254 Kan. 801; 869 P.2d 653; 1994 Kan. LEXIS 42
No. 69,396
IN THE SUPREME COURT OF THE STATE OF KANSAS
In the Matter of the Marriage of RACHEL G. WELLIVER, Appellee, and EDWIN D. WELLIVER, Appellant.
Filed on March 4,
1994.
Appeal from Johnson district court; JANETTE SHELDON, judge.
Affirmed.
HEADNOTES BY THE
COURT:
1. Service of process is a method of
formally commencing an action by giving the defendant notice of the action. The
person named as defendant normally does not become a party to the action until
served with the summons. Upon the filing of a petition, the clerk of the court
issues a summons for service upon each defendant in accordance with Kan. Stat.
Ann. §§ 60-303, 60-301 (Supp. 1993).
2. All process issued for service from any
court within the state may be served anywhere within the territorial limits of
the state and, when authorized by law, may be served outside this state. Kan. Stat. Ann. § 60-311 (Supp. 1993).
3. The court obtains jurisdiction of the
defendant through service of process. The summons informs the defendant that the
defendant is required to serve upon the plaintiff's attorney and the court a
pleading to the petition within 20 days after service of the summons. If the
defendant fails to file a pleading within the 20 days after being served, a
judgment by default can be taken against the defendant for the relief demanded
in the petition. Kan. Stat. Ann. § 60-212(a) (Supp. 1993).
4. A void judgment is a nullity and may be
vacated at any time.
5. Kan. Stat. Ann. § 60-303 (Supp. 1993)
does not mandate that the special process server appointed by the court be a
"natural person."
6. Where the identity of the subject of
process is a natural person, the Kansas legislature clearly denotes that person as
an "individual."
7. The appointment of special process
servers is governed by Kan. Stat. Ann. § 60-303(c)(3)
(Supp. 1993). Under that statute, a subpoena may be served by a sheriff within
the sheriff's county, by the sheriff's deputy, by an attorney admitted to the
practice of law before the Supreme Court of Kansas, by some person specially
appointed as a process server by a judge or clerk of the district court, and by
any other person who is not a party and is not less than 18 years of age.
Process servers shall be freely appointed and may be authorized either to serve
process in a single case or in cases generally during a fixed period of
time.
8. Kan. Stat. Ann. § 77-201 (Supp. 1993)
lists the rules that are to be observed when construing a statute, unless the
construction would be inconsistent with the manifest intent of the legislature
or repugnant to the context of the statute.
9. Kan. Stat. Ann. § 77-201(13) (Supp.
1993) states that person may be extended to bodies politic and corporate.
10. Provisions of Kan. Stat. Ann. §
77-201(13) (Supp. 1993) apply to the Kansas Code of Civil Procedure.
11. The Kansas Code of Civil Procedure, Kan. Stat. Ann. §
60-101 et seq. (Supp. 1993), is to be liberally construed to secure the just,
speedy, and inexpensive determination of every action or proceeding. Kan. Stat. Ann. § 60-102 (Supp. 1993).
12. A corporation is an artificial being,
invisible, intangible, and existing only in contemplation of law. A corporation
has no power except that conferred by law.
13. Treating corporations as persons is not
repugnant to the context of Kan. Stat. Ann. § 60-303 (Supp. 1993) or
inconsistent with the intent of the legislature. Corporations are persons
within the context of Kan. Stat. Ann. § 60-303(c) (Supp. 1993) and can be
appointed as special process servers.
14. Under Kansas statutes, process servers are to be
appointed freely and may be authorized either to serve process in a single case
or in cases generally during a fixed period of time. A process server appointed
pursuant to Kan. Stat. Ann. § 60-303(c)(3) (Supp.
1993) may make the service anywhere in or out of state.
15. Kan. Stat. Ann. § 60-308(a)(2)(A) (Supp.
1993) states that the service of out-of-state process shall be made in the same
manner as service within the state, by any officer authorized to make service
of process in this state or in the state where the defendant is served.
16. The intent of the legislature in the
first instance is to be determined from the clear and unambiguous words used by
the legislature. The courts are to give the language of statutes their commonly
understood meaning, and it is not for the courts to determine the advisability
or wisdom of the language used.
17. Kan. Stat. Ann. § 60-303(c)(3) (Supp. 1993) process servers shall be appointed freely
and may be authorized either to serve process in a single case or in cases
generally during a fixed period of time. A process server appointed pursuant to
§ 60-303(c)(3) may make the service anywhere in or out
of state.
18. Kan. Stat. Ann. § 60-308(a)(2) (Supp.
1993) provides that service out of state can be made (1) by those authorized to
serve process within this state, (2) by any officer authorized to make service
of process in this state, or (3) by any officer authorized to make service of
process in the state where the defendant is served.
19. Kan. Sup. Ct. R. 118(d), pleading of unliquidated damages, requires notice prior to issuing a
default judgment in any action involving unliquidated
damages in excess of $ 50,000.
20. The matters in controversy in a divorce
action are not "damages." Divorce and maintenance actions are
controlled by Kan. Stat. Ann. § 60-1601 et seq. (Supp. 1993). Kan. Sup. Ct. R. 118 does not apply.
21. Kan. Sup. Ct. R. 132 allows the court to set the
time for the hearing at its discretion in cases involving default judgments.
22. Upon request and proper showing by the
party entitled thereto, the judge shall render judgment against a party in
default for the remedy to which the party is entitled. But
no judgment by default shall be entered against a minor or incapacitated person
unless represented in the action by a guardian, conservator or other legally
authorized representative who has appeared in the action, or by a guardian ad litem appointed by the court. If the party against whom
judgment by default is sought has appeared in the action, he or she (or, if
appearing by representative, his or her representative) shall be served with
written notice of the application for judgment at least three (3) days prior to
the hearing on such application. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or to
determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may conduct
such hearings or order such references as it deems necessary and proper and
shall accord a right of trial by jury to the parties when and as required by
any statute of the state. Kan. Stat. Ann. § 60-255 (Supp. 1993).
23. Kan. Stat. Ann. § 60-255 (Supp. 1993)
provides for notice of the hearing if the defendant has made an
appearance.
24. A ruling on a motion for relief from a
final judgment filed pursuant to Kan. Stat. Ann. § 60-260(b) (Supp. 1993) rests
within the sound discretion of the trial court. In the absence of a showing of
abuse of discretion, an appellate court will not reverse the trial court's
order.
25. Judicial discretion is abused when
judicial action is arbitrary, fanciful, or unreasonable, which is another way
of saying that discretion is abused only where no reasonable person would take
the view adopted by the trial court. If reasonable persons could differ as to
the propriety of the action taken by the trial court, then it cannot be said
that the trial court abused its discretion.
26. Due process is not offended by an award
sans hearing where the default judgment is entered for failure to answer within
the required time frame and proper service has been made.
27. Defaults are not favored in law but
become necessary when the inaction of a party frustrates the orderly
administration of justice. In determining whether to set aside a default
judgment, a court should resolve any doubt in favor of the motion so that cases
may be decided on their merits.
Ronald
L. Gold, of Shawnee Mission, argued the cause and was on the briefs for
appellant.
Ronald
W. Nelson, of Overland
Park,
argued the cause and was on the brief for appellee.
The opinion of the
court was delivered by
LOCKETT, J.:
Edwin Welliver appeals the
district court's denial of his K.S.A. 60-260(b) motion for relief from a
default judgment of divorce because: (1) he was improperly served out of state
with process by a corporation appointed as a special process server, (2) the decree
of divorce and a subsequent nunc pro tunc order were void for the wife's failure to comply
with Supreme Court Rules 118 (1993 Kan. Ct. R. Annot. 119) and 131 (1993 Kan.
Ct. R. Annot. 127) and K.S.A. 60-255; and (3) the district court abused its
discretion in denying his K.S.A. 60-260(b) motion for relief from the judgment.
Rachel Welliver filed for divorce in Johnson
County, Kansas, on October 9, 1992. Her husband Edwin
was residing in Mission, Texas.
The district court appointed a corporation, Pronto Civil Process and Messenger
Service (Pronto), as special process server on October 27, 1992. The affidavit of service reflected that
David Barker,
on behalf of Pronto, had served Edwin, in
person, with the "citation (summons)" on November 5, 1992, at Oleander Acres RV Park in Hildalgo County, Texas.
The return of service was filed November
16, 1992.
Edwin did not file an
answer. A trial was held in the district court on December 21, 1992. Edwin
did not appear. The district judge found Edwin
in default and, after a hearing, granted Rachel
the divorce and awarded her sole custody of the children. Edwin
was given unspecified reasonable visitation. Edwin
was ordered to pay child support of $ 815 per month and maintenance of $ 500
per month for 36 months. Rachel was given a
judgment of $ 1,530 for temporary child support ordered prior to the decree of
divorce, which had not been paid. Edwin was also
ordered to pay for the health insurance for the children and any medical bills
not covered by insurance.
The court divided the marital property and awarded Rachel
a judgment of $ 200,000 to equalize the property division between the parties.
The court also ordered Edwin to be responsible
for a variety of specified debts totalling $ 22,769, as
well as debts he had incurred since the separation, debts associated with
property set over to him, and high school tuition for one of the children. A
subsequent nunc pro tunc
order was filed which clarified that withholding from Edwin's
income should take effect immediately to enforce the support order.
On January 20,
1993, Edwin filed a 60-260(b) motion
for relief from the default judgment. At the hearing on his motion, Edwin's
counsel argued that because out-of-state service by a corporation was invalid,
the court lacked personal jurisdiction; the default judgment was void because
he was not given notice of the hearing; and he was entitled to relief
because the judgment was entered by mistake, inadvertence, surprise or
excusable neglect, fraud, and for any other reason justifying relief.
The district court
denied the motion, stating:
"After due consideration to the argument in this
case, it would appear to me there is no irregularity in the case and your
motion to set aside the judgment should be denied. Such is the order."
Edwin appealed the district
court's denial to set aside the default judgment to the Court of Appeals. This
court granted Edwin's motion to transfer the
case to its docket.
OUT-OF-STATE SERVICE
BY A CORPORATION
Service of process is a method of formally commencing an
action by giving the defendant notice of the action. The person named as
defendant normally does not become a party to the action until served with the
summons. Upon the filing of a petition, the clerk of the court issues a summons
for service upon each defendant in accordance with K.S.A. 1993 Supp. 60-303.
K.S.A. 1993 Supp. 60-301. "All process issued for service from any
court within the state may be served anywhere within
the territorial limits of the state and, when authorized by law, may be served
outside this state." K.S.A. 1993 Supp. 60-311. The court obtains
jurisdiction of the defendant through service of process. The summons informs
the defendant that the defendant is required to serve upon the plaintiff's
attorney and the court a pleading to the petition within 20 days after service
of the summons. If the defendant fails to file a pleading within the 20 days
after being served, a judgment by default can be taken against the defendant
for the relief demanded in the petition. See K.S.A. 1993 Supp. 60-212(a).
After Edwin was served, he
failed to file a pleading prior to the expiration of the 20 days, and a default
judgment was entered after the hearing. In an attempt to obtain relief from the
default judgment entered by the district court, Edwin
claims the district court lacked jurisdiction over him because a corporation
was improperly appointed as a special process server. He contends that because
service was improper, the judgment is void. A judgment is void if the court
that rendered it lacked personal or subject matter jurisdiction. Automatic
Feeder Co. v. Tobey, 221 Kan.
17, 21, 588 P.2d 101 (1976). A void judgment is a nullity and may be
vacated at any time. Bazine State Bank v. Pawnee
Prod. Serv., Inc., 245 Kan.
490, 496, 781 P.2d 1077 (1989), cert. denied 495 U.S. 932 (1990).
Edwin first argues that
K.S.A. 1993 Supp. 60-303(c)(3) limits appointments of
special process servers to "persons," which excludes corporations. Edwin
asserts that because a corporation cannot be appointed as a special process
server, service by the corporation was not proper, and the resulting judgment
is void ab initio because
the court never obtained personal jurisdiction over him.
Edwin points out that
whether a corporation is a person is often addressed in statutes on an
article-by-article basis, e.g., K.S.A. 2-1220(a), which defines a person in an
act concerning fertilizers as "any individual, any association of persons
or any corporation." He points out that no such definition is contained in
the article concerning service of process in Chapter 60. He also notes that
while the appendix to Chapter 60 does not contain any official forms for a
motion to appoint a special process server, the appendix to Chapter 61, limited
actions, does contain a form for K.S.A. 61-1803(c)(3) which has language
identical to 60-303(c)(3) indicating that a special process server must be a
person. See K.S.A. 61-2605, Form No. 2. To further support his argument that
corporations cannot be appointed as special process servers, Edwin also points
out that Chapter 3 of Article 60, in several instances, specifically draws a
distinction between an individual and a corporation; e.g., K.S.A. 1993 Supp.
60-305a and K.S.A. 1993 Supp. 60-306 provide that any individual, partnership,
association or corporation may file an instrument or certificate appointing an
agent to receive service. We find no support for his argument in these
statutes. These statutes are not applicable to the issue because they concern
appointment of persons to receive process for a corporation, not whether a
corporation may serve process.
Edwin also observes that
the legislature often expressly defines the term person to include both natural
persons and corporations. We note there are at least 25 separate statutes that
define person as including both natural persons and corporations, within the
context of the specific act involved. See, e.g., K.S.A. 1993 Supp. 8-126(m) (vehicle
registration); K.S.A. 60-3320(3) (Uniform Trade Secrets Act); and K.S.A.
82a-1402(c) (Kansas Weather Modification Act).
Rachel counters that
corporations are generally considered as persons. Rachel
notes that K.S.A. 1993 Supp. 60-303 does not mandate that the special process
server appointed by the court be a "natural person." Referring to 18
Am. Jur. 2d, Corporations §§ 63-65, she observes it
has long been held that a corporation is considered a person under the law. She
reasons that if the legislature meant to limit the appointment of process
servers to natural persons, the restriction on those persons who are authorized
to serve subpoenas would not need to be further limited to "any other
person who is not a party and is not less than 18 years of age." Rachel
concludes that the legislature has clearly expressed that process servers
should be freely appointed. She notes that in statutes where the identity of
the subject of process is a natural person, the legislature has clearly denoted
that person as an "individual." See K.S.A. 1993 Supp. 60-304(a). We
note, in support of Rachel's argument, that in Vernon's
Kansas Statutes Annotated, the author's comments following K.S.A. 60-303
suggest that appointment of special process servers should be freely made
whenever substantial savings in travel expenses or other reasons of convenience
would result. 4 Vernon's Kansas
C. Civ. Proc.
§ 60-303, Comments (1965).
Neither party cites a case from any jurisdiction that
specifically addresses whether a corporation can be appointed as a special
process server.
This court, in Mariadahl
Children's Home v. Bellegarde School Dist., 163 Kan.
49, 180 P.2d 612 (1947), discussed whether the use of the term person in a
statute includes a corporation. G.S. 1935,
72-1046 (1945 Supp.) established that the residence where a student resided
with a parent, guardian, or other person determined whether a student could
attend school in that district. The school district's contention was that the plaintiff,
an incorporated children's home, was not a person and was not entitled to have
its wards attend school in the Bellegarde school
district. The Mariadahl court felt this point was not
"well taken" because the word person, dating back to early English
law, included both natural persons as well as artificial persons, i.e.,
corporations. The court also noted the corporation code stated that corporations
"shall have the power and capacity possessed by natural persons to perform
all acts within or without this state," and that under our statutes (G.S.
1935, 77-201 Thirteenth and G.S. 1935 17-3001 [1945 Supp.]) corporations
organized under the laws of this state have the capacity possessed by natural
persons to do the things authorized by their charters. 163 Kan.
at 53. The Mariadahl court found that a nonprofit,
benevolent, and charitable corporation, organized under the laws of this
state to establish and maintain an "orphan home," and which
maintained a home for such children within a school district of this state,
properly came within the class of "a person who is a resident" of
such district.
The appointment of special process servers is governed by
K.S.A. 60-303(c)(3). Under that statute, a subpoena
may be served by a sheriff within the sheriff's county, by the sheriff's
deputy, by an attorney admitted to the practice of law before the Supreme Court
of Kansas, by some person specially appointed as a process server by a judge or
clerk of the district court, and by any other person who is not a party and is
not less than 18 years of age. Process servers shall be freely appointed and
may be authorized either to serve process in a single case or in cases
generally during a fixed period of time.
K.S.A. 1993 Supp. 77-201 lists the rules that are to be
observed when construing a statute, "unless the construction would be
inconsistent with the manifest intent of the legislature or repugnant to the
context of the statute." Subsection Thirteenth of that statute states that
person may be extended to bodies politic and corporate. In The North Missouri
Railroad Company v. Akers, 4 Kan.
*453, *470 (1868), we determined the provisions of what is now 77-201
Thirteenth apply to the code of civil procedure. We also note the Kansas Code
of Civil Procedure, K.S.A. 60-101 et seq., is to be liberally construed to
secure the just, speedy, and inexpensive determination of every action or
proceeding. K.S.A. 60-102.
"A corporation is an artificial being, invisible,
intangible, and existing only in contemplation of law." Land Grant Railway
v. Com'rs of Coffey County, 6 Kan.
245, 253 (1870). A corporation has no power except that conferred by law. Scott
v. Bankers' Union, 73 Kan.
575, 584, 85 Pac. 604 (1906). Treating corporations as
persons is not repugnant to the context of K.S.A. 1993 Supp. 60-303 or
inconsistent with the intent of the legislature. Corporations are persons
within the context of 60-303(c) and can be appointed as special process
servers.
OUT-OF-STATE SERVICE
Edwin's next contention is that the December 21, 1992,
decree of divorce and the January 5, 1993, nunc pro tunc order are void because he was improperly served out of
state by a process server, not by an officer of Kansas or Texas as required by
K.S.A. 1993 Supp. 60-308(a)(2). Edwin notes that
K.S.A. 1993 Supp. 60-303(a) states that methods of out-of-state service of
process are set out in K.S.A. 1993 Supp. 60-308, and
amendments thereto. He claims that because he was not properly served with
notice of the Kansas action in Texas,
the district court did not have jurisdiction to enter a decree of divorce to Rachel.
Under our statutes, process servers are to be appointed
freely and may be authorized either to serve process in a single case or in
cases generally during a fixed period of time. A process server appointed
pursuant to K.S.A. 1993 Supp. 60-303(c)(3) may make
the service anywhere in or out of state. K.S.A. 1993 Supp. 60-308(a)(2)(A) states that the service of out-of-state process
shall be made "in the same manner as service within the state, by any
officer authorized to make service of process in this state or in the state
where the defendant is served."
Edwin claims that K.S.A. 1993 Supp. 60-308(a)(2) requires that out-of-state service of process be
"by any officer authorized to make service of process" in Kansas
or by an officer of the state in which service is being made. He argues
that because Pronto is not an "officer" of Kansas
or Texas, service by Pronto was
improper and the decree of divorce entered by the Kansas
court was void.
Edwin cites two cases for
support. The first case, Steele v. City of Wichita, 250 Kan. 524, 525, 826 P.2d
1380 (1992), is a declaratory judgment action brought by persons appointed as
special process servers to determine if they could serve all forms of process,
including writs of execution and orders of attachment. This court held that
60-303(c)(3), by referring to "process,"
encompassed all forms of process and it was not limited to summonses,
petitions, and attached documents.
However, the broad statement of 60-303 was narrowed by
K.S.A. 1993 Supp. 60-2401 and K.S.A. 60-706, which deal with specific forms of
process, respectively, writs of execution and orders of attachment. Plaintiffs
in Steele argued the term "officer" as used in
60-2401 and 60-706 included special process servers who had been appointed by a
district court. The Steele court noted that 60-706 and 60-2401
make a distinction between service of process and execution, whereas
60-303 only refers to service of process. The Steele court
then examined statutes in Article 8 of Chapter 19, which define the authority
of sheriffs and other officers who are authorized to seize property when
serving writs of execution and orders of attachment. The court held that
60-303(c)(3) authorizes special process servers only to serve process, i.e.,
the delivery of process, and does not authorize the general process servers
appointed under 60-303 to execute on or to attach property.
At the time of the Steele decision,
60-706 and 60-2401 required service and execution of writs of execution and
orders of attachment to be made by sheriffs or persons authorized to perform
the duties of a sheriff. K.S.A. 1993 Supp. 60-303(c)(3)
now states "all persons authorized under this subsection to serve, levy
and execute process shall be considered an 'officer' as used in K.S.A. 60-706
and 60-2401 and amendments thereto." The amendment which
expanded the class of persons allowed to levy and execute process
followed the Steele decision and presumably was a legislative
response to Steele.
The second case cited by Edwin
is Hall v. Quivira Square Development Co., 9 Kan.
App. 2d 243, 675 P.2d 931, rev. denied 235 Kan.
1041 (1984). In Hall, the Court of Appeals addressed the import of a previous
version of 60-308 which set out the procedure to obtain service out of state. Hall
was injured in Kansas. She filed
her personal injury suit, and a special process server was appointed to serve
process on Quivira, a corporation. Service was made on Quivira in Missouri.
The trial court quashed the service and dismissed the action because the
special process server appointed by the district court was not an officer of Missouri
or Kansas as required by the
version of 60-308 then in effect. The Court of Appeals affirmed the
district court's actions because the out-of-state service of process was made
by a process server not authorized to serve process in the state where service
occurred.
Rachel points out that Edwin
fails to note that the Hall court continued its discussion of out-of-state
service by indicating that the 1982 legislature had amended 60-303. The Court
of Appeals observed that Judge Gard
had commented in 1 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-303 (1983 Supp.), that the 1982
amendment of 60-303 extended the power of the special process servers appointed
by Kansas courts to serve process
either inside or outside of the state of Kansas.
Rachel asserts Edwin
has failed to note that Hall supports her position that a
corporation can be appointed to serve process out of state because the 1982
amended statute was in effect when she filed this action for divorce.
Rachel claims that K.S.A. 1993 Supp. 60-308(a)(2) states that service out of state can be made by those
authorized to serve process within the state or by any officer authorized to
make service of process in this state or any officer authorized to make service
of process in the state where the defendant is served. She notes the intent of
the legislature in the first instance is to be determined from the clear and
unambiguous words used by the legislature. The courts are to give the language
of statutes their commonly understood meaning, and it is not for the courts to
determine the advisability or wisdom of the language used. Szoboszlay
v. Glessner, 233 Kan.
475, 478, 664 P.2d 1327 (1983). Rachel states
that from a review of 60-308(a)(2), it is apparent
that service of process outside the state may be made by a corporation
appointed as a special process server.
We agree with Rachel's
position. K.S.A. 1993 Supp. 60-303(c)(3) provides that
"process servers shall be appointed freely and may be authorized either to
serve process in a single case or in cases generally during a fixed period of
time." A process server appointed pursuant to 60-303(c)(3)
may make the service anywhere in or out of state. K.S.A. 1993 Supp.
60-308(a)(2) provides that service out of state can be made (1) by those
authorized to serve process within this state, (2) by any officer authorized to
make service of process in this state, or (3) by any officer authorized to make
service of process in the state where the defendant is served. Edwin
was properly served with process in Texas
and was subject to the jurisdiction of the Kansas
court.
FAILURE TO COMPLY
WITH SUPREME COURT RULES 118 AND 131 AND K.S.A. 60-255
Supreme Court Rule 118(d) (1993
Kan. Ct. R.
Annot. 119), pleading of unliquidated
damages, requires notice prior to issuing a default judgment in any action
involving unliquidated damages in excess of $ 50,000.
Edwin claims this action is within the ambit of
the rule. Rachel contends a divorce action is
not covered by Rule 118 because no damages were being sought or awarded. We
agree. The matters in controversy in a divorce action are not
"damages." Divorce and maintenance actions are controlled by K.S.A.
60-1601 et seq. Rule 118 simply does not apply.
Edwin next notes that
Supreme Court Rule 131(b) (1993 Kan.
Ct. R. Annot.
127) requires at least seven days' notice prior to a hearing or trial and
claims he did not receive such notice. He argues that because Rachel
did not address this argument in her brief, she has conceded Rule 131(b) was
violated.
Rule 131 states:
"(a) If any party seeks the hearing of any motion on
a required day of court and it is not a motion which may be heard ex parte, or
if the judge sets a hearing on this day of court, notice of the hearing shall
be given to all parties affected either by the party, or by the clerk at the
direction of the judge, not less than seven (7) days prior to the date of
hearing.
"(b) Matters
set for hearing or trial on other days shall be at the discretion of the judge
and with not less than seven (7) days notice to the parties affected. If the
matter is urgent, notice shall be given as is reasonable and possible
under the circumstances."
Rule 132 (1993
Kan. Ct. R.
Annot. 127), however, allows the court to set
the time for the hearing at its discretion in cases involving default
judgments. Default judgment may be obtained pursuant to K.S.A. 60-255, which
states:
"Upon request and proper showing by the party
entitled thereto, the judge shall render judgment against a party in default
for the remedy to which the party is entitled. But no
judgment by default shall be entered against a minor or incapacitated person
unless represented in the action by a guardian, conservator or other legally
authorized representative who has appeared in the action, or by a guardian ad litem appointed by the court. If the party against whom
judgment by default is sought has appeared in the action, he or she (or, if
appearing by representative, his or her representative) shall be served with
written notice of the application for judgment at least three (3) days prior to
the hearing on such application. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or to determine
the amount of damages or to establish the truth of any averment by evidence or
to make an investigation of any other matter, the court may conduct such
hearings or order such references as it deems necessary and proper and shall
accord a right of trial by jury to the parties when and as required by any
statute of the state."
K.S.A. 60-255 provides for notice of the hearing if
the defendant has made an appearance. The summons served upon Edwin
informed him that if he failed to plead within 20 days of service, a default
judgment could be entered. Edwin never made an
appearance in this matter until he filed his 60-260(b) motion to set aside the
default decree of divorce. Under the circumstances, Supreme Court Rule 132, not
Rule 131, applies.
Edwin also argues child support orders entered without
notice are voidable, citing In re Marriage of Thompson, 17 Kan. App. 2d 47, 832
P.2d 349 (1992). The case cited by Edwin does
not apply. The judgment in that case was voidable because the notice required
by K.S.A. 60-255(a) was not given. In this case, lack of notice was not a
problem. Edwin was properly notified of the
pending divorce, and the decree of divorce entered by the district court is not
voidable.
DENIAL OF THE MOTION
FOR RELIEF FROM JUDGMENT
A ruling on a motion for relief from a final judgment
filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the
trial court. In the absence of a showing of abuse of discretion, an appellate
court will not reverse the trial court's order. Bazine,
245 Kan. at 495. Judicial
discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only
where no reasonable person would take the view adopted by the trial court. If
reasonable persons could differ as to the propriety of the action taken by the
trial court, then it cannot be said that the trial court abused its discretion.
See Stayton v. Stayton, 211 Kan.
560, 562, 506 P.2d 1172 (1973).
Edwin sought relief below under four separate subsections
of K.S.A. 60-260(b), but on appeal frames his request for relief under (b)(6),
i.e., for "any other reason justifying relief from the operation of the
judgment." He notes a substantial amount of property was involved,
including $200,000 as equalization of the division of property and $19,500 in
maintenance. He contends that the failure of the court to make a record of the
proceedings and the documentary evidence that would support its judgment
requires relief under K.S.A. 60-260(b)(6). He claims
the denial of his motion for relief from judgment was an abuse of discretion
because it was arbitrary and capricious.
Rachel counters that
although default judgments are ordinarily not preferred, they are necessary if
one party "'frustrates the orderly administration of justice.'" Bazine, 245 Kan.
at 495. Rachel asserts that Edwin,
after receiving notice of the proceedings, failed to respond and should not now
be able to reopen the matter. She also notes Edwin
is not expressly arguing the division of property and other awards are
inequitable, only that the court erred procedurally.
In Bazine, after the defendant's
third motion to extend time to file an answer to March 5, 1987, the bank moved for a default judgment.
Without ruling on either motion, the court set the trial for March 23, 1987. The defendants did
not file their answer by March 5, 1987.
On March 23, 1987,
the trial date, a snowstorm prevented the judge from reaching the courthouse.
The bank's attorney appeared and found no one in the courtroom. The bank's
attorney notified the judge by phone that none of the defendants had appeared
for trial, and in an ex parte hearing later that day the court granted default judgment
in the amount of the note. The defendants subsequently filed a motion for
relief from the default judgment. One of the defendants, who was a county
employee and was in the courthouse at his job but who did not appear in the
courtroom, later claimed to have had the answer ready to file at the beginning
of the trial. The defendants' motion for relief was denied by the district
court. The defendants argued on appeal that an award of their property without
a hearing was a denial of due process.
This court noted
that due process is not offended by an award sans hearing where the default
judgment is entered for failure to answer within the required time frame and
proper service has been made. The court observed:
"While there is a need to achieve finality in
litigation, judicial discretion must not achieve that end in disregard of what
is right and equitable under the circumstances. Defaults are not favored in law
but become necessary when the inaction of a party frustrates the orderly
administration of justice. In determining whether to set aside a default
judgment, a court should resolve any doubt in favor of the motion so that cases
may be decided on their merits." Bazine, 245 Kan.
at 495.
This court found that the dictates of due process and
equity had been met. The defendants had failed to file their answer within the
time frame they agreed to. Due to their lack of answer, there was no need for a
hearing, the judgment was not void, and there was no fraud. Bazine,
245 Kan. at 496-97.
In this case,
proper service was made, and Edwin
failed to file an answer within the required time frame.
Affirmed.