NOT DESIGNATED FOR PUBLICATION
No. 123,225
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
DAVID G. BLOSSER,
Appellant,
and
PEGGY E. BLOSSER.
Appellee.
MEMORANDUM OPINION
Appeal from McPherson District Court, MARILYN M. WILDER, judge. Opinion filed June 18,
2021. Reversed and remanded.
Tim R. Karstetter, of Karstetter & Bina, L.L.C., of McPherson, for appellant.
Catherine Craft, of Achterberg, Angell & Craft, LLC, of Salina, for appellee.
Before POWELL, P.J., MALONE and GARDNER, JJ.
PER CURIAM: David G. Blosser appeals the district court's finding that his ex-
wife, Peggy E. Blosser, retained an interest in his Kansas Public Employees Retirement
System (KPERS) account, arguing the district court improperly added terms to the
parties' unambiguous divorce decree. But we find the decree ambiguous and remand for
an evidentiary hearing.
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Factual and Procedural Background
In May 2019, David petitioned the district court for a divorce from Peggy, citing
incompatibility. Both parties filed domestic relations affidavits, participated in a
settlement conference, and reached a settlement agreement. The district court issued a
divorce decree, incorporating that agreement.
Under the agreement and divorce decree, David was awarded the "KPERS 457
account and KPERS account that pays a monthly benefit" as his "sole and separate
property." The decree made no other reference to those accounts.
A few months after the divorce decree was filed, a KPERS representative told
David that he would need a court order to remove Peggy from his accounts. So David
moved the court to set aside the divorce decree or rule that Peggy had no interest in his
KPERS accounts. Peggy responded that although the divorce decree listed the KPERS
accounts as David's sole and separate property, David had named Peggy as a joint
annuitant of his KPERS accounts, and the decree did not terminate that interest.
The parties agree that:
• Peggy is a joint annuitant on the KPERS monthly account, so David receives a
reduced monthly benefit;
• if Peggy remains a joint annuitant and survives David, she will receive a payment
upon his death; and
• if Peggy is removed as an annuitant, David's monthly payments will increase, and
Peggy will receive nothing upon David's death.
The district court held a hearing yet neither party testified. Instead, David's
counsel accused Peggy of having created the joint annuitant issue and maintained that the
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parties had never discussed or agreed that Peggy would retain any interest in the KPERS
accounts. To the contrary, Peggy's attorney claimed that during settlement negotiations,
the parties had discussed their options for the monthly KPERS account, including
removing Peggy as the joint annuitant. She said that the parties had spoken with a
KPERS attorney and knew the decree needed special language to remove Peggy from the
account. She argued that David's attorney, as the drafter of the agreement, knew or should
have known about KPERS' requirements yet failed to terminate Peggy's interest in the
account, so the court should strictly construe the agreement against David.
The court took the matter under advisement to consider the merits and whether it
had jurisdiction to modify a final divorce decree. Then, in a written order, the district
court denied David's motion, finding the terms of the decree unambiguous. The court
described the KPERS account as having an ownership interest and a beneficial interest. It
held:
• the decree showed that the property interest was David's;
• the decree was silent about Peggy's beneficial interest;
• the decree unambiguously established that the beneficial interest was still Peggy's
because the decree did not state that Peggy's previously designated interest was
terminated;
• the parties had not orally agreed to terminate Peggy's interest;
• the decree specifically terminated the parties' previous beneficiary designations for
any life insurance policies, but the decree did not similarly terminate the
beneficiary designation in the KPERS account; and
• the relative complexity of the parties' property division showed it was unlikely that
the parties accidentally omitted a necessary provision rather than considering but
ultimately deciding not to include it.
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David appeals.
Standard of Review and Basic Legal Principles
Generally, a district court has no continuing jurisdiction or power of modification
over a division of property after entering an original divorce decree. Lewis v. Lewis, 4
Kan. App. 2d 165, 166, 603 P.2d 650 (1979). Once the divorce decree becomes final and
the time for appeal has passed, the district court's jurisdiction is limited to enforcement or
clarification of the order.
A property settlement agreement incorporated into a divorce decree functions both
as a contract between the divorcing parties and an order of the district court. See Dozier
v. Dozier, 252 Kan. 1035, 1039, 850 P.2d 789 (1993); In re Marriage of Knoll, 52 Kan.
App. 2d 930, 939-40, 381 P.3d 490 (2016). We thus apply the rules of contract
interpretation to the Blosser's property settlement agreement. As a general matter, a court
should construe a contract to give effect to the intent of the parties consistent with the
plain meaning of the language used and considering the whole agreement. Thoroughbred
Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1206, 308 P.3d 1238 (2013) (whole
agreement); Hefner v. Deutscher, 58 Kan. App. 2d 58, Syl. ¶ 1, 464 P.3d 367 (2020)
(plain language). If the operative language is unambiguous, those words necessarily
govern the rights and obligations of the contracting parties.
A contract is unambiguous "if the language . . . is clear and can be carried out as
written." Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 2, 829 P.2d
884 (1992). On the other hand, an ambiguous contract "must contain provisions or
language of doubtful or conflicting meaning." 250 Kan. 676, Syl. ¶ 2. Typically, we give
the words in a contract their common or customary meaning. Pfeifer v. Federal Express
Corporation, 297 Kan. 547, 550, 304 P.3d 1226 (2013). Ambiguity then arises only if
"the face of the instrument leaves it genuinely uncertain which one of two or more
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meanings is the proper meaning." Catholic Diocese v. Raymer, 251 Kan. 689, 693, 840
P.2d 456 (1992). Whether a contract is ambiguous presents a question of law, as does the
interpretation of an unambiguous contract. See Osterhaus v. Toth, 291 Kan. 759, 768,
249 P.3d 888 (2011).
Analysis
David argues that the divorce decree is unambiguous. He contends that the
decree's language providing that the KPERS accounts are his "sole and separate
property," without specifically retaining Peggy's interest in either account, shows the
parties did not intend for Peggy to have such an interest. Peggy seems to agree that the
decree is unambiguous, yet she ascribes the opposite meaning to the same language. She
argues that because David knew about the KPERS' requirement yet drafted the agreement
without terminating her interest, the lack of termination language in the decree shows the
parties' intent for her to retain her beneficial interest.
We find the decree ambiguous because both meanings ascribed to it by the parties
can reasonably be construed from its language—the divorce decree leaves it genuinely
uncertain which one of the above meanings is proper. Because the decree's language is
ambiguous, we may consider extrinsic or parol evidence to construe it. Barbara Oil Co.
v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992); Mobile Acres, Inc.
v. Kurata, 211 Kan. 833, 838-39, 508 P.2d 889 (1973). Yet we have no such evidence
here. Although the district court held a hearing, neither party testified.
And neither did counsel, although the district court relied on some of counsel's
assertions. In finding the decree unambiguous, the district court relied largely on
assertions of counsel unaccompanied by support in the record. For example, the court
found that the parties had not orally agreed to terminate Peggy's interest, yet the record
contains no evidence on that matter. The court found that the parties had specifically
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discussed the possibility of terminating Peggy's interest but could not agree on the terms
to make that happen. But David's counsel had argued to the contrary—that the parties had
mentioned nothing about Peggy's interest in the KPERS accounts until after the divorce
decree was filed. So the assertions of counsel conflict. Peggy's counsel asserted that she
had letters showing counsel's negotiations about Peggy's KPERS' interest, but we have no
letters or dates to assist us. Yet the district court found that the parties apparently agreed
on that issue and did not make a credibility call.
The court also found that the decree's express termination of the parties' life
insurance policy beneficiary designations supported an inference that because the parties
did not similarly terminate the KPERS beneficiary designation, the parties intended not to
do so. But David's counsel asserts that the parties had no life insurance policy and that the
life insurance clause is merely stock language, not reflective of the parties' intent.
Besides, Peggy is not a mere beneficiary but a joint annuitant.
We cannot tell from the record whether the parties to the property settlement
agreement overlooked a particular asset or liability. David suggests that the decree's
language requiring him to pay Peggy $75,000 within 90 days of the decree reflects some
quid pro quo for terminating her KPERS interest. But neither the rules of contract
construction nor the facts of record help us resolve these and other details which may
affect the outcome of this dispute.
We could assume from the breadth of the divorce decree that the parties meant to
wipe the slate clean between them. Yet that would be merely an assumption, as the
decree lacks broad language relinquishing Peggy's claims, inchoate rights, or
expectancies to KPERS benefits, unlike in Hollaway v. Selvidge, 219 Kan. 345, 348-49,
548 P.2d 835 (1976). There, the decree said, "neither party shall make any claim, except
as herein agreed," and "each party relinquished his or her right, title and interest in the
property allotted the other." 219 Kan. at 350. We thus reverse the decision and remand
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for an evidentiary hearing to determine the parties' intent about the KPERS accounts and
to enforce or clarify the divorce decree accordingly.
Reversed and remanded with directions.
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