Johnson v. Baker

719 P.2d 752 (1986)

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Nature of the Case

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Facts

P retained D to represent her in a divorce from her husband, Richard (H). P's primary concern was that D secure an agreement from H to pay the expenses and cost of college for the parties' daughter, Kelly. D negotiated a property settlement agreement and incorporated it into the decree of divorce and the journal entry of judgment. D made no attempt, nor did he advise P to attempt, to secure the signature of H on the journal entry. D also did not attempt to reduce the parties' agreement to writing in any instrument other than the journal entry of judgment. He stated that he did not think it was necessary for the parties to sign the journal entry and decree of divorce, although he admitted he was familiar with the provisions of K.S.A. 1980 Supp. 60-1610a (repealed L. 1982, ch. 152, § 30) with respect to agreements for support of children who have reached the age of majority. D learned that H refused to pay college expenses for his daughter. D informed P that she should retain another lawyer to represent her in enforcing the provisions of the journal entry because he would undoubtedly be needed as a witness on her behalf in any court hearing. P hired attorney Keith Richey to represent her and Richey filed a motion to compel H to perform the obligation stated in the journal entry. Judge Beasley of the Sedgwick County District Court denied the motion concluding that the court lacked jurisdiction to enforce the provision in question because there was no prior written agreement pursuant to K.S.A. 1980 Supp. 60-1610a. P did not appeal from this ruling although she was aware that she had the right to do so. Ps filed this action against D for breach of contract and negligent failure to obtain an enforceable agreement against Richard Johnson for Kelly's college expenses. The district court denied any relief on the breach of contract claim holding that the journal entry in the divorce was a prior written agreement under K.S.A. 1980 Supp. 60-1610a and was legally binding on H. Thus, the court concluded that D had performed the contractual duty which he owed P. However, the court held that D was liable for negligence because his failure to obtain a separate signed agreement did not meet the standard of care normally exercised in the community and resulted in the unfavorable ruling by Judge Beasley. The trial court assessed damages at $559.40 and fixed Kelly's damages as equivalent to the cost of tuition ($5,380) plus room and board ($3,600) for the two years she has attended college, reduced by the $6,042 received in grants and scholarships, for a net recovery of $2,938. Ps appealed the amount of damages awarded and the denial of the contract claim.