In re Marriage of Hale

NOT DESIGNATED FOR PUBLICATION No. 129,703 IN THE COURT OF APPEALS OF THE STATE OF KANSAS In the Matter of the Marriage of RACHEL N. HALE, Appellee, and SCOTT L. HALE, Appellant. MEMORANDUM OPINION Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge. Oral argument held July 21, 2026. Opinion filed October 23, 2026. Reversed and remanded with directions. Mark A. Rohrbaugh and Daniel E. Stuart, of Law Office of Daniel E. Stuart, P.A., of Leawood, for appellant. Patrick A. Johnson, of Kansas Legal Services, of Kansas City, for appellee. Before WARNER, C.J., SCHROEDER, J., and JASON E. GEIER, District Judge, assigned. PER CURIAM: Scott L. Hale sat in the Wyandotte County jail on the morning the district court granted the petition for divorce filed by his wife Rachel N. Hale. The district court entered an order dividing the marital estate in his absence. Scott had answered the divorce petition, disputed the proposed property division in writing, arranged for a friend holding his power of attorney to confirm his appearance with the court, and reasonably expected to be transported to his hearing just as he had been transported to his criminal proceedings. He was not brought over for the divorce hearing. The district court held the hearing without him and awarded Rachel sole ownership of the 1 marital home. Scott subsequently filed a motion for relief from judgment under K.S.A. 60-260(b), which was denied. Scott appeals the denial of his motion for relief from judgment. Because we find that the district court abused its discretion in denying Scott's motion, we reverse and remand the matter back to the district court for further proceedings. FACTUAL AND PROCEDURAL HISTORY With assistance from an attorney with Kansas Legal Services, Rachel filed for divorce from Scott on August 6, 2024. A sheriff's return of service shows that Scott was personally served with a copy of the divorce petition on September 9, 2024. On September 24, 2024, Scott, acting pro se, filed his answer. Although he did not contest the divorce, Scott asserted his disagreement with Rachel's proposed property division by writing on the pleading, as follows: "I do not agree to my spouse's divide of property debts & assets." The district court scheduled a final divorce hearing for November 1, 2024, indicating on the filing that notice had been mailed to "all Counsel and litigants listed OCTOBER 16, 2024." At the time the final notice of hearing was mailed, Scott had been in the Wyandotte County jail since October 9, 2024, on charges arising from allegations involving Rachel. Shortly after his incarceration, Scott designated his friend Stephanie Belk as his durable power of attorney to help manage his affairs, including his court cases. Scott did not appear at the final hearing because he was not transported from the jail. After confirming that Scott had been served and had filed an answer, but had no attorney present on his behalf, the court proceeded with the hearing, noting Scott's "failure to participate." The court proceeded on Rachel's counsel's proffer, awarded 2 Rachel the marital residence and personal property, and entered the decree that same afternoon. At the close of the hearing, the court told Rachel, "Congratulations, and I'm sorry." About four months later, counsel for Scott entered his appearance and then filed a motion for relief from judgment on Scott's behalf pursuant to K.S.A. 60-260(b)(1) and (6). In the filing, counsel alleged that "[b]ased on information and belief [Scott], while in custody in the Wyandotte County Jail, was unable to obtain access to the court hearing." According to the motion, these facts established "excusable neglect" because "despite his efforts to arrange for attendance through the appropriate authorities at the Wyandotte County Detention Center, [he] was not provided transfer to attend." Finally, counsel contended "[t]hat it is in the interests of justice that the Decree of Divorce be set aside to ensure a fair, just and equitable division of the real property, as well as the marital assets and debts." A new attorney from Kansas Legal Services entered their appearance for Rachel, then later filed a written response in opposition to Scott's motion for relief from judgment. Rachel's attorney primarily argued the district court should deny Scott's motion because Scott had proper notice of the final hearing and failed to appear or otherwise ensure his interests were adequately represented. Continuing, Rachel's attorney argued Scott had failed to establish inadvertence or excusable neglect under K.S.A. 60-260(b)(1) or that the interests of justice required setting aside the divorce decree under K.S.A. 60- 260(b)(6). The district court held a hearing on June 24, 2025, at which the parties presented oral arguments on Scott's pending motion for relief from judgment. Scott was again not produced from the jail, even though his counsel had emailed the court a week earlier requesting that Scott be present in order to testify. Scott's counsel expressed his frustration that Scott was not present at the hearing, despite being in custody at the 3 Wyandotte County jail in a neighboring building. Scott's counsel noted that "[i]t's the same problem again" that his client, who was in custody only one building over from the courthouse, could not get to court. The district court replied that it was not a problem and that if Scott wanted to be present at the final divorce proceeding then he could have hired an attorney to represent him. Counsel responded that he was an attorney and even he could not get Scott into the courtroom. Instead of addressing this issue of transporting Scott, the judge stated that Scott's presence was unnecessary because the hearing was only set for oral argument and not an evidentiary hearing. The district court then proceeded on a mistaken understanding of the record. The court stated that the "petition was filed on July 1st. He was served on 7-7." The court then went on to note that Scott did not answer until September 24, and that Scott "was in default, technically speaking." However, those dates cited by the district court were wrong. The petition was actually filed on August 6, 2024, and Scott was served on September 9, 2024. Scott's counsel then told the court that in a divorce action the respondent "'may answer'" not "'must'" and that no one had moved for default judgment. Later in the same hearing, the court repeated a version of the error, asserting that Scott did not answer until August 5, 2025, and had "another good two months to hire an attorney" but instead he "chose to sit on his rights." During the hearing, the court also noted that Scott did not "take all actions necessary" to get to court for the divorce hearing and that "as far as the court is concerned, is out of time in filing an answer." Without hearing evidence, the district court then proceeded to express strong views about Scott. When counsel argued that Scott "did everything within his power to get here," the court interjected that he did everything within his power "if you ignore his actions that got him in jail." The court then stated that Scott "couldn't appear pro se because he's in custody for crimes that he had allegedly committed." The court also questioned whether the motion was just another way for him to violate a protection from abuse order and to harass Rachel. The court concluded that Scott has a right to be present 4 at his criminal action, but "[w]here does it say that he has a right to be present at a civil action? There is none." The district court then set the matter for an evidentiary hearing and asked counsel to supply authority establishing that an incarcerated litigant has a right to be produced for a civil proceeding. When counsel asked the court to order that Scott be produced for the next hearing, the court answered, "No." It then followed up by saying, "I'm being facetious, sir." Scott was transported and was present for the July 8, 2025 evidentiary hearing on his motion for relief from judgment. He testified that he had been in custody since October 9, 2024, that he was served while in custody, and that he had already responded to the initial filing with a request to review the property determination. The jail, he testified, is attached to the courthouse. As to November 1, Scott testified that he had requested information about it that morning and was told that the jail did not have any information on transporting him. He asked again later that morning and was informed that the jail still did not have any information about transporting him and that they did not expect to hear anything more. Scott explained his belief that because he was served with notice at the jail that "they knew that I needed to be there" just like in his criminal case. Scott also explained that he made Belk his power of attorney so that she could appear in his place if necessary. He noted that he was not seeking a continuance and that he "was prepared to go to trial." On cross-examination, Scott acknowledged that the first time he spoke to jail staff about the hearing was the morning of November 1, 2024. He also testified that he could not afford legal counsel at the time. Scott said that he had told Belk to "please look into this" and understood that she had spoken with the court clerk and would appear in his place. 5  Belk testified that she had known Scott for 35 years, that she held his durable power of attorney, and that she and Scott had discussed hiring a lawyer but neither could afford one. She testified that she called the presiding judge's office two days before the final divorce hearing to "verify that Scott would be in court on the 1st and was told by the female there . . . that they had notified the jail of the date and time so he could be there." Belk stated that she still had evidence the phone call took place on her phone. She further testified that it was her understanding based upon this conversation that Scott would be transported and be there for the final hearing. Belk testified that when she appeared at the final hearing on November 1, she was surprised that Scott never appeared. She had brought copies of the divorce petition, "his response for his request for division of assets," and "a lot of paperwork" pertaining to the divorce. She tried to speak on Scott's behalf on that date but "wasn't able to speak much." At the evidentiary hearing, Scott's counsel also provided the district court with two cases that he believed supported a due process violation, including: In re Adoption of B.J.M., 42 Kan. App. 2d 77, 209 P.3d 200 (2009), and In re A.S., 319 Kan. 396, 555 P.3d 732 (2024). After considering the evidence and the cases provided by Scott's counsel, the district court announced that it was denying Scott's motion for relief from judgment. The court distinguished both cases as dealing with "the fundamental rights being violated with respect to the right of a parent to the care, custody, and control of the children, which I believe has a different standard than this case," adding that "there are no such rights in this case." The court observed sua sponte that, in the underlying protection from abuse case that Scott had failed to appear even though he was out of custody at that time. The court then found that Scott "failed to show that the petitioner [sic] will now be prejudiced, has failed to show he has a meritorious defense, and has failed to show there was excusable neglect for his not appearing," adding that "[h]e had approximately two weeks to notify the Court of his desire to be present, and it would have been as simple as 6 writing a letter through the jail service asking to be brought to court. And he failed to do so." After the hearing, the district court filed the journal entry memorializing its verbal ruling and denying Scott's motion. Scott timely appealed. ANALYSIS Scope of the appeal We note from the outset that this court's jurisdiction extends to the district court's July 11, 2025, order denying Scott's motion for relief from judgment. Scott's notice of appeal from that order was filed 25 days after its entry and was timely. However, his challenge to the underlying November 1, 2024 divorce decree was not perfected within the time allowed and we do not directly review the merits of the final decree. Instead, we address only the decision of the district court denying Scott's motion for relief from judgment. Scott did not abandon the issue of the denial of his K.S.A. 60-260(b) motion. Before turning to Scott's arguments for overturning the district court's denial of his motion for relief from judgment, we address Rachel's argument that the issue is not adequately briefed. Rachel claims that Scott "makes no effort" to argue the denial of his motion for relief from judgment in the argument section of his brief. As such, she claims he has abandoned this issue, and it is waived. We acknowledge that Scott's brief lacks some measure of clarity, including making some argument in his statement of facts. 7 However, Scott's imperfect briefing does not require us to blindly affirm the district court and deem the issue waived. Despite Rachel's claims, the substance of Scott's argument challenges the denial of his motion for relief from judgment. He invokes the words "excusable neglect" more than once in his brief, which is a basis for relief under K.S.A. 60-260(b)(1). He further discusses the circumstances of his failure to appear and contends the district court wrongly refused to set aside the decree of divorce. An appellant's flawed briefing does not deprive this court of the ability to address an issue fairly presented in substance, particularly where the appellee has briefed the merits of that very issue. We also find consideration of the issue is necessary to serve the ends of justice. Scott, an incarcerated pro se litigant at the time of his final divorce hearing, was deprived of an opportunity to be heard on the division of property. Declining review on the basis of a briefing imperfection would compound that deprivation. After all, an appellate court's consideration of issues that a party inadequately briefs is a matter of prudence, not jurisdiction. See State v. Rucker, 49 Kan. App. 2d 414, 419, 310 P.3d 422 (2013); see also State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017) ("[B]ecause preservation is a prudential rule, rather than a jurisdictional bar, we have also held that an appellate court has discretion to apply exceptions to that general rule."). We therefore reach the merits. Standard of Review A ruling on a motion for relief from judgment under K.S.A. 60-260(b) rests within the sound discretion of the district court and is reviewed for an abuse of discretion. Garcia v. Ball, 303 Kan. 560, 565-66, 363 P.3d 399 (2015). A district court abuses its discretion when its decision is "(1) arbitrary, fanciful, or unreasonable, (2) based on an error of law, or (3) based on an error of fact." 303 Kan. at 566. We exercise unlimited 8 review over the district court's legal conclusions and review its factual findings for substantial competent evidence. Stout v. KanEquip, Inc., 64 Kan. App. 2d 405, 413, 551 P.3d 260 (2024). The district court abused its discretion by denying Scott's motion for relief from judgment due to excusable neglect. Default judgments are not favored under the law. Garcia, 303 Kan. at 568. "'In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits.'" 303 Kan. at 568. The Kansas Supreme Court has long applied these principles to reverse a refusal to set aside a default. In Montez v. Tonkawa Village Apartments, 215 Kan. 59, 64, 523 P.2d 351 (1974), the court held that "[a]ny doubt should be resolved in favor of setting aside the entry of default." When all doubts are resolved in favor of sustaining a petition to set aside default judgment, as we have here, a district court commits error. Instead, justice favors a trial on the merits. 215 Kan. at 63. The distinction between excusable and inexcusable neglect follows from the same policy. Inexcusable neglect is "closely akin to 'reckless indifference.' It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind." Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). However, excusable neglect "is not susceptible to clear definition. What constitutes excusable neglect under the statute must be determined on a case by case basis under the facts presented." 223 Kan. at 299. The three factors the district court invoked—no prejudice to the nonmoving party, a meritorious defense, and default not the product of inexcusable neglect—are set forth in Montez, 215 Kan. 59, Syl. ¶ 4. 9  Our Supreme Court has made clear that the Montez factors are "viable benchmarks for judicial discretion" when considering a motion for relief from judgment under K.S.A. 60-260(b). Garcia, 303 Kan. at 570. The district court's ruling cannot survive review under these standards because it was built on mistaken legal and factual premises. First, the "default" and late-answer premise was wrong. The district court repeatedly treated Scott as a defaulting party who had answered out of time. It stated the petition was filed July 1 and served July 7, and thus Scott's September 24 answer left him in "default, technically speaking." Later, the district court claimed Scott did not answer until August 5th and thus "chose to sit on his rights." The court later stated, "[A]s far as the Court is concerned, [Scott] is out of time in filing an answer." All three statements misapprehend the record and the law. The petition was filed August 6, 2024, and Scott was served September 9. Scott filed a written answer on September 24, 2024, disputing the division of property. Neither party moved for default. "When a defendant in a civil case fails to file an answer or otherwise defend the case, the defendant is in default." Mog v. St. Francis Episcopal Boys' Home, 63 Kan. App. 2d 579, 585, 534 P.3d 604 (2023). Scott filed an answer and attempted to advocate for his position. He was clearly not in default. Second, the unproven allegations were weighed as fact. The district court discounted Scott's diligence by reference to "his actions that got him in jail." It also reasoned that Scott couldn't appear "because he's in custody for crimes that he allegedly committed." In another instance, the district court voiced a suspicion—expressly drawn from the judge's experience as a prosecutor rather than from any evidence in the record— that the motion for relief from judgment was a means to harass Rachel. Scott carried with him the presumption of innocence. Treating the accusations against him as though they diminished his entitlement to be heard on the division of property injected an improper consideration into the district court's analysis. A factual finding unsupported by 10 substantial competent evidence, such as the unsupported inference of a harassing purpose, cannot support the exercise of discretion. Stout, 64 Kan. App. 2d at 413. Third, the rigid view of an incarcerated litigant's rights was legal error. The district court declared that there is no right "to be present at a civil action," which framed the question as whether it was obligated to make sure the defendant appears when he is in custody. Yet, an incarcerated civil litigant retains a right to a meaningful opportunity to be heard. The district court's contrary legal conclusion impacted its assessment of whether Scott's neglect was excusable. With this, the record does not support a finding of inexcusable neglect. Scott was incarcerated and self-represented when he received notice of the hearing. He had already filed a written answer disputing the division of property. He gave Belk power of attorney specifically to help manage his case. In this role, Belk called the judge's chambers two days before the hearing to confirm his appearance and was told that the jail had been notified and that Scott would be transported over for his hearing. The district court's own handwritten docket notes confirm that Belk appeared on the day of his hearing. Further, Belk testified that she had brought documents with her on that day for Scott's use during the hearing. Scott also reasonably believed he would be transported, because he had always been transported for his criminal proceedings in the same courthouse. On the morning of the hearing he asked jail staff about his transport and was told there was nothing on their list. These are the acts of a litigant trying, perhaps imperfectly, to be heard. This is not reckless indifference. Rachel characterizes Scott's conduct as reckless because he did not personally contact the court, did not move for a remote appearance, and waited until the morning of the hearing to ask jail staff about transport. But that framing demands a level of procedural knowledge that the excusable-neglect standard does not require of a self- represented and incarcerated party. It further resolves every doubt against him, which is 11 precisely what Montez condemns. 215 Kan. at 63. Scott's misplaced but reasonable reliance on the transport practice he had experienced, and on his power of attorney's confirmation with the court, does not show that any neglect on his part was either willful or reckless. Resolving the doubt in favor of a decision on the merits, as the law requires, shows the neglect here was excusable. The other two Montez benchmarks also favor granting the motion for relief from judgment. The record reflects Scott sufficiently articulated a potentially meritorious position on the division of the marital estate. He filed an answer and disputed the proposed property division in writing. At the first hearing on the motion for relief from judgment, in which Scott was not present, both attorneys mentioned Scott's contention that he had a nonmarital interest in the real property that had been awarded to Rachel. The motion for relief from judgment set forth that Scott claimed a nonmarital interest in the property that was awarded to Rachel in the final decree. Even Rachel's domestic relations affidavit filed in the case lists the disputed real property as being acquired prior to the marriage or acquired by will or inheritance. Yet, Scott was never able to be heard on the merits of this argument. Scott demonstrated he had a potentially meritorious defense. A movant need not prove he would prevail under Montez, only that he has a defense worth of consideration on the merits. The record also does not establish that Rachel would suffer prejudice if Scott were granted relief from judgment. The burden of having to prove one's case is not the kind of prejudice that defeats a motion to set aside a default. See Montez, 215 Kan. at 65. Rachel's argument at the June 24 hearing that Scott's interest is "significantly dissipated" and difficult to value goes to the ultimate division on the merits, not to whether the decree should be reopened. Further, the record reflects that the jail is one building over from the courthouse, and the district court was able to produce Scott for the July 8 evidentiary hearing. This demonstrates that transporting Scott to the courthouse was 12 neither impractical nor costly. A short continuance to allow his participation on November 1 would not have prejudiced Rachel. Due Process The district court's categorical view that an incarcerated party has no right to be present in a civil case and that the court had no obligation to facilitate his participation cannot be squared with Kansas law. Its error on this point independently undermines the exercise of discretion. Scott's interest in the marital estate is constitutionally protected. A panel of this court has recognized that a spouse "undoubtedly had constitutionally protected property interests triggering due process rights" in the division of the marital estate. See In re Marriage of Mullokandova & Kikirov, No. 108,601, 2013 WL 5422358, at *8 (Kan. App. 2013) (unpublished opinion). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007). Additionally, due process "'is flexible and calls for such procedural protections as the particular situation demands.'" In re A.S., 319 Kan. at 402. A panel of this court held that whether due process requires transporting an incarcerated party to a civil hearing turns on the balancing test found in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See In re Adoption of B.J.M., 42 Kan. App. 2d at 84. Those factors include the interest at stake, the risk of erroneous deprivation and the value of substitute safeguards, and the State's interest including fiscal and administrative burdens all applied to the circumstances of a particular case. 42 Kan. App. 2d at 84. Where a court denies an incarcerated party's participation and "no substitute measures" are utilized, the risk of erroneous deprivation is great. 42 Kan. App. 2d at 85. The State's interest in avoiding the burden of transport, the panel 13 found, "would not have been prohibitive." 42 Kan. App. 2d at 86. In In re A.S., our Supreme Court reaffirmed that a "short continuance for a later hearing, whether digital, hybrid, or in-person," or participation via videoconference would be "extremely valuable in providing procedural safeguards." 319 Kan. at 405. The court further held that the administrative and fiscal burden of such alternatives is minimal when weighed against the interest at stake. 319 Kan. at 406. The court held that due process required the party "to be able to testify, communicate with counsel, and otherwise fully participate." 319 Kan. at 407. The district court distinguished In re Adoption of B.J.M. and In re A.S. solely because they involved parental rather than property rights. That distinction affects the weight of the first Mathews factor, but it does not excuse the court from the analysis altogether. Due process is not "a technical conception with a fixed content" and instead "calls for such procedural protections as the particular situation demands." In re A.S., 319 Kan. at 402. Here, the district court afforded Scott no substitute safeguard of any kind, despite knowing he was in custody one building away, contested Rachel's proposed division of property, and desired to participate in the proceedings. That is the "complete absence of any substitute measures" that In re Adoption of B.J.M. found created a great risk of deprivation. 42 Kan. App. 2d at 85. The district court's contrary view that it had no obligation even to consider such measures for a civil litigant was a legal error that tainted its discretion ruling. We acknowledge Rachel's reliance on cases treating an unresponsive defendant as having forfeited the opportunity to be heard. But her reliance on those cases is misplaced. Scott was not unresponsive. He answered, disputed the property division, arranged for a representative to confirm his appearance, and sought to attend. A party who answers and seeks to participate is presumed to want to be meaningfully heard. 14  In sum, the contention that Scott waived review by inadequate briefing fails for the reasons already stated. The waiver doctrines are prudential, and the ends of justice warrant review. The contention that Scott failed to establish excusable neglect fails because it applies the wrong standard and resolves every doubt against Scott, contrary to Montez and Jenkins. The contention that Scott identified no meritorious defense ignores his written objection to the division of property and his claim of a nonmarital interest in it. Finally, the contention that he received all the process he was due, but simply "failed to avail himself of it," cannot be reconciled with a record showing a litigant who made multiple attempts to be heard through various means and was afforded no substitute safeguard. We find the district court abused its discretion in denying Scott's motion for relief from judgment under K.S.A. 60-260(b)(1). We reverse and remand with directions to set aside the divorce decree's division of property and to afford Scott a meaningful opportunity to be heard on the division of the marital estate. Reversed and remanded with directions. 15