In re Marriage of Anderson ( 2021 )


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  •                             NOT DESIGNATED FOR PUBLICATION
    No. 123,840
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    In the Matter of the Marriage of
    CHASE S. ANDERSON,
    Appellee,
    and
    AMANDA M. ANDERSON,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Sedgwick District Court; QUENTIN PITTMAN, judge. Opinion filed December 30,
    2021. Affirmed.
    Jordan E. Kieffer, of Jordan Kieffer, P.A., of Bel Aire, for appellant.
    Stephen M. Turley, of Wagle & Turley, LLC, of Wichita, for appellee.
    Before POWELL, P.J., ATCHESON, J. and RICHARD B. WALKER, S.J.
    PER CURIAM: On appeal, Amanda M. Anderson challenges a journal entry the
    Sedgwick County District Court entered resolving various points of contention arising in
    her divorce, including child support and custody. During a portion of the divorce
    proceedings in the district court, Anderson represented herself. At that time, she informed
    the district court she had no objection to the disputed journal entry being filed. Her
    present complaints about the content and filing of the journal entry constitute invited
    errors that we will not consider. We, therefore, afford Anderson no relief and affirm the
    district court.
    1
    FACTUAL AND PROCEDURAL HISTORY
    Given the procedural posture of this appeal and the legal basis on which we
    resolve it, the details of Anderson's marriage to Chase S. Anderson and the various twists
    and turns their divorce took in the district court are immaterial. Chase filed for divorce in
    April 2019. The Andersons have a young child, and they had disagreements during the
    divorce about custody and support, among other issues. For most of the district court
    proceedings, both were represented by lawyers.
    In August 2020, Judge Monique Centeno heard several days of testimony and
    received other evidence about various issues in the divorce. Through their lawyers, the
    parties could not agree on multiple aspects of a journal entry. They exchanged drafts of a
    proposed journal entry and met several times to work through the disagreements without
    success. Apparently, some matters in the proposed journal entry had not been resolved
    during the hearing and other matters were left unaddressed and, thus, unresolved. Efforts
    to settle the journal entry dragged on for months.
    In the meantime, Anderson's lawyer was permitted to withdraw, and Anderson
    then represented herself. Judge Centeno was defeated in the 2020 election and stepped
    down in January 2021. Judge Quentin Pittman, her successor, inherited this divorce case
    when he took the bench.
    Chase's lawyer eventually submitted a proposed journal entry and sought a hearing
    with the district court to settle any remaining points of contention. Judge Pittman held a
    hearing on the journal entry in early February 2021. Anderson appeared without a lawyer.
    During the hearing, Judge Pittman indicated he intended to file the proposed journal entry
    and asked Anderson if she had any objection. She responded this way: "I don't have an
    objection. I just want to make sure that we lay out all the issues and details. As far as I am
    concerned, I think that we have done the best we can do with where we are now." Judge
    2
    Pittman signed and filed the journal entry the next day. Anderson has appealed, and a
    new lawyer is representing her in the appeal.
    LEGAL ANALYSIS
    In her appellate brief, Anderson characterizes the journal entry Judge Pittman
    approved and filed as something like a wish-list, containing rulings on some disputed
    issues Chase "wishes [Judge Centeno] had ordered." The brief, however, is nondescript
    about precisely what was included in the journal entry that shouldn't have been and what
    was otherwise inaccurately depicted. Anderson also faults Judge Pittman for approving
    the journal entry without having fully reviewed the district court record. At the February
    hearing, Judge Pittman said he had looked at various documents submitted in the case.
    But he apparently had not reviewed a transcript of the August 2020 evidentiary hearing.
    Anderson submits there was no transcript available then. And presumably there still isn't,
    since it is not part of the record on appeal.
    But Anderson's appeal suffers from a more fundamental and inescapable flaw.
    Despite being given the opportunity at the February 2021 hearing, Anderson expressly
    did not object to the entry of the journal entry she now challenges on appeal as inaccurate
    and incomplete. Based on Anderson's concession at the hearing, Judge Pittman had no
    need to compare the journal entry to the full evidentiary record. He reasonably concluded
    Anderson no longer had any disagreements with the substance of the journal entry, since
    she stated she had no objection to it being filed as the order of the district court.
    The juxtaposition of Anderson's position enunciated in the district court with the
    one she now offers on appeal reflects an invited error we will not consider. Broadly
    stated, the invited error rule precludes a party from inviting or prompting judicial action
    in a case and then characterizing that action as an error on appeal requiring reversal of an
    adverse judgment. Thoroughbred Assocs. v. Kansas City Royalty Co., 
    297 Kan. 1193
    ,
    3
    1203-04, 
    308 P.3d 1238
     (2013); State v. Divine, 
    291 Kan. 738
    , 742, 
    246 P.3d 692
     (2011).
    The Kansas Supreme Court has succinctly stated the invited error rule this way: "Where
    a party procures a court to proceed in a particular way and invites a particular ruling, he is
    precluded from assailing such proceeding and ruling on appellate review." State v. Smith,
    
    232 Kan. 128
    , Syl. ¶ 2, 
    652 P.2d 703
     (1982).
    Assuming the journal entry was erroneous in some respects, Anderson plainly
    invited the district court to file the document anyway, especially without then identifying
    any deficiencies she believed still needed to be corrected. On appeal, she cannot assert
    the journal entry should be set aside because it is deficient. Any error in that regard was
    invited, precluding appellate review and relief.
    On appeal, Anderson suggests she should receive some measure of dispensation
    because she represented herself at the February 2021 hearing and did not fully
    comprehend the legal implications of not objecting to the proposed journal entry. The
    suggestion fails. An unrepresented party is expected to comply with the procedural rules
    and to present legal arguments in substantially the same way a lawyer would.
    Mangiaracina v. Gutierrez, 
    11 Kan. App. 2d 594
    , Syl. ¶¶ 1-2, 
    730 P.2d 1109
     (1986). In
    short, the courts are not permitted to shade the rules or the law in favor of parties
    representing themselves. In re Marriage of Arambula and Valenzuela, No. 110,669, 
    2014 WL 4435902
    , at *1 (Kan. App. 2014) (unpublished opinion). This is yet another example
    of a self-represented party inadvertently undermining his or her own cause. See Jackson
    v. Coleman, No. 122,504, 
    2021 WL 4496121
    , at *1 (Kan. App. 2021) (unpublished
    opinion).
    MOTION FOR ATTORNEY FEES
    Chase has timely filed a motion under Kansas Supreme Court Rule 7.07(b) and (c)
    (2021 Kan. S. Ct. R. 51) to recover his attorney fees on appeal from Anderson. Anderson
    4
    has responded that a fee award is unwarranted under either subsection. She does not,
    however, challenge the amount Chase has requested.
    A party may recover attorney fees on appeal under Rule 7.07(b) if the district
    court had the authority to award fees in the case. In a divorce action, the district court
    may require one party to pay some or all of the other party's legal expenses, including
    attorney fees, as a device to assist in making a fair allocation of the financial assets and
    liabilities in dissolving the marital relationship. See K.S.A. 2020 Supp. 23-2715. Here,
    Chase submits without further explanation that such an award would be fair and
    equitable. We find that conclusory assertion insufficient to support an award of attorney
    fees. See In re Marriage of Langley, No. 115,829, 
    2017 WL 1534853
    , at *9 (Kan. App.
    2017) (unpublished opinion).
    As provided in Rule 7.07(c), a party may recover attorney fees if an opposing
    party has taken a frivolous appeal. An appeal must be devoid of merit to be deemed
    frivolous for purposes of assessing the appellee's attorney fees against the appellant. See
    Peoples National Bank v. Molz, 
    239 Kan. 255
    , 257, 
    718 P.2d 306
     (1986) (court defines
    "frivolous appeal" as one presenting nothing more than a question "readily recognized as
    devoid of merit in that there is little prospect that it can ever succeed"); Marriage of
    Langley, 
    2017 WL 1534853
    , at *8. Such an appeal must lack even a colorable basis.
    We are disinclined to brand Anderson's appeal as frivolous measured against that
    demanding standard. The fitful progression of the case in the district court and the
    regrettable, if unavoidable, substitution of judges cuts against that conclusion. Anderson's
    suggestion that the district court had not fully familiarized itself with the record in
    advance of the February 2021 hearing cannot be dismissed as frivolous. But Anderson's
    acquiescence in the filing of the journal entry decimated any legal significance her
    suggestion might have, as we have explained. Although we view the application of the
    invited error rule here to be legally clear, we again are reluctant to say it is patently
    5
    apparent factually from the appellate record—it is a single statement in an extended
    hearing from a litigant representing herself—that the appeal should be treated as
    frivolous.
    For those reasons, we deny Chase's motion for attorney fees on appeal.
    Affirmed. Motion for attorney fees denied.
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Document Info

Docket Number: 123840

Filed Date: 12/30/2021

Precedential Status: Non-Precedential

Modified Date: 12/30/2021