*1 180 44,551
No. Clugston, Appellant. Appellee, Clugston, v. Charles Rita 226) (415 P. 2d Opinion filed 11, 1966. June Perry Owsley, Pittsburg, argued for and was on the briefs of the cause
appellant. Jones, Pittsburg, argued cause, Keith R. and was on the briefs of appellee. the court was by delivered opinion The a divorce action commenced Rita This Faxzer, J.: filed an her husband Charles. The husband Clugston against wife, and a cross answer denying generally allegations extreme other with charged for a divorce. Each petition party hearing, After a full cruelty gross neglect duty. a divorce on fault, court found the at equally granted duty. extreme cruelty gross neglect grounds of prop- defendant the district court’s division challenging appeals, (b) S. A. 60-1610 and award of K. erty pursuant and (c). sons; years had been married have two married, now years age
Challes Scott Clugston, A. at and now home with living plaintiff. Clugston, State has College Pittsburg, is a Kansas Scott sophomore week. Neither and earns party part-time employment to Scott’s care and relating decree questions provisions maintenance. has been since the defendant employed
The record shows Kansas City Southern Railroad. trial, At the time of the he was employed as a railroad with about engineer twenty-five years *2 service, and an barring illness, accident or had approximately eigh- teen years work before retirement. His gross income was about $10,000 $8,800. and per year his net take-home pay was He con- tributed the fund, maximum amount to the retirement but was unaware of amount he however, the would receive upon retirement; he would receive maximum retirement. the divorce,
At time of the the plaintiff was and the evidence tended to show due to a nervous condition and headaches migraine she was physically unable to work. The district court found she unemployed and had been unable to secure since the parties’ separation. Twice during the marriage, had been plaintiff briefly Her employed. income and its source included: $646.74 from National Gypsum Company 1951, $2,862 in from Industries, Helene Curtis Inc. in received from the $360 for government a attending special business course. It was income, the stipulated plaintiff’s totaling $3,868.74, was contributed to accumulate property of the marriage the maintenance the home. extensive,
While the were parties’ assets not their financial condi- may tion be described as due good to the absence of outstanding fixed obligations. On the basis of the testimony, the district court awarded the the house and plaintiff real property together the household of the value of furnishings $7,000; the 1960 Pontiac $900, automobile of the value of and the shares of stock together with other interest in land and mineral rights Puerto Rico of the value of Defendant was approximate $900. awarded the United $1,100; States bonds the sum of savings personal property located lumber, ladder, tools, camera, at the home including screen and value; each of unknown projector, savings Kansas City $1,123.60; Credit Union in the sum of bank Southern and Christmas a $454; accounts in the amount of 1956 Chevrolet automo- savings bile of the value of Volkswagen $400 automobile of the value of other of the district only portion $800. court’s judg- ment here is its the requiring order defendant to pertinent pay $29,400, alimony sum of plaintiff’s support gross pay- months, able at the rate of month for $200 per month months thereafter. outset,
At the we note neither party questions court’s granting divorce, to use its discretion statutory authority are found division of where both property it is noted to be at S. In (K. passing, 60-1606.) fault. A. the statute authority. invests the district court with that its discretion court abused
Defendant contends district marriage, erred in its accumulated during division of property for future support and in awarding $29,400. amount of as to
It detail the would serve no useful purpose forth decree set each individual asset. party purchased of it. disposition property owned face, On to be an division equitable the decree would seem kind, A. K. S. 60-1610 action of this property parties. following include on the orders provides decree matters: “(b) property. personal Division shall the real and The decree divide spouse prior property parties, marriage, ac- whether owned either *3 by spouse right marriage, acquired by quired her own after either his or joint efforts, just
their in a and reasonable manner. . . .” indicated, law, otherwise, As no statutory we have rule of the is allotted to the indi- determining proportion property 379, 384, Preston, vidual 43), 193 Kan. 394 P. 2d parties (Preston v. nor is it the court to divide between prerogative property of this husband function to and wife. Its and sole review proper record for the whether district court’s purpose determining a factual its dis- findings have basis whether to such a been v. with division has respect (Goetz cretion abused. 593, Goetz, 569, 578, 167; Darr, Kan. P. 2d Darr v. 194 Kan. 306 595, 721; Zeller, 452, 459, 478; P. 2d Zeller v. 195 Kan. 2d P. Saint, 330, case, Kan. 411 P. 2d In the Saint Zeller 683.) v. it was held: supra, property (b) under “An order for division of K. S. A. 60-1610 will not be appear appellate affirmatively review unless it is disturbed on made to that there by (Syl. 7.) judicial discretion the trial
was an abuse court.” ¶ would be to extend this on Nothing gained opinion this phase the case. It is sufficient to have say carefully we studied the record disclosed, and based on facts circumstances conclude we defendant has failed to affirmatively show the district court’s between the property division was or unreason- unjust able, discretion, to a clear abuse amounting judicial and we to the division approve judgment relating its of property. attacks the vigorously The defendant district court’s award of fair, neither it is contending support, for the future plaintiffs support- not be burdened just nor and that he should equitable, to attention our He directs ing for the rest of his life. similar very Darr v. there are and asserts the facts supra, circum- facts and the facts in the at bar. While there are case case, distinguish- it stances the Darr case to the instant similar here- on needs and facts able that the income and basis wife’s the wife was after noted are In case different. the Darr completely $203; here, the wife and had take-home employed monthly pay there was was and unable to secure unemployed Moreover, evidence she was to work. considerable physically unable case and in the Darr indebtedness had been incurred here, the husband’s to make was ability questionable; payments was family required there was no indebtedness which the defendant addition, In the wife in the case pay. perma- Darr any nent to be required paid irrespective circumstances; awarded ali- change here, future wife was for her future which is not considered mony permanent support to K. S. A. since the award be modified 60-1610 pursuant (c). 380, Moran, v. 196 Kan. 411 P. 2d changes Moran K. A. about enactment of S. 60-1610 ex- brought (c) were and was said: plained plain reading . A of the statute indicates that its terms are to be . party’s ability pay
invoked when one needs and the other are such party’s support possessed be ordered. The trial should court of considerable judicial making fair, just discretion which is circumstances, equitable thereof, under all and absent manifest abuse judgment appeal. will not disturbed on If is awarded at time decree, changes parties may in the circumstances of the be con- appropriate time, for under sidered the statute the court retains jurisdic- modify payment porion tion the amounts or conditions of that which has *4 long increasing due as it not the not become as does have effect of or accelerat- beyond originally (1. ing liability prescribed.” 386.) the that c. work, Code Kansas of Civil Procedure, Judge In bis Gard noted statute, were made in changes the new and stated: considerable provision puts position being the court in . . This the “. of able to reduce altogether payments change of where there eliminate the has been parties, remarriage financial circumstances of the or their in the or death.” (p. 733.) bring to instant case the within the factual attempting situation that the argues plaintiff the defendant is a graduate of School Kansas State of Cosmetology College Pittsburg and is not disclosed month—a sum to capable earning $350 o£ the indicated, found the district court the record. As was there and unable to secure was and unemployed It is work. unable to show she was tending physically in that, experience work an upon eight-months’ based apparent conjecture speculation in not engage court did the parties It observed the plaintiff. the of earning capacity future evidence, the weigh and required testimony and heard their what, if any, plaintiff’s to find failing in say and cannot erred we be. earning might future capacity shackles awarded that the next contends
The defendant dis- of judicial an abuse burden and is his income fixed future the court before the stood finding cretion in view of held that haveWe This is not well point fault. taken. Zeller, v. of fault (Zeller a party irrespective be awarded to innocent she not the is though to a wife even supra, p. 459), Moran, Syl. v. supra, ¶3). party (Moran deciding proportion rule for no established There is requirement alimony. estate should be allowed husband’s “fair, just equitable,” is that the statute allowance the circumstances light and the amount determined Preston, When supra.) v. case. (Preston each individual exist hereto- and to the various factors record given consideration Moran, Darr, Preston, Saint fore the cases suggested fair, just equitable, an whether determining were mar- years they the number of parties, such as the the fact son ried, earning capacities, present their and lived with the plaintiff, time of divorce college that there was no plaintiff, health of mental and physical retirement indebtedness, fact that de- upon and the family benefits, none of maximum which would receive fendant would the conclusion that the amount compels plaintiff, be received excessive, and cannot there has say not we the plaintiff of discretion. abuse showing been affirmative is affirmed. judgment Throughout history of our dissenting: country, J., Schroedek, it, it has been the policy duly as we know civilization and western encourage of the mar- preservation governments constituted The family husband wife. has been between relationship riage unit in a democratic society, and as the fundamental recognized of freedom loving interest people. is in the preservation *5 $29,400 to sum of in the total award of an approval alimony are in case, the parties wife on the facts in this where fault, it profitable and make divorce only encourage tends as future changed can be wife. The mere fact that now alimony the effect does not have conditions as it long so require, pre- that beyond originally increasing accelerating the liability scribed, unreasonably a award making is excuse for poor high the first instance. home, a not preserving
Where a are they seek divorce this, realize are be forced to they breaking it should up. People no a law which party encouraged by to a action should be divorce of the home tends to at retain the same comforts one fault to protect marriage as result during he or accustomed she was husband and wife. joint of both the efforts educated and trained The wife in this case is 41 income for a earning sufficient She is cosmetology. capable they nature being comfortable livelihood. Frailties human are, en- way they in such courts should not administer laws the final to remain idle courage pending a wife in a divorce action action, to remain idle at the expense determination of the divorce large so husband because the sum century it tends At the turn of the encourage such conduct. home, it is common- today said to but woman’s place gainful regularly employ- for a married woman work place she is working eligible ment. after at gainful employment, And same men. unemployment compensation just 721, similar P. 2d is so The case of Darr v. 194 Kan. award herein un suggests to the instant case that $17,400 reduced alimony judgment excessive. There duly month instead of $5,000 at the rate of per $150 payable opinion, month. Accordingly, my per $15,000 of $150 and made rate payable reduced by should be month.