute providing that when a divorce is granted the court shall make a just and reasonable division of the real and personal property. The Kansas Supreme Court rejected that argument in words which we set out at length due to their application here:

"It was the intent of the Legislature that the court should make a division of only the property within its jurisdiction. Any attempt by one state to give to its courts jurisdiction beyond its own limits of real property situated in another state is an usurpation of authority and all judicial proceedings in virtue thereof are void, and a statute, however comprehensive, should not be construed as conveying such jurisdiction. In a divorce proceeding the courts of one state cannot by the decree directly affect the legal title to land situated in another state unless allowed that effect by the laws of the state in which the land is situated. ( Cummings v. Cummings , 138 Kan. 359, 26 P.2d 440 [ (1933) ].) (See also Annotation, 51 A.L.R. 1081.)

"One of the leading and exhaustive opinions on this subject is Fall v. Fall , 75 Neb. 104, 106 N.W. 412 [ (1905) ] ; Id., 75 Neb. [at] 120, 113 N.W. 175 ; Fall v. Eastin , 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A. (N.S.) 924, 17 Ann. Cas. 853 [ (1909) ], wherein it was stated by the United States Supreme Court that:

" ‘While a court of equity acting upon the person of the defendant may decree a conveyance of land in another jurisdiction and enforce the execution of the decree by process against the defendant, neither the decree, nor any conveyance under it except by the party in whom title is vested, is of any efficacy beyond the jurisdiction of the court.’ (Syl. 1.) See also 27 C.J.S., Divorce § 330, p. 1287.

"The general rule is again stated in 17 Am. Jur., Divorce and Separation, § 449, p. 369 :

" ‘The rule is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state, unless the decree is allowed that effect by the laws of the state in which the land is situated. The courts of one state may, however, by a decree in personam, indirectly affect interests in land in another state; such orders do not operate directly on the title to the land, but only through the act of the party of whom the court has jurisdiction, and are enforceable only by methods effective against the person, such as proceedings for contempt, etc.’

"We are of the opinion that had a request been made the trial court would have had the authority to compel plaintiff to convey her interest, if any, in the real estate in question to defendant because at the time of the trial the court had jurisdiction over the parties. It could have enforced that judgment by proceedings in contempt. However, if plaintiff had failed to execute the deed in compliance with the order of the court the judgment would have been inoperative as to conveying title to the property in Pennsylvania." Hoppe , 181 Kan. at 432–33, 312 P.2d 215.

As the authorities above note, courts of one state generally cannot directly affect the legal title to land situated in another state. 181 Kan. at 433, 312 P.2d 215. Otherwise stated, the portion of the divorce decree which purports to act in rem so as to directly affect title to Kansas land is inoperative in Kansas.

Although Kansas has not revisited this issue recently, other states continue to apply that same time-honored rule:

" ‘[I]it is hardly a debatable question that the courts of a foreign [s]tate are without jurisdiction to vest and divest title to lands in this State.’ Clouse v. Clouse , 207 S.W.2d 576, 579 (Tenn. 1948) (emphasis added); see also Cory v. Olmstead , 290 S.W. 31, 32 (Tenn. 1926) (‘a court of one state is without jurisdiction to pass title to lands lying wholly in another state.’); International Shoe Co. v. Washington , 326 U.S. 310, 316 [66 S.Ct. 154, 90 L.Ed. 95] (1945). Illinois also recognizes this well-established rule. In re Marriage of Miller [108 Ill.App.3d 63, 63 Ill.Dec. 797] 438 N.E.2d 939, 942 (Ill. App. Ct. 1982)." Claborn v. Claborn , No. E2014-01683-COA-R3-CV, 2015 WL 5692547, at *3 (Tenn. App. 2015) (unpublished opinion).

See also Wacker Oil, Inc. v. LoneTree Energy, Inc. , 459 N.W.2d 381, 382 (N.D. 1990) (a court decree or court judgment of another state in its determination of property rights may not directly affect or transfer title to real property located in North Dakota).

A Sister State May Indirectly Transfer Title to Land in Another State

A sister state may, however, indirectly affect title to land located in another state by ordering a litigant over whom it exercises personal jurisdiction to transfer title to another. If that party does not comply, the court may enforce its order by holding the disobedient party in contempt. Hoppe , 181 Kan. at 433, 312 P.2d 215. The distinction between the in rem and in personam acts makes good sense:

"[A] deed or other instrument executed by an owner in obedience to a court decree affecting title to lands in a state other than the forum state is recognized and given effect in the situs state. The jurisdiction over the person gives jurisdiction to require the person to act. When a person acts under court order there is no duress. The deed or other instrument transferring title is the act of the owner of the title, not the act of the court. The rights created by such instruments are rights created by the owner of the title, and therefore are and should be recognized by all courts." McElreath v. McElreath , 162 Tex. 190, 215, 345 S.W.2d 722 (1961) (Griffin, J., dissenting).

The Record Reflects No Indirect Transfer Here

At oral argument, Ward's counsel suggested that the Nebraska court not only attempted to directly transfer title, but also indirectly transferred title either by specifically ordering Hahn to execute the deed, or by generally ordering Hahn to execute all papers necessary to give effect to the court's orders. But no such argument is arguably included in Hahn's brief. "The general rule is that where the appellant fails to brief an issue, that issue is waived or abandoned. Puritan–Bennett...