In re Estate of McLeish (Updated August 23, 2013)

1
No. 107,046

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the
ESTATE OF THOMAS EDWIN MCLEISH, Deceased

SYLLABUS BY THE COURT

1.
Until a divorce decree is put into writing, approved by the court, and filed with the
clerk, it has no effect.

2.
An oral separation agreement merges into a written journal entry and decree of
divorce pursuant to K.S.A. 60-1610(b)(3).

3.
When parties have carried on oral negotiations and have subsequently entered into
an agreement in writing with respect to the subject matter covered by such negotiations,
the written agreement constitutes the contract between them and determines their rights.

4.
In the present case, a written separation agreement, agreed to by the parties,
memorialized in a journal entry and decree of divorce, approved by the district court, and
filed with the clerk constitutes the controlling agreement governing the disposition of the
parties' mineral rights.

2
5.
Relief cannot be granted under K.S.A. 60-260(b)(6) if the real reason for granting
relief falls under one listed in (b)(1) to (3) and more than a year has gone by since the
entry of the judgment.

Appeal from Ness District Court; BRUCE T. GATTERMAN, judge. Opinion filed August 16, 2013.
Reversed and remanded.

Robert E. Keeshan and Matthew M. Coleman, of Scott, Quinlan, Willard, Barnes & Keeshan,
LLC, of Topeka, for appellant Michelle Lee Stephen, Executor.

Melvin J. Sauer, Jr. and Donald F. Hoffman, of Dreiling, Bieker & Hoffman LLP, of Hays, for
appellees Lois M. McLeish, William McLeish, and Edwin I. McLeish.

Before BUSER, P.J., MCANANY and POWELL, JJ.

POWELL, J.: In this appeal, we are faced with the unenviable task of imposing a
hard lesson—that a party is bound by the contract he or she signs even if it creates (in the
eyes of some) an unfair or harsh result. We are also called upon to answer what appears
to be a question of first impression—whether, in a divorce proceeding, a prior oral
separation agreement, put on the record, assented to by the parties under oath, and
approved by the court controls over a subsequent written separation agreement, signed by
the parties, approved by the court, and filed with the clerk. Because we hold that an
unambiguous written separation agreement incorporated into a journal entry and decree
of divorce controls over a prior oral separation agreement placed on the record, we must
reverse the district court and remand for further proceedings.

3
FACTUAL AND PROCEDURAL HISTORY

Thomas Edwin McLeish (Edwin) and Lois McLeish (Lois) were married in 1950
and had two sons: Edwin McLeish (Eddie) and William McLeish (Bill). On August 16,
2006, Lois filed for divorce from Edwin in Ness County, Kansas, case number 2006 DM
19. During the divorce proceedings, attorney John Bird represented Lois and attorney
John Lindner represented Edwin. On the eve of their divorce trial, the parties and their
respective attorneys participated in several telephone conversations in efforts to resolve
their divorce. During the telephone negotiations, Edwin and son Eddie were at John
Lindner's office; Lois and son Bill were at John Bird's office. After several telephone
conversations, the parties believed they reached an agreement. On May 20, 2008, Lindner
announced the parties' agreement to the district court on the record, stating, "[W]e have
agreed that the house on Section 19, the home place plus 40 acres, . . . [w]ill go to Ed in
fee simple subject to a right of first refusal to Lois. . . . All other land Ed and Lois will
hold in a life estate with their children as remaindermen."

After inquiry by the court, Lindner and Bird confirmed that the remainder and
retention of the life estate would include full rights to all mineral income. Lois testified
that the couple started with nothing and acquired a significant amount of property during
their marriage through inheritance, gift, and purchase. Lois also testified that her primary
goal during settlement negotiations was to pass her estate to her sons. Lindner stated the
right to continue farming was priceless to Edwin and made up for everything he was
giving up. At the conclusion of the hearing, the court found that there had been full and
open disclosure between the parties as to all assets and liabilities of the marriage; that
they had full knowledge of these assets and liabilities; that each of them was capable of
arriving at this agreement; that they had made an independent decision and in doing so
arrived at a property settlement agreement which was fair, just, and equitable to each of
them.

4
On May 22, 2008, Bird sent Lindner a proposed journal entry attempting to
memorialize the parties' property settlement agreement. The journal entry identified
specific tracts of land, "including minerals, will be held by the parties as tenants in
common as owners of a joint life estate" with the remainder to go to Eddie and Bill, or
their issue, per stirpes.

On July 15, 2008, Lindner responded to Bird's proposed journal entry, stating:

"[O]ur understanding of the agreement on the minerals is that the parties would each own
half of the minerals unconditionally in fee simple. I thought that was clear from the fact
that they were delt [sic] with separately in negotiations and the agreement as read into the
record provided that the oil and gas would be divided evenly between the parties and
each would be responsible for their own share of all taxes thereon."

Lindner suggested the language concerning the minerals should read: "Each will
own 50% of the minerals to be divided by mineral deed and on the producing minerals,
followed by a division order." On August 21, 2008, Lindner sent Bird a letter enclosing a
draft journal entry that Lindner signed and indicated that Edwin had a copy and approved
it.

On September 9, 2008, Bird sent Lindner a letter enclosing the executed journal
entry which Bird and Lois signed, indicating: "Now that we have the parties' agreement
reduced to writing, could you please provide me with an accounting for the oil proceeds
that your client has received since May 20, 2008?" Additionally, on September 9, 2008,
Bird sent Judge Bruce T. Gatterman a letter enclosing the executed journal entry,
advising: "The final Journal Entry in this matter is just awaiting the Respondent's
signature and it should be coming to you shortly."

5
On September 16, 2008, the district court executed the journal entry, which was
"Approved by:" John T. Bird, Lois M. McLeish, John M. Lindner, and Thomas Edwin
McLeish. The journal entry stated:

"[T]he parties announce to the Court that they have reached a full and complete
agreement resolving all issues in this case which they announce to the Court and which
the Court finds to be valid, just and equitable and approves the same to be incorporated
into this divorce decree as follows:
"Mineral Interests:
. . . .
"Petitioner shall hereafter be the sole and separate owner of 50% of the mineral
interests and Respondent shall hereafter be the sole and separate owner of 50% of the
mineral interests. These interests shall be divided by mineral deed and by division order
as well as any other document reasonably necessary to divide the interests of the parties
effective May 20, 2008."

On January 26, 2009, Edwin executed an attested Last Will and Testament. The
Will specifically disinherited his sons, Eddie and Bill, left his entire estate to Michelle
Lee Stephen (Michelle), and appointed Michelle as Executor of his Estate. Edwin died on
December 2, 2009.

On January 13, 2010, Michelle filed a Petition for Probate of Will and Issuance of
Letters Testamentary. Eddie subsequently filed a Petition for Appointment of Special
Administrator on February 9, 2010, contesting the validity of Edwin's Will and alleging
incapacity and undue influence of Michelle. Lois, Bill, and Eddie all filed Petitions for
Allowance and Classification of Demand, claiming they had valid demands against the
Estate pursuant to the property settlement agreement reached in 2006 DM 19. Other
motions were also filed which are not relevant to the discussion here.

6
On July 27, 2010, the district court held a hearing on the written defenses to the
Petition for Probate of Will and Issuance of Letters Testamentary. The court found Edwin
had the capacity to execute his Will and that he was not unduly influenced by Michelle
and admitted Edwin's Will to probate. On October 19, 2010, the court issued Letters
Testamentary to Michelle.

On April 22, 2011, the court held a hearing on Lois', Bill's, and Eddie's Petitions
and admitted, over Michelle's objection, Bird's deposition, the transcript from the divorce
hearing, and Lindner's notes from the oral pronouncement of the parties' settlement
agreement. Further, the court heard argument from counsel and testimony from Eddie,
Lois, and Lindner. The district court determined that the parties' oral proffer was their
settlement agreement.

On September 14, 2011, the district court issued a memorandum decision and
order concerning the pending claims of Eddie, Lois, Bill, and Michelle. The court
concluded the oral property settlement agreement reached in Lois and Edwin's divorce
case was ambiguous as a matter of law. The court determined Lois and Edwin's oral
property settlement agreement created a joint life estate, as tenants in common, and
included their interests in the oil, gas, and other minerals owned by them in their life
estate, with the remainder equally to Eddie and Bill. The court directed Lois' counsel to
prepare a journal entry incorporating the decision and setting forth the oral agreement of
the parties reflecting ownership of the mineral interest.

On October 18, 2011, the district court entered the parties' journal entry allowing
Lois', Bill's, and Eddie's (the Appellees) Petitions for Allowance and Classification of
Demand and Lois and Bill's Petition to Terminate Life Estate and Joint Tenancy based on
the oral property settlement reached in Lois and Edwin's divorce case.

On November 7, 2011, Executor Michelle appealed.
7

On January 6, 2012, Michelle filed a Petition to Stay, which the court granted
without a supersedeas bond. The oil and gas proceeds received since Edwin's death
continue to be held by the National Cooperative Refining Association (NCRA).

DID THE DISTRICT COURT ERR IN FINDING THE ORAL PROPERTY SETTLEMENT
CONTROLLED DISTRIBUTION OF MINERAL INTERESTS?

Michelle argues that the written separation agreement (which provided for a 50/50
split of the mineral rights) agreed to by the parties, incorporated into the divorce decree,
approved by the district court, and filed with the clerk controls. Conversely, Lois, Bill,
and Eddie argue that the prior oral separation agreement (which provides for a joint
tenancy life estate with both sons as remaindermen over the mineral rights) announced on
the record and to which both Lois and Edwin agreed under oath controls. Both sides
assert that the separation agreement they rely upon is unambiguous, unlike the district
court, which examined the oral separation agreement and found it to be ambiguous.

For the reasons more fully set forth below, we hold: (1) the oral separation
agreement merged into the journal entry and decree of divorce by operation of statute; (2)
the oral separation agreement merged into the journal entry and decree of divorce by
application of contract principles; and (3) Lois is bound by her signature on the written
journal entry and decree of divorce.

a. Oral Separation Agreement Merged into Journal Entry and Decree of Divorce by
Operation of Statute

Michelle contends that the oral separation agreement merged into the written
journal entry and decree of divorce pursuant to K.S.A. 60-1610(b)(3). (Note: All statutory
8
references to the divorce code will be to the then applicable statutes, as the divorce
statutes are now codified in Chapter 23.) We agree.

Standard of Review

The "[i]nterpretation of a statute is a question of law over which an appellate court
has unlimited review." In re Marriage of Hall, 43 Kan. App. 2d 392, 393, 225 P.3d 764
(2010). The intent of the legislature governs if that intent can be ascertained. Bergstrom
v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate
court must attempt to ascertain legislative intent through the statutory language enacted,
giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097,
220 P.3d 345 (2009).

Analysis

K.S.A. 60-1610(b)(3) has codified the doctrine of merger of a separation
agreement into the final decree as follows:

"Separation agreement. If the parties have entered into a separation agreement
which the court finds to be valid, just and equitable, the agreement shall be incorporated
in the decree. . . . The provisions of the agreement on all matters settled by it shall be
confirmed in the decree . . . . Matters settled by an agreement incorporated in the decree,
. . . shall not be subject to subsequent modification by the court except: (A) As prescribed
by the agreement or (B) as subsequently consented to by the parties."

This statute had the effect of regulating separation agreements and eliminating the
question of when such agreements merged with the divorce decree. Fiske v. Fiske, 218
Kan. 132, 134, 542 P.2d 284 (1975); see also Lewis v. Lewis, 4 Kan. App. 2d 165, 166,
603 P.2d 650 (1979) (property settlement agreement approved by the trial court merged
into divorce decree). The benefit of this rule is that it made separation agreements—
9
unlike other contracts—self-enforceable as part of the divorce judgment as opposed to
requiring a separate judgment. Fiske, 218 Kan. at 135.

This doctrine was later reinforced by the Kansas Supreme Court in the case of In
re Marriage of Wilson, 245 Kan. 178, 180, 777 P.2d 773 (1989),which held that until a
divorce decree was put into writing and filed, it was of no effect. In Wilson, on the day
the parties were set for trial, they reached a verbal agreement on issues relating to child
support, visitation, property division, and maintenance. The court orally granted the
parties a divorce and accepted the parties' stipulation as to their agreement. One of the
parties was directed to prepare the journal entry. However, the husband died hours before
the decree was filed. Relying on K.S.A. 60-258, which provided that no judgment is
effective until a journal entry is signed and filed, our Supreme Court held that the parties
were still lawfully married at the time of the husband's death. 245 Kan. at 180; see also
Valadez v. Emmis Communications, 290 Kan. 472, 482, 229 P.3d 389 (2010) (jury
verdict awarding defamation damages abated at time of plaintiff's death because journal
entry not yet approved and filed); In re Marriage of Harvey, No. 100,524, 2009 WL
929721, at *1 (Kan. App. 2009) (unpublished opinion) (maintenance orders not effective
until contained in journal entry, approved by court, and filed), rev. denied 289 Kan. 1278
(2010); In re Marriage of Fulton, No. 94,482, 2006 WL 3589798, at *9 (Kan. App. 2006)
(unpublished opinion) (district court's oral pronouncement at divorce trial granting
interest on lien vitiated by journal entry which stated lien to be without interest).

Also significant, however, was the court's treatment of the husband's estate's
argument that the marital status of the parties and the division of property were divisible
aspects of the divorce action, making the property settlement agreement portion of the
decree still valid. The Supreme Court adopted the Court of Appeals' rationale that such a
position was "'untenable.'" Wilson, 245 Kan. at 181. Stated the court:

10
"'Although separation agreements are authorized by statute, K.S.A. 1988 Supp.
60-1610(b)(3), division of property and apportionment of debt are not necessary where
the parties are not divorced. K.S.A. 60-258 renders the divorce decree ineffective in this
case; therefore, the agreement incorporated therein must also be ineffective. If there is no
divorce, there is no division of marital property.' [Citation omitted.]" 245 Kan. at 181
(quoting In re Marriage of Wilson, 13 Kan. App. 2d 291, 294, 768 P.2d 835 [1989]).

See also Nicholas v. Nicholas, 277 Kan. 171, 179, 83 P.3d 214 (2004) (where there is no
divorce, there is no division of property); Wear v. Mizell, 263 Kan. 175, 180, 946 P.2d
1363 (1997) (same). But see In re Estate of Loughmiller, 229 Kan. 584, 592, 629 P.2d
156 (1981) (written postnuptial agreement executed in anticipation of divorce still valid
even with death of spouse prior to completion of divorce); King v. Mollohan, 61 Kan.
683, 691, 60 Pac. 731 (1900) (same).

Lois, Bill, and Eddie argue, however, relying on In re Marriage of Takusagawa,
38 Kan. App. 2d 401, 166 P.3d 440, rev. denied 285 Kan. 1174 (2007), that Edwin and
Lois entered into an unambiguous and binding oral agreement which was placed on the
record and approved by the trial court. It is true that Kansas law allows for oral separation
agreements. 38 Kan. App. 2d at 405. We believe Takusagawa to be inapplicable here.

First, unlike in the present case, there was no written agreement in Takusagawa
that had been approved by the trial court and filed with the clerk. Second, the district
court had already approved and filed a bifurcated divorce decree granting the parties a
divorce and setting the matters relating to the division of property for trial. Third, the
wife refused to sign the proposed journal entry memorializing the parties' separation
agreement, claiming her assent to the agreement had been made under duress or coercion;
that its terms were unfair, unjust, and inequitable; and that it violated the statute of frauds
as to those portions transferring land title. Fourth, she never denied the contents of the
agreement. 38 Kan. App. 2d at 401-02, 407.

11
In light of the clear language of K.S.A. 60-1610(b)(3) and the authorities cited
above, we hold that the written separation agreement, memorialized in the journal entry
and decree of divorce, approved by the district court, and filed with the clerk constitutes
the controlling agreement governing the disposition of the mineral rights at issue here.
The district court erred in not so finding. To hold otherwise would be contrary to K.S.A.
60-1610 and K.S.A. 60-258 and would undermine the value of the certainty and finality
of judgments entered by our courts. It is critical that journal entries accurately reflect the
orders of our courts. Parties to litigation and, perhaps even more importantly, third parties
who may be called upon to act in conformity with such court orders must have
confidence in the written orders that are issued and presented to them. They should not be
required to delve into the record in order to devine what an order really means. A lack of
confidence would create endless and expensive litigation, such as in the present case,
which would not serve the parties or the public interest. If a party questions the accuracy
of a proposed journal entry, he or she always has the right to object and ask the court to
correct any inaccuracies contained therein. Supreme Court Rule 170 (2012 Kan. Ct. R.
Annot. 267). Additionally, should a party mistakenly approve a journal entry, that party
always has the right after the fact to seek relief, provided it is done in a timely manner.
K.S.A. 60-260(b)(1).

b. Oral Separation Agreement Merged into Journal Entry and Decree of Divorce by
Application of Contract Principles

Even if we accepted Takusagawa as applicable to this case and found that a valid
oral separation agreement existed between the parties at the time it was made, the
application of contract principles supports the same conclusion we have already reached.

12
Standard of Review

"'The interpretation and legal effect of written instruments are matters of law, and
an appellate court exercises unlimited review. Regardless of the construction given a
written contract by the trial court, an appellate court may construe a written contract and
determine its legal effect.'" In re Marriage of Gurganus, 34 Kan. App. 2d 713, 717, 124
P.3d 92 (2005) (quoting Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743,
763, 27 P.3d 1 [2001]).

Analysis

It is a long-held rule of law in our state that "[a] property settlement agreement
incorporated into a divorce decree is 'a hybrid in the law having the characteristics of a
judgment and retaining the contractual rights of the parties.'" In re Marriage of Wessling,
12 Kan. App. 2d 428, 430, 747 P.2d 187 (1987) (quoting In re Estate of Sweeney, 210
Kan. 216, 224, 500 P.2d 56 [1972]). "The fact that a separation agreement is incorporated
into a divorce decree does not extinguish those contractual aspects." In re Marriage of
Hudson, 39 Kan. App. 2d 417, 426, 182 P.3d 25, rev. denied 286 Kan. 1178 (2008). Like
any other contract, the intent of the parties to a separation agreement governs. Hudson, 39
Kan. App. 2d at 427; Wessling, 12 Kan. App. 2d at 430.

"The intent of the parties to a separation agreement must be determined from the
agreement alone if the terms are unambiguous." Wessling, 12 Kan. App. 2d at 430; see
also Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972) ("The true intent of
the parties must be determined from the contract itself."). "The language in a contract is
ambiguous when the words used to express the meaning and intention of the parties are
insufficient, in the sense that the contract may be understood to reach two or more
possible meanings." Gurganus, 34 Kan. App. 2d at 717. Moreover, "[n]o doctrine is
better established or more frequently applied than the one that where parties have carried
13
on negotiations, and have subsequently entered into an agreement in writing with respect
to the subject matter covered by such negotiations, the written agreement constitutes the
contract between them and determines their rights." Arensman v. Kitch, 160 Kan. 783,
789, 165 P.2d 441 (1946); see also In re Estate of Goff, 191 Kan. 17, 32, 379 P.2d 225
(1963) (Schroeder, J., dissenting) (oral negotiations which lead to execution of written
contract are merged into written instrument); Villines v. General Motors Corp., 324 F.3d
948, 952 (8th Cir. 2003) (citing to Kansas law). "Thus, '[w]hen a contract is complete,
unambiguous, and free from uncertainty, parol evidence of prior or contemporaneous
agreements or understandings tending to vary the terms of the contract evidenced by the
writing is inadmissible.'" Villines, 324 F.3d at 952 (quoting Simon v. National Farmers
Organization, Inc., 250 Kan. 676, 679-80, 829 P.2d 884 [1992]); see also Prophet v.
Builders, Inc., 204 Kan. 268, 272, 462 P.2d 122 (1969) (general rule is that subsequent
written agreement embodies all prior understandings and agreements).

On May 20, 2008, the parties through their attorneys announced their property
settlement agreement on the record. Following the hearing, on May 22, 2008, Bird sent a
proposed journal entry to attorney Lindner covering the '''meat'" of the parties' agreement.
Bird's cover letter stated: "Would you please review the language that I have so far
regarding the real estate and let me know if you see any problems with it or have any
changes to suggest?"

On July 15, 2008, Lindner responded to Bird's letter:

"I have reviewed your partial initial draft of the Journal Entry of Divorce and I
have the following comments and requests:
"On the first page and the second page, you have attempted to set forth the basic
agreement between the parties as to how their land will be held. It is generally accurate as
to the surface but our understanding of the agreement on the minerals is that the parties
would each own half of the minerals unconditionally in fee simple. I thought that was
clear from the fact that they were delt [sic] with separately in negotiations and the
14
agreement as read into the record provided that oil and gas would be divided evenly
between the parties and each would be responsible for their own share of all taxes
thereon. . . . It is our understanding that the minerals would be divided evenly between
the parties by mineral deed and then by appropriate division order on the producing
minerals."

On August 21, 2008, Lindner sent Bird a letter enclosing a draft journal entry that
Lindner signed and indicating that Edwin also had a copy and approved it. On September
9, 2008, Bird sent a letter to Lindner enclosing an executed copy of Lindner's August 21,
2008, journal entry, which Bird and Lois signed. Bird indicated: "Now that we have the
parties' agreement reduced to writing, could you please provide me with an accounting
for the oil proceeds that your client has received since May 20, 2008?" Additionally, on
September 9, 2008, Bird sent Judge Gatterman a letter enclosing the executed journal
entry, stating: "The final Journal Entry in this matter is just awaiting the Respondent's
signature and it should be coming to you shortly."

On September 16, 2008, the district court executed the journal entry, which was
"Approved by:" John Bird, Lois McLeish, John Lindner, and Thomas Edwin McLeish.
The journal entry stated:

"[T]he parties announce to the Court that they have reached a full and complete
agreement resolving all issues in this case which they announce to the Court and which
the Court finds to be valid, just and equitable and approves the same to be incorporated
into this divorce decree as follows:
"Mineral Interests:
. . . .
"Petitioner shall hereafter be the sole and separate owner of 50% of the mineral
interests and Respondent shall hereafter be the sole and separate owner of 50% of the
mineral interests. These interests shall be divided by mineral deed and by division order
as well as any other document reasonably necessary to divide the interests of the parties
effective May 20, 2008."
15

The district court found, and on appeal Lois, Bill, and Eddie allege, that the oral
property settlement agreement entered on the record controls the distribution of Lois and
Edwin's mineral interests. We disagree. The subsequent writing, which by review we find
to be clear and unambiguous, merges all prior negotiations, understandings, and
agreements into it. The written journal entry agreed to by the parties, approved by the
court, and filed with the clerk controls. As it is also unambiguous as to its terms
concerning the mineral interests at issue here, it was error for the trial court to admit parol
evidence of possible contrary meanings.

c. Lois Bound by Her Signature

Finally, Lois also contends that she

"did not make a free, calculated and deliberate choice to amend any terms of the
settlement agreement as announced and approved by the trial judge on May 20, 2008, and
as memorialized in the transcript which is now part of the record on appeal. [Citation
omitted.] Had the trial judge conducted a subsequent hearing on the matter, and approved
amended separation agreement terms regarding the mineral interests of Edwin and Lois in
particular, only then would Lois have had the opportunity to make a free, calculated and
deliberate choice . . . . Instead, Appellees are faced with Edwin's attorney's own post-
hearing idea of what the parties had agreed to on May 20, 2008, regarding mineral
interests . . . ."

Lois' argument is without merit. "[A] party who signs a written contract is bound
by its provisions regardless of the failure to read or understand the terms, unless the
contract was entered into through fraud, undue influence, or mutual mistake." Albers v.
Nelson, 248 Kan. 575, 579, 809 P.2d 1194 (1991). Lois was represented by counsel and
signed the journal entry. The written journal entry controls.

16
ARE APPELLEES ENTITLED TO RELIEF FROM THE JOURNAL ENTRY?

On appeal, Lois, Bill, and Eddie alternatively argue that if this court determines
the oral property settlement agreement did not constitute the separation agreement of the
parties, relief from the journal entry is appropriate under K.S.A. 60-260(b)(4) and/or
K.S.A. 60-260(b)(6). Michelle argues that modification of the journal entry is barred by
K.S.A. 60-260(b). We agree with Michelle.

Standard of Review

"A ruling on a motion for relief from judgment filed pursuant to K.S.A. 60-260(b)
rests within the sound discretion of the trial court. The trial court's ruling will not be
reversed in the absence of a showing of abuse of discretion. [Citations omitted.]" In re
Marriage of Leedy, 279 Kan. 311, 314, 109 P.3d 1130 (2005).

Analysis

K.S.A. 60-260(b) provides six grounds for relief from a final judgment: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new
trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment
is void; (5) the judgment has been satisfied, released, or discharged; an earlier judgment
has been reversed or vacated; or applying it prospectively is no longer equitable; (6) any
other reason that justified relief. If a party seeks relief under grounds (1), (2), or (3), the
party must file a motion within 1 year after the court entered judgment.

17
a. Appellees Did Not Request Relief Pursuant to K.S.A. 60-260(b)(4)

Issues not raised before the trial court cannot be raised on appeal. In re Care &
Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). In Lois and Bill's brief
to the trial court, they urged the district court to grant relief under K.S.A. 60-260(a) or
60-260(b)(6). Their brief then stated: "Lois and Bill do not claim relief under any of the
other provisions of K.S.A. 60-260(b)."

Accordingly, Lois, Bill, and Eddie's claim for relief under K.S.A. 60-260(b)(4) is
not properly before this court as it was not raised before the district court.

b. Relief Is Not Appropriate Under K.S.A. 60-260(b)(6)

Under K.S.A. 60-260(b)(6), a district court may relieve a party from a final
judgment for "any other reason justifying relief." Motions filed under K.S.A. 60-
260(b)(6) are not subject to the 1-year statute of limitations but must be filed within a
reasonable time. The district court found K.S.A. 60-260(b)(6) not applicable because of
the nature of the construction of the agreement.

Lois, Bill, and Eddie argue that the journal entry fails to give effect to the mutual
intention of Lois and Edwin. They rely on Neagle v. Brooks, 203 Kan. 323, 328, 454 P.2d
544 (1969), in which the court found the broad language of K.S.A. 60-260(b)(6)
authorizes the court "'to vacate judgments whenever such action is appropriate to
accomplish justice. Of course, this power is not provided in order to relieve a party from
free, calculated and deliberate choices he has made. The party remains under a duty to
take legal steps to protect his interests.'"

Michelle argues that the Appellees' real basis for granting relief falls under K.S.A.
60-260(b)(1)—mistake, inadvertence, surprise, or excusable neglect—or (b)(3)—fraud,
18
misrepresentation, or misconduct by an opposing party—both of which are time barred
by the 1-year statute of limitations. Michelle is correct.

Relief cannot be granted under K.S.A. 60-260(b)(6) if the real reason for granting
relief falls under one listed in (b)(1) to (3) and more than a year has gone by since the
entry of the judgment. In re Marriage of Reinhardt, 38 Kan. App. 2d 60, 62, 161 P.3d
235 (2007). Lois, Bill, and Eddie cannot invoke subsection (b)(6) to circumvent the 1-
year statute of limitations. Lois was represented by counsel and made a free and
calculated decision when she signed the journal entry. Accordingly, Lois has not
established that she is entitled to relief under K.S.A. 60-260(b)(6).

c. Unreasonable Delay

Even if we were to decide that K.S.A. 60-260(b)(6) applies, Lois' request for relief
was not filed within a reasonable time. To determine whether the movant's request for
relief was filed in a reasonable time, the court measures the time from when the movant
came into possession of facts justifying the relief to the time he filed his motion seeking
relief. Also relevant to determine reasonableness is whether the movant provides good
reason for failing to file his motion earlier and whether such delay has prejudiced any of
the other parties. Wilson v. Wilson, 16 Kan. App. 2d 651, 660-61, 827 P.2d 788, rev.
denied 250 Kan. 808 (1992).

Lois, Bill, and Eddie argue that Michelle is not prejudiced by their request for
relief from the written journal entry because a mineral deed was never prepared to
transfer Lois and Edwin's mineral interests and the oil proceeds are currently being held
in suspense. However, as Michelle points out, Lois, Bill, and Eddie have not presented
evidence to indicate a valid reason for delay.

19
The court approved the parties' journal entry on September 16, 2008; Edwin died
on December 2, 2009; and Lois, Bill, and Eddie filed their claims against the estate
seeking to enforce the oral property settlement agreement on May 20, 2010,
approximately 20 months after the journal entry was entered. As noted above, Lois
signed the journal entry, which divided their mineral interests 50/50 in fee simple. If she
disagreed with the journal entry, she should not have signed it. Nevertheless, after the
court entered the parties' journal entry, she possessed facts which allowed her to seek
relief under K.S.A. 60-260(b)(1) or (3). Perhaps most significantly, Lois had the benefit
of competent legal counsel during this entire time. Lois, Bill, and Eddie have not alleged
any facts that would demonstrate a good reason for failing to file their motions for relief
within a reasonable time after the court entered the journal entry. Therefore, Lois, Bill,
and Eddie are not entitled to relief under K.S.A. 60-260(b)(6).

In light of our holding that the written journal entry and decree of divorce—agreed
to by the parties, approved by the district court, and filed with the clerk—controls the
resolution of this case, which granted Lois and her late ex-husband, Edwin, a 50/50 share
of the mineral interests of their property, the remaining issues on appeal are moot. The
judgment of the district court is reversed, and the case is remanded for further
proceedings consistent with this opinion.

Reversed and remanded.