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Chaney v. Armitage

Court of Appeals of Kansas

May 19, 2017

Tersa A. Chaney, Appellee,
v.
Jeffrey D. Armitage and Jerald D. Armitage, Co-Trustees of The Don A. Armitage Revocable Trust (In the Matter of the Estate of Don A. Armitage, Deceased), Appellants.

         SYLLABUS BY THE COURT

         1. A judgment creditor can record an unpaid judgment as a lien on the real estate of the judgment debtor within the county in which judgment is rendered. Generally, a judgment lien gives the judgment lien creditor a right to force the sale of the property to collect the judgment unless the property is specifically exempted from levy, attachment, or execution by another statutory provision. Kansas' homestead exemption, which protects homes from forced sale, is one of those exemptions and precludes a judgment lien from attaching to homestead property.

         2. Once it has been established that a homestead interest in property exists, there is a presumption that the homestead continues until the contrary is shown. The burden of proof is on the party attempting to defeat that interest to show by positive and clear evidence that the homestead interest has been destroyed or abandoned. The standard of proof to show the homestead interest is destroyed or abandoned requires a showing that the owner has been removed from the property and has no intent to return.

         3. Property held by a self-settled, revocable trust is available to satisfy the settlor's creditors the same as if the property was held by an individual; thus, Kansas' homestead exemption precludes a judgment lien from attaching to homestead property held by a self-settled, revocable trust unless the homestead interest is destroyed or abandoned.

         4. After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors.

         5. A debtor's right to an exemption is a personal one which does not survive the death of the person in whose favor it exists.

          Filed Date: September 14, 2017

         Appeal from Montgomery District Court; Gary R. House, judge.

          John R. Horst, of John R. Horst, P.A., of Caney, for appellants.

          Joseph H. Cassell, of Eron Law, P.A., of Wichita, for appellee.

          Before Green, P.J., Standridge and Gardner, JJ.

          OPINION

          STANDRIDGE, J.

         Prior to his death, Don A. Armitage conveyed his homestead to the Don A. Armitage Revocable Living Trust (the Trust). Armitage named his sons, Jeffrey D. Armitage and Jerald D. Armitage (the defendants) as the beneficiaries and successor co-trustees of the Trust. Tersa A. Chaney later obtained a money judgment against Armitage. After Armitage's health required him to move from his homestead to a care facility, Chaney attempted to enforce her judgment against Armitage by filing an application for writ of special execution against the homestead. The district court issued the writ, directing the sheriff to levy execution on the homestead. Armitage died shortly thereafter, leaving no spouse or children living at the homestead. The defendants moved to set aside and vacate the writ of special execution on grounds that the homestead was exempt from Chaney's judgment lien. The district court denied their motion, concluding that the homestead was subject to summary execution to satisfy Chaney's judgment because the homestead exemption expired upon Armitage's death.

         Facts

         The relevant facts are undisputed. On April 22, 2010, Armitage created the Trust for the purpose of holding certain real and personal property. Armitage signed the instrument as both the grantor and trustee, and he named the defendants as the beneficiaries and successor co-trustees of the Trust. The Trust provided, in relevant part, that upon Armitage's death, the trustees "shall pay from the trust estate all of the just debts and expenses" of the grantor and that "said trust ...


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