57 Kan. 343 | Kan. | 1896
Lead Opinion
This was an action for divorce and alimony brought by E. PI. Johnson, who claimed to be a resident of Bourbon County, Kansas, against her husband who resided in Zanesville, Ohio. The only ground relied on for a divorce was cruelty. The defendant answered denjdng generally and specifically the charges set out in the petition and averring misconduct of the plaintiff. The pleadings show that the parties were married at Port Scott, Kansas, on the 15th of October, 1885 ; that immediately thereafter they went to Zanesville, Ohio, where they resided together until the 24th of December, 1887, when the plaintiff returned to Port Scott, her former home, where she has resided ever since. As the result of the trial the Court found ;—
“ 1st. That the defendant has not been guilty of extreme cruelty toward the plaintiff as charged and alleged in the petition ; and all the issues herein as to divorce are found for the defendant.
“2d. That the plaintiff is not entitled to a decree of divorce from the defendant.
*345 “ 3d. That the plaintiff is entitled to additional alimony and an additional amount for attorney’s fees, and that the defendant should pay the costs of this action.
“4th. That the plaintiff is entitled to the care, custody and control of the minor child, Lucas Havens Johnson, as hereinafter ¡Drovided, until the further order of the court or judge.”
Thereupon the Court rendered judgment denying the plaintiff a divorce, but allowing her $300 for attorneys’ fees ; and for the support of herself and her child — $100 to be paid by the 1st of April, 1892, and $125 on the first day of every third month thereafter until otherwise ordered by the Court. The custody of the child was also awarded to the plaintiff with provisions for visitations by the father. Judgment was also entered against the defendant for costs. The defendant alleges error in rendering judgment against him for alimony, attorneys’ fees and costs, after having determined the main issue in his favor.
On the merits of the case the finding of the Court was against the plaintiff — that she had no ground for divorce. Section 649 of the Code of Civil Procedure provides that the wife may obtain alimony from the husband for any of the causes for which a divorce may be granted. Section 646 makes provision for the allowance of alimony where the divorce is granted, and also for the disposition of the property of the parties in such cases. Section 643 reads,—
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such propertjr, whether the title thereto be in either or both of said parties.”
Dissenting Opinion
(dissenting as to judgment for costs). Under section 591 of the Civil Code the awarding of costs in this case was within the discretion of the trial court; and, no abuse of discretion being apparent, I think the judgment as to costs ought not to be disturbed.