concurring in part and dissenting in part.
I concur with my colleagues to the extent they affirm the trial court’s entry of summary judgment in favor of Ruby Nicholas (Ruby) and against the executor of the estate of Sheiyl A. Nicholas (Executor) rejecting the executor’s claims as to joint tenancy property and the purported Separation Agreement.
I respectfully dissent, however, to the remaining portions of the majority’s opinion addressing whether Sheryl’s change in beneficiaries as to various transfer on death (TOD) accounts, pay on death (POD) accounts, and life insurance policies violated the restraining order issued in the divorce case. The majority fails to acknowledge that those claims — by Ruby against the executor and against Sheryl’s children, Arthur and Susan — were not properly before the district court or this court.
As the majority opinion indicates, Ruby filed a motion to amend her answer in April 2001, seeking to add a counterclaim against the executor and third-party claims against Susan and Arthur, individually. These proposed claims asserted that the change in beneficiary designations while the divorce was pending were fraudulent transfers and sought to impose a constructive trust on the proceeds of certain life insurance policies, TOD and POD accounts.
However, my colleagues fail to acknowledge this motion was never granted by the district court. Leave of court was clearly re*476quired for the pleadings to be amended. K.S.A. 2002 Supp. 60-215(a). In addition, nothing in the record shows that a summons was issued or served on Arthur (in his individual capacity) and Susan. Nor does the record show any voluntary appearance by Arthur or Susan responding to those claims.
Notwithstanding the fact leave was never granted to amend Ruby’s answer, both Ruby and the executor addressed Ruby’s fraudulent transfer claims in their respective motions for summary judgment. This, at best, might entitle the trial court to deem the issues between Ruby and the executor to be tried by consent.
Even assuming Ruby’s counterclaim against the executor was allowed, the trial court’s judgment should be reversed. In its judgment, the trial court not only granted summary judgment to Ruby, but ordered that titles to the accounts/policies revert back to the titles as they existed tire date the divorce action was filed. The majority acknowledges the restraining order in the divorce decree dissolves upon Sheryl’s death. Even though the TOD/POD accounts and the life insurance policy were marital assets subject to the restraining order, and even assuming the change of beneficiaries violated that restraining order, the trial court’s authority is limited to providing redress as between the parties in this action.
There appears to be no dispute that once Sheryl died, certain life insurance proceeds and assets of the TOD/POD accounts were paid to’Susan and Arthur by the holders of the accounts and policies. Because Susan and Arthur were never properly made parties to this case and never served with process, it violates due process for the trial court to issue an order essentially attempting to alter title to property now held by them as non-parties. See e.g., Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 82, 847 P.2d 1341 (1993) (basic elements of due process include notice and an opportunity to be heard at a meaningful time and in a meaningful manner); Sramek v. Sramek, 17 Kan. App. 2d 573, 575, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993) (judgment in contempt proceeding was void where order to appear was mailed to rather than served upon party).
Under the circumstances, the most the trial court could properly do in this case, assuming Ruby was effectively allowed to add a *477counterclaim against the executor, was to determine Sheryl violated the restraining order and improperly transferred marital assets, calculate the value of the missing assets, determine Ruby’s share of those assets, and enter a judgment against the executor for that amount.
For these reasons, I would affirm the trial court’s entry of summary judgment in favor of Ruby on the executor’s claims against her. However, I would vacate the judgment attempting to alter title to the other assets in dispute. I would remand the case solely for the calculation of Ruby’s share, if any, of those assets had they remained in Sheryl’s estate and enter judgment against the executor for that amount. Recause Ruby failed to proceed, prior to entry of judgment, on her motion to add third-party claims against Arthur and Susan, Ruby should be required to file a separate action against Arthur and Susan should she wish to pursue claims against them.