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Sep 10, 2010 - would make Mitchell a 50/50 partner in John's Used Cars. ... responsible for the operation of Sigg's Auto
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NOT DESIGNATED FOR PUBLICAnON No. 100,522 IN THE COURT OF APPEALS OF TIlE STATE OF KANSAS IN THE MATTER OF THE MARRIAGE OF LINDA L. SIGG,

Appellee,

and JOH'N 1 SIOO,

Appellee/cross-appellant,

and MITCHELLD. SIGG; SIOO MOTORS , LLC; NA TIONS LEASE & REMARKETING, LLC; and NATIONS FINANCIAL, LLC,

Appellants/cross-appellees. MITCHELL SlOG AND SlOG MOTORS,

LLC,

Appellants, v. LINDA SIGG and JOH'N SIGO,

Appellees. l\1EMORANDUM OPINION

Appeal from Allen District Court; RONALD D. INNES, judge. Opinion filed September 10,2010. Affirmed. Mark Sevart, of Derby, for appellants/cross-appellees Mitchell Sigg; Sigg Motors, LLC; Nations

Lease & Remarketing, LLC; and Nations Financial. LtC. Russell L. Mills, of Derby, for appellee/cross-appellant John J. Sigg.

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Trey T. Meyer, of Law Office ofTrcy Meyer, LLC, of Lawrence, for appellee Linda Sigg.

Before LEBEN , PJ., PIERRON, J., and BUKATY, SJ.

Per Curiam: The district court granted judgment to Linda Sigg against John Sigg, her husband, and Mitchell Sigg, her oldest child, for just over $7 million as an equalization judgment arising out of the divorce between Linda and John. Mitchell raises a number of issues on appeal. John filed a separate cross-appeal raising an additional set of issues. Both challenge the court's basis for the equalization payment and its amount.

We affirm. The facts oOhis case are substantial. John and Mitchell ·do not dispute the millions of dollars they transferred from family assests after Linda filed for divorce. They argue Linda had no interest in the transferred monies and the transfers were made prior to any court order which would have had the authority to stop them was effective.

John and Linda were married on April 24, 1961. TIley had four children: Mitchell, Don, Teresa, and Kim . Early in their marriage, John quit his job as a machinist and opened John's Used Cars selling vehicles out of his front yard. John established a business address in 1975, and the car business moved to its present location. The business was very successful.

Mitchell worked in the car business beginning at a very young age. He helped John run the car lot while he was in high school. When Mitchell graduated from high school in 1979, John allegedly told Mitchell ifhe would help run the car business, John would make Mitchell a 50/50 partner in John's Used Cars. Mit~ell accepted the offer and has been with the car business since then. Mitchell has actively and aggressively run John's Used Cars since 1979 and has been primarily responsibl e for its success. 2

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Mitchell testified that a formal written agreement was signed on November 10, 1984, memorializing John's offer of a partnership. The agreement has signatures from Mitchell, John, and Linda and is hand written on what appears to be some sort of business invoice. It reads:

"Contract "Contract is between John J Sigg, Linda L. Sigg, and Mitchell D. Sigg.

..

"On . this day November 10, 1984 Mitchell D. Sigg is 50% owner of John Used Cars. Since his graduation in 1979, John 1. Sigg and Linda 1. Sigg wish to extend to him that if he remains with John Used Cars on or about thru his 40'h birthday, John J. and Linda L. Sigg will tum over to Mitchell D. Sigg the remaining 50% of John's Used Cars with .11 the money and properties created from John's Used Cars in this time frame. "With the exception Mitchell D. Sigg will receive only 50% ofSiggs Auto Parts and 1/3 of the Oil and Gas business. The remaining 50% ofSigg Auto Parts will be retained by John J. Sigg and Linda L. Sigg. "[Signed] John J. Sigg, Linda L. Sigg, Mitchell Sigg"

Linda denied signing the agreement. John's Used Cars generated substantial net profits that were invested in a variety of ways for the purpose of someday establishing a major car dealership. One of those investments was the purchase and establishment of Sigg's Auto Parts in 1981 . Linda was responsible for the operation of Sigg's Auto Parts, and neither John nor Mitchell participated in the day-to-day operation of the store. John and Linda's daughters and their spouses are also employed by Sigg's Auto Parts. The only connection between Sigg's Auto Parts and John's Used Cars was that Sigg's Auto Parts provided a wholesale outlet for parts used by John's Used Cars.

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There is .evidence in one of the hearing transcripts that Linda had previously filed for divorce in 1997, but she and John were able to work things out and the petition was dismissed.

John and Mitchell organized Sigg Motors, L.L.C., on October 22, 2000, with each owning one-half of the company ..Linda was aware of the organization ofSigg Motors and notarized some of the documents. Linda filed for divorce against John on May 14, 200 I. John does not dispute the trial court's following finding: "Between May 14, 200 1 and December 22,2002, John J. Sigg, acting alone transferred tax-free municipal bonds and cash to Sigg Motors, L.L.C. having a value of eight million three hundred fifty one thousand nine hundred fifty one dollars and thirty nine cents. ($8,351,951.39), as of May 14, 2001."

Although Linda filed ber petition on May 14, 2001 , John was not served with an alias summons until January 16,2002. We do not know why there was a delay. With her petition, Linda also obtained a restraining order restricting th.e parties from disposing of assets. She would have full authority to operate Sigg's Auto Parts and John would have fuJI authority to operate John's Used Cars/Sigg Motors, L.LC. The restraining order was served on John with the petition on January 16, 2002.

On February 27, 2003 , the trial court granted Linda's motion to join additional parties including Mitchell Sigg; Sigg Motors, LLC; Nations Financial, LLC; and Nations Lease & Remarketing, LLC. Linda filed an amended petition including claims against these additional parties . On April 15,2004, John filed his answer to Linda's petition. He admitted much of her petition and asked for an equitable division of the property and debts of the parties. John's answer included a cross-petition requesting a divorce be granted in his favor.

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On May 4, 2004, Mitchell fi1ed a separate civil petition for damages, declaratory relief, and an accounting. Mitchell claimed that soon after his employment at John's Used Cars, John agreed with and represented to him that he was a 50% owner of John's Used Cars. Next, he stated:

"Approximately five (5) years after plaintiff Mitch Sigg became a fifty percent (50%) owner in the Used Car Business, defendant John Sigg represented to plaintiff Mitch Sigg that, if plaintiff Mitch Sigg continued to work in the Used Car Business, defendant John Sigg would, when plaintiff Mitch Sigg became forty (40) years of age, transfer, set over, convey and assign the plaintiff Mitch Sigg all of the Used Car Business, including, without limitation, accounts receivable, profits and real estate and that plaintiff Mitch Sigg would receive a fifty percent (50%) interest in all other businesses in which defendant John Sigg had an interest, including, w ithout limitation, Sigg's Auto Parts (the 'Auto Parts Business') and the real estate business (the 'Real Estate

Business'). !!

No mention of any written agreement was alleged in Mitchell's petition. Mitchell requested a declaratory judgment (Count I) of his interest in Used Car Business, the Real Estate Business, the Auto Parts Business, and the liquid assets generated by the businesses: Mitchell requested Linda present an accounting (Count II) of all sums generated by the Auto Parts Business from January 1, 1995, through the present. Mitchell raised claims of breach of fiduciary duty (Count III), negligence (Count IV), and conversion (Count V) through her mismanagement of the Auto Parts Business. Mitchell also alleged that Linda tortiuously interfered with the business and contractual relationship (COW1t VI) between Mitchell and John by attempting to defeat the relationship. setting it aside, and repudiating it.

On December 9, 2004, the trial court in the divorce case consolidated the , declaratory judgment claim (Count I) in Mitchell's civil suit with the divorce proceeding. All of Mitchell's remaining claims (Counts II-VI) were ordered stayed pending the trial in

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the divorce case. The court's journal entry was filed March 10,2005 . Linda filed an answer to Count I of Mitchell's civil suit.

On January 19, 2005, the trial court appointed a Special Master to indentify imd determine the nature and extent of John and Linda's nonbusiness assets existing at the time of the divorce using a valuation date of May 14,2001. The Special Master issued a lengthy detailed report on March 19,2007. The court gave all parties 20 days to make objections to the report. However, no party filed any objections to the Special Master's report, and it was approved by journal entry dated April 19,2007, as evidence of the nature and value of the nonbusiness intangible marital assets of John and Linda.

On April 30, 2007, pursuant to direction of the court, Mitchell filed a pro se amended petition. Mitchell's petition'added claims of constitutional due process violations in addition to the original claims of civil conspiracy/collusion, fraud/misrepresentation, negligence, conversion, tortiuous interference with business and contractual relationship, and intentional infliction of emotional distress.

The trial court entered two very extensive journal entries in this case. The first journal entry, entitled "Decree of Divorce al'\d Journal Entry of Judgment, " file stamped November 16, 2007, encompassed the following; the hearing on June 25, 2007 (where John and MitcheU did not appear); th.e hearing on June 28, 2007(where Mitchell appeared and Linda presented her evidence); the July 16, 2007, trial (where John and Mitchell appeared with counsel, but it was continued); and the August 28, 29, 2007, and October 11, 12,2007, trial (where Mitchell presented evidence).

The trial court found that Mitchell and John, acting in concert, had dissipated the marital assets and totally disregarded K.S.A. 23-201, which provides common ownership of marital property between spouses upon commencement of divorce proceedings. The court determined that the restraining order entered with the petition was served on John 6

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on January 16,2002, but that John and Mitchell had actual knowledge of the restraining order on or about the date the petition was filed, May 14,2001, and the property transfers after that date were voidable. The court held that alI conveyances or transfers by John and Mitchell affecting title of marital property were void and without legal effect if the conveyan'1es interfered with the court's division of marital property.

The trial court held that the evidence did not support Mitchell's contention that John and Linda entered into any written contract regarding ownership of John's Used Cars or an oral contract consistent with the provisions of the alleged written contract. The court held that Mitchell was not a partner, nor was there a partnership, with John or Linda in Sigg's Auto Parts as Mitchell's association was limited to the purchase of parts for John's Used Cars.

However, the trial court held that Mitchell, John, and Linda were partners in John's Used Cars as all three contributed to the business, including sharing in undistributed profits, all with the intent for the investment accounts and real estate to be partnership property. The court awarded Mitchell, John, and Linda each a 113 interest in the partnership and also the real estate and investments acquired using partnership money.

The trial court entered a detailed order dividing John and Linda's marital property. After dividing the va1ue ofSigg's Auto Parts between John and Linda and also dividing the value of John's Used Cars between John, Linda, and Mitchell, the court determined that Linda was entitled to an equalization judgment in the amount 0[$7,064,625.83.

The secondjournaJ entry, entitled "Order Amending Decree and Journal Entry of . Judgment," file stamped April 2, 2008, covered posttrial motions filed by John and Mitchell and arguments held on January 11,2008, and March 12,2008. The trial court held that the claims from Mitchell's civil suit that were joined for trial were equitable in nature and were properly joined to the court. Consequently, the matters were not for trial 7

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by a jury. The court also held there was no abuse of discretion in failing to grant a continuance ofthe first trial on June 25, 2007. John failed to substantiate his health problems that caused him to miss the trial on June 25,2007, and June 28, 2007. The court stated that, among other things, the record demonstrated a pattern of conduct intending to delay and frustrate an adjudication of Lind.a's claim. The court also held that as a result of John's failure to appear on June 25 and 28, 2007, it was not an abuse of discretion for the court to strike John's pleadings. The court held that John had waived his right to participate when he failed to appear and John had failed to show any prejudice.

The trial court abandoned its partnership findings and instead held that Mitchell was entitled to 'certain marital property based on an oral employment contract that he would be made a 50% partner in the car business. The court decided the oral agreement did not fully define what was meant by 50% of the car business and concluded that it meant 50% ofland, improvements, inventory, equipment, and goodwill acquired from John in the formation of Sigg Motors, LLC., and also funds used to capitalize the car business at the formation of Sigg Motors. The court reworked its decision and determined that Linda's interest in John's Used Cars was 25% as opposed to the 33.3% earlier determined. The court also determined that Linda was entitled to 50%, instead of the , previously determined 33.3% partnership interest, of the investment accounts held in jOint tenancy with Mitchell and, in part Linda, since John, d/b/a John's Used Cars, was 100% owner of those accounts. However, the court determined that Linda's share of the real estate would be 25% instead of 33.3% because the same donative intent was not present in the real estate jointly held property between John and Mitchell. The court held that Linda's equalization judgment increased to $7,081,159.58.

Regarding the commencement date of the divorce proceedings for determining voidable transfers, the trial court held the commencement language ofK .S.A. 23-201 (b) does not implicate a jurisdictional issue since it was the intent of the legislature to create greater flexibility in the division of property by eliminating the possibility of creating a

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taxable event. See Wachho~ v. Wachholz, 4 Kan. App. 2d 161,164,603 P.2d 647 (1979). The court also stated that lack of jurisdiction was not raised in either John or Mitchell's first responsive pleading. The court held K.S .A. 23 -201 does not preclude the court from examining transfers of property made by a spouse after filing but before service of process. The court stated the filing of the petition gives the trial court in rem jurisdiction over the status of the parties and their property despite the lack of service. See In re

Marriage o/Salas. 28 Kan. App. 2d 553,19 P.3d 184 (2001). The court stated:

"[U]nder the facts of this case, the date ofttle filing of the divorce is not necessarily the date that [Linda's] inchoate or any interest, taken through her spouse, would have arisen. tn this.case there were pre-filing transactions thal could be deemed as having dissipated the busine5s marital assets or been a basis for a fraudulent conveyance claim."

The trial court held the transfers of the property to Sigg Motors, LLC., that were made before or after the date of the filing of the petition on May 14, 2001, would have dissipated the marital assets because the transactions were uses of the marital property for a purpose unrelated to the marriage. The court applied the Uniform Fraudulent Transfer Act and held that 8 of the 11 badges of fraud were shown. The court held that any and all transactions between any of the parties, as well as Mitchell's wife and children, were again held to be null and void and without legal effect.

Both Mitchell and John appeal.

John and Mitchell first argue the trial court erred in not granting a jury trial for certain issues of this case. Mitchell argues there are genuine issues of material fact as to the existence of the written contract and the issues should have been submitted to ajury. He also argues Linda's fraudulent conveyance claim was a question of fact that necessitated a jury trial. In passing, Mitchell also argues the SpeCial Master should have

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testified before ajury under K.S.A. 60-253(e)(3). Jolm also argues the parties should have been given a jury trial on the issues of fraud and breach of contract.

When an issue involves statutory and constitutional interpretation an appellate court's review is unlimited. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).

Unfortunately, in order to comprehend the trial court's ruling on the jury trial issue, a lengthy recitation of procedural facts is necessary to put the ruling in context. At a hearing on March 19,2007, John argued that between he and Linda, the claims were essentially equitable in nature. However, he stated the claims between he, Linda, and

,

Mitchell were contractual in nature and required a jury trial. Linda's attorney responded that each time Mitchell and John obtained a new attorney, the consolidation of the claims or severance of the claims was raised again. Linda's attorney argued the statute of limitations had passed on any alleged contract and the issue should be resolved as the contract was effective November 2001 and surpassed the 5-year statute of limitations when raised in March 2007. Mitchell appeared pro se at this hearing. Mitchell became so irate that he was yelling curse words at Linda's attorney and then left the proceedings in a rage, but he later returned.

The trial court stated that Mitchell was an essential third-party respondent to the divorce based on the allegations of post filing transfer of assets and the possibility of. attaching assets if the transfers were deemed fraudulent. The court inquired of Mitchell whether he wanted a jury trial, and Mitchell responded in the affirmative. The court ruled that the cases would continue to be consolidated for discovery purposes. The court ordered a bench trial date for the division of marital property and continued to retain jurisdiction over Mitchell.

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As far as Mitchell's claims were concerned, the trial court stated it would bifurcate all of Mitchell's claims whether they were equitable or legal in nature. The court adopted the arguments of Linda's counsel that some of the claims were equitable and some were legal, but they were best addressed at a jury trial. The court permitted Mitchell to file an amended petition incorporating the breach of contract claim. The court would then address the statute of limitations issue. However, Mitchell's amended petition did not include a breach of contract claim.

At the trial scheduled for June 25, 2007, Linda appeared with counsel, but neither .lohn or Mitchell appeared. They were presumably pro se at the time. The court stated that at 8 a.m. the court had been advised that John was in the hospital having allegedly suffered a heart attack. Upon request of counsel, the court stated that John's and Mitchell's pleadings would be struck and Linda granted default judgment unless they provided some written documentation from a medical doctor as to the nature and extent of John's medical problems.

At the trial rescheduled for June 28,2007, Linda appeared with counsel, Mitchell appeared pro se, and John did not appear. The trial judge stated: "1 had an opportunity to review the content of the affidavit as well as the discharge . statement as it related to John Sigg and concluded that none of the affidavits nor the discharge statement would, in view of the objection of the petitioner in this case, justify a rescnedul'i ng as requested . ...

" .. . Much of the work of that case has already been done by the Special Master and it could note the respondent in that case, John Sigg, does not appear. And in line with the Court's admonition, the Court will order that any pleadings that he has filed in that case as they relate to the issues that we are addressing today be struck in that the petitioner's prayer for reliefbe sustained. Subject, of course, to her proving ofth~ claims that are not established by the petition itself."

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The court also noted that all parties had ample opportunity and notice to comment on the Special Master's fmdin'gs, but no objections were filed with the court. The court instructed the parties that it would hear th,e evidence presented by Linda and then make a ruling probably in line with the Special Master'S findings, but that the judgment would be subject to any claims that were found to exist against either John or Linda by virtue of Mitchell's allegations and proceedings involving those claims.

Linda presented witness and documentary evidence in support of her domestic relations affidavit and a division of the couple's marital estate. Since Linda. presented evidence of fraudulent transfers, the trial court stated that normally the defense would come forth with evidence to rebut the fraudulent claims. The court summarized Mitchell's claims that the transfers were legal based on an oral or written contract or several other tort related claims. Mitchell was not prepared with any witnesses or evidence to rebut the claims of fraudulent transfer. The court ordered Mitchell to present a list of witnesses and summary of testimony to the court by July 6, 2007, with response from Linda's counsel by July 10,2007. The court continued the trial until July 16,2007, with the parties ordered to address the s'ervice of the restraining order and the service of the petition as effecting the legality oftbe alleged fraudulent transfers.

On July 16,2007, all parties appeared and all were represented by attorneys. The tria.! court addressed John's claim that the SpeCial Master's report was prepared without a copy of the alleged written contract from 1984. The court responded that all parties were given generous deadlines for submission of documents prior to tbe preparation of the Special Master's report. The court recognized that John and Mitchell appeared pro se at various times, but they failed to submit the 1984 contract or an alleged offer of settlement to the Special Master who took over a year to prepare his report. The court stated that it bad already bent the rules in even considering the alleged 1984 contract in the proceedings.

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At that point at the July 16, 2007, hearing, Mitchell's new attorney argued that the civil case and the domestic case should not be considered together and that Mitchell was entitled to a jury trial on various claims. The trial court explained the reasoning why Mitchell was brought into the case as a third-party and that no requests for jury trial were entered in the response to the third-party pleading. Mitchell's attorney stated that a couple months earlier the cou.rt had decided that it would set Mitchell's case, at least the civil portion of it, over for jury trial because of the mixed questions of law and fact.

The trial court responded that identification and division of marital assets had been the goal from the beginning of the case. The court appointed a Special Master to determine the marital property. There was no objection by either John or Mitchell to the Special Master's report. The court stated that John's and Mitchell's failure to respond, failure to appear, failure to have and keep counsel, and failure to identify witnesses had been to th.e prejudice of Linda. The court adopted the Special Master's report, heard evidence from Linda, and struck John's pleadings because he had failed to suffiCiently respond. The court allowed Mitchell to present evidence of his contract claim. The judge stated: "Now we see the issue raised as to his right to ajury trial as to that claim. Notwithstanding the fact that there's not been-l don't know, I can't find all of the pleadings, whether there was ever a demand for jury trial or not. If there was ever a demand J suppose that issue goes away. But we still have to try in some fashion Mitchell Sigg's ·claim, as we need to address Mrs. Sigg's concern about the diminution of marital assets after the filing. Now, whether we want to structure these simply by way of Pretrial Order or whether you want to re-plead the case- if it's re-plead this may well change the burden of,proof on some issues and so forth and that, of course, concerns me."

The trial court further stated that Count 1 of MitcheIJ's civil lawsuit was a declaratory judgment action and was a matter for the court. The court stated Mitchell's claims of representations and contracts were consolidated with the domestic case "which

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of course is a matter for the Court, that there would be no need . .. as it's pled to permit the jury to consider that claim. So let's understand that ifthere is a motion for jury trial at that juncture it's denied."

Linda's attorney stated the fraudulent transfer of property had been an issue from the filing of the petition and there had not been a request for a jury trial in John's answer. The trial court stated, "Let's understand then as to that claim there was no request for a jury trial and it's appropriately on for consideration by the Court." After finding the domestic case was finished and adopting the Special Master's report, the trial court stated:

"So accordingly there's no need in the Court's view to revisit the issues surrounding the domestic case itself. There is, however, the Count 1 of the claim that was asserted by Mitchell Sigg in 04CV22.lnthat regard the Court finds that claim asserts equitable rciief, and accordingly .. . any request for jury trial by Mitch~J1 Sigg, or for that matter John Sigg, as to that issue is denied."

The trial court agreed to hold a trial on Mitchell's claim to the martial assets on August 28 and 29, 2007. The right to a jury trial in a civil proceeding in Kansas is not absolute. Constitutional and statutory provisions establish general principles to be followed by the

courts in determining whether one is entitled to a jury trial. A civil litigant's constitutional right to a trial by jury (U.S. Const., Amend; VII: Kan. Const., Bill of Rights, § 5) is predicated on whether the action at common law was one of law or in equity. At common law, a party is not entitled to a jury trial as a matter of right in equity suits. Vanier v. Ponsoldt, 251 Kan. 88, 104, 833 P.2d 949 (1992). In an action for a divorce involving an

equitable division of property between the parties, a jury trial is not a matter of right. See McCain v. McCain, 219 Kan. 180, 787, 549 P.2d 896 (1976) (The district court is not

required to award to each the property inherited by each during the marriage, but it is required to make afair and equitable division of the property.); In re Marriage of 14

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Yisrael, No. 95,n8, unpublished Court of Appeals opinion filed March 16,2007, rev. denied 284 Kan. 946 (2007) ("Because a divorce proceeding is equitable in nature, there is no right to a jury trial").

Additionally, in determining whether a party is entitled to a jury trial the trial court should look at the essential nature of the controversy between the parties. This principle is reaffirmed in our statutes, K.S.A. 60-238 and K.S.A. 60-239 . K.S.A. 60-238(a) provides: "The right of trial by jury as. declared by section 5 of the bill of rights in the Kansas constitution,and as given by a statute of the state shall be preserved to the parties inviolate." K.S.A. 60-239(a) provides:

"By jwy. When trial by jury has been demanded as provided in K.S.A. 60-23 8,

the action shall be designated upon the docket as ajury action. The trial of all issues so demanded shall be by jury, unless (I) the parties or their attorneys of record, by written stipUlation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or ofits own initiative find s that a right of trial by jury of some or all of those issues does not exist under the constitution or statutes."

In Sutherland v. Sutherland, 187 Kan. 599, 358 P.2d 776 (1961.), the plaintiff to convey real estate. In sought an action to enforce the specific perfOl1llance of a contract . . response, the defendant alleged fraud and coercion by the plaintiff in procuring the execution of the contract and upon a charge of grossly inadequate consideration, along with a prayer for cancellation and rescission ofthe contract. In aeciding that substance controlled over form, the court stated the real controversy between the parties was whether a contract for the conveyance of real estate should be enforced. In denying the defendant's request for a jury trial, the court stated:

"The appellant isolates the issues offraud , coercion, failure of consideration, and undue influence and cites cases in which it was said on such issues the parties were

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entitled to a jury trial. An examination of the cases cited in this connection discloses that those actions presenting such issues were not equitable in nature. Even though the issues of fact isolated by the appellant on many occasions are presented to ajury for its consideration , once a court has taken jurisdiction of an action equitable in nature for a valid judicial purpose, it retains jurisdiction for all purposes necessary to do complete justice as between the parties relating to the subject matter of the suit. Equity will give whatever reliefthe facts warrant. (Mingenbackv. Mingenback, 176 Kan. 471, 271 P.2d

782.) The appellant not being entitled to a jury trial as a matt~r of right, the trial court was well within its power and discretion when it ruled the issues offaet would he determined by the court. (See, Fisher II. RakestrCIW et aI., [117 Kan . 441 J, and cases cited therein .)"

187 Kan. at 602-{)3 .

The trial court did not err in denying Mitchell a jury trial. In this divorce proceeding between John and Linda, the division of marital property was an equitable proceeding. Mitchell's claims ultimately pertained to the nature and extent of his ownership of marital assets and the value of such property. The joinder of Mitchell as a party to the divorce action was appropriate in light of the substantial transfers of property to him by John. Although the issues of fraud and breach of contract would norrnally permit a jury trial, in the context of equitable division of property, aJl issues are encompassed within the equitable proceedings . As was the case in Sutherland, once a court has taken jurisdiction of an action equitable in nature for a valid judicial purpose, it retains jurisdiction for all purposes necessary to do compl.ete justice as between the parties relating to the subject matter of the suit. 187 Kan. at 602.

In their next arugment, Mitchell and .Tohn argue the trial court only had jurisdiction over the marital property after commencement of the divorce proceedings. They argue that a significant portion of the property had been transferred before Linda's divorce petition was filed, and all of it except for Linda's half-interest in the parts store had been transferred before the divorce petition was served.

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Whether the trial court had jurisdiction over the property is a question oflaw encompassing an unlimited standard of review. See Harsch v. Miller, 288 Kan. 280, 286, 200 PJd 467 (2009). If the record on appeal shows that this court does not have jurisdiction, the appeal must be dismissed. In re Guardianship of Sokol, 40 Kan. App. 2d 57,60, 189 P.3d 526 (2008). The trial court's interpretation of the marital property statutes also encompasses an unlimited standard ofreview. See In re Marriage of

Monslow, 259 Kan. 412, 414,912 P.2d 735 (\996).

K.S.A. 23-201(b) provides that all property owned by married persons shall become marital property "at the time of commencement by one spouse against the other of [a divorce] action" regardless of when it is acquired or how it is titled. Each spouse has a vested interest in the property of the other, the extent of which must be determined and finalized by the court, pursuant to K.SA 60- 1610. K.S.A. 23-201(b).

Mitchell argues that K.S.A. 23-201 addresses the property rights of two married people, not remedies against a third party and does not provide for a reclaiming of property transferred to a third party. He also states that under K.S.A. 23-20 1 John has the ability to do what he wished with his property up until the commencement of the divorce proceedings and K.S.A. 23-201 creates jurisdiction over the marital property only after commencement of the divorce, not simply the filing of the divorce petition. Mitchell cites K.S.A. 60-203(a) for his argument that a civil action is only commenced after service of process is obtained. If service is obtained with.in 90 days, the date of filing is the commencement date. If service is obtained outside of 90 days, then the commencement date is the date of service of process. K.S.A. 60-303. Mitchell rejects the testimony that one of the Sigg daughters gave Mitchell a copy ofa petition and argues this is unacceptable service and is not substantial compliance.

Mitchell and Jolm rely on Cookv. Cook, 32 Kan, App. 2d 214,83 P.3d 1243 (2003), rev. denied 277 Kan. 923 (2004), where the court addressed th.c "commencement" 17

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of a lawsuit in the context of service of process. However, the Cook discussion of the "commencement" of a lawsuit involved statute-of-limitation issues and whether a lawsuit would be time-barred: "A petitioner may commence a suit by filing a petition on the last day allowed by the statute of limitations. The petitioner then receives 90 days, or 120 days ifso extended by the court, to serve process on the defendant. K.S.A. 60-203(a)(2) provides that if service is not made within 90 days of the filing of the action (or 120 days if extended by the court), then the action is deemed commenced on the date of service of process. Lindenman v. Umscheid, 255 Kan. 610, 632, 875 P.2d 964 (1994)." 32 Kan . App. 2d at

217.

The trial court relied on Nicholas v. Nicholas, 277 Kan. 171 , 83 P.3d 2 14 (2004), and

Cady v. C,ady, 224 Kan. 339, 581 P.2d 358 (1978). Mitchell argues neither of the cases raised the issue of commencement of the proceedings or whether service was within 90 days. The Cady court stated: "The filing for divorce, however, has a substantial C'lfect upon the property rights of the spouses. At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or jointly held . The court is obligated to divide the property in ajust and equitable manner, regardless of the title or origin of the property. [Citations omitted.] "We hold that the filing of a petition for divorce or separate maintenance creates

a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-161 O(b). Except for those rights which vest by virtue ofthe filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spolJse to convey, sell or give away slJch property." 224 Kan. at 344.

Mitchell argues that proper commencement is the means by which the court obtains its power to act an.d until commencement the court has no jurisdiction over him or 18

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his property. He suggests that personal and subject matter jurisdiction are lacking until service of process is obtained. See Waterview Resolu.tion Corp. v. Allen, 274 Kan. 1016, 1023-24, 58 PJd 1284 (2002); Crane v. Mitchell Cau.nty US.D. No. 273,232 Kan. 51, 56,652 P.2d 205 (1982). We disagree.

"Personal jurisdiction is defined as the court's power over the defendant's person and is required before the court can enter a judgment." In re Marriage ofSalas, 28 Kan. App. 2d 553, 555,19 P.3d 184 (2001). Personal jurisdiction over the defendant is acquired by issuance and service of process in the method prescribed by statute or by the defendant's voluntary appearance. Cartington v. Unseld, 22 Kan. App. 2d 815, 818-19, 923 P.2d 1052 (1996). However, the divorce proceeding gave the trial court jurisdiction over all marital property. See In re Marriage of Salas, 28 Kan. App. 2d 553, Syl. ~ 1 ("In a divorce action, a Kansas court that lacks personal jurisdiction over a respondent may decide only the status of the parties and the division of any marital property within Kansas' borders."). K.S.A. 23-201(b) did not alter preexisting common law. It merely emphasized that, under Kansas law, each divorcing spouse has an coownership interest in all marital property and any transfer of such property between them t6 effectuate a fair, just, and equitable property division is a transfer between coowners. See In I·e Marriage of Smith, 241 Kan. 249, 252, 737 P.2d 469 (1987). This emphasis was needed be·cause the Internal Revenue Service had earlier sought to treat such transfers as gain-generating and thus taxable. See United States v. Davis, 370 U.S. 65, 67·69,8 L.

E1. 2d 335,82 S. Ct. 1190,

reh. denied 371 U.S. 854 (1962).

Kansas law clearly provides that all property of the parties, however and whenever acquired, comes under the jurisdiction of the divorce court and may be equitably divided

between them. K.S.A. 23-201(b); In re Marriage of Rodriguez, 266 Kan. 347,352-53, 969 P.2d 880 (1998). 19

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In this case, we are not dealing with statute of limitations issues. The filing of the divorce gave the trial court jurisdiction over a1l martial property. Encompassed within the determination of marital property is recognition of prefiling and postfiling transactions that dissipated the martial assets.

Next, Mitchell argues the trial court cannot substitute its own causes of action for the parties during and after the trial.

A trial judge is given broad discretionary power to amend the pleadings, and the exercise of such discretion will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 92, 484 P.2d 38 (I 971) . In Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P.2d 139 (1966), the executrix of an estate brought an action claiming that money in a joint tenancy bank account in the names of the decedent and defendant was an asset of the decedent's estate. During the trial, the trial judge injected equitable issues on his own motion without a request by the executrix to amend her petition pursuant to K.S.A. 60-21S(b). The Simonich court noted that the trial judge had abused his discretion by injecting equitable issues into the case which were completely outside of the pleadings and the evidence. 197 Kan. at 424-25.

Mitchell and his business entities were added to the divorce proceedings in March 2003. He filed his civil suit in June 2004.

~owever,

the written contract that formed the

foundation of Mitchell's claim did not appear in the proceedings until May 19, 2007. On and offthrotighout the proceedings John and Mitchell appeared pro se. A reading of the record demonstrates how the trial court assisted and accommodated these pro se litigants. See In re Estate of Broderick, 34 Kan. App. 2d 695, 701, 125 P.3d 564 (2005) ("While pro se pleadings are to be liberally construed so that relief may be granted if warranted by 20

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the facts alleged, this simply means that the substance ofthe pleading controls over its label. "). Mitchell argues that he plead a number of causes of action that have simply vanished. The trial court consolidated Mitchell's declaratory judgment claim but stayed all the additional claims in his civil lawsuit. Those claims still remain. For purposes of dividing the martial property, the only claim raised by Mitchell to help resolve the division was his declaratory judgment claim which the trial court recognized was based on a breach of contract. We find no abuse of discretion in the trial court's decision to allow Mitchell to amend his petition in order to frame the pleadings in a manner consistent with the parties' allegations. We do not find the trial court's narrowing of the scope of the issues in this case prejudiced either John's or Mitchell's substantive rights in defending a fair and equitable distribution of the martial property. One of Mitchell's most important arguments on appeal is that he alleges the trial court failed to enter a fair, just, and equitable distribution of the martial property under K.S.A. 60-1610. Mitchell challenges the valuation, ownership, and tax consequences of the court's propcrty division based on the Special Master's report. The Special Master took nearly 2 years to prepare his report. After much notice, time, and repeated requests, Mitchell failed to provide any documents to the Special Master during preparation of the report and failed to raise any challenges after completion of the report. We will not entertain those now. Further, Mitchell lacks standing to object to a fair and reasonable division of property where he is not a spouse in the divorce proceeding. See Board of Sumner County Comm'ys v. Bremby, 286 Kan. 745, 750-51 , 189 P.3d 494 (2008) (standing is a

jurisdictional qucstion whereby courts determine "'whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf."'). 21

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A review of John's appellate brief does not disclose any indication that he challenged the fair and reasonable division of the marital property by the trial court. John challenged the joint and several nature of the trial court's division of the marital property, but he does so using the oft-repeated arguments that Linda did not file a cross-claim against John in Mitchell's civil lawsuit and that Linda cannot assert a claim for fraud in a divorce action. John argues that Linda failed to file an independent cause of action seeking joint and several liability for the alleged fraudulent conveyances and therefore joint and several liability was not before the trial court.

John was liable for all assets in the divorce needed to fulfill the equalization judgment. When the trial court decided that Mitchell was jointly and severally liable for those same assets, and Mitchell did not raise this issue on appeal, John has no standing to challenge that finding. See Bremby, 286 Kan. at 750-51.

. Next, JaM argues the trial court erred in striking his pleadings.

The motion to strike is governed by the Rules of Civil Procedure, K.S .A. 60212(f), which provides: "Molion 10 strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this article, upon motion made by a party within 20 days after the service of the pleading upon such party or upon the court's own initiative at any time, the judge may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

An order to strike is not "appealable unless it has the features of finality by serving the same purpose as a demurrer to test the sufficiency of a claim or defense. " 4 Gard & Casad; Kansas Law and Practice, Kan.sas C. Civ. Proe. Annot. § 60-212, p. 74 (4th ed. 2003); see Harris v. City a/Topeka, 180 Kan. 758, Syl.

22

~

1, 308 P.2d 88 (1957); cf G.S

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Johnson Co. v. N. Sauer Milling Co., 148 Karl. 861, Syl. 'Ill, 84 P.2d 934 (1938) (where

certain allegations in petition involve merits of the cause of action, order to strike allegations is appealable order and is equivalent to order sustaining demurrer).

John argues that K.S.A. 60-212(f) does not provide for a wholesale striking of every pleading filed by petitioner or respondent. He maintains that striking his pleadings amounted to an involuntary dismissal of his defense. Ifthis amounted to a dismissal for lack of prosecution, John states that he was entitled to 10 days prior notice under K.S.A. 60-241 (b)(2). Ifthis amounted to a default judgment, John states that he was entitled to 3 days prior notice under K.S.A. 60-2S5(a). John argues that the divorce proceedings are e'quitable in nature and the conduct of the trial court in striking his pleadings was inequitable arid denied him his day in court after having been in the divorce action for many years.

We have noted a somewhat similar case where the court granted a motion to strike pleadings. In re Marriage o/Knight, No. 96,010, unpublished opiniop filed February 16, 2007, rev. denied 284 Kan. 945 (2007), Dawn (wife) filed numerous pro se pleadings

replete with fanciful arguments and extensive nonlegal references. Denis (husband) moved for an order "striking and returning to [Dawn]" certain documents of her pro se pleadings, to "accept no further submissions to the Court which are without merit," and to "prohibit [Dawn] from filing similar pleadings in this matter." Slip op. at 2. Both motions were set for hearing on November 10,2005, and Dawn was served by first class mail. On December 16, 2005, the trial judge signed ajoumaJ entry memorializing the results of the hearing. The journal entry showed Denis appeared in person with counsel, but that Dawn did not appear. The district court found Dawn had been given notice of the hearing and then sustained Denis' motion to strike certain pleadings. The Knight court found no error in the trial court's exercise of jurisdiction or authority in ruling on matters memorialized in the December 16, 2005, joumal entry. Slip op. at 7.

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In the case at bar, a reading of the transcript of the June 25, 2007, hearing shows problems caused by John and Mitchell. The divorce proceedings had carried on for over 6 years and both John and Mitchell had a. la.undry list of attorneys who had withdrawn their representation which unnecessarily slowed down the proceedings. John and Mitchell appeared pro se at various times, and the trial court was frustrated that neither of the two appeared at the hearing on June 25, 2007, when that trial date had been set for quite some time. The court was sympathetic to John's hospital situation and possible health problems, but it was skeptical enough of the situation that it ordered John to explain his failure to appear and provide appropriate documentation of the health concerns resulting in hospitalization.

There is a burden of proof proble,m in this case. John argues the trial court erred in its interpretation of two affidavits and a review of a hospital discharge summary in deciding to strike John's pleadings. However, John does not provide a cite to the record indicating where those documents are located in the appellate record, if at all, or does he discuss the alleged health concerns in his appellate brief, "An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails." Kelly v. VinZant, 287 Kan, 509, 526, 197 P.3d 803 (l008), We agree with Linda that it is clear the court did not grant a default judgment in her favor, The trial court required Linda to provide evidence and testimony in support of the allegations in her petition. Considering the circumstances under which the trial court granted the motion, we find no abuse of discretion in the trial court's decision to strike John's pleadings.

Next, John argues the trial court lost jurisdiction over him in Mitchell's civil case when he was dismissed from that case. He contends the trial court could not have entered an order in favor of Linda when she did not file a counterclaim or cross-claim in Mitchell's civil suit.

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Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. See Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).

The procedural posture of this case is set forth above. John claims the procedural nugget critical to this issue is that Linda filed an answer to Count I of Mitchell's civil suit when it was consolidated with the divorce proceeding, but failed to assert a counterclaim against John as required by K.S.A. 60-213(a). Therefore, John contends that any claim Linda wished to assert aga.inst John in Count I of Mitchell's civil claim was waived. See K.S.A. 60-213(a)(compulsory counterclaims). Within this section of his brief, John again intermingles his claims that it was improper for the trial court to consider the fraud claim in the divorce proceeding and the trial court improperly denied a jury trial. Therefore, since Linda failed to raise a counterclaim in answering Count I of Mitchell's petition, then the fraud claim was lost. John argues the court could not procedurally modify Mitchell's claims in his civil suit and the pretrial conference order was not properly modified, or modified at all, in violation ofK.S.A. 60-216.

John was dismissed from Mitchell's civil suit. .lohn argues th.e legal effect of his dismissal prevented any orders of the court from applying to him. See Brower v. Bartal, 268 Kan. 43,46,990 P.2d 1235 (1999) (This case was originally filed against Bartal and was terminated by a voluntary dismissal. At that point, there was no case against Barta\. The rema.ining case was against Shapiro.).

Any prejudice that could be argued is not existent in this case. If John was not allowed to participate in the civil proceedings, yet the court's order affected his rights, prejudice could be argued. However, even after John was dismissed from Mitchell's lawsuit, the court allowed John to continue to participate in the trial, examining witnesses and presenting evidence at subsequenthearlngs.

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Jolm argues the facts and evidence presented in the civil suit had no application to him when the trial court reached its determination and rendered its final verdict. We disagree. The divorce case and Mitchell's civil suit were consolidated for determination of a fair and equitable division of the marital property. The fact that John was dismissed from Mitchell's civil lawsuit did not alter the court's jurisdiction over the parties to the divorce, all necessary third-party respondents, and all of the marital property.

Last, John argues the trial court erred in fmding that Linda's attorney, Steven B. Doering, did not have a conflict of interest. The trial court addressed this argument at three separate times raised by three separate attorneys.

The determination of whether an attorney has a conflict of interest requiring disqualification is governed by an abuse of discretion standard. In re Habeas Corpus

Petition of Hoang, 245 Kan. 560, 566-67, 781 P.2d 731 (1989), cert. denied 494 U.S. 1070 (1990). A determination of disqualification will be sustained where the court, in its sound discretion, finds either an actual conflict or a serious potential for conflict. Wheat

v. United States, 486 U.S. 153, 164,100 L. Ed. 2d 140, 108 S. Ct. 1692.• reh. denied 487 U.S. 1243 (1988).

In Chrispens v,. Coastal Refining & Mktg., Inc., 257 Kan. 745, 897 P.2d 104 (1995), the court set forth several guiding principles to address MRPC 1.9 (I 994 Kan. Ct. R. Annot. 320): (l) An irrebuttable presumption arises that the attorney acquired confidential information in the former representation and is disqualified from representing the former client once it has been established that an attorney has formerly represented a client and seeks to represent another person in the same matter in which that client's interests are materially adverse to the interests of the former dient; (2) disqualification under MRPC 1.9(a) is "automatic" and requires no hearing. In fact, the

Chrispens court stated that the district court should not hold a hearing but need only make the straightforward determinations whether the attorney formerly represented a 26

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client in a matter and seeks to represent another client the same (or substantially related) matter; and (3) the burden under MRPC 1.9 is upon the moving party asserting the conflict. 257 Kan. 757-59.

John mistakenly contends that the trial court found that a partnership existed among the parties. Upon reconsideration, the court found it had erred in this regard. Consequently, John's arguments are without merit John objected to Doering's representation of Linda based on Doering's prior representation of Sigg Auto Parts. John argued he did not consent to Doering's representation of Linda, who was a coowner of Jolm's business, in the very proceeding that was to decide the final ownership of that business. John also cited prior instances where Doering represented him.

There were several proceedings (September 2002, July 2005 , and October 2007) where the trial court addressed a motion to disqualify Doering. In September 2002, John testified he and Mitchell had two or three conferences with Doering in 1995 to discuss estate planning and asset protection, and Doering had seen Jolm's 1993 and 1994 tax information. On the other hand, Doering testified he met with John in 1993 to address a driveway problem at the car lot and a new highway widening project. They met again in 1993 to discuss a plumbing permit and a lawsuit that had been filed against John by a plumber named Paul Sinclair. Doering stated John indicated he already had an attorney, and Doering told him to remain with his current attorney. Doering testified that in 1995, Jolm and Mitchell were in his office to talk about the Sinclair case again and they had been through several attorneys at that point in time. Doering examined the court file in the Sinclair case, talked with one of the prior attorneys in the case, discovered the attorney had not been paid for the work he had done, and concluded that John and Mitchell had not been straightforward with their last attorney. Doering returned the $500 retainer and tenninated his relationship with John by certified maiL Doering said there were no estate plarming discussions or any $1,000 cash payment.

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After the hearing on September 5, 2002, the trial court denied the motion to disqualify. The court held that ifany attorney-client relationship ever existed, it was for a short period of time wd occurred over 7 years prior to this case. The court stated that any information Doering would have received from the alleged tax returns was information that could, and was obtained, through discovery.

In 2002, Jo1m's attorney was Robert Farmer. In July 2005 , John's attorney was Glenn Casebeer and Mitchell's attorney was Gary Willnauer. The July 2005 hearing was a status hearing on the preparation of the Special Master's report. Willnauer resurrected the motion to disqualify Doering. Willnauer presented evidence that Doering had actually represented John and Mitchell in another proceeding, an oil and gas lease situation, from 1983- 1988, and also when a vehicle at the car lot had been vandalized. The trial court concluded that John and Mitchell failed to prove that there was any discussion in 1995 of estate matters or asset management. The trial court held that the divorce proceedings at hand were not substantially related to anything that previously occurre4 between Doering and the Siggs, and that neither John nor Mitchell provided any information as to how the previous contacts created any advantage for Linda.

In October 2007, Russell Mills was John 's attorney. In the context of addressing Linda's objection to allow Doering's deposition, Mills objected to Doering's representation of Linda based on John's part ownership ofSigg Auto Parts. Mills argued that since Doering represented Sigg Auto Parts, a conflict of interest was present where the ownership of Sigg Auto Parts was in question. The trial court held there was never any evidence or allegation that Doering represented Sigg Auto Parts, nor had Sigg Auto Parts ever been listed as a party in the action, and the fact that Linda took over control of Sigg Auto Parts after the issuance of the restraining order did not change Doering's representation.

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John cites In re Estate a/Richard, 4 Kan. App. 2d 26, 602 P.2d 122 (1979), rev.

denied 227 Kan. 927 (1980), for the general principle that where an attorney violates of the Code of Professional Responsibility and causes prejudice to the former client, the trial court errs in failing to remove the attorney. He cites Barragee, v. Tri-County Electric

Coop, Inc., 263 Kan. 446, 460, 950 P.2d 1351 (1991), where the court stated: "Concurrent representation of clients with adverse interest is prima /ascie improper." He also cites Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377, 66 L. Ed. 2d 571 , 101 S. Ct. 669 (1981), where the Court stated that "[aJn order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after the final judgment."

The Kansas Rule of Professional Conduct (KRPC) 1.9 (2009 Kan Ct. R. Annot. 490) establishes a two-part test to be used to determine if a conflict of interest may exist between a lawyer's present representation and representation of a former client. See

Hoang, 245 Kan. at 565-66. The party alleging a conflict of interest violation has the burden of proof. State v. Drach, 268 Kan.636, 643, 1 P.3d 864 (2000).

KRPC 1.9 (2009 Kan. Ct. R. Annot. 490-91), "Duties to Former Clients," provides:

"Ca) A lawyer wh o has fonnerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former c1icnt"~jves infonned consent, confinned in writing. "(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a finn with which die lawyer fonnerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired infonnation protected by Rules 1.6 and 1.9(c) that is material to the matter;

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Unless the fonner client gives informed consent, confinncd in writing. "(c) A lawyer who has formerly represented a client in a matter or whose present or fonner firm has formerly represented a client in a matter shall not thereafter: (I) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client."

The Comment section to KRPC 1.9 addresses the exact nature of the problem in the present case:

"[2] The scope of a 'matter' for purposes of Rule 1.9(a) depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually disl:inct problem of that type even though the subsequent representation involves a position adverse to the prior client. .. .

"[3] Matters are 'substantially related' for purposes of this Rule if they involve the same transa,ction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would nonnally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.

For example, a lawyer who has represented a businessperson and learned extensive private financial informarion aboul that person may not then represent that person's spouse in seeking a divorce." (Emphasis added.) (2009 Kan . Ct. R. Annot. 491-92) .

.

We are hard pressed to find an abuse of discretion in the trial court's decision that John failed in his burden to prove a reversible conflict of interest in Doering's representation of Linda. The present case does not fall within the example set forth in the Comment section ofKRPC 1.9. While there is evidence that Doering had contacts with

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John and represented him in matters years before the divorce, John has faired to prove the matters were the "same or substantiaJly related" to the property division issues currently before the court. Relying on the language KRPC 1.9, there is scant evidence that Doering "learned extensive private fhlancial information" in the prior representations. KRPC 1.9 (2009 Kan. Ct. R. Annat. 492). John has failed to meet his burden of proving the "same or substantially related" proceedings. In the prejudice category, John has failed to show that any information obtained in the prior representation has been used by Linda to his detriment or disadvantage. The fact that Doering believed John and Mitchell were untrustworthy is not confidential information obtained from prior representations.

Affirmed.

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