30 | Bankruptcy & Divorce: A Marriage of Inconvenience By The Hon. Robert D. Berger Cover layout & design by Ryan Purcell, [email protected] 10 | A Gift That Can Never Be Taken Away 20 | Recommended Reading for Your Next Appeal By Gene Balloun and Zach Chaffee-McClure 12 | Because I Said I Would By Anne McDonald 21 | 2014 KBA Elections 18 | Succession Planning Really Isn’t Optional 24 | 2014 KBA Awards (Particularly for the Solo Attorney) By Mark Bassingthwaighte 26 | State of the Judiciary By Chief Justice Lawton R. Nuss Regular Features 6 | KBA President 16 | Substance & Style By Dennis D. Depew By Pamela Keller 8 | YLS President 22 | Members in the News By Jeffrey W. Gettler 22 | Obituaries 13 | The Diversity Corner By Katherine Lee McBride 38 | Appellate Decisions 14 | A Nostalgic Touch of Humor 39 | Appellate Practice Reminders By Matthew D. Keenan 46 | Classified Advertisements 15 | Law Practice Management Tips & Tricks By Larry N. Zimmerman E Let your VOICE be TH 2013-14 Heard! KBA Officers & Board of Governors President JOURNAL Dennis D. Depew, [email protected] OF THE KANSAS BAR ASSOCIATION President-Elect Gerald L. Green, [email protected] Vice President 2013-14 Natalie Haag, [email protected] Journal Board of Editors Secretary-Treasurer Stephen N. Six, [email protected] Richard D. Ralls, chair, [email protected] Terri Savely Bezek, BOG liaison, [email protected] Immediate Past President Lee M. Smithyman, [email protected] Joan M. Bowen, [email protected] Hon. David E. Bruns, [email protected] Young Lawyers Section President Jeffrey W. Gettler, [email protected] Boyd A. Byers, [email protected] District 1 Toby J. Crouse, [email protected] Toby J. Crouse, [email protected] Emily Grant, [email protected] Gregory P. Goheen, [email protected] Connie S. Hamilton, [email protected] Mira Mdivani, [email protected] Katharine J. Jackson, [email protected] Jennifer K. Vath, [email protected] Michael T. Jilka, [email protected] District 2 Lisa R. Jones, [email protected] Charles E. Branson, [email protected] Hon. Sally D. Pokorny, [email protected] Hon. Janice Miller Karlin, [email protected] Casey R. Law, [email protected] District 3 Eric L. Rosenblad, [email protected] Julene L. Miller, [email protected] District 4 Hon. Robert E. Nugent, [email protected] Chad D. Giles, [email protected] Professor John C. Peck, [email protected] District 5 Rachael K. Pirner, [email protected] Terri S. Bezek, [email protected] Karen Renwick, [email protected] Cheryl L. Whelan, [email protected] Teresa M. Schreffler, [email protected] District 6 Richard H. Seaton Sr., [email protected] Bruce W. Kent, [email protected] Sarah B. Shattuck, [email protected] District 7 Richard D. Smith, [email protected] Matthew C. Hesse, [email protected] Marty M. Snyder, [email protected] J. Michael Kennalley, [email protected] Calvin D. Rider, [email protected] Matthew A. Spurgin, [email protected] Catherine A. Walter, [email protected] District 8 John B. Swearer, [email protected] Beth A. Warrington, staff liaison, [email protected] Issaku Yamaashi, [email protected] District 9 David J. Rebein, [email protected] The Journal Board of Editors is responsible for the selection and editing of District 10 all substantive legal articles that appear in The Journal of the Kansas Bar Jeffery A. Mason, [email protected] Association. The board reviews all article submissions during its quarterly District 11 meetings (January, April, July, and October). If an attorney would like to Nancy Morales Gonzalez, [email protected] submit an article for consideration, please send a draft or outline to Beth Warrington, communication services director, at [email protected]. District 12 William E. Quick, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Christi L. Bright, [email protected] monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., KDJA Representative and at additional mailing offices. The Journal of the Kansas Bar Association Hon. Thomas E. Foster, [email protected] is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KBA Delegate to ABA KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member Linda S. Parks, [email protected] subscription is $25 a year, which is included in annual dues. Nonmember Rachael K. Pirner, [email protected] subscription rate is $45 a year. ABA Board of Governors The Kansas Bar Association and the members of the Board of Editors assume Thomas A. Hamill, [email protected] no responsibility for any opinion or statement of fact in the substantive ABA State Delegate legal articles published in The Journal of the Kansas Bar Association. Hon. Christel E. Marquardt, [email protected] Copyright © 2014 Kansas Bar Association, Topeka, Kan. Executive Director For display advertising information contact Bill Spillman at (877) 878-3260 Jordan E. Yochim, [email protected] or email [email protected]. For classified advertising information contact Beth Warrington at (785) 234- OUR MISSION 5696 or email [email protected]. Publication of advertisements is not to be deemed an endorsement of any The Kansas Bar Association is dedicated to advancing the professionalism product or service advertised unless otherwise indicated. and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public POSTMASTER: Send address changes to The Journal of the Kansas Bar understanding of the law, and promoting the effective administration of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. our system of justice. 4 The Journal of the Kansas Bar Association DON'T FORGET TO MARK IT TODAY! REGISTER ONLINE AT WWW.KSBAR.ORG/CLE March 7 3rd Annual Oil, Gas & Mineral Spring Conference Whiskey Creek, Hays 7.0 CLE credit hours, including 1.0 hour ethics and professionalism March 11 Telephone or Web Seminar TBD 1.0 CLE credit hour March 25 Telephone or Web Seminar TBD 1.0 CLE credit hour March 26 Telephone or Web Seminar TBD 1.0 CLE credit hour March 27 Telephone or Web Seminar TBD 1.0 CLE credit hour March 28 KBA Employment Law CLE The Dodge House, Dodge City 4.0 CLE credit hours, including 1.0 hour ethics and professionalism CLE is pending approval in Kansas and Missouri. kba president How Do You Like Your Furloughs? n mid-December, the Court Budget Advisory Council with the very real question of: “How do you like your fur- made its report to the Kansas Supreme Court. The full re- loughs?” There are a number of answers to this question, but Iport is available online at the Kansas Courts website: www. the bar of Kansas and thus the KBA does need to carefully kscourts.org. Every attorney in Kansas who interacts with consider if it wants to offer its input to the judicial branch as state courts should take the time to read the report. it decides how to structure the coming furloughs. The council was made up of capable and intelligent peo- In the past, furloughs were spread out among multiple pay ple from across Kansas. They were given the unenviable task periods and multiple months so as to not leave employees of figuring out how to trim $8.25 million from the judicial with any one period of time when they had no income. This branch’s FY2015 budget. This was one of those appointments was also done to try to minimize the impact of the furloughs that would lead to a big sigh of relief when you didn’t get the on the public and business interests that use the courts on a call from Chief Justice Nuss to participate! daily basis. Since the judicial branch budget is 96 percent salary ex- Another option is not to close the courts but furlough dif- pense for personnel, the only way to eliminate 8 percent of ferent staff members in each court at different times. This al- the total budget is to negatively impact people. The judicial lows the courts to stay open, but then dramatically increases branch has already been operating on a reduced budget, and the workload on everyone else in each court. In areas where fortunately (if there can be anything labeled as fortunate in the courts are already understaffed due to the current backlog of present predicament) the $8.25 million figure includes some authorized but unfilled positions, this practice would signifi- expenditures that are not being made now. The fact remains, cantly increase the opportunity for error and delay in court however, that the funding that has been approved for FY2015 operations. by the Kansas legislature is 8.25 percent below what has been Perhaps the most controversial option would be to wait requested in a base budget request by the judicial branch. until the end of the fiscal year approaches when a more ex- The council’s first recommendation is to recommend the act determination of what the budget shortfall will actually elimination of 19.5 FTE court service officer positions across be. Once that number has been determined, then the courts the state. These positions currently perform duties that are not would just shut down for the time period required to reach required by current statute. Examples of this include screen- the needed savings. At a minimum, if all the other savings ing of PFA and PFS applications, conducting domestic me- strategies named by the council were implemented, the courts diations, conducting criminal history reviews prior to pleas would be closed 12 days, or two-and-a-half weeks. That time and sentencing, to name a few.