Appellate Decisions
| Publication year | 2015 |
| Pages | 35 |
| Citation | Vol. 84 No. 3 Pg. 35 |
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Supreme Court
Attorney Discipline
DISBARMENT
IN THE MATTER OF BART A. CHAVEZ ORIGINAL PROCEEDING IN DISCIPLINE
NO. 14,646 — DECEMBER 16, 2014
FACTS: In a letter signed on December 15, 2014, addressed to the clerk of the appellate courts, respondent Chavez, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, complaints had been docketed by the disciplinary administrator's office in accordance with Supreme Court Rule 217. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 8.1(b) (2014 Kan. Ct. R. Annot. 670) (bar admission and disciplinary matters), 8.3(a) (2014 Kan. Ct. R. Annot. 678) (reporting professional misconduct), 8.4(a), (d), and (g) (2014 Kan. Ct. R. Annot. 680) (misconduct), Supreme Court Rule 207(a) (2014 Kan. Ct. R. Annot. 342) (cooperating with disciplinary administrator), and Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (registration of attorneys).
HELD: The Court, having examined the files of the office of the disciplinary administrator, found that the surrender of the respondent's license should be accepted and that the respondent is disbarred.
Civil
ADOPTION, TERMINATION OF PARENTAL RIGHTS, AND ATTORNEY FEES
IN RE F.
SEDGWICK DISTRICT COURT — AFFIRMED NO. 111,253 — JANUARY 23, 2015
FACTS: With the approval of the birth mother, John and Anne sought to adopt a baby girl born in Wichita on December 31, 2012. The girl's natural father, Lonnie, did not agree to relinquish his parental rights, but the district court terminated his parental rights and granted John and Anne's adoption petition after a contested, one-day trial. The court concluded that Lonnie had failed without reasonable cause to provide support for the birth mother during the six-month period before the child's birth, that he was unfit as a parent, that he had abandoned the mother after learning of the pregnancy, and that he had made no reasonable efforts to support the child after her birth. Before trial, the court had found that Lonnie was partially indigent and had ordered that he pay $500 toward his attorney's fees. Lonnie paid $100. Lonnie's attorney, Eric Hartenstein, presented a total bill to the court of $5,622.77. That amount reflected Lonnie's $100 payment; it also included expenses of $262.77 ($105 for serving court papers and $157.77 for a deposition transcript). The rest of the bill reflected Hartenstein's time spent on the case at $150 per hour.
John and Anne argued in the district court that Hartenstein should be limited to $80 per hour based on the fee paid in criminal cases. The district court concluded that it had the discretion to award that or a higher amount, and awarded $5,360 in fees and $262.77 in expenses.
ISSUES: (1) Adoption, (2) termination of parent rights, and (3) attorney fees
HELD: Court held fee award in this case was authorized by K.S.A. 59-2134, which has no language limiting the court's discretion in determining the proper amount of the attorney fees. Court stated that K.S.A. 22-4507, which applies only to attorneys appointed to represent indigent criminal defendants, does not set a limit on fees in other type of cases. Court similarly awarded attorney fees and expenses against John and Anne for the work performed on appeal in the amount of $3,853.02.
STATUTES: K.S.A. 22-4507; and K.S.A. 59-2134
CHILD CUSTODY
CHENEY V. POORE
RAWLINS DISTRICT COURT — REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS — REVERSED NO. 110,007 — DECEMBER 19, 2014
FACTS: Jeanna Cheney and Zachary Poore had two children — one was from a prior relationship Cheney had with another man. After the parties separated, the district court found that Zachary was the natural biological father of the younger sister, that both parents dearly loved the children, and that both were fit to be awarded the joint legal custody of the younger sister. The decision also noted that Zachary was the only father the older sister had ever known but that he had no standing to request parenting time with her because he was not the biological father or stepparent. The court held, however, that it could divide custody of the children in an exceptional case and that this was an exceptional case. The court held that to have both sisters principally reside with Jeanna with only the younger sister allowed to singly leave the home to exercise visitation with Zachary who is the only father both girls know would be less favorable and more stressful than to have the younger sister principally reside with Zachary and then return to Jeanna's home to exercise visitation with Jeanna and her older sister. Finding that it was in the best interests of the younger sister to do so, the court granted residential custody of the younger sister to Zachary. The Court of Appeals affirmed.
ISSUE: Child custody
HELD: Court agreed with the Court of Appeals that the district court erred in applying K.S.A. 2013 Supp. 23-3207(b) (dividing the residency of full siblings between their parents) to the residential custody determination before it. However, Court disagreed with the Court of Appeals, and would not overlook this error and held that the district court's memorandum decision showed that the error led to the district court's decision to award residential custody of the younger sister to Zachary. Court reversed the district court's residential custody award and remanded the case back to the district court so it could make findings of fact and conclusions of law consistent with the correct legal standards.
STATUTES: K.S.A. 21-5604, -5926; K.S.A. 23-3201, -3203, -3207, -3301; K.S.A. 60-1610; and K.S.A. 72-1046
DIVORCE
IN RE MARRIAGE OF TRASTER
SEDGWICK DISTRICT COURT — AFFIRMED IN PART, REVERSED IN PART AND REMANDED
COURT OF APPEALS — REVERSED IN PART AND AFFIRMED IN PART
NO. 106,092 — DECEMBER 19, 2014
FACTS: Husband, an attorney drafted 2004 postnuptial agreement for distribution of property upon dissolution of marriage, with attorney fees to be paid by party challenging the agreement. Husband initiated divorce proceedings in 2007 and claimed agreement was void because it gave wife a significantly lopsided distribution of property and assets. District court agreed, found the agreement was a separation agreement under K.S.A. 60-1610(b)(3), voided the agreement on public policy grounds because it encouraged husband to divorce to protect future assets, allocated couple's property and assets for just and reasonable outcome under K.S.A. 60-1610(b)(1), and denied wife's claim for attorney fees. Wife appealed, arguing the postmarital agreement was not governed by statute. Court of Appeals reversed, holding the agreement should be upheld and its provisions enforced. 48 Kan. App. 2d 356 (2012). Panel recognized two types of postnuptial agreements: (a) those governed by K.S.A. 60-1610(b)(3), and (b) all others to be governed by common-law rule with six factor test adopted by the panel based on whether spouses intended to remain married when entering into the agreement. Because agreement in this case was entered into before parties intended to divorce, K.S.A. 60-1610(b)(3) not applicable. Panel also reversed district court's denial of wife's attorney fee claim, and remanded for calculation of appropriate fee under the agreement's indemnity provision. Husband's petition for review granted.
ISSUES: (1) "Separation agreement" in K.S.A. 60-1610(b) (3) and (2) statutory requirement for valid, just, and equitable agreement
HELD: Issue of first impression in Kansas whether K.S.A. 60-1610(b)(3) governs marital agreements entered after marriage when parties intend to stay married. Common-law and statutory background is reviewed. Absent legislative clarification, court holds the term "separation agreement" in K.S.A. 60-1610(b)(3) includes all agreements, entered during marriage, that provide for a spouse's property rights in the event of divorce or separation, regardless of whether the parties intend to remain married at time of agreement's execution. District court's ruling that the 2004 agreement is a separation agreement under K.S.A. 60-1610(b)(3) is...
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