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NOT DESIGNATED FOR PUBLICATION

No. 123,760

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of 

EARNEST E. GREEN II,

Appellee,

and

LANA J. GREEN,

Appellant.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed November 12,

2021. Affirmed in part, reversed in part, and remanded with directions.

J. Steven Schweiker, of Overland Park, for appellant. 

Stanley R. McAfee, of Kansas City, for appellee.

Before BRUNS, P.J., HURST, J., and MCANANY, S.J.

PER CURIAM: Lana J. Green appeals from the district court's decision dividing 

property in this divorce action. On appeal, Lana contends that the district court abused its 

discretion when it concluded that her former husband, Earnest E. Green II, did not 

dissipate assets during their one-year marriage. Second, she contends that the district 

court abused its discretion in dividing the marital property. Third, she contends that the 

district court erred by refusing to grant her attorney fees arising out of a successful 

motion to compel.
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Based on our review of the record, we find that the district court appropriately 

exercised its discretion in dividing the parties' assets. However, we find that given the 

mandatory language of K.S.A. 2020 Supp. 60-237(a)(5), the district court was required to

either award reasonable attorney fees to Lana arising out of her successful motion to 

compel or conclude that one of the statutory exceptions applied. Thus, we affirm in part, 

reverse in part, and remand the issue of attorney fees to the district court for further 

proceedings.

FACTS

In May 2018, Lana J. Green—who was then 69 years old—began dating Earnest 

Green—who was then 68 years old. After briefly living together in Earnest's house, the 

couple were married on November 15, 2018. Unfortunately, the marriage only lasted 

about one year before Earnest filed a petition for divorce. 

In the approximately six months between the commencement of their relationship 

until they got married, Earnest and Lana opened a joint bank account. They began 

depositing their paychecks and social security checks into the joint account. They also 

paid bills out of the joint account. After getting married, Lana sold her house and 

deposited $77,414.20 from the sale into the account. Lana also liquidated her retirement 

account and deposited another $39,647.50 into the account. In addition to the parties'

joint account, Earnest maintained a bank account for his business—GPS Sales—to which 

Lana did not have access. During the marriage, Earnest made at least two transfers 

between his business account and the joint account. 

Earnest also had an American Express account and made several transfers between

this account and the joint account during the marriage—including at least one as large as 

$25,000. Although Lana testified that she had no access to the American Express 

account, Earnest testified that he gave Lana the password so she could view any 
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transactions. He also testified that the large transfer was a joint decision made by the 

parties so that they could earn more interest. Lana testified that Earnest also wrote a 

significant number of checks to cash during their marriage, estimating the total amount to 

be $21,827.70. 

During their short marriage, Earnest and Lana jointly made several large purchases 

together. These purchases included a vacation house in Florida for $58,425. After 

purchasing furniture and making improvements, the couple incurred about $82,000 in 

expenses related to the Florida house and the purchase of a golf cart. In addition, they 

purchased a hot tub for their Kansas residence for around $17,400.

Shortly before filing for divorce, Earnest and Lana sold the Florida house and 

furniture for $85,000. Lana retained the net proceeds from the sale. In addition, Lana also 

retained $6,500 from the sale of the golf cart. Earnest transferred around $10,000 from 

the couple's joint account to a new personal account. He testified that he did so to restore 

the funds he had in his personal account before the marriage. 

After completion of discovery in the divorce action, the district court held a bench 

trial at which both Earnest and Lana testified. In addition, 64 exhibits—including nearly 

400 pages in bank records, receipts, and spreadsheets—were admitted into evidence. 

Following the trial, the district court held another hearing at which it granted Earnest and 

Lana a divorce. At the hearing, the district court also announced its findings and 

conclusions regarding the division of the parties' assets and liabilities. 

The district court determined that Earnest did not dissipate the parties' assets. The 

district court also concluded that neither party had taken advantage of the other during 

their one-year marriage. Instead, the district court determined that the parties had made 

significant decisions about their expenditures based on their chosen lifestyle during the
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marriage. Ultimately, the district court ordered Earnest to pay Lana $12,000 in order to 

make an equitable division of the parties' property. 

The district court explained its decision on the record: 

"[T]he Court is required to divide the issues before the Court. This is pursuant to K.S.A. 

23-2802. The Court uses the date of valuation to be the date of filing in this case. A 

division of property is to be just and reasonable under the circumstances. It's to be an 

equitable division and not necessarily an equal division. There are statutory factors set 

forth in the statute including the age of parties; the duration of the marriage; the property 

owned; their present and future earning capacity; the time, source and manner of 

acquisition; family ties or obligations; the allowance of maintenance or lack thereof; any 

assertion of dissipation of assets; and the tax consequences of the property division upon 

the respective economic circumstances of the parties. 

"Frankly, these . . . cases are the hardest cases for the Court. The Court has a 

tendency, when I deal with assets, to make an equal division. You add up the assets, you 

subtract the debts, and then you divide the property, and you tend to try to do it in an 

equal fashion. This case is impossible to do that, in the Court's opinion. And, really, it 

makes it tough on deciding what is equitable or what is fair from the parties because they 

brought certain different economic amounts into the marriage and are taken out of the 

marriage. 

"And to kind of go through those briefly with regard to those contributions. 

There was a—an account, on November the 15th, that was the joint account that had 

$1266 in that account. Then in this joint account, there were certain deposits made, first 

by the respondent, and those deposits totaled a 120,414, at least the ones the Court 

considered to be premarital or non-marital. This included a $4,000 deposit on December 

the 5th from [an] account that she had, a separate account. A $38,000 deposit on the 

January the 5th, this was for her deposit from cashing in an IRA. She cashed in about 

$50,000 worth of an IRA or—and after taxes of approximately 12,000, this left the 

balance of 38,000. It was actually was a little over 39,000. And from that, then, there was 

an additional deposit of a thousand dollars made on March the 7th that the Court 
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considered that to be funds leftover from the distribution of IRA that initially went to her 

premarital account. She also made a deposit of $77,414 and change on May the 28th. So 

those funds the Court considered to be non-marital, and that was $120,414. 

"The petitioner started—had—when the account started was $1266 and 66—60 

cents. And then through the course of the short-term marriage, there were transfers and 

transactions from the American Express account. Every transaction from the American 

Express account was either a transfer in or a transfer out of the joint account. And that 

account started on November the 18th with $10,144. And so when I add those two 

numbers up of premarital funds brought in, the petitioner brought in $11,411. 

"Now, of course, the problem is the parties buy this property in Florida. 

Certainly, I think, ill-advised, and obviously if they knew the marriage wasn't gonna last

long, doubt that they would've done it. Both parties tried to attribute some responsibility 

to the other parties for this property, and the Court doesn't think that really is persuasive 

to the Court at all. The reality is we bought this property, we sunk a lot of money into the 

property and the furniture, and then we turn around and sold the money at significant--or 

sold the property at significant loss. Likewise, we bought a golf cart, because that's the 

standard mode of transportation in this housing development or division, and then we 

sold the golf cart at a loss. 

"And so when we arrive at November of 2019, this property is sold, and there's a 

total of $46,338 received from the property and the golf cart by the respondent. This 

includes 39,838 from the sale of the Florida property and $6500 from the golf cart, and 

these funds were provided to the respondent by the petitioner. 

"The petitioner then took $10,000 from the parties' joint account and transferred 

that to the American Express, essentially under the theory that that's what he started the 

account with at the American Express. An—and so the Court finds that in November of 

2019, basically at the time of filing the divorce, in this American Express account there is 

now $15,055. And there's also $2247 in the joint account that the petitioner transferred 

into a new account that was reflected in Petitioner's Exhibit 2. And so the Court, from 

that, finds that the petitioner has $17,302 from that joint account and the American 
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Express account, and the respondent has, essentially, $46,338 from the sale of the Florida 

property and the golf cart. 

"But of course the analysis doesn't stop, and it's not a question of who has more 

money. It's a question of what did they contribute, premarital funds, and what did they 

receive back. Now, the petitioner . . . makes the point at trial . . . [that] during the 

marriage the petitioner contributed more funds to this joint account through employment, 

but the Court normally doesn't factor that in. That's true in all cases that the parties when 

they're married and have different earning powers and contribute differently to most 

marriages, and the Court doesn't keep a running tally of who contributed marital funds 

from working during a marriage to . . . a marital account. It's all part of the marriage. And 

the Court does track premarital funds, generally.

"There [were] also some things that both parties benefited from the joint account. 

There was a payoff of the wedding rings that are in the possession of the respondent. The 

respondent also had a car of approximately $1200 I understand was paid off. So those 

two debts were paid off. There [were] some credit cards the petitioner brought into the 

marriage, not a significant amount, but they were also paid off, and I think most of those 

were paid off primarily to finance the 40,000 on the Florida property. 

"So when I get to the end, I go back to the numbers I looked at and that's the 

premarital assets contributed by the respondent's 120,414. The premarital assets 

contributed by the petitioner: 11,411. In order to, I think, make [an] equitable division, 

the parties should receive back a similar amount, percentagewise, of their investment. 

Now, it can't be 100 percent. We don't have those kinds of funds. And so one of the 

things that also, I guess, bothered me to some extent was that the petitioner received back 

the $10,000 from his original account, but—but, you know, other than the sale of the 

Florida property, the respondent didn't receive back the cash that she contributed to this 

account. And I don't think there was anything sinister [in] that. I think, in petitioner's 

eyes, he thought that was fair because she was receiving the funds from the sale of the 

Florida property. Let me be clear, I don't think there was any dissipation of assets, 

stealing of funds, hiding of funds from cash. I think that was a lifestyle that we lived. 
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"But, ultimately, what the Court finds, in order to return the parties to a 

percentage that I think is fair, the Court is going to grant the respondent a judgement in 

the amount of $12,000 against petitioner. And the reason the Court is doing this is at 

$12,000, the ultimate return to the petitioner, if I add that to the 46,338, is 58,338; just 

$12,000 more. That represents 48 percent of her original $120,414. If I deduct 12,000 

from the 17,302 that the petitioner took at the end of the marriage, I come up with 5,302, 

and that represents 46 percent of his original investment of 11,411 that—that was 

premarital funds brought into the marriage. 

"Now, to be fair, I think there's a lot of different ways a judge could look at this. I 

think there's significant latitude on what would be fair as far as a division of property. 

Not lost on the Court—by the way, I am going to assign the hot tub to the petitioner. Not 

lost on the Court is that there [were] some benefits received from both parties from the 

payoff of certain items, and the petitioner—or, excuse me, the respondent may have 

received a slightly more significant benefit by virtue of the wedding rings being paid off 

and retaining the wedding rings. 

"But, ultimately, the Court, in this division, thinks that that is equitable. I can't 

return the parties and restore them to 100 percent of what they were before. I don't think 

that would be fair. I don't think that would be equitable. I think the parties made joint 

decisions. These parties are both sophisticated and of an age that they have the ability to 

make joint decisions, so I don't think I attribute whether the decisions were good or bad 

to one side or the other.

"Lastly, there was an issue of a request for attorney's fees on the Motion To 

Compel, and the Court considered this at length. And when I look at the overall 

documents in this case, when I look at the transactions that occurred, I don't see anything 

that causes the Court, I think, tremendous concern. Again, I don't think there was any 

dissipation of assets. I don't think anybody took advantage, per se, of anybody else. An—

and if I did grant attorney's fees, I'd likely make a different order with regard to the 

amount that I've granted as a judgment. And so, ultimately, the Court is going to decline 

the request to award attorney's fees. 
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"So, ultimately, the Court awards the party that the—the possession of the 

property they have. I grant a judgement to the respondent in the amount of $12,000, and I 

grant the parties a divorce.

"With that, Mr. McAfee, your client's the petitioner, is there anything I've not 

ruled upon—and—and one other thing I do wanna add before you answer that question. 

There [were] some other contributions made to this joint account. One was a tax refund 

that the respondent brought up to the Court, a federal tax refund of about—I think it was 

$1200, but the Court also notes the petitioner's tax refund went into that account. It was a 

lot more significant of $6,070. And the Court didn't consider those to be premarital or 

non-marital funds. And so I just wanted to address that 'cause that was part of the 

evidence." 

On January 20, 2021, the district court filed a journal entry in which it journalized 

its findings and conclusions stated on the record. Thereafter, Lana filed a timely notice of 

appeal. 

ANALYSIS

On appeal, Lana raises three issues. First, Lana contends that the district court 

abused its discretion when it concluded that Earnest did not dissipate the parties' assets 

during the marriage. Second, Lana contends that the district court abused its discretion in 

dividing the parties' property. Third, Lana contends that the district court erred by failing 

to grant her attorney fees for successfully bringing a motion to compel Earnest to produce 

certain documents during the divorce action. 

Dissipation of Assets

Lana's primary argument is that the district court erred when it concluded that 

Earnest did not dissipate the parties' assets during the marriage. A district court's division 

of property in a divorce action is governed by K.S.A. 2020 Supp. 23-2801 et seq. A 
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district court has broad discretion when adjusting the property rights of the parties

involved in a divorce proceeding. As a result, the district court's property division "will 

not be disturbed on appeal absent a clear showing the court abused that [broad] 

discretion." In re Marriage of Vandenberg, 43 Kan. App. 2d 697, 715, 229 P.3d 1187 

(2010) (citing In re Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 [2002]). It is 

also important to recognize that although the division of property in a divorce proceeding 

must be just and reasonable, it need not be equal. In re Marriage of Traster, 301 Kan. 88, 

111, 339 P.3d 778 (2014).

A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or 

unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. 

Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). If reasonable persons 

could differ as to the propriety of the action taken by the district court, then it cannot be 

said that the action was arbitrary. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 

1030 (2006). The party alleging the abuse of discretion—in this case Lana—has the 

burden to establish such an abuse. Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 

(2017). 

Under K.S.A. 2020 Supp. 23-2802(c), a district court is to consider the following 

factors in exercising its discretion to divide marital property: 

"(1) The age of the parties; (2) the duration of the marriage; (3) the property owned by 

the parties; (4) their present and future earning capacities; (5) the time, source and 

manner of acquisition of property; (6) family ties and obligations; (7) the allowance of 

maintenance or lack thereof; (8) dissipation of assets; (9) the tax consequences of the 

property division upon the respective economic circumstances of the parties; and (10) 

such other factors as the court considers necessary to make a just and reasonable division 

of property." 
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Lana does not argue that the district court failed to consider the statutory factors. 

Indeed, our review of the record reveals that the district court addressed the statutory 

factors in seeking to equitably divide the parties' property. Instead, Lana argues that the 

district court failed to consider the evidence supporting Lana's claim that Earnest 

dissipated assets. In particular, Lana points to the evidence that Earnest wrote checks to 

cash without accounting for what he did with the money. Lana also suggests that the

district court failed to consider the transfers that Earnest made from the parties' joint 

account into his personal account during the marriage. 

As discussed above, the district court held a trial in which both parties testified 

and nearly 400 pages of financial records were admitted into evidence. Likewise, both 

parties testified at trial about the use of their funds during the marriage. Although Lana 

testified that Earnest wrote several checks to cash during the marriage and she did not 

know how the cash was used, she admitted that she regularly accessed the joint account 

during the marriage and never questioned her husband's use of the funds.

Regarding writing checks to cash, Earnest testified: 

"Q: And you did write checks on occasion for cash; is that right? 

"A: Yes. 

"Q: And was that something you had normally done before you got married? 

"A: I—I always keep cash. Yes, I do. And it varies on the—on the amount, but I carry 

cash because in my business, there's a lot of times that I'll have appointments with 

customers and the meeting will go into the lunch hour. I'll take them to lunch, and some 

places that we go, they didn't—they don't take credit cards. Other times it was just more 

simple to pay cash. And I don't . . . don't know. Like, if I drive-thru McDonald's for

lunch, I'm not (inaudible) a kind of guy that's gonna give them a debit card for a cup of 

coffee or something. I just like to pay with cash. And—I told Lana when we got together 
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that I wanted her to carry cash too. I wanted her to always have cash in her purse in case 

she needed it." 

Earnest also testified:

"Q: Okay. And so how—how did you normally pay your bills out of this account? 

"A: Well, being old-fashioned, I always wrote checks. I didn't have that many bills, so I 

always wrote checks. Lana had always done it the other way and done it electronically, 

and I could see that was a—that was a very simple way to do it, and I told her I was fine 

with—with her doing that. And she loaded all the stuff on the laptop, 'cause I really didn't 

know how to do it, and she loaded all the . . . payables on the laptop and paid the bills. 

And there were some that came in that—that weren't, like, monthly, so if it was just a 

one-time deal, I would write a check. But, obviously, she knew the password to the—to 

the laptop or she wouldn't have been able to pay the—pay the bills—.

"Q: Okay. 

"A: —like she did." 

In addition, Earnest testified that he cashed a few checks to pay for landscaping in 

Florida because the parties did not have a bank account there. In her testimony, Lana 

disputed that cashed checks were used in this way but did not provide another 

explanation for how the landscaping was financed. As a result, it was left to the district 

court to weigh the evidence about the use of the funds in the parties' joint account. 

Similarly, both parties also testified about the transfers made to Earnest's 

American Express account. In particular, Earnest testified that several transfers were 

made to pay bills during the marriage. 
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"Q: Okay. And, again, do you have a—just for instance, on the statement of—ending 

12/31 of '18, there's a—an American Express transfer of $5,000. Is that something you—

you did typically if you needed money? 

"A: Yeah. That—we—and we put some of her money in the—a considerable amount of 

money in the American Express savings account. We were actually sitting in the house in 

Florida, and I asked her about it. I said, Why don't we transfer some of that money to the 

American Express savings account? At least it will make some interest, because it didn't 

make sense to have 30 or $40,000 in a checking account that's noninterest bearing. And 

she was fine with that, so we put it in there. She had access to—to that balance as well. 

And—

"Q: (Inaudible)—

"A: —and, I mean, those were things that we discussed periodically. She—there was 

never anything held back from her. 

"Q: The—the American Express—excuse me. The American Express savings account, 

she had access to that? 

"A: Yes. 

"Q: Okay. Did she ever approach you or have a discussion with you about any transfers 

from the American Express to—to this account? 

"A: No. We—whenever we did that, we discussed it. We talked about doing it 'cause, 

obviously, some of the money that went into that was from the sale of her home. And it 

ultimately was her decision on what was—what was gonna be done with it, but we agreed 

in the beginning that if we had a bill, we were gonna pay it. So when we got short in the 

account, it would've been nice if in the joint account we had 10 or $15,000, but ultimately 

spending, like we did, we spent a lot of money on the house. Not only on the house, but 

on the—the belongings or the—the things—merchandise that we put in the house. And 

we needed to reimburse that account to be able to pay the credit card bills from time to 
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time, so that's why the transfers would come from the American Express savings account 

into this account so we could pay it." 

Additionally, Earnest testified that the decision to transfer $25,000 to the 

American Express account was a joint decision to obtain interest on the money from their 

joint account: 

"Q: Then on June the 4th, there was an American Express transfer of $25,000. Do you 

know what that's—

"A: That—

"Q: What that's for?

"A: That was one that—that we discussed when we were in Florida. And I said, There's 

no reason to leave that in the account. It makes more sense to put it in the American 

Express account to draw some interest. Although the interest rate's not high, it was a heck 

of a lot better than the checking account." 

Earnest also testified that he transferred $10,000 into his American Express 

account at the end of the marriage to restore his premarital balance:

"Q: There's a—December 5th of '19, there's an American Express transfer for $5,000, 

and there's another one later on. What—what's the—can you give us the story on the—

the transfers from American Express? 

"A: Very simply, it was money that I had, actually, prior to meeting Lana, and I—it was 

money that I needed to pay the bills that were still coming in that belonged to both of us, 

so I took it out of my American Express savings account and put it in there to pay the 

bills."

Lana testified that she was neither added to Earnest's American Express account 

nor given the password during the marriage. However, Lana testified that she was aware 
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of some of the transfers to the account but chose not to question them because she trusted 

Earnest to make good decisions. Specifically, Lana testified: 

"Q: He testified that you had a discussion about earning interest and putting—

transferring money from the joint account to his American Express personal account. Do 

you recall that? 

"A: I—the—what I recall on the American Express account is there were numerous 

times I ask him why I never signed a card to be added to that account, 'cause it's a 

savings—an American Express savings account. 

"Q: Right. 

"A: He said, '"You don't require—your—they don't require it. You're my wife. That's all 

they know.'" So I was misled and was told that I was on the account, and, in fact, I wasn't. 

"Q: Okay. And you had no access to it. 

"A: No. 

"Q: And there was never a discussion about transferring money to make more interest in 

that account? 

"A: Oh, he—he would—he would tell me that I'm gonna transfer money. At that point, 

though, a—again, I trusted him and relied on him to—to do the best he could with the 

investments with the American Express, unbeknownst to me that I wasn't on the 

account." 

After hearing the conflicting testimony of the parties and considering the exhibits 

admitted into evidence, the district court found that Earnest had not dissipated the parties'

assets. The district court explained that Earnest believed that his actions were "fair 

because [Lana] was receiving the funds from the sale of the Florida property. Let me be 

clear, I don't think there was any dissipation of assets, stealing of funds, hiding of funds 
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from cash. I think that was a lifestyle that [the parties] lived." Although reasonable minds 

may differ regarding this issue, it is not our role to replace our judgment for that of the 

district court. In re Marriage of Bradley, 282 Kan. at 7; see also In re Marriage of 

Stegman, No. 122,344, 2020 WL 7413620, at *3 (Kan. App. 2020) (unpublished 

decision).

Based on our review of the record on appeal, we find the district court's 

determination on the issue of dissipation of assets to be reasonable and that it was not 

based on a mistake of fact or law. We also find that the district court's decision was 

supported by substantial competent evidence. Thus, we conclude that the district court 

did not abuse its discretion in ruling on the issue of dissipation of assets.

Division of Property

Next, Lana contends that the district court abused its discretion in its final division 

of property. She argues that the district court's division of property was "unjust" because 

the district court did not account for all of the parties' debts and assets. Again, we review 

the district court's decision adjusting the property rights of the parties under an abuse of 

discretion standard. In re Marriage of Vandenberg, 43 Kan. App. 2d at 715. Likewise, as 

the party alleging an abuse of discretion, Lana continues to have the burden of

establishing such abuse. Gannon, 305 Kan. at 868. 

The record on appeal reflects that the district court explained at length its 

reasoning for dividing the parties' property. Faced with a difficult task, the district court 

tried to restore the parties to their premarital financial positions to the extent that it was 

possible to do so given their financial circumstances. Ultimately, in an attempt to make 

the division as equitable as possible, the district court ordered Earnest to pay Lana 

$12,000. We find the district court's division of property to be consistent with the factors 
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set forth in K.S.A. 2020 Supp. 23-2802(c) and to be reasonable based on the evidence 

presented at trial.

The district court explained that it was difficult to decide what is fair and equitable 

due to the short duration of the marriage, the assets brought into the marriage by each 

party, and the assets bought jointly by the parties during the marriage. Because there were 

not sufficient assets to restore the parties to their previous positions, the district court 

used percentages that reflected the premarital assets that each party brought into the 

marriage. Lana does not challenge the district court's use of percentages in dividing the 

marital property and we find the district court's approach to be reasonable under the 

circumstances presented. In this regard, it is important to reiterate that a property division 

in a divorce proceeding must be just and reasonable but need not be equal. In re 

Marriage of Vandenberg, 43 Kan. App. 2d at 715.

Further, while it is true that the district court did not discuss every piece of 

evidence submitted by the parties at trial, this does not mean that the district court failed 

to consider the evidence. Moreover, the district court appropriately acknowledged that it 

was not trying to account for every dollar but was instead attempting to make an 

equitable distribution of the property. 

In making its ruling, the district court explained: 

"[T]here [were] some benefits received from both parties from the payoff of certain 

items, and the petitioner—or, excuse me, the respondent may have received a slightly 

more significant benefit by virtue of the wedding rings being paid off and retaining the 

wedding rings. 

"But, ultimately, the Court, in this division, thinks that that is equitable. I can't 

return the parties and restore them to 100 percent of what they were before. I don't think 

that would be fair. I don't think that would be equitable. I think the parties made joint 
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decisions. These parties are both sophisticated and of an age that they have the ability to 

make joint decisions, so I don't think I attribute whether the decisions were good or bad 

to one side or the other." 

In sum, we find that the district court appropriately exercised its discretion in 

dividing the marital property. We also find that the district court appropriately followed 

Kansas law and considered the required statutory factors in making a just and reasonable 

division of the parties' assets based on the evidence presented at trial. We thus conclude 

that the district court's division of property should be affirmed. 

Attorney Fees

Lana also contends that the district court erred by failing to require Earnest to pay 

her reasonable attorney fees that were related to a successful motion to compel that she 

filed during discovery. If the district court has authority to grant attorney fees, its decision 

whether to award fees is reviewed under the abuse of discretion standard. Consolver v. 

Hotze, 306 Kan. 561, 568, 395 P.3d 405 (2017). But when the language of an attorney 

fees statute makes an award mandatory, the question of whether to award fees is not 

within the district court's discretion. Snider v. American Family Mut. Ins. Co., 297 Kan. 

157, 169, 298 P.3d 1120 (2013). 

Regarding motions to compel discovery, K.S.A. 2020 Supp. 60-237(a)(5)

provides:

"If the motion is granted, the court must, and if disclosure occurs before the 

motion is granted, the court may, after giving an opportunity to be heard, require the 

party or deponent whose conduct necessitated the motion, the party or attorney advising 

that conduct, or both to pay the movant's reasonable expenses incurred in making the 

motion, including attorney's fees. But the court must not order this payment if: 
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"(i) The movant filed the motion before attempting in good faith to obtain the 

disclosure or discovery without court action;

"(ii) the opposing party's nondisclosure, response or objection was substantially 

justified; or

"(iii) other circumstances make an award of expenses unjust."

So, the statute requires the nonmoving party to pay reasonable attorney fees that 

are incurred by the filing of a motion to compel, unless the judge finds that the opposition 

to the motion was substantially justified or that other circumstances make an award of 

expenses unjust. See City of Arkansas City, Kan. v. Anderson, 19 Kan. App. 2d 344, 349,

869 P.2d 244 (1994). Here, it is undisputed that Lana filed a successful motion to compel 

discovery. Likewise, it is undisputed that the district court neither awarded Lana 

reasonable attorney fees nor concluded that a statutory exception applied.

On July 20, 2020, the district court held a hearing in which it granted Lana's 

motion to compel discovery. Yet the district court withheld deciding Lana's request for 

attorney fees related to bringing the successful motion to compel. In doing so, the district 

court stated: 

"THE COURT: All right. Thank you. Today the Court's not going to grant attorney's 

fees. But . . . if you wanna renew that request later or at trial, you're welcome to do so, 

and the Court, at that point in time, will look at the issue. Probably be in a better spot to 

have known what the evidence was and—and what has occurred and be able to look at 

the documents requested and then the parties' respective resources and make some 

decision with regard to attorney's fees if you renew that request. And that's not a promise 

I'll award them, that's just the process that I'll go through." 

Then, on September 4, 2020, the district court issued a journal entry in which it 

stated that it would delay "ruling on [Lana's] motion for attorney's fees until the facts are 
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developed at trial." Finally, at the hearing following the trial, the district court 

determined: 

"Lastly, there was an issue of a request for attorney's fees on the Motion To 

Compel, and the Court considered this at length. And when I look at the overall 

documents in this case, when I look at the transactions that occurred, I don't see anything 

that causes the Court, I think, tremendous concern. Again, I don't think there was any 

dissipation of assets. I don't think anybody took advantage, per se, of anybody else. An—

and if I did grant attorney's fees, I'd likely make a different order with regard to the 

amount that I've granted as a judgment. And so, ultimately, the Court is going to decline 

the request to award attorney's fees." 

Similarly, in the journal entry and decree of divorce, the district court stated that it

"denies Respondent's request for attorney's fees. The Court finds no dissipation of assets 

and no basis for awarding attorney's fees."

In response to Lana's argument on appeal, Earnest argues that the district court 

impliedly ruled that "other circumstances make an award of expenses unjust" when it 

decided that there was no dissipation of property. But the district court made no such 

conclusion either at the hearing on the motion to compel or in a subsequent journal entry. 

Once the district court granted Lana's motion to compel, the district court was obligated 

to comply with K.S.A. 2020 Supp. 60-237(a)(5). Because K.S.A. 2020 Supp. 60-

237(a)(5) requires the district court to either award Lana's reasonable attorney fees for 

successfully bringing her motion to compel or conclude that one or more of the statutory 

exceptions apply, we reverse the district court's decision on the issue of attorney fees and 

remand for further proceedings.

Affirmed in part, reversed in part, and remanded with directions.