Pierce v. Pierce

244 Kan. 246 (1989) 767 P.2d 292

HELEN JEAN PIERCE, SCOTT PIERCE and TIA M. PIERCE, Appellees,
v.
VICKI PIERCE, Appellant.

No. 61,414

Supreme Court of Kansas.

Opinion filed January 20, 1989.

Richard L. Reid, of Kansas City, argued the cause and was on the brief for the appellant.

Laurence M. Jarvis, of Laurence M. Jarvis, Chartered, of Kansas City, argued the cause and was on the briefs for the appellees.

Per Curiam:

This action involves a dispute between Scott and Tia Pierce, the children of Marion Pierce, deceased, plaintiffs herein, and the defendant, Vicki Pierce, Marion Pierce's widow, over the proceeds of a life insurance policy. The trial court entered judgment in favor of the plaintiffs and awarded the proceeds of the policy to Scott and Tia Pierce. The Court of Appeals affirmed. Pierce v. Pierce, 12 Kan. App.2d 810, 758 P.2d 252 (1988). This court granted review. We need not detail the facts and issues further here since they are fully set forth in the opinion of the Court of Appeals.

Justice Six took no part in this appeal since he served as a judge on the Court of Appeals at the time of that court's decision in this case. Justices Holmes, McFarland, and Allegrucci would reverse the trial court and the Court of Appeals; Chief Justice Miller, joined by Justices Herd and Lockett, would affirm.

We stated the applicable rule in Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986):

"The general rule in this jurisdiction, and elsewhere, is that when one of the justices is disqualified to participate in a decision of issues raised in an appeal and the remaining six justices are equally divided in their conclusions, the judgment of the trial court must stand. [Citations omitted.] See also Kansas Constitution, Art. 3, § 2, which provides that the concurrence of four justices shall be necessary to a decision."

The court being equally divided, the judgment of the Court of Appeals, affirming the judgment of the district court, is affirmed.

SIX, J., not participating.