dissenting: I respectfully dissent from the majority opinion.
K.S.A. 60-260(b) allows a court to relieve a party from a final judgment under certain conditions with the requirement that “[t]he motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
We are required to interpret the last sentence of 60-260(b) and determine if the reasonable time requirement applies.
The majority states that the motion was filed within one year of the date of judgment and approximately nine months after Craig Lai'son learned of the fraud surrounding the management of a feedlot he and his family owned in Colorado. It should be noted that Marla J. Larson was also an officer and/or a director of the same feedlot; thus, she had some obligation to be involved in the financial dealings of the feedlot.
Although the record reflects that Craig knew there might be a problem with the feedlot and that an audit was ongoing at the *999time of the divorce action, the record also reflects that he relied upon the advice of an attorney then representing him in going forward with signing the property settlement agreement.
There is nothing in the record to suggest that Craig or anyone else knew of the extent of the problem or that it was caused by the fraud of the manager of the feedlot. Both parties to this action, Craig and Marla, had an obligation as officers and/or directors of the feedlot corporation to be aware of the financial condition of this business entity.
The majority states that there was a $400,000 turnaround, with Craig relying upon the value of the feedlot or the profits therefrom to negotiate a settlement and pay under the terms of the settlement.
The trial court’s justification for denying the motion is based upon difficulty in setting the matter for hearing and a finding that the property was under the exclusive control of Craig during the time the losses occurred. This conclusion is contrary to the record as I read it, given Craig’s reliance upon the manager who committed fraud and the distance to the feedlot. The court also found that the motion was not timely made and that there was no way to put the parties back in the position they were on January 9, 1990.
I recognize the problem of putting the parties back where they were, but the essence of an equitable action ought to be to at least make that attempt, difficult though it might be.
It should also be noted that Craig changed attorneys between the time of the signing of the agreement and the divorce hearing and the time a motion was filed pursuant to K.S.A. 60-260.
Each party in a divorce action is entitled to an equitable portion of all property owned by the parties. Smith v. Smith, 5 Kan. App. 2d 117, 120, 612 P.2d 1257 (1980).
Courts are obligated pursuant to K.S.A. 1993 Supp. 60-1610(b)(1) to make a “just and reasonable division” of the marital assets. The trial court’s obligation is to review the settlement agreement to insure that it meets the statutory standards of “valid, just and equitable.” K.S.A. 1993 Supp. 60-1610(b)(3). If the court has approved the agreement and it is incorporated into a decree, the court has made a finding that the agreement was fair and equitable. However, if the underlying value of the property de*1000tailed in an agreement is substantially misstated, unbeknownst to either of the parties as well as the court, through no fault of any of the parties but as the result of fraud, and the true value of the property is later revealed, the court’s previous finding that the agreement was fair and equitable becomes subject to question and, under the facts here, being set aside.
The purpose of K.S.A. 60-260(b) is to allow a party relief from a judgment which is in error or otherwise improper. In my view, to deny application of K.S.A. 60-260(b) under the facts presented here, certainly a mistake, with newly discovered evidence, frustrates the intent and the proper application of K.S.A. 60-260(b). Divorce is an action in equity. In my view, to disallow the application of K.S.A. 60-260(b) under the facts and circumstances of this case is inequitable and undermines the future application of K.S.A. 60-260(b).