Tersa A. Chaney, Appellee,
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.
BY THE COURT
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
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.
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.
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.
debtor's right to an exemption is a personal one which
does not survive the death of the person in whose favor it
Date: September 14, 2017
from Montgomery District Court; Gary R. House, judge.
R. Horst, of John R. Horst, P.A., of Caney, for appellants.
H. Cassell, of Eron Law, P.A., of Wichita, for appellee.
Green, P.J., Standridge and Gardner, JJ.
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
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 ...