No. 115,028

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                              ST. CATHERINE HOSPITAL, dba
                      ST. CATHERINE HOSPITAL ANESTHESIA SERVICES,
                                       Appellee,

                                                 v.

                                        OVIDIO ALVAREZ,
                                           Appellee,

                                                and

                                       BIANCA ALVAREZ,
                                          Appellant.


                                SYLLABUS BY THE COURT


       Kansas recognizes the doctrine of necessaries, under which a spouse can be held
liable when the other spouse obtains necessary items, like food or medical care, on credit.
When the spouses have separated before credit was extended, the creditor must show that
it extended credit based upon the creditworthiness of the absent spouse (i.e., the one not
receiving the goods or services) in order to collect payment under this doctrine from the
absent spouse.


       Appeal from Finney District Court; CHRISTOPHER D. SANDERS, judge. Opinion filed October 28,
2016. Reversed and remanded with directions.


       Timothy R. Woods, of Kansas Legal Services, for appellant.


       Amber M. Brehm, of Law Office of Amber M. Brehm, of Wichita, for appellee.


Before LEBEN, P.J., PIERRON and MCANANY, JJ.
       LEBEN, J.: After 17 years of marriage, Ovidio Alvarez left his wife to move in with
another woman. More than 1 year later, Ovidio was injured in a car crash and treated at
St. Catherine Hospital in Garden City. Ovidio, apparently uninsured, left a bill of $6,456
unpaid.


       So the hospital sued Ovidio's wife, Bianca, who had by then divorced Ovidio—but
who had still been married to him when he received the treatment. The hospital sued
under what's known as the "doctrine of necessaries." Under it, a spouse can be held liable
when the other spouse obtains necessary items, like food or medical care, on credit. The
district court granted summary judgment in favor of the hospital against Bianca.


       But the Kansas case recognizing the doctrine of necessaries, Harttmann v. Tegart,
12 Kan. 177, 1873 WL 591 (1873), had a requirement the hospital has not met, at least in
the summary-judgment papers. Harttmann was decided at a time when women generally
did not own property in their own names, even though Kansas had, virtually at its
founding, recognized a woman's right to do so: Kansas recognized a woman's right to
own property in the state constitution and adopted a Married Women's Property Act in
1868. See Kan. Const. art. 15, § 6 (providing that the Kansas Legislature "shall provide
for the protection of the rights of women, in acquiring and possessing property"); G.S.
1868, ch. 62; see also K.S.A. 2015 Supp. 23-2601 (now applying to both husbands and
wives); 2 Elrod, Kansas Law & Practice, Kansas Family Law § 10:1 (2015). The norm
when Harttmann was decided in 1873 was that a married man, who had a legal duty to
support his family, provided the family's income. See Harttmann, 12 Kan. at 179-80
(noting "the legal as well as moral duty of every husband to see that his wife is furnished,
or has the means of furnishing herself, with everything necessary and suitable for a
person in their station and condition").


       Consistent with the wife's lack of financial resources in her own name and the
husband's duty to support his family, the doctrine of necessaries allowed a married


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woman to obtain necessary items on her husband's credit. But one of the requirements for
holding the husband responsible when, as here, the parties were separated was that the
party giving credit to the wife have "[given] the credit originally to the husband." 12 Kan.
at 180. Here, the hospital has not shown that its decision to treat Ovidio for his injuries—
thus extending credit for the medical services provided—was in any way based on the
hospital's evaluation of Bianca's creditworthiness. We therefore conclude that the district
court should not have granted summary judgment to the hospital.


       Let's briefly review the factual circumstances. Ovidio and Bianca were married on
May 28, 1995. They separated in November 2012 when Ovidio moved in with another
woman. According to Bianca, their separation was due both to Ovidio's infidelity and to
his abuse of drugs and alcohol. They were divorced in October 2014.


       On February 23, 2014, Ovidio was badly injured in a car accident. (His girlfriend
was with him and was also injured.) Ovidio was taken to St. Catherine Hospital, where he
was treated from February 23 to March 24. He was then transferred to Wesley Medical
Center in Wichita for further treatment of internal injuries, including to his abdomen and
colon. The treating physician in Garden City signed off on a note expressing "regret" at
sending "such a difficult case" on to Wichita for further treatment but said that
St. Catherine's had "exhausted our resources and our expertise."


       St. Catherine's bill of $6,456 for the medical services went unpaid.


       In 2015, the hospital sued Bianca for the unpaid medical expenses. The hospital
contended that she was liable under the doctrine of necessaries, and the district court
agreed, granting summary judgment in the hospital's favor.


       On appeal, we apply the same standard the trial court is required to apply on a
motion for summary judgment. Summary judgment is proper only where the motion,


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together with the evidence submitted by the parties, shows that there is no genuine issue
as to any significant fact and the moving party is entitled to judgment as a matter of law.
Lehman v. City of Topeka, 50 Kan. App. 2d 115, 118, 323 P.3d 867 (2014).


       Neither party disputes any material fact that the other has presented on the
hospital's motion for summary judgment. The question is simply whether the evidence
presented by the hospital meets the requirements to impose the doctrine of necessaries,
making Bianca responsible for the extension of credit for medical services provided to
Ovidio. (For our purposes, "necessaries," a term coined in the law in the 14th century,
essentially means the same thing as "necessities." See Black's Law Dictionary 1192 [10th
ed. 2014]; Garner's Dictionary of Legal Usage 598 [3d ed. 2011].)


       Both parties cite two Kansas Supreme Court cases, one from 1873 and one from
1992, for guidance on the doctrine of necessaries as applied in Kansas. See Harttmann,
12 Kan. 177; St. Francis Regional Med. Center, Inc. v. Bowles, 251 Kan. 334, 836 P.2d
1123 (1992). Harttmann was adopted at a time when the doctrine only applied in one
direction—making a husband liable for necessary items furnished to his wife on credit.
12 Kan. at 180-81. Bowles, decided more than a century after Harttmann, held that equal-
protection principles required that the doctrine be applied equally so that wives also could
be responsible for necessaries provided on credit to their husbands. 251 Kan. at 340-41.


       Harttmann set out the elements that the parties must prove for a court to apply the
doctrine.


       The court first established a rule for the normal situation in which husband and
wife are living together. In such cases, it was presumed as of 1873 that the wife could act
as the husband's agent and rely on his credit:




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          "It is certainly the legal as well as moral duty of every husband to see that his wife is
          furnished, or has the means of furnishing herself, with everything necessary and suitable
          for a person in their station and condition. For this reason, it is always conclusively
          presumed that a wife who lives and cohabits with her husband has an agency from him,
          and upon his credit, to procure everything that is necessary for herself or family, unless
          the person from whom she seeks to obtain such necessaries has actual notice that she has
          no such agency in fact; and in such a case it is presumed prima facie that what she
          procures are necessaries." 12 Kan. at 179-80.


          But the Harttmann court faced an additional question: What happens when the
wife has abandoned the husband? Does the husband still have to pay debts incurred by
the wife for necessaries? In that case, said the court, the creditor has the burden to prove
five propositions, including, as the last of the five, that the credit was extended based on
the husband's creditworthiness:


          "In such a case the party furnishing the necessaries, and who wishes to make the husband
          liable therefor, must show—First, that he furnished the necessaries; second, that they
          were necessaries; third, that her husband failed or refused to furnish them, or to furnish
          means whereby she could procure them, and that she had no sufficient means of her own
          whereby to procure them; fourth, that the separation was for a justifiable cause on her
          part; fifth, and generally, that he gave the credit originally to the husband." 12 Kan. at
          180.


Under Harttmann, if the wife left without justification, no longer providing her services
to the household and no longer affording herself of the home being provided to her, she
was no longer entitled to the husband's support under the doctrine of necessaries. 12 Kan.
at 181.


          The hospital focuses on one more caveat addressed by the Harttmann court. After
providing the five-part test, the court added that if the creditor had had prior dealings with
the family—and the creditor didn't know the parties were separated—then the creditor



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could "trust the wife as usual upon the husband's credit until he receives actual notice of
the separation." 12 Kan. at 180. The hospital argues that since it had previously dealt with
the Alvarez family—Ovidio had received treatment in 1995, and hospital records listed
Bianca as his wife—they could rely on Bianca's credit to treat Ovidio when he showed up
injured in 2014.


       We don't agree with the hospital's reading of Harttmann. The language the
hospital relies upon is not a stand-alone rule but logically relates only to the fourth
element in the Harttmann test: proof that the separation was for a justifiable cause. If the
creditor didn't know about the separation—and had previously been dealing with the
family—it would logically be excused from having to prove that the separation had been
justified and could "trust the wife as usual upon the husband's credit." 12 Kan. at 180. If
the creditor didn't know about the separation at all, it would have no cause to ask about it.


       But the fifth element has no apparent relationship with whether the creditor knew
the parties had separated. And the Harttmann court said that the fifth element applied
"generally." 12 Kan. at 180. There simply is no reason to apply the doctrine of
necessaries at all unless the creditor has advanced something of value based on the
creditworthiness of the absent spouse. Under Kansas law, as stated in Harttmann and not
modified in Bowles, that's one of the elements a creditor must prove to recover under the
doctrine, at least in a case in which the husband and wife have separated.


       So did the hospital provide such evidence? No. The affidavit it submitted from its
patient-accounts supervisor, Sarah Miranda, made no such claim. The hospital did not
even present evidence that Bianca had paid the previous hospital bill when services were
provided to Ovidio in 1995, let alone evidence that it relied on Bianca's creditworthiness
when providing services in 2014. We therefore conclude that the hospital's motion for
summary judgment should not have been granted.



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       It seems doubtful that the hospital could present evidence that it relied on Bianca's
credit when it decided to treat Ovidio: Hospitals that participate in Medicare have an
obligation under the federal Emergency Treatment and Labor Act to treat any badly
injured person who comes to the hospital's emergency room, regardless of the person's
ability to pay. See 42 U.S.C. § 1395dd (2012). Even so, Bianca, the defendant in this
lawsuit, did not file a cross-motion for summary judgment claiming that summary
judgment should be granted in her favor because the hospital could not meet the fifth
requirement set out in Harttmann for the application of the doctrine of necessaries. Had
she done so, that would have triggered a procedural requirement that the hospital provide
such evidence if it wished to avoid summary judgment against it. See Ney v. Farm
Bureau Life Ins. Co., 51 Kan. App. 2d 562, 566, 350 P.3d 1126 (2015), rev. denied 303
Kan. 1078 (2016). As the case has arrived before us on appeal, however, the hospital has
not yet been required to present such evidence to preserve the ability to pursue its claim
against Bianca. Accordingly, we will send the matter back to the district court for further
proceedings.


       The hospital does argue that Kansas courts should no longer follow Harttmann
because the state now allows no-fault divorce (unheard of in 1873) and generally doesn't
factor fault into the determination of financial obligations in a divorce. See K.S.A. 23-
2701; In re Marriage of Sommers, 246 Kan. 652, Syl. ¶ 2, 792 P.2d 1005 (1990). But the
divorce statute still allows a divorce to be granted on fault grounds, K.S.A. 23-
2701(a)(2), and we do not believe that the way property is to be divided between spouses
in a divorce action automatically applies to an action brought by a creditor against a
spouse who had not agreed to pay that creditor.


       The district court's grant of summary judgment to the hospital is reversed, and this
case is remanded to the district court for further proceedings consistent with this opinion.




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