In re the Marriage of Willenberg

26 P.3d 684, 271 Kan. 906, 2001 Kan. LEXIS 476
CourtNorth Dakota Supreme Court
DecidedJuly 13, 2001
DocketNo. 85,701
StatusPublished
Cited by3 cases

This text of 26 P.3d 684 (In re the Marriage of Willenberg) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Willenberg, 26 P.3d 684, 271 Kan. 906, 2001 Kan. LEXIS 476 (N.D. 2001).

Opinion

Per Curiam:

This is an appeal by Michael H. Willenberg (respondent-appellant) from an award of maintenance in favor of Antoinette M. Willenberg (petitioner-appellee) entered upon reconsideration of the court’s original decision to deny maintenance.

The chronological sequence of events is crucial to the determination of the issues herein and must be set forth in detail.

4/26/00 Divorce heard and granted. Issues relative to division of property and debts as well as petitioner s request for maintenance taken under advisement.
5/ 3/00 Journal Entry reflecting 4/26/00 decision filed.
5/ 5/00 Memorandum Decision on pending issues filed as journal entry. Maintenance denied. Property division ordered, including $10,000 payment (spread over 30 months) to petitioner to equalize the division.
5/15/00 Respondent files for bankruptcy.
5/18/00 Petitioner files Motion for Rehearing or in tire Alternative Relief from Judgment.
[907]*9076/30/00 Motion heard and taken under advisement.
7/ 3/00 Memorandum Decision filed reconsidering denial of maintenance and ordering maintenance of $10,500 (spread over 30 months) to petitioner.
7/27/00 Respondent files appeal herein from 7/3/00 decision.

It is undisputed that the filing for bankruptcy with the potential for the discharge of the $10,000 property division equalization payments was the triggering factor for the filing of the May 18, 2000 motion, and that occurrence is specifically referred to therein.

In its memorandum decision the district court stated, inter alia:

“The position of the petitioner is the respondent has filed bankruptcy and discharged die $10,000 obligation die Court ordered in the Memorandum Decision on May 5, 2000. The petitioner argues if die respondent were allowed to do this, diis would dien be an inequitable division of property. As a result thereof, the Court, based upon K.S.A. 60-260(b)(6), should grant relief from judgment and change its decision concerning die division of property, assets, and debts.
“The second argument die petitioner makes is the Court should have granted maintenance based upon die evidence presented.
“The respondent’s attorney argues die Court cannot modify the property [division] as a result of die respondent filing a Notice of Bankruptcy on May 17di, which was 12 days after the Court’s Memorandum of Decision was filed. Due to die automatic stay in the bankruptcy, die respondent’s attorney argues diis Court has no authority to modify die property [division].
“This Court finds it does not have the autiiority to modify the property division as a result of die bankruptcy. The Court does want to make it clear if in fact die property division, which would include the payment for $10,000 is in fact discharged, die division of property in diis divorce would not be a fair and equitable division of die property, assets and debts. After hearing several hours of testimony, die Court felt that was a figure to be paid by die respondent to the petitioner to even out die property he received, and to equalize die property die petitioner should have received so bodi parties have an equal amount of property. However, because of die automatic stay die Court does not believe it can modify die property division at diis time. It would be die obligation of the petitioner to request relief from the bankruptcy court from the automatic stay to proceed back in district court as to a rehearing on the division of property, assets and debts.
"The second issue is one in which the petitioner requests die Court to review die maintenance issues. The Court was presented with a case, In re Marriage of Salisbury, 13 Kan. App. 2d 740, in which die petitioner argues this Court has die concurrent jurisdiction and ability to make decisions concerning maintenance, alimony or support. The case as cited above seems to allow die state court or die district court die ability to question whedier a debt is actually in die nature of alimony, maintenance or support, and dierefore, is non-dischargeable in bank[908]*908ruptcy. Even though it may be a federal question since the matter of non-dischargeability arises under 11 U.S.C. § 523, this does not preclude a state court from hearing that issue. Therefore, it seems this Court would have die ability, based upon tiiat case, to rehear, or review die evidence upon a motion for reconsideration whether maintenance should or should not be allowed.
“The Court initially felt it was inappropriate to grant maintenance. However, die Court has been asked to reconsider that by die petitioner’s attorney. This motion for reconsideration was filed within an appropriate time frame, within two weeks of the date of the court’s Memorandum of Decision denying maintenance.
“The Court at this time, after review of die evidence and die case, hereby finds maintenance would be appropriate under diese facts and circumstances.
“Therefore, die Court orders die respondent pay maintenance to die petitioner for a period of 30 months, at $350 per mondi. The first payment is due on or before August 5, 2000, and each and every odier payment is due on or before die 5th of each month thereafter, until paid in full.”

Respondent’s basic argument is that “the district court failed to follow the appropriate law for each of the issues in this appeal.”

In his first issue, respondent argues the district court erred in its application of K.S.A. 60-259 and K.S.A. 60-260.

Respondent’s position as to the claimed inappropriate application of these two statutes is succinctly set forth in his brief as follows:

“K.S.A. 60-259 provides the grounds for new trial. In her motion appellee did not state the grounds for which she requested a new trial under K.S.A. 60-259. The grounds for new trial summarized are as follows:
First. Abuse of discretion of the court, misconduct of a party, etc.
Second. Erroneous rulings or instructions of the court.
Third. The verdict was given under die influence of passion or prejudice.
Fourth. The verdict was in whole or part contrary to die evidence.
Fifth. Newly discovered evidence.
Sixth. The verdict was procured by corruption on the part of the party obtaining it.

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Cite This Page — Counsel Stack

Bluebook (online)
26 P.3d 684, 271 Kan. 906, 2001 Kan. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-willenberg-nd-2001.