Greenwood v. Greenwood, 85 Kan. 303

Greenwood v. Greenwood

85 Kan. 303 | Kan. | 1911

The opinion of the court was delivered by

Porter, J.:

The defendant’s contention is that after twelve years had elapsed from the time the original decree was entered the court had no jurisdiction on the motion of persons not parties to the original action to make any order in the premises, and that since there was no claim on the part of the children that they were not being properly cared for, the case does not come within the rule declared in Miles w. Miles, 65 Kan. 676. In that case it was held:

“Under the provisions of section 645 of the code of civil procedure (Gen. Stat. 1901, § 5138., Code 1909, § 672), the court retains the right at any time, upon its own motion, or the suggestion of any one interested, to make such reasonable order as may be necessary on either or both of the parties to a divorce action to provide for the guardianship, custody, support and edu*307cation of their minor children, and such orders may from time to time be changed. Such right exists independently of the provisions of section 568 of the code (Gen. Stat. 1901, § 5054, Code 1909, § 596) .” (Syl.)

There can be no question respecting the power of the court in a divorce action to make an order for the protection of the interests of the children so long as their minority continues, and the court has jurisdiction to make such orders as are necessary to protect their rights upon the motion of any person interested in their welfare. The fact that neither of the parties to the action moves in the matter makes no difference. As soon as attention is called to the necessity or occasion for action the court, upon proper notice, may so modify the decree as to provide for the guardianship, custody, support and education of the children affected thereby. But this is-as far as its jurisdiction extends over the parties to the original action. The court therefore had no power to cancel or set aside a contract entered into between the parties to the action respecting their own interests in lands set apart to them so far as such contract interfered in no respect with the rights of the children. The contract which the court attempted to set aside and cancel in express terms recognizes that Annie M. Greenwood’s title to the real éstate will not become absolute until Helen, the younger child, reaches the age of majority; and there is no agreement to convey the title to the purchaser until that event. The contract,, however, does provide that Ashford W. Greenwood be given immediate possession of the real estate, and presumably he is to have the rents and profits, as he agrees-to pay interest upon the purchase price. The original decree is very indefinite respecting the interest the two-children were to have in the land in question. The land is set apart to Annie M. Greenwood as and for her alimony, to be held by her in trust for the children during the younger’s minority, at the expiration of which the title vests absolutely in Annie M. Greenwood. We *308assume that the effect of the original decree was to charge the income; from the land with the support and maintenance of the children, if necessary for that purpose. And it is clear that the original parties could not by an agreement between themselves substitute some other provision for the children’s support; such as the interest upon the value of the land or some portion thereof, in place of1 the income from the land itself. Certainly the parties to the original decree are bound by its provisions. It was proper, therefore, for the court to so modify its decree as to leave no uncertainty with respect to the children’s right to have the income from the land held for their support if necessary, and to say to the parties that they could not by any agreement of their own substitute some other provision for the children’s support. To this extent the action of the court must be approved. But the court possessed no power to alter the original decree in any other respect, upon the motion of persons who were not parties to the action. The right of Annie M. Greenwood to sell and dispose of her interest in her own land, or, the right of Ashford W. Greenwood to purchase the same or to contract for the future purchase thereof, could not be determined in this manner’upon a motion filed by persons who were not parties to the action -and after the court’s jurisdiction over the parties and the subject matter had terminated save for the limited purpose of providing for the support of the children during minority.

The judgment will therefore be" modified and the •cause reversed with directions to set aside’the provision canceling the contract of sale and to proceed in accordance with the views herein expressed.