                                        No. 118,676

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                              In the Matter of the Marriage of
                                      ERIC G. STROM,
                                         Appellant,

                                             and

                                   CHRISTINA A. STROM,
                                        Appellee.


                              SYLLABUS BY THE COURT


1.
       K.S.A. 2017 Supp. 60-2403 governs dormancy of judgments.


2.
       Interpretation of a statute is a question of law over which appellate courts have
unlimited review.


3.
       K.S.A. 2017 Supp. 60-2403(a) applies to judgments in divorce actions.


4.
       Under the facts of this case, the parties agreed in the property settlement
agreement that husband would pay the wife monthly installment payments representing
one-half of his military retirement pay until the death of either party.




                                              1
5.
       Because the length of the marriage was less than 10 years, the military finance
center would not recognize the assignment of husband’s military retirement pay to the
wife. See 10 U.S.C. 1408(d)(2) (2012).


6.
       The same rules that apply to alimony and child support installments also apply to a
judgment for division of property which is payable in installments commencing in the
future and payable over a term of years.


7.
       As to a judgment payable in installments, the dormancy period commenced as to
each installment when it became due and was collectible by execution or other legal
process.


       Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed January 11, 2019.
Affirmed.


       Todd A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for appellant.


       Bentson Oleen, of Oleen Law Firm, LLC, of Manhattan, for appellee.


Before BRUNS, P.J., BUSER and SCHROEDER, JJ.


       SCHROEDER, J.: As part of his 1995 property settlement agreement approved by
the district court, Eric G. Strom agreed to pay his former wife, Christina A. Strom, a
portion of his military retirement pay until one of them dies. For reasons not reflected in
the record, no payments have been made to Christina for over 22 years. The district court
determined the agreement to pay part of Eric's military retirement pay each month created
a monthly judgment as each month passed. In doing so, it found the judgments for the last

                                                 2
five years enforceable and for years six and seven revived. Eric appeals. We agree with
the district court on this point and affirm.


                                                 FACTS

       Eric and Christina Strom married in 1986 and divorced in 1995. At the time of the
divorce, Eric had retired from the military and was receiving military retirement benefits.
In the Separation and Property Settlement Agreement (Agreement), Eric agreed to give
Christina a portion of his military retirement benefits:


               "2.10 Military Retirement Pay. The HUSBAND agrees that during this
       marriage the WIFE has earned an independent property right to a portion of his military
       retirement. The HUSBAND agrees that the WIFE should be entitled to receive as her
       share fifty percent (50%) or Seven Hundred Forty-Three and No/100 Dollars ($743.00)
       of his military retirement pay, which he is presently receiving, commencing on the first
       day of the month following the finalization of this divorce for a period of ten (10) years.
       After July 1, 2005, the WIFE shall be entitled to receive twenty percent (20%) of
       HUSBAND's military retirement pay.
               "The WIFE shall receive by direct payment from the military finance center the
       amount set forth above less Federal and State Income tax withholding deductions. The
       HUSBAND agrees to provide any information or documentation the WIFE may need to
       complete her request for direct payment of disposable military retirement pay from the
       Military Finance Center.
               "Payments to the WIFE shall terminate upon the death of the WIFE or
       HUSBAND, whichever occurs first.
               "Each party shall be responsible for their own taxes due to their income from the
       military retirement."


       The district court approved the Agreement and incorporated it as part of the
divorce decree. Eric never made any payments under the Agreement.




                                                    3
       Almost 22 years later, in 2017, Eric moved to declare the division of his military
retirement account to be void and an unenforceable judgment. He asserted the judgment
was dormant because Christina failed to file a renewal affidavit within five years of the
divorce and did not revive the judgment within seven years of the divorce. Eric also
asserted the judgment should be barred by laches because Christina waited more than 21
years to attempt to enforce the judgment. Christina then moved to enforce the judgment
and to revive the judgment.


       The district court initially denied Christina's motion to enforce the judgment
finding the division of retirement benefits was a dormant judgment because Christina had
the ability to enforce her judgment by filing a qualified domestic relations order (QDRO).
The order did not address Eric's laches argument.


       Christina moved for reconsideration, pointing out she was not eligible to receive
direct payment of Eric's military retirement under federal statute because they were not
married for 10 years. She argued the judgment required installment payments and, as a
result, each payment expired seven years after it became due instead of the entire
judgment expiring in 2002. The district court agreed with Christina's argument and held
all payments after September 1, 2010, were revived and enforceable. The district court
did not address whether laches applied.

The judgment is subject to reviver.

       Eric argues the district court erred when it granted Christina's motion to enforce
the judgment because the judgment was dormant. Since K.S.A. 2017 Supp. 60-2403
governs dormancy of judgments, this court has unlimited review. See Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015) (holding interpretation of a statute
is a question of law over which appellate courts have unlimited review).



                                             4
       The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language, and it should
refrain from reading something into the statute that is not readily found in its words.
Where there is no ambiguity, the court need not resort to statutory construction. Only if
the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history to construe the Legislature's intent. Ullery v. Othick,
304 Kan. 405, 409, 372 P.3d 1135 (2016).


       K.S.A. 2017 Supp. 60-2403 states:


               "(a)(1) Except as provided in subsection (b), if a renewal affidavit is not filed or
       if execution, including any garnishment proceeding, support enforcement proceeding or
       proceeding in aid of execution, is not issued, within five years from the date of the entry
       of any judgment in any court of record in this state, including judgments in favor of the
       state or any municipality in the state, or within five years from the date of any order
       reviving the judgment or, if five years have intervened between the date of the last
       renewal affidavit filed or execution proceedings undertaken on the judgment and the time
       of filing another renewal affidavit or undertaking execution proceedings on it, the
       judgment, including court costs and fees therein shall become dormant, and shall cease to
       operate as a lien on the real estate of the judgment debtor. When a judgment becomes and
       remains dormant for a period of two years, it shall be the duty of the judge to release the
       judgment of record when requested to do so.
               (2) A 'renewal affidavit' is a statement under oath, signed by the judgment
       creditor or the judgment creditor's attorney, filed in the proceedings in which the
       judgment was entered and stating the remaining balance due and unpaid on the judgment.
               ....




                                                    5
               "(c) The time within which action must be taken to prevent a judgment from
       becoming dormant does not run during any period in which the enforcement of the
       judgment by legal process is stayed or prohibited."


       K.S.A. 2017 Supp. 60-2403(a) applies to judgments in divorce actions. See Bank
IV Wichita v. Plein, 250 Kan. 701, Syl. ¶ 3, 830 P.2d 29 (1992); see also In re Marriage
of Larimore, 52 Kan. App. 2d 31, 42, 362 P.3d 843 (2015) (holding division of a party's
retirement account in a divorce decree is a judgment subject to K.S.A. 2014 Supp. 60-
2403 when the division is a final determination of the parties' interests in the marital
estate).


       In Larimore, the panel held K.S.A. 2014 Supp. 60-2403(c) does not toll the
running of the dormancy period for a divorce decree judgment dividing retirement plans
governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 (2012) et
seq. The panel concluded the judgment was not stayed because the legal process for
enforcing the judgment—filing a QDRO—was not stayed or prohibited before the
benefits become payable. Since the legal process for enforcing the judgment was
available to the wife, and she failed to file a QDRO or renewal affidavit within seven
years of the divorce decree, the panel held the judgment was "absolutely extinguished
and unenforceable." 52 Kan. App. 2d at 44.


       Eric argues Larimore should control. He contends Christina cannot rely on K.S.A.
2017 Supp. 60-2403(c) because "no court order, statutory tolling period or other legal
impairment" prevented her from collecting her share of his retirement account starting in
1995. He asserts the fact that some payments were not yet due did not prevent her from
executing in other ways or filing a renewal affidavit.


       Christina contends receiving direct payment from the military finance center was
impossible because the parties had not been married for at least 10 years. She contends

                                                   6
Larimore and its line of cases are distinguishable because the Department of Defense will
not pay her directly and the only way for her to receive her share of the military
retirement is for Eric to pay her. Thus, she asserts, the divorce decree set out monthly
installment payments payable over an indefinite number of months and years.


       Christina argues the divorce decree did not determine the specific amount Eric was
to pay her and, since the payments terminated upon the death of either party, there was no
way to establish the total amount of the payments. She contends the district court
"obviously retained jurisdiction to . . . enforce the parties' agreement to calculate amount
paid and owed, to determine what amount constituted 20% in accordance with the
Agreement, and to order termination of the payments upon death of either party." As a
result, Christina asks this court to apply the holding of Wichita Fed. Sav. & Loan Ass'n v.
North Rock Rd. Ltd. Partnership, 13 Kan. App. 2d 678, 684, 779 P.2d 442 (1989):


       "[T]he same rules that apply to alimony or child support installments also apply to a
       judgment for a division of property which is payable in installments commencing in the
       future and payable over a term of years.
               ....
               ". . . As to the judgment payable in installments, the dormancy period
       commenced as to each installment when it became due and was collectable by execution
       or other legal process."


       Eric argues Wichita Federal should not be expanded to apply to division of
retirement assets.


       We find Christina's argument more persuasive. This case is distinguishable from
Larimore. In Larimore, had the wife filed a QDRO, she would have begun receiving
under the retirement plan when it began to pay out. In contrast, even if Christina had filed
a QDRO, it would have been futile. Under 10 U.S.C. § 1408(d)(2) (2012), to receive a
portion of a spouse's military retirement pay directly, the parties must have been married

                                                   7
for a period of at least 10 years during which one of the parties was in the military.
Christina and Eric were only married for nine years. As a result, even if Christina had
filed a QDRO, the Department of Defense would not have honored her QDRO. The only
way for Christina to receive the military retirement pay awarded her in the Agreement
was for Eric to pay it directly, something he failed to do.


       The military retirement pay Eric agreed to pay Christina was a percentage of his
monthly payment from the Department of Defense and thus a monthly installment
payment Eric should pay each and every month as it becomes due. The Agreement states
Christina was entitled to her portion "commencing on the first day of the month
following the finalization of this divorce." The Agreement does not specify a total
amount Eric must pay Christina; it does not establish a lump sum distribution at some
point in the future and talks about the percentage owed on the first of each month. The
Agreement acknowledges the monthly military retirement payments terminate only upon
the death of either party. Because each payment was not due until the first of the month—
and only if both parties were still living—Christina could not act to enforce the judgment
before the first of each month as it became due. We find the monthly military retirement
payments should be treated like installment payments and, under Wichita Federal, the
dormancy period for each individual payment started when it became due and collectable
on the first of each month until the death of either party. The district court did not err
when it found the divorce decree "provided for monthly payments, which became
monthly judgments," now subject to execution upon for the last five years and revived for
years six and seven.


       Affirmed.




                                               8
                                            ***


       BUSER, J., dissenting: I dissent. I would reverse the district court's order and
remand the case with directions to the district court to release the judgment of record as
mandated by K.S.A. 2017 Supp. 60-2403(a)(1). In my view, this holding is statutorily
required because Christina A. Strom did not enforce her judgment by execution,
garnishment, proceedings in aid of execution, or filing of a renewal affidavit within the
requisite time period and did not revive the dormant judgment in a timely fashion. As a
consequence, the 22-year-old divorce judgment awarding Christina a percentage of Eric
G. Strom's military retirement benefits became unenforceable and extinguished. See
K.S.A. 2017 Supp. 60-2403; In re Marriage of Larimore, 52 Kan. App. 2d 31, Syl. ¶ 5,
362 P.3d 843 (2015), rev. denied 305 Kan. 1253 (2017); Long v. Brooks, 6 Kan. App. 2d
963, 966, 636 P.2d 242 (1981).


       In re Marriage of Larimore is on point and dispositive of this issue. In Larimore,
David and Janice divorced after 21 years of marriage. A settlement agreement which was
incorporated into the divorce decree divided the couple's marital property, including the
division of the parties' retirement accounts. In particular, the decree divided the parties'
retirement accounts at the Boeing Company by awarding each spouse 60% of their own
retirement accounts and 40% of the other spouse's retirement accounts.


       It was undisputed that after the divorce was finalized, neither Janice nor David
ever submitted a qualified domestic relations order (QDRO) which is the approved
method for dividing retirement accounts of divorced parties governed by the federal
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 (2012) et
seq. See In re Marriage of Behnke & Ingram, No. 112,233, 2015 WL 1311014, at *1
(Kan. App. 2015) (unpublished opinion).




                                              9
       Almost 12 years later, David filed a motion in the district court seeking an order
declaring the division of the parties' retirement accounts in the divorce decree to be a void
and unenforceable judgment because no execution was ever made and a renewal affidavit
was never filed. Of note, at the time of the litigation, David had not yet begun to receive
any retirement benefits. In response, Janice opposed the motion and asked the district
court to facilitate the filing of a QDRO to protect her interest in David's retirement
account.


       After an evidentiary hearing, the district court granted David's motion to declare
the division of the couple's retirement accounts extinguished and denied Janice's motion
to compel the execution of a QDRO.


       In its decision, the district court explained that a settlement agreement
incorporated into a divorce decree is a judgment which is susceptible to dormancy and
extinguishment if the party who obtained the judgment does not seek to enforce it in a
timely fashion. See K.S.A. 2017 Supp. 60-2403. The district court cited In re Marriage of
Smith, No. 105,365, 2012 WL 1649835 (Kan. App. 2012) (unpublished opinion), as
persuasive authority for the conclusion that no "'exception for QDROs exists to the
application of either dormancy or extinguishment.'" In re Marriage of Larimore, 52 Kan.
App. 2d at 35. Because Janice and David failed to execute upon the judgment by filing a
QDRO or obtaining a renewal affidavit in a timely fashion, the district court found the
judgment had been extinguished and ceased to exist. Janice appealed to our court.


       In a published opinion, our court in In re Marriage of Larimore established
important precedent directly applicable to the division of retirement benefits in divorce
decrees. First, In re Marriage of Larimore established that "[a] district court's division of
a party's retirement accounts in a divorce decree constitutes a judgment subject to
dormancy under K.S.A. 2014 Supp. 60-2403 when the division qualifies as a final
determination of the parties' interests in the marital estate." 52 Kan. App. 2d 31, Syl. ¶ 2.

                                             10
       In In re Marriage of Larimore, the division of retirement accounts was 60% and
40%. In the present case, the division of retirement funds was 50% of Eric's military
retirement pay for 10 years and 20% thereafter. Similar to In re Marriage of Larimore, in
this case, the divorce decree granted a final judgment based on the division of retirement
income. At the evidentiary hearing, Christina's attorney acknowledged this important
fact: "And I'm not disputing that it was a judgment, at the time the divorce decree was
entered there was a judgment." Similarly, on appeal, Christina candidly concedes that
"the 'Decree of Divorce' . . . that adopted the Agreement in this case constituted a
judgment as contemplated by K.S.A. 60-2403 language of 'any judgment.'"


       As of the filing of the divorce decree in 1995, both Eric and Christina understood
there was a judgment awarding a specific percentage of Eric's military retirement pay to
Christina for a definite period of time. There was no ambiguity and no loose ends. The
property division of the marital estate as it related to Christina's share of Eric's military
retirement pay was final.


       In re Marriage of Larimore's precedent is directly applicable to this case. This
property division of retirement benefits qualified as a final determination of the parties'
interests in the marital estate, which means the judgment was subject to dormancy under
K.S.A. 2017 Supp. 60-2403(a)(1). 52 Kan. App. 2d 31, Syl. ¶ 2; see also In re Marriage
of Moore, No. 112,047, 2015 WL 5312023, at *3-5 (Kan. App. 2015) (unpublished
opinion) (district court erred in its legal conclusion that the division of property relating
to the parties' retirement benefits was not a judgment subject to dormancy because the
division of marital property is a final determination of the parties' interests in the marital
estate).


       Given that Christina's judgment was subject to dormancy, a second important
precedent from In re Marriage of Larimore provides important guidance to the resolution

                                              11
of the issue on appeal: "Under the tolling provision of K.S.A. 2014 Supp. 60-2403(c),
the dormancy period does not run 'during any period in which the enforcement of the
judgment by legal process is stayed or prohibited.'" 52 Kan. App. 2d 31, Syl. ¶ 4.


       In In re Marriage of Larimore, for 12 years, Janice never sought to enforce the
judgment awarding her a percentage of David's retirement accounts. As justification for
her inaction, Janice argued that it was impossible for her to collect on David's retirement
benefits until he began receiving them—which had not yet happened. Our court described
Janice's argument in this way: "Janice predicates her tolling argument on her inability to
receive money from David's plans rather than her inability to enforce her interest by legal
process." 52 Kan. App. 2d at 43. In In re Marriage of Larimore, our court found that no
legal process prevented Janice from executing on her judgment. 52 Kan. App. 2d at 44.


       In the present case, unlike In re Marriage of Larimore, Christina has never
invoked K.S.A. 2017 Supp. 60-2403(c) and claimed that the dormancy period was tolled
because enforcement of the judgment was stayed or prohibited by legal process.
Moreover, the district court did not predicate its ruling on the basis that the judgment was
tolled. As a result, given that Christina was awarded a final judgment in 1995, and she
did not enforce it, renew it, or claim tolling of the dormancy period, Larimore teaches
that in accordance with K.S.A. 2017 Supp. 60-2403(a)(1) the judgment was extinguished.


       Although Christina does not claim a tolling period under K.S.A. 2017 Supp. 60-
2403(c), for 22 years she took no action to enforce her judgment awarding her a
percentage of Eric's military retirement pay which—unlike In re Marriage of Larimore—
was being continuously provided to Eric from 1995 until this litigation began in 2017. On
appeal, Christina justifies her inaction by arguing that "because the parties were not
married for 10 years, [Christina] is disqualified from receiving her share of [Eric's]
military retirement—in direct conflict with the Agreement that [Eric's] attorney drafted
and the parties signed." (Emphasis added.) I question the merit of this argument.

                                             12
       First, as we stated in In re Marriage of Larimore:


               "In particular, our court in In re Marriage of Smith[, No. 105,365, 2012 WL
       1649865, at *4-5 (Kan. App. 2012) (unpublished opinion),] found the wife's delay in
       seeking to enforce the division had caused her rights to her ex-husband's retirement
       benefits to become extinguished:
               "'To begin with, [wife] has cited no direct valid authority for the proposition that
       a QDRO is required before a judgment which divides a retirement account becomes final
       or enforceable. Nor are we aware of such. Under K.S.A. 60-254(a), a judgment is defined
       as the "final determination of the rights of the parties in an action." The decree here
       awarded to [wife] one-half of [husband]'s 401(k) account. That amounted to a final
       determination of her rights in that account. A QDRO is merely the ministerial avenue
       through which she must travel in order to obtain what she was awarded. It would not
       provide her any more than what the decree awarded her. While a QDRO may have been
       required for [wife] to actually access the portion of [husband]'s account that she was
       awarded, that has nothing to do with whether the judgment that awarded her a portion of
       the account was final and enforceable.'" 52 Kan. App. 2d at 41-42.


In other words, Christina's success or failure in obtaining a QDRO from the military
finance center had no effect on the finality of the judgment or the application of K.S.A.
2017 Supp. 60-2403.


       Second, there is no evidence that Christina ever presented a QDRO to the military
finance center, made an inquiry to Department of Defense officials in an effort to obtain
payment, or availed herself of the numerous procedures Kansas law provides to execute
on her judgment. This point was made by Eric's counsel who stated at the hearing,
"Again, Your Honor, even if she could not submit the form to DFAS, there was no
evidence to even show that that had been attempted. But even if she had, there [are] still
mechanisms in place to enforce the judgment." The district judge acknowledged the truth
of counsel's assertion stating, "I understand that."

                                                    13
       Ironically, by Christina filing a "Motion to Enforce Judgment" in 2017 wherein
she asked "the Court [to] enter an Order enforcing the judgment regarding the payment of
[Eric's] military retirement to [Christina]," she wholly undermines her argument that for
22 years she was disqualified from receiving her share of Eric's military retirement pay.
As in this case, wherein the district court ordered partial enforcement of the judgment
regarding retirement benefits upon her motion, Christina could have filed the same
motion prior to the time her judgment became extinguished and she would have been able
to obtain the full measure of retirement benefits provided by the judgment.


       In re Marriage of Larimore, 52 Kan. App. 2d at 41-42, and In re Marriage of
Smith, 2012 WL 1649865, at *4-5, teach that the finality and enforceability of Christina's
judgment did not depend on the ministerial means by which Christina sought to obtain
the benefits of that judgment. Christina was awarded a judgment in 1995 and under
K.S.A. 60-2403(a)(1), unless a renewal affidavit or execution on the judgment was issued
in a timely fashion, the judgment became dormant. If a judgment remains dormant for
two years—as it did in this case—it is the statutory duty of the district court to release it
of record upon request. K.S.A. 2017 Supp. 60-2403(a)(1).


       Finally, the majority's reliance on Wichita Fed. Sav. & Loan Ass'n v. North Rock
Rd. Ltd. Partnership, 13 Kan. App. 2d 678, 779 P.2d 442 (1989), is misplaced. First,
unlike In re Marriage of Larimore which is analogous to the facts of the case on appeal,
Wichita Federal did not address a property division of retirement benefits but an appeal
by a title company of the district court's ruling that a judgment lien had attached to the
judgment debtor's (ex-husband's) after-acquired real property and had not become
dormant. See 13 Kan. App. 2d at 679.


       Second, that aspect of Wichita Federal which my colleagues cite for support
specifically dealt with the property division judgment against the ex-husband for

                                              14
$31,600, payable in 15 semi-annual installments of $2,250, beginning on May 1, 1981
(four years after the divorce was final), and payable on October 31 and May 1 of
successive years until paid in full. In short, it was a judgment payable by the ex-husband
according to a monthly installment payment plan beginning four years after the judgment
was entered.


       In our case, the majority asserts: "The military retirement pay Eric agreed to pay
Christina was a percentage of his monthly payment from the Department of Defense and
thus created a monthly installment payment Eric should pay each and every month as it
becomes due." Slip op. at 8. I disagree. The divorce decree did not provide that Eric was
to pay Christina. The divorce decree specifically provided that "'[t]he WIFE shall receive
by direct payment from the military finance center the amount as set forth above . . . .'"
Slip op. at 3. Additionally, the divorce decree never mentioned monthly installment
payments. In relevant part the agreement simply stated that "'[a]fter July 1, 2005, the
WIFE shall be entitled to receive twenty (20%) of HUSBAND's military retirement pay.'"
Slip op. at 3. The plain language of the divorce decree shows that at the time of the
couple's divorce there was no provision that Eric was responsible for providing Christina
his military retirement pay according to a monthly installment payment plan.


       Third, in Wichita Federal, our court noted that the judgment creditor (ex-wife)
executed on her judgment within five years of the first installment payment due date,
May 31, 1981. As a result, our court stated: "In the present case, under the strictest
interpretation, there would have been no right for an execution to levy until May 31,
1981, and timely permissible action took place within five years of that date, which
prevented dormancy." (Emphasis added.) 13 Kan. App. 2d at 684. Unlike the case on
appeal where Christina took no action to enforce her judgment for 22 years after Eric's
first retirement payment was due, in Wichita Federal our court highlighted that the ex-
wife executed on her judgment within the dormancy period—within five years of the date
the first installment payment was due. This clearly suggests that the Wichita Federal

                                             15
court would have held that since Christina did not enforce her judgment or renew it
during the five years after Eric's first retirement payment was due, the entire judgment
(including future payments not yet due) would have become dormant. In sum, Wichita
Federal does not support the majority's decision in this case.


       In conclusion, for all of the reasons discussed, I would follow our court's
precedent in In re Marriage of Larimore, reverse the district court's order, and remand
the case with directions to the district court to comply with the duty mandated by K.S.A.
2017 Supp. 60-2403(a)(1) and release the judgment of record.




                                            16
