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January 23, 2015, Digests

Posted By Administration, Tuesday, January 27, 2015
Updated: Monday, February 10, 2020

Kansas Supreme Court


NO. 107,401 – JANUARY 23, 2015

FACTS: In 2007, Kaelter sued her long-time boyfriend, Sokol, seeking determinations of paternity, custody, and support; and an equitable division of the parties' jointly acquired assets. The parties have hotly contested these issues and others at every turn. After Kaelter filed suit, the district court referred the matter to a special master, who made findings of fact and conclusions of law without conducting formal hearings. Over Sokol's objection, the district court adopted those findings and conclusions and entered judgment on the master's report without hearing evidence. The judgment included an order that Sokol pay Kaelter a sum representing the minor child's unreimbursed medical expenses. On the parties' motions for reconsideration, the district court entered additional orders, including its decision to make its own determination regarding the unreimbursed medical expenses. Sokol appealed, arguing about the district court's refusal to hold an evidentiary hearing; the master's failure to conduct proceedings in accordance with K.S.A. 60-253 (setting out procedure for trial by special masters); and whether Sokol timely appealed based on whether various motions for reconsideration filed with the district court after each of its rulings tolled the time to appeal. The Court of Appeals held that Sokol failed to timely appeal portions of the judgment but could pursue one issue relating to the failure of the master to take an oath. The panel then affirmed the district court's order, ruling Sokol failed to exercise reasonable diligence to object when he first learned the master did not take an oath while the master was still working on the case. Kaelter, 2013 WL 1876444, at *8. After the panel filed its opinion, it granted Kaelter's request for appellate costs and attorney fees.

ISSUES: (1) Jurisdiction; and (2) final decision

HELD: Court stated the jurisdictional issue arises because the district court's written journal entry memorializing the additional orders, filed October 27, 2010, indicated the district court could not at that time "determine an appropriate division of past medical expenses" due to a lack of sufficient documentation. The journal entry further stated the district court anticipated the filing of a future motion for those unreimbursed medical expenses and an exchange of information between the parties in the hope that a resolution could be reached. Court found the record on appeal does not show the issue was ever resolved before Sokol initiated this appeal. Court held the district court did not enter a final decision, having left unresolved the unreimbursed medical expenses issue. Therefore, the Court of Appeals lacked jurisdiction. For that reason, the judgment of the Court of Appeals affirming the district court is vacated. Court applied the same rationale and vacated the panel's order awarding costs and attorney fees to Kaelter, which Sokol challenged in his briefing as an abuse of discretion.

STATUTES: K.S.A. 20-3018; K.S.A. 23-2216; and K.S.A. 60-253, -2102

Kansas Court of Appeals


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 6-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 attorneys 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


NO. 110,435 – JANUARY 23, 2015

FACTS: Pearce, with four previous burglary convictions that included one person-felony conviction for residential-burglary, entered guilty plea to a fifth burglary. Sentencing court accepted Pearce’s argument that K.S.A. 2013 Supp. 21-6810(d)(9) and rule of lenity prevented the court from counting the prior residential burglary when calculating Pearce’s criminal-history score. State appealed on question reserved.

ISSUES: (1) State’s appeal of criminal history score of recidivist burglar

HELD: Statutes controlling this case are K.S.A. 2013 Supp. 21-6804(l) (the recidivist-burglar provision) and K.S.A. 2013 Supp. 21-6810(d)(9) (the exclusion of some convictions when scoring a defendant’s criminal history). District court erred when it excluded one of Pearce’s burglary convictions in determining the criminal-history score because none of the conditions for exclusion are met in this case. State v. Zabrinas, 271 Kan. 422 (2001), is distinguished as applying K.S.A. 21-6804(l) before legislature eliminated the "applicable penalties” language in 2010. Answer in this case is of statewide importance. No appellate decisions discuss the elimination of the "applicable penalties” language in K.S.A. 21-6804(l), and this opinion alerts bench and bar that these cases - decided based on statutory language no longer in place - may no longer be good law. States appeal is sustained.

DISSENT (Atcheson, J.): Dissents from majority’s decision to entertain the matter at all because State’s appeal fails to present a legal question of statewide interest or importance. Parties in this case argue the question reserved as if K.S.A. 2013 Supp. 21-6810(d)(9) had never been amended, and seek a ruling on how to construe language the legislature repealed in 2010. Would dismiss the appeal for lack of jurisdiction.

STATUTES: K.S.A. 2013 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6804(a), -6804(l), -6809, -6810(d)(9); K.S.A. 2013 Supp. 22-3602(b)(3); K.S.A. 21-4710(d)(11); and K.S.A. 2009 Supp. 21-4704(1)

Tags:  adoption  Johnson District Court  Miami District Court  parent rights  recidivist burglar  Sedgwick District Court  termination of parent rights 

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