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In re Marriage of Gerleman

Court of Appeals of Kansas

December 28, 2018

In the Matter of the Marriage of Robert M. Gerleman, Appellant, and Jeannette M. Gerleman, Appellee.

         SYLLABUS BY THE COURT

         1. A judgment is void if the court that rendered it lacked jurisdiction of the parties, or if its actions resulted in a denial of due process.

         2. Since a judgment is either valid or void as a matter of law, appellate courts have unlimited review.

         3. The law of the case doctrine exists to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.

         4. The law of the case doctrine applies both to issues a party raised and issues the party could have, but did not, raise, in a prior proceeding.

         5. All issues, including voidness, that could have been raised in a prior appeal will not be considered in a later appeal.

         6. A district court cannot modify a matter if the matter was settled by an agreement incorporated in the decree unless the agreement allows modification or the parties consent to modification.

         7. An agreement to pay maintenance that was not incorporated into the decree of divorce is subject to modification.

          Appeal from Douglas District Court; James R. McCabria, judge.

          Robert M. Gerleman, appellant pro se.

          Curtis G. Barnhill and Adina F. Morse, of Barnhill & Morse, P.A., of Lawrence, for appellee.

          Before Schroeder, P.J., Standridge, J., and Walker, S.J.

          SCHROEDER, J.

         This contentious divorce action returns to our court following our remand in In re Marriage of Gerleman, No. 114, 855, 2017 WL 66339 (Kan. App. 2017) (unpublished opinion) (Gerleman II). In Gerleman II, we found Robert and Jeannette Gerleman's property settlement agreement incorporated into the divorce decree was ambiguous on the division of Robert's military retirement pay. We remanded for the district court to determine how it understood the parties agreed to divide his military retirement pay. Now, Robert argues the district court erred when it found the parties intended to divide the marital portion of Robert's military retirement pay equally. Robert on remand for the first time also argued the decree was void. Finally, Robert argues the district court erred when it determined the amount of maintenance he had to pay was not modifiable.

         We find the law of the case doctrine precludes Robert's arguments regarding whether the decree is void and find substantial competent evidence supports the district court's finding the parties intended to divide Robert's military retirement pay equally. However, we find the amount of maintenance Robert owed to Jeannette was not a matter settled by an agreement incorporated in the divorce decree and, as a result, maintenance was modifiable. Thus, we affirm in part, reverse in part, and remand.

         Gerleman II sets forth in detail the tortuous history of this case. Because we find the law of the case doctrine precludes Robert's voidness argument, we will only briefly summarize the facts leading to our opinion in Gerleman II.

         In 2012, after 20 years of marriage, Robert petitioned for divorce from Jeannette. In July 2013, the district court entered a divorce decree with an attached summary of division of property, which divided the parties' marital property in table format. In relevant part, it states:

Item

Husband

Wife

US Military Pension

5/9/13 (handwritten)

Divided at husband's retirement based on military formula = # years of marital service/total months of military service TBD

Divided at husband's retirement based on military formula = # years of marital service/total months of military service TBD

         Jeannette appealed the divorce decree and Robert cross-appealed. In re Marriage of Gerleman, No. 110, 461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion) (Gerleman I). The parties settled the issues, however, and jointly dismissed their appeals. Later, Jeannette filed a proposed qualified domestic relations order (QDRO) dividing Robert's military retirement pay. A different district court judge than the one who presided over the divorce heard arguments about what language to ...


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