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No. 124,904

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of

NANCY KARANJA-MEEK,

Appellee,

and

AARON MARSHALL MEEK,

Appellant.

SYLLABUS BY THE COURT

1.

Under K.S.A. 2023 Supp. 60-252 and Supreme Court Rule 165 (2024 Kan. S. Ct. 

R. at 232), a party seeking to preserve a claim for appeal that a district court's judgment 

lacks sufficient factual findings or conclusions of law must object to such or move to 

alter or amend the judgment based on such inadequacy. However, when a district court 

sufficiently states its factual findings and conclusions of law, a party need not file a 

motion under K.S.A. 2023 Supp. 60-252 to preserve a claim that the trial court 

erroneously applied the stated legal theory to the specifically stated factual findings. 

2.

In an action for divorce, annulment, or separate maintenance, the district court's 

determination about which property is defined as marital property pursuant to K.S.A. 23-

2801(a) is a question of law subject to de novo review. 
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3.

In actions for divorce, annulment, and separate maintenance when the parties' 

property is not subject to division under some other agreement, the district court has 

broad discretion to equitably divide all property owned by married persons pursuant to 

K.S.A. 23-2802(c). This court reviews the district court's division of property pursuant to 

K.S.A. 23-2802 for an abuse of discretion.

4.

In Kansas when the parties' property is not subject to division under some other 

agreement, upon commencement of divorce, annulment, or separate maintenance actions

all property owned by married persons—whether maintained or defined as separate 

property under K.S.A. 23-2601 or not—becomes marital property pursuant to K.S.A. 23-

2801(a).

5.

When no other agreement dictates otherwise, personal injury awards or 

settlements received during marriage are marital property under K.S.A. 23-2801(a). 

Appeal from Johnson District Court; K. CHRISTOPHER JAYARAM, judge. Oral argument held 

September 20, 2023. Opinion filed May 31, 2024. Reversed and remanded with directions.

Joseph W. Booth, of Lenexa, for appellant. 

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, for 

appellee.

Before ATCHESON, P.J., ISHERWOOD and HURST, JJ.

HURST, J.: Nancy Karanja-Meek and Aaron Marshall Meek were married for 

about eight years before Nancy filed for divorce. After resolving many issues in their 
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divorce proceeding, Nancy and Aaron went to trial to seeking resolution of the division

of their property, including two large personal injury awards with future payments. At the 

core of this appeal is how the district court categorized and divided those personal injury 

awards. Aaron claims that the district court erred by identifying Nancy's personal injury 

award as her separate property not subject to equitable division in their divorce. Nancy

disagrees, arguing that the district court properly identified both of their personal injury 

awards as separate property not subject to equitable division. 

Neither party's arguments are availing. The district court erroneously characterized 

both personal injury awards—not just Nancy's—as separate property. That means the 

district court should have included both Aaron's and Nancy's personal injury awards as 

marital property under K.S.A. 23-2801 subject to equitable division pursuant to K.S.A. 

23-2802. While the district court erroneously classified the personal injury awards as 

separate property, such misclassification might not affect the district court's equitable 

property division. However, because the district court erred in classifying the property 

subject to division, this case must be remanded for consideration of whether the court's 

equitable property division must be adjusted when both personal injury awards are 

included as marital property under K.S.A. 23-2801(a). 

FACTUAL AND PROCEDURAL BACKGROUND

Nancy Karanja-Meek and Aaron Marshall Meek were married in November 2009. 

In February 2013, while still married, Aaron suffered serious, catastrophic injuries in an

explosion in Kansas City, Missouri. Later that year, Aaron brought two personal injury 

claims against several defendants alleging negligence and strict liability. Nancy also

brought a claim against the same defendants for loss of consortium. 

On July 13, 2015, Aaron and Nancy settled their personal injury claims for 

a substantial sum through a confidential settlement agreement. Aaron and Nancy 
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were each awarded large lump-sum payments with the remaining amount placed 

in annuities with monthly and periodic payments for the remainder of their lives 

with guaranteed payments until 2045. 

In December 2017 Nancy filed for divorce. At the time of filing, they had two 

children and Nancy was pregnant with their third. Among other things, Nancy and Aaron 

disagreed about how the future annuity payments from their personal injury award 

settlements should be divided. Nancy and Aaron failed to settle their divorce through 

mediation, and in January 2021 the district court appointed a special master because the

district court believed their property division presented complex issues. 

At a pretrial conference in August 2021, the parties agreed that the special master's 

report would be submitted to the court for review. The court's pretrial order documented 

the parties' positions related to division of the personal injury award annuities. Nancy 

argued that at the time of settlement she and Aaron agreed that the annuities were 

awarded individually and would not be subject to division. Even so, she agreed that the 

monthly income from the separate annuities to each party should be treated as income for 

calculating support and maintenance. Aaron disagreed and claimed that Nancy had 

received a substantial amount for her consortium claim and "that the gross inequity in the 

settlement payout should be taken into account in this divorce proceeding." Therefore, 

Aaron claimed the court should order all, or the vast majority, of Nancy's future annuity 

payments to him. 

The special master distributed their report shortly after the August pretrial 

conference in which they explained that the analytical approach should be used to divide 

the property and "wife's loss of consortium settlement would be compensating her for her 

loss of companionship, cooperation, aid, affection and sexual relations, as well as 

compensating her for her pain and suffering, and as such, would be designated as her 

separate property." The special master's report explained: 
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"Black's Law dictionary defines loss of consortium as '[a] loss of the benefits that 

one spouse is entitled to receive from the other, including companionship, cooperation, 

aid, affection, and sexual relations. Black's Law dictionary (8th ed. 2004). This type of 

claim refers to the pain-and-suffering experienced by a spouse as a result of an injury to 

that spouse's partner. Brett indicates that, 'if the uninjured spouse receives an award for 

loss of consortium, however, that award it is also compensation for pain-and-suffering, 

and thus the separate property of the uninjured spouse.' Brett R. Turner, Equitable 

Distribution of Property §6:54 (3rd ed. 2005).

. . . .

"The Court of Appeals' decisions in Powell, Buetow, and Lash, clearly indicate 

that in Kansas, when an injured spouse receives a personal injury award, it is marital 

property, subject to division, utilizing the analytic approach. Such approach requires an 

examination of each separate component of the settlement recovery, to determine the 

purpose of each component, to determine if each said component is marital property or 

separate property." (Emphasis added.)

The special master conceded it had "no way of knowing how the parties and their 

attorney arrived at how the settlement proceeds were going to be assigned to each 

party . . . ." 

Divorce Trial

Aaron and Nancy resolved child custody and support issues before trial. As part of 

the trial and settlement efforts both parties prepared documents identifying the marital 

property. Nancy did not include her annuity as marital property in her worksheet. At trial, 

Nancy confirmed she and Aaron both received a monthly annuity payment from their 

personal injury awards in addition to any regular income and that Aaron's annual income 

was $67,344 less than her annual income. As such, Nancy agreed to pay a spousal 

maintenance obligation to Aaron calculated using her annuity income. 
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Nancy testified that the annuities arose through litigation where Aaron suffered a 

personal injury and she suffered a continuing loss of consortium. She stated, "I lost the 

man I loved. I lost Aaron, the Aaron that was there before he got injured." Aaron testified 

that in the divorce he was "requesting that things be clarified and that monies that were 

paid out for my life and wellbeing and loss of work be redirected my direction." Aaron

was troubled that his wife had been given an approximately equal personal injury award 

even though he was severely physically injured and she was not. Aaron testified that 

Nancy "was supposed to be my caretaker and make sure they're looking out for my best 

interest." He later testified that at the time of the settlement that he "was still getting over 

[his] injury and [he] was still highly medicated, and Nancy was making the decisions." 

Aaron also confirmed that he was alleging he was forced or coerced into the settlement 

agreement because he felt he did not have control of anything at the time.

Ultimately Aaron's and Nancy's personal injury settlements and the conditions for 

which they received payment are irrelevant to this court's review.

District Court's Journal Entry and Decree of Divorce

The district court issued its Journal Entry and Decree of Divorce on January 3, 

2022. It granted Aaron spousal maintenance at the parties' agreed rate and noted that the 

parties included the annuity payments as "'income'" when arriving at the agreed amount. 

The court explained that "in a vacuum, the structured payments to each party are likely 

more properly characterized as a 'property right' and not 'income' for support or taxation 

purposes," but still granted Aaron the agreed upon maintenance. 

The district court then concluded that it should apply the analytical approach used

by Kansas appellate courts to classify the parties' personal injury awards and associated 

annuities as either marital or separate property. It then found that the annuities were 
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"'separate property' that should be maintained by and set aside to each litigant 

respectively." 

"The Court notes that the parties previously agreed, years ago, upon a division of the total 

settlement compensation from their personal-injury litigation, which was done with the 

advice, input, and oversight of a very capable and skilled trial counsel. At that time, the 

parties agreed that all proceeds (including the funds that purchased the annuities at issue) 

were compensation for what are essentially 'non-economic' (and thus, non-taxable) losses 

that each sustained. It would be inherently unfair to now relitigate the nature of such 

payments and re-cast the resulting annuity as something else, such as an income-stream 

replacement or any other similar measure of apportionable losses of 'consortium,' as 

Respondent would request." 

In a footnote, the district court rejected Aaron's contention that he was coerced, misled, or 

fraudulently induced into executing the settlement agreement. The court found Aaron's 

testimony "self serving and, at best, a dubious attempt to now relitigate the nature and 

extent of such settlement proceeds—in contravention of basic legal principles of res 

judicata and of fundamental interests of finality, justice, and certainty."

Aaron appeals and Nancy requests appellate attorney fees. 

DISCUSSION

Aaron appeals the district court's determination that Nancy's personal injury award 

was "separate property" not subject to equitable division in their divorce proceeding. 

Specifically, Aaron asserts that the district court failed to correctly apply the analytical 

approach and the district court erred in finding res judicata applied. Courts across the 

country have commonly applied two approaches—the mechanical or analytical—to 

determine whether personal injury awards obtained during marriage are considered

marital property. See, e.g., In re Marriage of Buetow, 27 Kan. App. 2d 610, 611, 3 P.3d 
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101 (2000) (explaining the two approaches and applying the analytical approach); see 

also Parde v. Parde, 258 Neb. 101, 108-09, 602 N.W.2d 657 (1999) (explaining the two 

approaches). Under the mechanical approach, personal injury awards are per se classified 

as marital property consistent with the relevant statutory language. See Drake v. Drake, 

555 Pa. 481, 497, 725 A.2d 717 (1999) (applying the mechanical approach). But under

the analytical approach—as explained more fully below—the court determines whether a 

personal injury award is marital or separate property by evaluating the nature and 

underlying reason for the award. See, e.g., In re Marriage of Buetow, 27 Kan. App. 2d at 

611-12. 

Before reviewing the substantive issues, this court must address Nancy's 

contention that Aaron's claim of error is unpreserved. 

I. AARON'S CLAIMS ARE PRESERVED FOR APPEAL 

Nancy asserts that Aaron failed to preserve his argument that the trial court 

erroneously applied the law because he either failed to object to the district court's 

decision or failed to move to alter or amend the district court's judgment. Whether 

Aaron's claim is preserved is a question of law over which this court exercises unlimited 

review. Johnson v. Board of Directors of Forest Lakes Master Assn., 61 Kan. App. 2d 

386, 393, 503 P.3d 1038 (2021). 

First, Nancy argues that Aaron's claim on appeal was not raised before the district 

court and is thus unpreserved. See Gannon v. State, 303 Kan. 682, 733, 368 P.3d 1024 

(2016) (noting that generally matters not raised before the district court cannot be raised

for the first time on appeal). Aaron correctly notes that the district court addressed 

whether and how to apply the analytical approach to distribute the parties' personal injury 

awards. The parties raised the issue of how to categorize the annuities—as marital or 

separate property—in their property spreadsheets. The pretrial order also identified the 
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division of the annuities as "[t]he main issues in this trial." The special master's report, 

which was provided to the court and included as an exhibit at trial, encouraged the court 

to use the analytical approach. At trial, Aaron argued Nancy's annuity should be 

considered marital property, although he did not specifically argue for use of the 

analytical approach. However, the district court addressed the issue and applied the

analytical approach to the facts in its Journal Entry and Decree of Divorce. "[R]ule 6.02 

does not require an appellant to be the party who raised an issue below in order to claim 

error on appeal." Russell v. Treanor Investments, L.L.C., 311 Kan. 675, 682, 466 P.3d 

481 (2020) (finding appellant did not raise legal issue for the first time on appeal because 

the district court initiated the question sua sponte). Clearly, the parties and court 

addressed how to categorize the personal injury awards, including use of the analytical 

approach, and it is not being argued for the first time on appeal.

Second, Nancy argues that Aaron needed to file a postjudgment motion under 

K.S.A. 2023 Supp. 60-252 to preserve his claim that the district court erroneously applied 

the analytical approach. When an action is tried to the court and not a jury, the district 

court's judgment must include specific findings of fact and conclusions of law. K.S.A. 

2023 Supp. 60-252(a)(1); Kansas Supreme Court Rule 165 (2024 Kan. S. Ct. R. at 232).

The district court must "find the facts specially and state its conclusions of law 

separately. The findings and conclusions may be stated on the record after the close of 

evidence, or may appear in an opinion or a memorandum of decision filed by the court." 

(Emphasis added.) K.S.A. 2023 Supp. 60-252(a)(1). "This requirement is in part for the 

benefit of the appellate courts in facilitating review," because meaningful review is 

precluded "[w]here the trial court's findings of fact and conclusions of law are inadequate 

to disclose the controlling facts or the basis of the court's findings . . . ." Tucker v. 

Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993). 
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In In re Marriage of Bradley, the court addressed this issue and explained: 

"In all actions under K.S.A. 60-252 and Rule 165, when the trial court has made findings, 

it is not necessary to object to such findings to question the sufficiency of the evidence on 

appeal. However, if the findings are objectionable on grounds other than sufficiency of 

the evidence, an objection at the trial court level is required to preserve the issue for 

appeal. If, however, the appellate court is precluded from extending meaningful appellate 

review, the case may be remanded although no objection was made in the trial court." In 

re Marriage of Bradley, 258 Kan. 39, 50, 899 P.2d 471 (1995). 

The Bradley court explained that appellate challenges "that pertain to the form and 

specificity of the oral or written findings" are not preserved when the appellant fails to 

make a postjudgment objection to such inadequacy. (Emphasis added.) 258 Kan. at 48.

Nancy misinterprets the court's statement in Bradley to mean that "challenges to 

the legal reasoning or methodology in a trial court's divorce judgment are not preserved 

where the appellant did not file a postjudgment motion raising his objections" because 

such challenges are "on grounds other than sufficiency of the evidence." On the contrary, 

in Bradley the court refers to the district court's findings—which in the context of 

applying K.S.A. 2023 Supp. 60-252 means factual findings—not legal analysis. 258 Kan. 

at 47-48 (explaining the rules requiring more specific findings). 

Following Bradley, panels of this court have held that a party seeking to preserve 

an argument for appeal that the district court's judgment is based on insufficient or 

inadequate factual findings or conclusions of law must object to the inadequacy or move 

to alter or amend the judgment. See In re Marriage of Poggi, No. 121,012, 2020 WL 

5268841, at *3-4 (Kan. App. 2020) (unpublished opinion) (appellant challenged

adequacy of trial court's findings, where he argued the court did not make the required 

written findings for the appellate court to review whether it used appropriate factors); In 

re Marriage of Rodrock, No. 115,078, 2017 WL 2494704, at *4-5 (Kan. App. 2017) 
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(unpublished opinion) (appellant did not preserve issue for appeal when trial court failed 

to account for significant marital debt and there were no factual findings related to the 

debt in trial court's judgment); In re Marriage of Friars, No. 113,512, 2016 WL 2609622, 

at *4 (Kan. App. 2016) (unpublished opinion) (appellant argued trial court failed to make 

sufficient findings of fact and conclusions of law but failed to move for additional 

findings before appeal).

Aaron does not claim the district court's Journal Entry and Decree of Divorce 

lacks factual findings or legal conclusions. Rather, he asserts that the district court 

improperly applied the stated law to the stated facts. An appellant need not file a motion 

under K.S.A. 2023 Supp. 60-252(b) to preserve a claim that the district court erroneously

applied the law to sufficiently stated factual findings and legal conclusions. Unlike the 

cases Nancy relied on, here the parties argued to the district court regarding the specific 

distribution of those assets; the district court had all the information necessary to make its 

judgment; and the district court fully described the factual findings, legal reasoning, and 

conclusion in its order. Thus, Aaron's claims are preserved for appellate review. 

Moreover, this court has prudential authority to review unpreserved claims which 

involve only a question of law that arise from proven facts. See State v. Great Plains of 

Kiowa County, Inc., 308 Kan. 950, 953-54, 425 P.3d 290 (2018) ("The rule that an issue 

must be submitted to the district court or to the Court of Appeals before we may consider 

it is prudential in character."). As explained above, Aaron's claims were thoroughly 

presented to and addressed by the district court in its Journal Entry and Decree of 

Divorce. Thus, nothing prevents appellate review of the issue. See 308 Kan. at 953-54 

("This court will exercise its discretion to address such an argument when failure to 

acknowledge the argument would tend to create bad precedent or mislead parties 

attempting to navigate the complexities of legal rights and duties.").
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II. THE DISTRICT COURT ERRED BY NOT INCLUDING AARON'S AND NANCY'S 

PERSONAL INJURY SETTLEMENTS AS MARITAL PROPERTY

In Kansas, property division in divorce proceedings is governed by statute. In an 

action for divorce, annulment, or separate maintenance the district court must first 

identify the property subject to division, and then it has broad discretion to equitably 

divide that property. See K.S.A. 23-2801; K.S.A. 23-2802. The district court's

identification of marital property subject to division in a divorce, annulment, or separate 

maintenance proceeding is a question of law subject to unlimited appellate review. See In 

re Marriage of Monslow, 259 Kan. 412, 414, 420-21, 912 P.2d 735 (1996); see also In re

T.S., 308 Kan. 306, 309, 419 P.3d 1159 (2018) (appellate courts exercise unlimited 

review of statutory interpretation).

This court exercises unlimited review over statutory interpretation. Nauheim v. 

City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). When interpreting statutes, the 

most fundamental rule "is that the intent of the legislature governs if that intent can be 

ascertained." Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 

557, 276 P.3d 188 (2012). Statutory interpretation begins with the "plain language of the 

statute, giving common words their ordinary meaning," and when that plain language is 

clear and unambiguous this court "refrain[s] from reading something into the statute that 

is not readily found in its words." In re M.M., 312 Kan. 872, 874, 482 P.3d 583 (2021).

This court also considers the statutory provisions together to "give effect, if possible, to 

the entire act" and read the provisions "so as to make them consistent, harmonious, and 

sensible." State v. Bee, 288 Kan. 733, Syl. ¶ 4, 207 P.3d 244 (2009). 
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During a Divorce Proceeding, Kansas Defines All Property Owned by the Married 

Parties as Marital Property

In Kansas, during the marriage a married person's "separate property" is not 

subject to disposal by the other spouse and generally may not be used to satisfy the other 

spouse's debts. K.S.A. 23-2601. Separate property is defined as: 

"The property, real and personal, which any person in this state may own at the time of 

the person's marriage, and the rents, issues, profits or proceeds thereof, and any real, 

personal or mixed property which shall come to a person by descent, devise or bequest, 

and the rents, issues, profits or proceeds thereof, or by gift from any person . . . ." K.S.A. 

23-2601.

A married person's "separate property" "shall remain the person's sole and separate 

property, notwithstanding the marriage, and not be subject to the disposal of the person's 

spouse or liable for the spouse's debts . . . ." K.S.A. 23-2601. 

However, upon the commencement of a divorce, annulment, or separate 

maintenance action, all property owned by either spouse—including "separate property"

defined in K.S.A. 23-2601—becomes marital property. K.S.A. 23-2801(a). 

"All property owned by married persons . . . whether described in K.S.A. 23-2601, and 

amendments thereto, or acquired by either spouse after marriage, and whether held 

individually or by the spouses in some form of co-ownership, such as a joint tenancy or 

tenancy in common, shall become marital property at the time of commencement by one 

spouse against the other of an action in which a final decree is entered for divorce, 

separate maintenance, or annulment." (Emphasis added.) K.S.A. 23-2801(a). 

This means that the protections keeping "separate property" safe from disposal by the 

other spouse only apply before commencement of a divorce, annulment, or separate 
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maintenance action. See K.S.A. 23-2801; K.S.A. 23-2601. Moreover, upon the 

commencement of such actions, each spouse obtains an ownership interest in the entire 

pot of marital property. K.S.A. 23-2801(b). "Each spouse has a common ownership in 

marital property which vests at the time of commencement of such action, the extent of 

the vested interest to be determined and finalized by the court, pursuant to K.S.A. 23-

2802 . . . ." K.S.A. 23-2801(b). 

The clear, unambiguous statutory language provides that upon commencement of 

divorce proceedings, marital property includes any separate property in K.S.A. 23-2601. 

K.S.A. 23-2801(a); see also Cady v. Cady, 224 Kan. 339, 344-45, 581 P.2d 358 (1978)

(explaining marital property during divorce). Decades ago, the court in Cady explained:

"The filing for divorce, however, has a substantial effect upon the property rights of the spouses. 

At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the 

property individually or jointly held. The court is obligated to divide the property in a just and 

equitable manner, regardless of the title or origin of the property." 224 Kan. at 344. 

Furthermore, in Kansas all property owned by married persons is subject to equitable 

division during a divorce. In a dissolution of marriage, the court "shall divide the real and 

personal property of the parties, including any retirement and pension plans, whether 

owned by either spouse prior to marriage, acquired by either spouse in the spouse's own 

right after marriage or acquired by the spouses' joint efforts." K.S.A. 23-2802(a). 

The Kansas Law and Practice treatise describes property division in divorce 

proceedings as follows:

"Kansas as a common law jurisdiction follows equitable distribution rather than 

community property principles. In community property states and some common law 

states with marital property concepts, property acquired before marriage and that 

acquired by gift, bequest or devise after marriage are classed as separate property not 
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subject to division by the court. All property acquired after the marriage is presumed to 

be 'marital' property which the spouses co-own and is subject to division. Therefore, 

tracing ownership is crucial in community property states but commingling of premarital 

and marital assets over time may make 'origin' or contribution difficult to ascertain.

"Since 1963, Kansas has been a 'total divisibility' state which means that the trial 

judge can divide all of the real property and personal property owned at the time of filing 

in a just and reasonable manner regardless of its source or the manner of its acquisition. 

When dividing the property, the court is not obligated to award each party the property 

owned by the party prior to the marriage or received by gift or inheritance during the 

course of the marriage.

"In an equitable distribution state, inability to trace the exact origins will not be 

as important as in a community property state. The Kansas court can divide property 

owned by either spouse in his or her own right before or after marriage as well as 

property acquired by joint efforts—not just the net increase in the parties' assets during 

the marriage." 2 Elrod, Kansas Law and Practice: Kansas Family Law § 10:1 (2022-2023 

ed.).

"In Kansas, separate property is recognized prior to filing for divorce, annulment or 

separate maintenance. Once a petition is filed, all property becomes 'marital' and subject 

to equitable division by the trial judge." 2 Elrod, Kansas Law and Practice: Kansas 

Family Law § 10:1.

The Analytical Approach Cannot Be Used to Identify Marital Property in Kansas 

Despite a clear statutory requirement that upon commencement of a divorce, 

annulment, or separate maintenance action all property owned by the married parties is 

defined as marital property—the district court applied the analytical approach to find that 

both personal injury awards were separate property not subject to equitable division in 

the divorce. Aaron claims that under the analytical approach, the district court should 

have identified Nancy's personal injury award as marital property and reapportioned all 
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or most of the future annuity payments to him. Aaron correctly notes that panels of this 

court have applied the analytical approach to determine whether personal injury awards 

during marriage are marital property during divorce. See In re Marriage of Smith, 

No. 109,901, 2014 WL 3907092, at *2-3 (Kan. App. 2014) (unpublished opinion) 

(discussing the analytical approach in determining whether a FELA award is marital or 

separate property); In re Marriage of Buetow, 27 Kan. App. 2d at 611 (explaining the two 

approaches and applying the analytical approach); In re Marriage of Powell, 13 Kan. 

App. 2d 174, 180, 766 P.2d 827 (1988) (finding personal injury settlement marital 

property by analyzing the nature of the underlying loss). 

Under the analytical approach, the purpose of the personal injury award dictates 

whether the court identifies the award as marital or separate property. Applying the 

analytical approach, the personal injury award is classified as marital or separate property 

depending "'upon the nature of the underlying loss.'" In re Marriage of Buetow, 27 Kan. 

App. 2d at 611-12. The court looks to the nature and circumstances of the personal injury 

award and determines whether the payment is for a particular spouse, both spouses, or the 

family. 27 Kan. App. 2d at 611-12; see also Parde, 258 Neb. at 108-09 (explaining the 

two approaches).

In In re Marriage of Buetow, the panel was persuaded by Colorado and Nebraska's 

reliance on the analytical approach to determine whether a personal injury award should 

be separate or marital property. 27 Kan. App. 2d at 612-13. The panel explained that 

Colorado had found workers compensation benefits were marital property when they 

compensated for lost earnings and medical expenses incurred during marriage but were 

separate property when they compensated for post dissolution loss of earning capacity 

even if the injury occurred during the marriage. 27 Kan. App. 2d at 612 (analyzing In re 

Marriage of Smith, 817 P.2d 641, 644 [Colo. App. 1991], which adopted the analytical 

approach). But the applicable Colorado statutes differ from Kansas in how courts must 

dispose of property upon dissolution of marriage. In Colorado, the court "shall set apart 
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to each spouse his or her property and shall divide the marital property . . . in such 

proportions as the court deems just after considering all relevant factors . . . ." Colo. Rev. 

Stat. § 14-10-113(1); see also Colo. Rev. Stat. § 14-10-113(2) (stating nonmarital 

property includes gifts, bequests, devises or descents, property acquired before marriage, 

and property acquired in exchange for property acquired before marriage).

Similarly, in Nebraska, "the marital estate should include only property created by 

the marital partnership." Parde, 258 Neb. at 108. In Nebraska they "classify as a 

threshold matter the parties' property as either marital or nonmarital" which is known as 

"dual classification." Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582, 592 (2017); 

see also Parde, 258 Neb. at 108-09. In Parde, the Nebraska court explained:

"Compensation for purely personal losses is not in any sense a product of marital efforts. 

We, therefore, hold that compensation for an injury that a spouse has or will receive for 

pain, suffering, disfigurement, disability, or loss of postdivorce earning capacity should 

not equitably be included in the marital estate. On the other hand, compensation for past 

wages, medical expenses, and other items that compensate for the diminution of the 

marital estate should equitably be included in the marital estate as they properly replace 

losses of property created by the marital partnership." Parde, 258 Neb. at 109-10.

The Nebraska Supreme Court explained that reliance on the analytical approach is "more 

consistent with the basic rule that the marital estate should include only property created 

by the marital partnership." 258 Neb. at 108. The Colorado and Nebraska approaches to 

property division in divorce proceedings are antithetical to the Kansas procedure. The 

Kansas Legislature clearly intends that upon commencement of divorce, annulment, or 

separate maintenance proceedings, all property—whether separate or not—becomes 

"marital property" subject to the court's equitable property division. See K.S.A. 23-2801.

Other states applying the analytical approach to determine whether personal injury 

awards are defined as marital or separate property have distinct statutory schemes from 
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Kansas. See Rizzo v. Rizzo, 120 A.D.3d 1400, 1402, 993 N.Y.S.2d 104 (2014) (citing 

N.Y. Domestic Relations Law § 236.B.1.c., d.[2]) (noting that personal injury settlements 

typically constitute at least partially separate property, but the purchase of the annuity 

with right of survivorship converted personal property to marital property where under 

the applicable statute, "[m]arital property shall not include separate property" and "[t]he 

term separate property shall mean: . . . compensation for personal injuries"). In Alabama 

the parties in divorce actions may retain separate property estates and the court generally 

"may not take into consideration any property acquired prior to the marriage of the 

parties or by inheritance or gift unless'' the judge finds the property has been used to 

benefit the parties during marriage. (Emphasis added.) Ala. Code § 30-2-51(a); see also 

Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala. Civ. App. 2005); Smith v. Smith, 959 

So.2d 1146, 1148-49 (Ala. Civ. App. 2006). Mississippi appellate courts also adopted the 

analytical approach, where the court's property division in divorce proceedings requires 

that "[f]irst, the character of the parties' assets, i.e., marital or nonmarital, must be 

determined" and "[t]he marital property is then equitably divided, . . . in light of each 

part[y's] nonmarital property." Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss. 1994); 

see also Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss. 1994) (applying the analytical 

approach to identifying marital property). 

States with statutory schemes like Kansas apply the mechanical approach which 

essentially means they follow the statutory definitions that require personal injury awards 

be classified as marital property regardless of their purpose. See Drake, 555 Pa. at 491 

n.6, 497 (applying the mechanical approach to find a personal injury award is marital 

property when the applicable statute states that "[a]ll . . . property acquired by either party 

during the marriage is presumed to be marital property regardless of whether title is held 

individually or by the parties . . . ." 23 Pa. Stat. § 3501[b]). Additionally, in New 

Hampshire the appellate court applied the mechanical approach noting that its statutory 

scheme is not like dual classification jurisdictions. In re Preston, 147 N.H. 48, 49-50, 780 

A.2d 1285 (2001). New Hampshire defines property subject to division in divorce as "all 
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tangible and intangible property and assets, real or personal, belonging to either or both 

parties, whether title to the property is held in the name of either or both parties." N.H. 

Rev. Stat. Ann. § 458:16-a(I). These states applying the mechanical approach have 

statutory provisions similar to Kansas in which all property, no matter how owned or 

held, becomes marital property during a divorce action. 

Unlike states that employ the analytical approach to identify marital or separate 

property in divorce actions, Kansas does not have a dual classification statutory scheme.

During a divorce action in Kansas, all property owned by married persons is combined 

into one pot of marital property. See K.S.A. 23-2801 (in a divorce action, marital 

property includes property identified as separate property in K.S.A. 23-2601); K.S.A. 23-

2802 (describing how the district court must divide property in a divorce proceeding); see 

also Cady, 224 Kan. at 344-45 (explaining that all property is marital property during 

divorce proceedings). Rather than considering the origin, purpose, or use of the personal 

injury awards and annuities to determine whether they are marital property, Kansas law 

requires the district court to define the personal injury awards and associated annuities as 

marital property subject to equitable division. As Nancy notes, this applies to both 

annuities—not just hers—and both Aaron's and Nancy's personal injury awards and 

annuities are marital property under K.S.A. 23-2801. 

This outcome is consistent with precedent, follows the clear statutory language, 

and adheres to the Legislature's intent, but it may differ from how courts have addressed 

personal injury awards in practice. See In re Marriage of Smith, 2014 WL 3907092, at 

*2-3 (discussing the analytical approach in determining whether a FELA award is marital 

or separate property); In re Marriage of Buetow, 27 Kan. App. 2d at 611-12; In re 

Marriage of Powell, 13 Kan. App. 2d at 180. However, this difference may have little 

effect on the district court's ultimate property division because many of the concepts 

underlying the analytical approach are included when dividing the marital property 

pursuant to K.S.A. 23-2802(c). Here, the district court applied an amorphous standard to 
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identify the marital property that was inconsistent with the clear statutory obligations. On 

remand, after applying the correct statutory criteria, the district court might reach the 

same property division—but this court cannot assume such an outcome. Nor can this 

court impose its view of how the marital property should be divided and find the error 

harmless because doing so would usurp the district court's authority to divide marital 

property. 

This Court Cannot Address Whether the District Court Abused Its Discretion in Its 

Property Division 

After the court identifies marital property under K.S.A. 23-2801, it must then 

determine how to equitably divide that property. Such division can be in kind, by 

awarding property to one party and requiring the other to pay a just and proper sum, or by 

ordering the property sold and the parties to divide the proceeds. K.S.A. 23-2802(a).

After appropriately identifying the marital property "in conformity with the statute, the 

district court has wide discretion in adjusting the financial obligations of the parties in a 

divorce action." In re Marriage of Monslow, 259 Kan. at 414. In deciding how best to 

divide the marital property, the district court shall consider: 

"(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." (Emphases added.) K.S.A. 23-2802(c).

The district court has wide discretion to make a "just and reasonable division of 

property." In re Marriage of Rodriguez, 266 Kan. 347, Syl. ¶ 1, 969 P.2d 880 (1998); see

K.S.A. 23-2802(c)(10); see also In re Marriage of Traster, 301 Kan. 88, 97-98, 339 P.3d 
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778 (2014) (The "statute includes a list of factors the district court should review and 

further allows consideration of 'such other factors as the court considers necessary to 

make a just and reasonable division of property'").

As Professor Linda D. Elrod explained:

"The concept of 'marital' property gives a spouse a vested interest in the other spouse's 

property from the time of filing for divorce, annulment or separate maintenance. The 

extent of that interest is determined by the court. As a practical matter, however, to divide 

the property 'equitably' will require a determination of how and when property was 

acquired, and sometimes marital/community property principles are often found to be 

equitable." 2 Elrod, Kansas Law and Practice: Kansas Family Law § 10:1.

Kansas is an "equitable division state rather than a community property state" that does 

not require an equal split of marital property but rather "'gives the court discretion to 

consider all of the property, regardless of when acquired, to arrive at a just and 

reasonable division.'" In re Marriage of Rodriguez, 266 Kan. at 352-53. 

On appeal, this court reviews the district court's equitable division of property for 

an abuse of discretion, which occurs when the decision "is based on a legal or factual 

error or if no reasonable person would agree with the court's decision." In re Marriage of

Thrailkill, 57 Kan. App. 2d 244, 261, 452 P.3d 392 (2019). Here, this court cannot review 

the district court's property division because it erroneously categorized the parties'

annuities as "'separate property' that should be maintained by and set aside to each litigant 

respectively." Therefore, the district court made an error of law in identifying the marital 

property subject to division which must be corrected before evaluating its property 

division under K.S.A. 23-2802. However, requiring the district court to reclassify the 

parties' personal injury awards does not necessarily require the district court to change its 

equitable property division. 
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Aaron asked the district court to "re-apportion a significant percentage of

[Nancy's] future payments from the annuity issued to her as an equitable division of their 

property." The district court noted that Aaron was already receiving increased 

maintenance based on including Nancy's annuity as her income. Thus "it would be 

similarly unfair, unjust, and inequitable to permit [Aaron] to benefit from a significant 

award of spousal maintenance that was calculated based upon monthly payments from

the annuity (as 'income') while at the same time reapportioning the amounts of those 

payments and redirecting that same 'income' stream back to [Aaron]." The court 

explained that awarding Aaron the annuity proceeds and maintenance calculated from 

including the annuity payments in Nancy's income "would, indeed, result in a 'doubledipping' windfall" to Aaron. 

While this court cannot review the district court's property division, it appears the 

court considered all the property—marital and separate—in making its division.

Therefore, recategorizing Nancy's and Aaron's annuities as marital property rather than 

separate property does not necessarily require any change in the result of the court's 

equity analysis. However, that remains the purview of the district court. See In re 

Marriage of Wherrell, 274 Kan. 984, 986, 58 P.3d 734 (2002) ("[T]he district court is 

vested with broad discretion in adjusting the property rights of parties involved in divorce 

actions" and "that discretion will not be disturbed on appeal absent a clear showing of 

abuse.").

III. THE DISTRICT COURT'S STATEMENTS DO NOT CREATE AN ERROR

Finally, Aaron argues that the district court erred in finding he was "'relitigating'" 

the settlement and that res judicata applied. The court's comment on this issue was 

included in a footnote to the Journal Entry and Decree of Divorce and stated:
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"The Court also rejects [Aaron]'s contention that he was in any way coerced into the 

agreement at that time; nor does the Court believe that he was misled or fraudulently 

induced into executing the agreement—as he indicated at trial. The Court finds such 

testimony self serving and, at best, a dubious attempt to now relitigate the nature and 

extent of such settlement proceeds—in contravention of basic legal principles of res 

judicata and of fundamental interests of finality, justice, and certainty." 

The court's comment about res judicata was unrelated to its analysis addressed herein, but 

was a rebuke of Aaron's tactics. Aaron also argues that the district court erred in 

chastising him for not including his own annuity as property the court should divide. The 

district court's comments about Aaron's tactics are unrelated to its thorough analysis and 

Journal Entry and Decree of Divorce and Aaron fails to show any error associated with 

the comments. 

IV. NANCY'S MOTION FOR APPELLATE ATTORNEY FEES IS DENIED

On January 19, 2024, this court received Nancy's motion seeking appellate 

attorney fees, arguing such an award was warranted because Aaron's appeal was 

unreasonable. This court may award attorney fees if it "finds that an appeal has been 

taken frivolously, or only for the purpose of harassment or delay." Supreme Court Rule 

7.07(c) (2024 Kan. S. Ct. R. at 52). For the reasons discussed herein, Aaron's appeal was 

not frivolous and Nancy's motion for appellate attorney fees is denied.

CONCLUSION

Upon commencement of an action for divorce, annulment, or separate 

maintenance when no other agreement applies, Kansas courts must identify all 

property—including any designated as separate property before the action—as marital 

property subject to equitable division. As such, courts may not use the analytical 

approach to determine whether property is defined as marital or separate property in such 
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actions. The district court erred in defining the parties' personal injury awards and 

associated annuity payments as separate property during their divorce proceedings.

This case is reversed and remanded. On remand, the district court must treat both 

annuities as marital property and make an equitable distribution of the marital property 

consistent with the considerations in K.S.A. 23-2802(c) for a just and reasonable property 

division. 

Reversed and remanded with directions.