dissenting: Dr. Huet-Vaughn has not acquiesced in the determination of her censure. The majority in Syl. ¶ 1 has stated the applicable law: ""When a judgment is rendered against a party and the judgment consists of separate and distinct parts, the acquiescence in and the payment of one of these separate parts by a party will not ordinarily cause a loss of the right to appeal the remaining separate parts of the judgment.”
The distinct and severable concept is well established in our case law on acquiescence in a judgment. See Varner v. Gulf Ins. Co., 254 Kan. 492, 497, 866 P.2d 1044 (1994). Censure, the issue remaining on appeal here, is not affected by payment of the fine. We are concerned with distinct matters authorized by two separate statutes: censure (K.S.A. 65-2836) and a $5,000 fine (K.S.A. 65-2863a). The fine has been paid and Dr. Huet-Vaughn has acquiesced in that separate portion of the Board’s sanction. By payment she has waived her appeal of the fine but not her appeal on the censure issue. The right of appeal is favored by the law. See Brown v. Combined Ins. Co. of America, 226 Kan. 223, 230, 597 P.2d 1080 (1979). If the Board wishes to refund the fine, as it suggests it would if she prevailed on the censure issue, it may do so voluntarily.
The legislature in a separate statute has vested the Board with authority to impose a fine ‘"in addition” to censure.
K.S.A. 65-2863a provides:
“(a) The state board of healing arts, in addition to any other penalty prescribed under the Kansas healing arts act, may assess a civil fine, after proper notice and an opportunity to be heard, against a licensee for a violation of the Kansas healing arts act in an amount not to exceed $5,000 for the first violation.” (Emphasis added.)
*152The K.S.A. 65-2863a “in addition to any other penalty” language, authorizing the assessment of a civil fine, is a statutory endorsement separating the fine, as a sanction, from the K.S.A. 65-2836 sanction of censure.
The majority concludes that the censure and the fine are not separable. The fine was paid; therefore, acquiescence applies to censure and to the fine. This interpretation disfavors the right to appeal. Brown teaches that this “favored right” cannot be waived “ ‘except upon clear and decisive grounds.’ ” 226 Kan. at 230 (citing 4 C.J.S. Appeal and Errors § 211, p. 396 now § 184, p. 254).
My search for “clear and decisive grounds” here has been unsuccessful. Applicable statutes and case law support reaching the merits of the dominant issue. The dominant issue is whether a military conviction for desertion with intent to avoid hazardous duty and shirk important service is “a felony or class A misdemeanor” under K.S.A. 65-2836.
K.S.A. 65-2836 provides in part,
“[T]he licensee may be publicly . . . censured, . . . upon a finding of the existence of any of the following grounds:
(c) The bcensee has been convicted of a felony or class A misdemeanor, whether or not related to the practice of the healing arts.”
The Board’s final order contains nine conclusions of law (paragraphs 5 through 13). All nine relate to the mandatory conviction-censure issue. Paragraph 5 also references the fine, acknowledging the separate statute authorizing the fine.
“A license to practice the healing arts may be revoked, suspended or limited, or a bcensee may be publicly or privately censured as provided by K.S.A. 65-2836. In addition, pursuant to K.S.A. 65-2863a, a licensee may be assessed an administrative fine in an amount not to exceed $5,000for a violation of the healing arts act.” (Emphasis added.)
The Board concludes in its order “that Respondent was convicted of a crime for which the punishment is comparable to that for a felony in the State of Kansas, and that Respondent is subject to discipline under the healing arts act.” (Paragraph 11). The Board’s military conviction conclusion is contrary to an earlier opinion of its presiding officer. Presiding officer Michael A. Barbara *153concluded that Dr. Huet-Vaughn “has not been convicted of a felony or a class A misdemeanor within the meaning of K.S.A. 65-2836(c).” (February 25, 1993, Decision and Memorandum Opinion, Docket No. 92-00142; the docket number appealed from here is 97-000120).
A review of the acquiescence cases relied on by the majority suggests a pattern in the types of judgments at issue. The actions held to be in acquiescence were in accord with the judgment being appealed. For exar pie:
CASE TYPE OF JUDGMENT APPEALED FROM ACTION BY PARTY HELD ACQUIESCENCE
State v. Conkling, 54 Kan. 108, 37 Pac. 992 (1894) (Conkling held in contempt for obstructing a court receiver, fined $50) (Paid the $50)
Comeaux v. West, 78 Kan. 404, 97 Pac. 381 (1908) (Cancellation of real estate contract and recovery of hotel property) (Surrendered possession)
Waters v. Garvin, 67 Kan. 855, 73 Pac. 902 (1903) (Board of County Commissioners ordered to pay court costs) (Paid the costs)
Mann v. Mann, 140 Kan. 538, 38 P.2d 147 (1934) (Division of property in divorce action) (Ex-wife files separate action to recover rents and possession of property that court awarded to her in divorce action)
Vap v. Diamond Oil Producers Inc., 9 Kan. App. 2d 58, 671 P.2d 1126 (1983) (Garnishment order) (Payment of the garnishment)
Crouse v. Nixon, 65 Kan. 843, 844, 70 Pac. 885 (1902) (Mandamus to compel Board of Commissioners to accept election returns) (Complied with order)
None of the above cases involved appellants asserting separate and distinct parts of an order to counter a claim of acquiescence.
The majority says: “We emphasize that this appeal goes solely to the violation of K.S.A. 65-2836(c) and not to die individual pen*154alties authorized by K.S.A. 65-2863a and 65-2836. If we should agree with plaintiff that her court martial conviction and sentence are not violations of K.S.A. 65-2836(c), then both statutory penalties must be reversed.” I disagree.
By characterizing the issue as the majority has, the rule of separate and distinct parts in Syllabus ¶ 1 is bypassed. Applying Syllabus ¶ 1, acquiescence could go only to the fine, with the censure issue to be decided on the merits.
Varner instructs us that “[w]hether in a given case a payment on a judgment is voluntary depends on the facts of the particular case as indicating an intention on the part of the payer to waive his legal rights.” 254 Kan. 492, Syl. ¶ 4. The record does not reflect that Dr. Huet-Vaughn intended to waive her right to an appeal on the censure issue by paying the $5,000 additional fine. She was not litigating with an adversary before an impartial tribunal. Her tribunal was her adversary.
None of the cases relied on by the majority involve separate sanctions, each authorized by a different statute. The majority’s authorities are factually dissimilar to the situation here.
The court should address the military conviction-censure issue.
Lockett, J., joins in the foregoing dissent.