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NOT DESIGNATED FOR PUBLICATION 

No. 122,000

IN THE COURT OF APPEALS OF THE STATE OF KANSAS 

In the Matter of the Marriage of

PHYLLIS J. PEASE,

Appellee, 

and

BENJAMIN C. PEASE,

Appellant.

MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed April 30, 2021. Affirmed.

Robert S. Jones, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellant.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and Sandy

Norris, of Lawson Norris Sorensen, LLC, of Kansas City, Missouri, for appellee.

BeforeBUSER, P.J., ATCHESON,J., and BURGESS, S.J.

PER CURIAM: The Riley County District Court entered a divorce decree in late 

July 2018 ending the marriage between Phyllis J. and Benjamin C. Pease. The decree 

incorporated a lengthy property settlement agreement the two approved earlier that 

month. Benjamin later challenged how income tax refundsfor 2017 should be 

apportioned under the agreement. The district court found the agreement unambiguously 

divided the refunds equally between Phyllis and Benjamin.Benjamin has appealed. We 

agree with the district court and affirm. We also consider and grant Phyllis' motion for 

attorney fees for the appeal.
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The terms of the divorce indicate Benjamin had been the primary wage earner in 

the marriage. At least in recent years, the couple paid estimated income taxes on a 

quarterly basis. Phyllis filed a petition for divorce in May 2017 to end the 30-year 

marriage. In January 2018, Benjamin personally made a final quarterly payment of 

estimated income taxes for 2017 and later made an additional payment when they 

requested an extension to file their 2017 income tax returns. Those paymentstotaled 

either $80,000 or $90,000. Benjamin has cited each figure at different times in the 

proceedings, but the precise amount does not bear on the controlling legal issue. Phyllis 

and Benjamin received a refund of $107,564 on their 2017 federal income taxes and a

refund of $19,822 on their state income taxes for a total of $127,386.

way:

The 17-page property settlement agreement addressed the 2017 income taxes this

"H. 2017 Tax Return: Petitioner and Respondent agree to file a joint federal and state 

income tax return for the tax year 2017. Each party agrees to cooperate in providing any 

and all records needed in order to properly complete and file such return as required by 

law. The taxes due in connection with the filing of such return shall be paid one-half (1/2) 

by Petitioner and one-half (1/2) by Respondent, subject to the utilization of the funds 

contained in the Emigrant Direct account (see § I.I.) in the approximate amount of

$1,400.00.

"The Petitioner's obligation to pay on the 2017 tax return (federal and state) shall 

be limited to no more than $25,000.00, after the application of the Emigrant Direct 

account proceeds. Any amount due in excess of that sum ($25,000.00) shall be paid by 

the Respondent. Any refund that may be due shall be divided one-half (1/2) to the

Petitioner and one-half (1/2) to the Respondent."

After the refunds were received, Benjamin filed a motion with the district court arguing 

that under the settlement agreement half of both the last quarterly payment and the
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extension payment he made should be offset against the portion of the income tax refund 

due Phyllis. Phyllis opposed the motion.

After hearing the arguments of the lawyers and reviewing various documents, the 

district court issued a brief journal entry finding the property settlement agreement 

plainly called for the 2017 income tax refunds to be divided equally between Phyllis and

Benjamin and ordering them distributed accordingly. The district court denied Benjamin's 

motion for reconsideration. Benjamin has appealed.

A property settlement agreement incorporated into a divorce decree functions both 

as a contract between the divorcing parties and an order of the district court. See Dozier

v. Dozier, 252 Kan. 1035, 1039, 850 P.2d 789 (1993); In re Marriage of Knoll, 52 Kan. 

App. 2d 930, 939-40, 381 P.3d 490 (2016). We, therefore, apply the rules of contract 

interpretation to the Peases' property settlement agreement. As a general matter, a 

contractshould be construed to give effect to the intent of the parties consistent with the 

plain meaning of the language used and considering the whole of the agreement. 

Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1206, 308 P.3d 1238 

(2013) (whole agreement); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan.

891, 900, 220 P.3d 333 (2009) (plain language).If the operative language is 

unambiguous, those words necessarily govern the rights and obligations of the 

contracting parties.

A contract is unambiguous "if the language . . . is clear and can be carried out as 

written." Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 2, 829 P.2d

884 (1992). Conversely, an ambiguous contract "must contain provisions or language of 

doubtful or conflicting meaning." 250 Kan. 676, Syl. ¶ 2. Typically, the words used in a 

contractshould be given their common or customarymeaning. Pfeifer v. Federal Express 

Corporation, 297 Kan. 547, 550, 304 P.3d 1226 (2013); Gold Mine Investments v. Mount 

Vernon Fire Ins. Co., 48 Kan. App. 2d 818, 824, 300 P.3d 1113 (2013). Ambiguity then
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arises only if "the face of the instrument leaves it genuinely uncertain which one of two 

or more meaningsis the proper meaning." Catholic Diocese of Dodge City v. Raymer,

251 Kan. 689, 693, 840 P.2d 456 (1992); Kincaid v. Dess, 48 Kan. App. 2d 640, 647, 298

P.3d 358 (2013) ("A contract is ambiguous when the words . . . may be understood in two 

or more ways."). Whether a contract is ambiguous presents a question of law, as does the 

interpretation of an unambiguous contract. See Osterhaus v. Toth, 291 Kan. 759, 768,

249 P.3d 888 (2011); Levin v. Maw Oil & Gas, 290 Kan. 928, Syl. ¶ 2, 234 P.3d 805 

(2010) ("The interpretation and legal effect of a written instrument are matters of law.").

With those principlesin mind, we turn to the language of the property settlement 

agreement. We need not belabor the point or unduly extend our analysis. In the section 

devoted to the 2017 income taxes, the agreementstates: "Any refund that may be due 

shall be divided one-half (1/2) to [Phyllis] and one half (1/2) to [Benjamin]." It is hard to 

come up with a clearer enunciation of a particular intent and result. Phyllis and Benjamin 

agreed to divide equally any refund from their 2017 income taxes. At the time they 

drafted and approved the agreement, they did not know whether there would be refunds. 

But uncertainty about a future event does not inject ambiguity into what contracting 

parties have clearly agreed to do should the event occur.

The agreement also covers how any taxes that might have been due when the 

returns were filed would be paid. Phyllis and Benjamin would divide the tax liability 

equally with a cap of $25,000 on Phyllis' obligation. Those provisionsrefer to "taxes due

. . . with the filing of such return" and the "obligation to pay on the 2017 tax return[s]." 

The language covers any taxes owed as shown in the tax returns—an amount determined 

after crediting the estimated taxes already paid and any other prepayments. Again, when 

Phyllis and Benjamin signed the property settlement agreement, they did not know if they 

would owe taxes. Those provisions would have disposed of that contingency had it

arisen.
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So the agreement includes complementary terms addressing how refunds would be 

divided (if there were any) and how final tax liabilities would be paid (if there were any). 

The agreement, thus, covers whatever financial impact the yet-to-be filed 2017 income

tax returns would have on Phyllis and Benjamin.

The agreement does not include some adjustment or credit to Benjamin for the 

fourth-quarter estimated taxes he paid or the payment he included with the extensionsto 

file the 2017 income tax returns. But the omission does not create an ambiguity. Rather, it 

is properly construed to indicate the parties reached no agreement affording Benjamin a 

credit for those payments as part of the overall reconciliation of the financial assets and 

liabilities associated with the marriage. In arriving at that reconciliation, Phyllis and 

Benjamin obviously took account of the 2017 taxes. This is not a situation in which the 

parties to a property settlement agreement apparently overlooked a particular asset or 

liability. Moreover,Benjamin knew he had made those tax payments when he and Phyllis 

negotiated and agreed to the property settlement in mid-2018. If he had wanted some 

credit for them, he should not have signed off on an agreement that did not incorporate 

such an accommodation.

In short, the district court got it right.

After this case had been set on our November 2019 docket, Phyllis timely filed a 

motion to recover her attorney fees for the appeal. Under Supreme Court Rule 7.07(b) 

(2020 Kan. S. Ct. R. 50), on which Phyllisrelies, we may award attorney fees on appeal 

if the district court had the authority to award fees. Phyllis cites a provision in the 

property settlement agreement that requires her and Benjamin to "indemnify" each other

for "any sums which either is required to pay, including court costs and attorney fees, as a 

result of the failure of the other to pay the indebtednessto be paid according to the terms 

and conditions of this Agreement."Benjamin has filed nothing in response to Phyllis' 

motion.
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In the absence of a response, we presume the provision in the agreement entails 

attorney fees Phyllisincurred to protect her contractualright to half the 2017 income tax 

refunds. Her share is arguably an indebtedness Benjamin owed, and he declined to pay 

the full amount when he sought a reduction for the prepaid taxes. We have no basis to 

conclude the parties intended something else, although the indemnification language 

doesn't exemplifywhat might be considered plain English.

Phyllis retained a Kansas City lawyer who specialized in appellate practice to 

handle the appeal. The lawyer has submitted a detailed affidavit, time records, and other 

materialsin support of the attorney fee request. The lawyer has a standard hourly rate of

$400 and spent 22.5 hours on the appeal, yielding a fee request of $9,000. Without any 

objection from Benjamin to the amount or the supporting information, we have reviewed 

the fee request for general reasonableness consistent with the factorsin Rule 1.5(a) of the 

Kansas Rules of ProfessionalConduct (2020 Kan. S. Ct. R. 297); see Consolver v. Hotze,

306 Kan. 561, Syl. ¶ 2, 395 P.3d 405 (2017). We find the request to be reasonable and, 

therefore, grant Phyllis' motion for attorney fees on appeal in the amount of $9,000.

The district court is affirmed, and Phyllis Pease's motion for $9,000 in attorney 

fees is granted.