*1 No. Appellee, Appellant. Clark, Clark,
Arnold Jean
(
Clark, appeals from trial court’s judgment dividing order and refusing Ap- award unpublished peals, opinion, approved the division of property but reversed and remanded with directions to award alimоny to the wife in an amount to be determined granted court. We review. background.
We first turn to the factual parties The were 19, August 13, married on granted May Divorce was on marriage so the a years. existed for little less nine than Two Robert, marriage, children were born years now nine Lora, age, Throughout six. marriage, now almost except periods surrounding children, for short of time the birth of the has worked as a waitress. earnings approximately Her $200 per school, month. When the children are not in pаys she earnings babysitters. half of her for about Prior to Arnold in the worked construction business and also worked as a truck driver, hauling milk parties for his father. In bought a $17,500, borrowing money all from a local bank. balance on indebtedness the time trial was $8,228. They bought milk, alsо two with trucks which to haul trial, 1978 International and a 1981 they GMC. At the time of owed trucks. The International has some 84,000. it, their the GMC about owned
miles on home, mortgage on which there valued at *2 They Eagle, several other motor vehicles: AMC also owned $8,500; $7,500 motorcycles Jeep and a at at from valued valued $1,325; $6,300. at and a Pontiac TransAm valued While a total of Blazer, purchased pending, a Chevrolet the case was Arnold $13,214 $1,000 mortgage against it. worth about more than $1,000, goods at had and furniture valued household with a value policies insurance and mutual funds and life $1,277. $500. which are valued most Arnold also had tools parties is milk route. Arnold testified valuable asset of the $17,500, new bought it for that has added several that he in his now producers, and that route is worth $25,000. that An retained testified in his economist Jean route, depending capitali- opinion the value of the rate of zation, over and somewhere between physical of the business. above the assets of milk route found value to be valuation, Appeals accepted as do we. When fact, findings оf first the trial court has made function of supported by the findings court is to determine whether determination, substantial, competent making evidence. party. the evidence favorable to the successful If we consider support findings, there is evidenсe to of no substantial contrary consequence may that there have been evidence ad- believed, which, supported if would have a different duced Inc., 517, 525, Systems, finding. Waggener v. Seever substantial, competent Here there was 664 P.2d as finding the triаl court’s to value evidence route. awarded the route to the but
The trial court value, $12,600, payable him to the wife about half of the months. period installments of each for of 36 can The trial court’s division best be demonstrated following table: Awаrded to Clark: Value Item 13,700 $
The home 7,500 Eagle AMC automobile 1,000 Furniture 12,600 1/2 value of route 34,800 34,800 TOTAL $ $ 7,000 Mortgage Less: on home 27,800 Net $ Value Awarded to Arnold Clark: 1,277
Insurance & Mutual Funds $ 78,700 Milk trucks 14,214 Blazer 6,300 Pontiac Trans Am Tools
Motorcycles Jeep &
Milk Route
TOTAL *3 8,228 Less: $ Loan Route 89,050 Loan on Trucks 13,214 Loan on Blazer Outstanding bill for truck re-
pair
Judgment wife to for half in-
terest in rоute $127,092 TOTAL $127,092 Net Value $ 224 required The trial court pay also Arnold to $750 towards Jean’s attorney fees, $750 towards expert fees, witness child Jean’s month, per $400 and the Additionally, court costs. provide Arnold is hospital to medical and insurance for the children.
Thе evidence indicates and the trial court found that the adjusted income, had gross for purposes, income tax $46,000 about in less overdue taxes of leaving $34,000; and that Arnold will adjusted have gross income $34,000 for 1983 of The decrease was attributable to Arnold’s decision hire part to a driver to do of the driving during important 1983. We it think is to note that figures these are for income, adjusted gross net adjusted not income. gross From income, monthly payments Arnold must make loan of almost $1,000; pay taxes, he must state and federal income estimated at
706 1983; payments $16,000 must into for the he make court per $750 and the children of month or benefit outstanding obligations, pay the includ- annually; he must other costs, expert fees, repair and the attorney witness ing and trucks; living expenses. hе must his own the bill on apply not much trial that the husband could more court found Considering against him. the $750 which is assessed than the wife, larger going to property, with the share the division of upon considering falling the indebtedness refused to award said: reversing Court “(T)he pаyments was half of she awarded for her additional ordinary by [the wife] to meet the needs of will have to be consumed business contrast, By although tangible property ... herself. her children and worth, by petitioner was has little net awarded the received year. produce gross per income at least which can dividing goal property equally. trial order reflects marital “The court’s acknowledged goal property that this defeated if a division of It has been receiving tangible liquidate pаrty to assets of business the business forces a Reich, payments party. cash to the other Reich v. order to make the settlement 339, 342-43, (1984); Bohl, [Bohl P.2d 545 Bohl I v. 232 Kan. However, (1983)]. equally receiving party true that the P.2d 1106 placed having spend payments position should not be those the cash 788, 793-94, Almquist Almquist, payments to survive. order (1974). Although appropriate court’s reflects concern P.2d 383 district order problem, not take into the latter. for the former it did consideration property opinion, the court overstated thе value of the received “In our compared petitioner’s respondent income. We conclude that when respondent supplement settlement in should be awarded payments will not have to the settlement such an amount that she cоnsume already awarded the court.” *4 Almquist disagree with rationale of v. we the
While
do not
788,
(1974), the
Almquist,
Kan.
707
apparent
dip
“It seems
that in
will
order
survive she
be
into her
should,
think,
property.
weighed
heavily
of the
share
This factor
we
have
more
balancing
parties’
position.”
the
of the
214 Kan.
overall financial
at 793-94.
сourt,
Schroeder,
with
Kaul and Fromme dissent-
Justices
ing,
“equalizing”
by
increased the
judgment
Even with
increase,
the
gave
approximately
which
her
of the
30%
marital
estate, it would
“dip
seem that she would
her
have to
into
share
property”
the
order to survive.
сourt,
issue
before the trial
Appeals,
the
Court of
now
property
is the
division
and the denial of
correctly
pointed
its
out in
that the
appellate
of an
under
focus
such circumstances is whether
or not
court abused
discretion. The rules аre stated in
Bohl,
557,
(Bohl
(1983),
v.
232
I)
Bohl
Kan.
ant to divorce. The trial court is under a
to divide the marital
in a
‘just
60-1610(d).
Supp.
determining just
and reasonable manner.’ K.S.A.1981
property
(1)
and rеasonable
division of the
trial court should consider:
(2)
ages
parties;
(3)
marriage;
of the
duration
owned
(4)
parties;
present
parties; (5)
time,
earning capacities
and future
of the
(6)
obligations; (7)
acquisition
property;
family
and manner
sourcе
ties and
determined;
question
(8)
alimony
of fault when
the allowance
or the
Powell,
456,
(1982);
459,
lack thereof. Powell v.
231 Kan.
218
648 P.2d
Parish v.
Parish,
131, 133-34,
(1976).
220 Kan.
P.2d 792
551
“
‘In
divorce action the district court is
with broad
vested
discretion in
adjusting property rights, and its exercise of that
will not
discretion
bе disturbed
showing
appeal
Powell,
absent a clear
of abuse.’
Kan. at
459. See also
549,
Downing Downing,
v.
‘[Discretion
P.2d 709
is abused
[person]
adopted by
where no reasonable
would take the view
[persons]
propriety
If
court.
reasonable
cоuld differ as to the
of the action taken
court then it
be said that
cannot
the trial court abused its discretion.’
Powell,
560, 562,
Stayton
Stayton,
231 Kan. at
v.
211 Kan.
clear abuse of discretion. Wofford, 220 Kan. at dispute Therе is no in the evidence as to the value home, it, the amount of mortgage or value of the furnishings. The wife given values car to her at instead value court, it attributed to we have used her value in our computation. The value of the route, purchаsed milk years some two earlier was fixed the trial court at and as noted earlier that figure evidence, support finds in the logic. as well as in The wife was awarded half of the value of the route. only dispute is whether pay husband should can —and pay alimony. afford to The trial cannot, court found that he —
that no should be awarded. Unquestionably, the wife alimony payments use could support to herself and the two children, but one of the unfortunate present realities many domestic relations cases is that there are insufficient funds go to around. given While the husband was income-produc- ing property, route, the milk he is payment faced with the totalling $110,000, plus loans over outstanding repair bills and Although taxes. his payments loan will cease oncе the loans are off, paid it is obvious high from the mileage on the vehicles that will replace be those trucks in keep order to productive. gross His adjusted income his gross income accurately do not ability reflect his pay. obvious, It is as wе pointed out earlier opinion, that stag- Arnold Clark has gering obligations, payment of which must come from his ad- income; justed gross these pay he must in order to remain in the hauling business. While there is evidence the wife form, needs more some there is also evidence that the husband cannot more than the per month which the pay. him court ordered decision, announcing indicated that it had it, carefully considered the facts before and that it attempt- was ing to enter an fair order most favorable and most parties. both circumstances, say Under we cannot no reasonable person adopted by would take the view the trial court. We find discretion. no abuse
Appellant
points.
raises three other
She contends that the trial
fаiling
court abused its discretion in
to award sufficient child
*6
Second,
support.
she contends that
the trial court abused its
failing
discretion in
to award
attorney
sufficient
fees to her.
Finally, she contends
trial court erred in limiting certain
testimony. With
support,
referеnce to the child
the amount
law;
ordered cannot be said to be insufficient as a matter of
and
in view of the financial
parties,
circumstances
we do not
believe
insufficient as a matter
fixing
of fact. Orders
child
subject
jurisdiction
to the continuing
оf the trial
may
be modified in the future when “a material
change in
60-1610(a).
circumstances
is shown.” K.S.A.
As to
attorney fees, the amount
judicial
awarded is within the sound
Powell,
Powell
discretion of the trial court.
456, Syl.
4,¶
Herd, A understated. business which will year net more each than its appraised incorrectly value is valued. I believe the trial court аbused discretion. I would reverse the trial affirm Appeals. Court of J., dissenting: judge determined the value Lockett, $25,000.00. of the route to be He awarded the route to the route, $12,500.00, husband and half the value to the wife. gave He then option the husband paying the wife for her (1) $12,500.00 share of (2) the route award either a total of $12,600.00 in 36 of $350.00 installments each.
By allowing option the husband paying monthly install- ments, judge deprived ability the wife of her to use or $12,500.00. invest her effect, The trial judge, loaned the $12,500.00 husband the use of the wife’s award of at an interest (.26% percent rate of less than .0026) 1/2 compounded / when monthly. This is an abuse of I discretion. would reverse the trial court.