Appellate Decisions
| Publication year | 2019 |
| Pages | 63 |
| Citation | Vol. 88 No. 8 Pg. 63 |
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KANSAS STATE SUPREME COURT
CIVIL
CHILDREN— JURISDICTION IN RE A.A.-F. GEARY DISTRICT COURT — COURT OF APPEALS IS AFFIRMED DISTRICT COURT IS AFFIRMED NO. 117,368 — JULY 12, 2019
FACTS: These proceedings involve five of Mother's six children. Two of the children were born in Kansas. All of the children were subject to child in need of care proceedings while living in California. After a fight with her husband, Mother brought the children to Kansas without telling anyone. The California court revoked the children's physical placement with Mother and ordered them returned to California. The children returned, and the California court began to inquire about a possible placement with the children's grandmother, who resides in Kansas. In June 2015, the California court cited the UCCJEA and transferred the case to Kansas. After several years working on reintegration, the State sought termination of Mother's parental rights. At a hearing, Mother argued that Kansas lacked jurisdiction. The district court overruled Mother's concerns about jurisdiction and, after hearing evidence, terminated her parental rights. In a divided opinion, the court of appeals held that the record did not show that UCCJEA jurisdiction properly passed from California to Kansas and found it was error for the district court to so find. But, it ruled that any error was harmless because there was home state jurisdiction in Kansas by the time the termination hearing occurred. Mother's petition for review was granted.
ISSUES: (1) Subject matter jurisdiction; (2) procedural due process rights
HELD: When the CINC proceedings began, California was the children's home state. The California order transferring the case to Kansas did not specify what provision of the UCCJEA is relied on when ceding jurisdiction. Unfortunately, there is nothing in the record on appeal to show exactly what happened in California. Nevertheless, the transfer order from California gave the Kansas court jurisdiction, and Kansas knew that California would not still be trying to make decisions in the case. Principles of comity apply to the California transfer order, even though it was not a final decision in this case. There was no abuse of discretion when Kansas accepted jurisdiction in this case, in accordance with the purposes of the UCCJEA. The failure to hold a hearing within 30 days did not violate Mother's due process rights.
STATUTES: K.S.A. 2018 Supp. 23-37,102(b), -37,110(a), -37,110(b), -37,110(d), -37,110(e), -37,201, -37,202, -37,202(a) (1), -37,202(a) (2), -37,207, -37,313, 38-2202(d), -2203; K.S.A. 20-301
DEEDS — REAL PROPERTY JASON OIL COMPANY V. LITTLER RUSH DISTRICT COURT AFFIRMED NO. 118,387— AUGUST 16, 2019
FACTS: Through deeds, Littler (Grantor) conveyed two tracts of real estate to two different couples, the Grantees. The deed excluded from conveyance all oil, gas, and minerals in and under the property that may be produced "for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced." That 20-year term expired in December 1987, and no oil, gas, or minerals were ever produced from either tract. In 2016, Jason Oil Company moved to quiet title to both tracts, claiming to hold valid oil and gas leases. The Grantor's descendants (the Grantor's Heirs) answered, claiming an interest in the mineral rights via will and arguing that any attempt to convey rights to the Grantees, or their heirs, was void under the Rule Against Perpetuities. The Grantees' Heirs also answered, claiming a successor interest in the mineral rights. Alternatively, they claimed that if the conveyance did violate the Rule it could be reformed under the Uniform Statutory Rule Against Perpetuities (USRAP). The district court granted the Grantees' Heirs' motion for summary judgment, finding there was no dispute that the Grantor conveyed all of his interest in the properties to the grantees and created a defeasible estate by reservation.
ISSUE: (1) Application of the Rule
HELD: The Rule is a creation of common law. The Grantor's mineral interest was a defeasible term mineral interest. This was a present interest which remained vested after the conveyances and for at least 20 years. Any mineral interest that passed to the Grantees was a future interest which vested no earlier than December 1987 at the end of the Grantor's 20-year term. The deeds conveyed by the Grantor created a springing executory interest. Applying the Rule in this case would result in the Grantor's Heirs holding the mineral interests in the real estate in perpetuity, and excepting agreements such as this from application of the Rule has many benefits, including promoting the alienability of land and reducing chaos.
STATUTE: K.S.A. 59-3405(b)
CONTEMPT IN RE PATERNITY OF S.M.J. V OGLE DOUGLAS DISTRICT COURT — VACATED AND CASE REMANDED COURT OF APPEALS — AFFIRMED NO. 115,776 — JULY 19, 2019
FACTS: Ogle and Jacobs were involved in a paternity and custody proceeding. It turned contentious, enough that the district court ordered Ogle to cease widespread slander of Jacobs. Ogle did not stop, and Jacobs moved the court to hold him in indirect contempt after his comments caused her to lose her job. The district court held Ogle in indirect contempt, even though neither Ogle nor his attorney appeared at the contempt hearing. Ogle appealed and the court of appeals vacated the contempt finding, holding that the district court could not hold Ogle in indirect contempt when he did not appear at the hearing. Jacobs' petition for review was granted.
ISSUE: (1) Necessity of personal appearance at the hearing
HELD: K.S.A. 2018 Supp. 20-1204a does not specifically mention whether an accused must appear at the hearing. But after reading all of the statute's provisions together, it is clear that a district court judge is allowed to proceed with a contempt hearing once the person accused is present, but not before.
STATUTE: K.S.A. 2018 Supp. 20-1204a
ATTORNEY FEES — COURTS — PROBATE CODE — WILLS IN RE ESTATE OF OROKE JEFFERSON DISTRICT COURT — AFFIRMED AND REMANDED COURT OF APPEALS — REVERSED NO. 116,333 — AUGUST2, 2019
FACTS: Testator (Oroke) deposited original will and codicil with probate court of home county. A few weeks after his death, heirs tried to locate the will but clerk of the court was unable to find it and informed heirs the will was not in the custody of the court. After a search elsewhere found no will, testator's daughter filed intestate probate proceeding. While that proceeding was pending, and after imitation period for petitioning a will for probate had passed, clerk of the court located the will and codicil. Testator's stepdaughter filed separate petition to probate the will. District court consolidated the two probate proceedings and admitted the will to probate, finding stepdaughter had exercised due diligence in attempting to locate the will. Testator's daughter appealed. Court of appeals reversed. State v. Hirsh, 54 Kan. App. 2d 705, 405 P.3d 41 (2017). Panel found no exceptions applied to toll the running of the limitation period because the will was not "knowingly" withheld, and found this case indistinguishable from In re Estate of Strader, 301 Kan. 50, 339 P.3d 769 (2014). Stepdaughter's petition for review granted. After oral argument in Kansas Supreme Court, stepdaughter moved for appellate attorney fees and expenses for the entire appellate process to be paid from the estate.
ISSUES: (1) Probate — statute of limitations; (2) appellate attorney fees
HELD: Clerk's failure in duty to produce the will distinguishes this case from Strader. Circumstances of this case conform in all respects with requirements of the unique circumstances doctrine. While that doctrine is used sparingly, neither the Legislature in repealing K.S.A. 59-620, nor the enactment of Supreme Court Rule 108(e) (4) (A), intended that an error by a judicial employee should be inconsequential as to the statute of limitations. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. This is not a modification of Strader, but in holding limited to the unique and rare circumstances of a district court clerk not following a duty imposed by law.
Stepdaughter's attempts to have the appellate courts uphold the district court's admission of the will to probate provides this court with authority to entertain her motion for attorney fees. Motion for attorney fees was timely filed for consideration of appellate services rendered before Kansas Supreme Court, but not for appellate services while appeal was pending in Court of Appeals. The attorney fee request, limited to appellate services provided after panel's opinion was filed, is reviewed and found to be reasonable. Decision of the district court is affirmed and case is remanded for further proceedings conforming with this opinion.
STATUTES: K.S.A. 2018 Supp. 20-343, 60-2601; K.S.A. 20-343, 59-617, -618, -620, -621, -1504; K.S.A. 59-620 (Furse 1994)
HABEAS CORPUS BREEDLOVE V. STATE SEDGWICK DISTRICT COURT — AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED COURT OF APPEALS — AFFIRMED IN PART AND REVERSED IN PART NO. 115,401 — JULY 12, 2019
FACTS: Breedlove was convicted of felony murder in 1995. His conviction and sentence were reversed and he was...
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