*1 47,604 No. LaRue, LaRue, A. Appellant. Davis Appellee, v. (531 84) P. 2d *2 Opinion January 25, filed 1975. Richeson, Anderson, Byrd Richeson, Ottawa, argued L. & John cause, Indall, firm, and of die same was with him for on the brief Jon J.
appellant. Gleason, Ottawa, argued cause, Gleason, Thomas E. and Thomas E. Jr., Ottawa, Roberts, Baldwin, and F. Duane were with him the brief appellee. for the The opinion of the court was delivered by This anis A. appeal by LaRue (defendant- Schroeder, J.: John from an appellant) order of the Franklin County District Court dissolving with Nina marriage Davis LaRue (plaintiff-appellee) and dividing their property.
The contends: appellant (1) There was no substantial evidence the trial support court’s finding were incompatible; (2) court erred in credence to the giving testi- appellee’s mony demeanor; view of her (3) property settlement award granted the is appellee not supported by substantial evidence. Nina Davis LaRue and A. LaRue married February John 1945. At the time of their Nina was marriage 56-year-old widow Missouri, was 39. The parties were living Carthage, John where Nina managed a hotel and worked as a projectionist John the hotel theater. moved onto a farm couple 210 acre northeast of Ottawa, Kansas, Nina. owned She inherited the from her previous husband. The parties farmed the tillable land and raised cattle. 15, 1973, ill, On May became Nina called an ambulance John
to have him taken ato hospital where he underwent surgery. Upon release from the was not hospital, Nina to permitted by return John to their home. initially in a motel and stayed then moved John into boarding a small home.
On for a July sued divorce alleging irreconcilable denial, and filed a general incompatibility. answered with a divorce on the ground also sought in which he cross-petition his claim for divorce abandoned irreconcilable incompatibility. John at the trial. that the conclusion trial court’s first asserts the appellant evidence. unsupported were incompatible that rep- showing temperament any the record is void of
argued relationship marital resents the destruction dis- rift or an irremediable does not establish testimony appellee’s cord. concerning on appeal in the record included only testimony She was of the appellee. marital is that relationship
the parties’ all of marriage, 28 or 29 after attorney why, asked di- for a she filed to the hospital, when the went sudden vorce. The as follows: appellee replied long got anything I tired . done so “. . Cause he hadn’t hamburgers. He him, cooking keeping cooking fish and him and any it just want to do anything that I didn’t and I decided couldn’t eat else any longer. longer, . .” I couldn’t do it . further stated: *3 looking I hated him at him that . . I was sick and tired “. so door, they they took him onto of that when took him out then I said when I— my I to doorstep up time want this is the last and I made mind that little back you, through.” I see am did really never that the appellant also appellee complained and on lazy”, damn work he was “too any of because dehorning, to assist with one occasion the refused least appellant market. loading and the of the cattle branding, clamping she had raised to belonged cattle her claimed the tried Furthermore, according appellant them. appellee, into to get all the time and he used get money from her him. stopped and take before she pocketbook money was the relationship marital Also indicative state the “that over thing as appellee’s repeated appellant reference “dumb” and there”, such as descriptions appellant “lazy”. short of evidence falls foregoing that the argues
The appellant
the couples’ incompatibility.
establishing
a as
incompatibility
to consider
this court had occasion
Recently,
47,
aWhile divorce should not be granted perfunctorily merely upon party’s charge incompatibility without real proof fact, undoubtedly legislature in supplying ground the additional of incompatibility intended to our liberalize divorce laws broaden- ing basis which it may granted. v. (Berry Berry, supra.) In our appellee’s testimony sufficiently supported trial court’s finding of incompatibility. Her dem- testimony clearly onstrates a long-standing, between the deep-seated dispute as to work load on the farm responsibilities and financial matters generally. The appellee quite harbors evidently but nothing hostility and resentment for the appellant. inconceivable that appellant’s can be with temperament compatible if hers is in- appellee’s, Burch, with compatible his. v. F. (Burch 195 2d 799 Cir. 1952].) [3rd The appellant contends the trial court abused its discretion not corroboration requiring of the appellee’s testimony. appellant if he states is “correct in his contention that there is no evidence record showing court abused its incompatible, the discretion to fill requiring corroborating testimony the void of the Appellee’s direct testimony.”
Actually, seems be reasserting his argument there is insufficient evidence to support finding incompati bility. Having already exists, concluded that sufficient testimony claim has no merit. It was recognized in Berry Berry, supra, that our law nowis changed so that either party may, in the trial *4 discretion, court’s obtain a decree of divorce separate maintenance the uncorroborated testimony of either or both the parties. of S. A. (K. 1974 Supp. [d].) 60-1609 The record does not disclose any abuse of the of exercise the of power discretion in the instant case.
The appellant contends the trial erred the weight credibility given the appellee’s testimony because of her demeanor as shown by the record. It is readily from record apparent the the 85 appellee, years trial, of age at the time of was uncooperative refused to testify assets; of disposition certain she refused to abide by the court’s order her from restraining disposing liquid
assets; evasive, and counsel. How- rude to the court she was court was ever, deprived record the trial there is no indication in the this and determine case the evidence ability weigh of its the trial. The point during demeanor reason of appellee’s that the district court rule long standing answered sufficiently case, credibility judge trier facts in a is the sole as the evidence given presented to be weight witnesses and of the 215; 428, 312 P. 2d at trial. 181 Kan. (Hoppe Hoppe, 330, Saint, 2d 683.) Saint v. 411 P. property?
Did the err in dividing trial court findings to the factual There is no between dispute marriage the parties’ discloses after journal entry of the court. discharged and was on 1945, service military entered John 2, 1946, During age. when he became November Upon month. per $30.00 time allotment was approximately John’s week approximately $20.00 drew pay release veteran’s John in 1948 and 1949 he drew Then two years until 1947. June veteran’s training pay. $87.50 Ottawa was owned a 210-acre farm northeast of in 1935. In who died Davis, inherited from Mr. her first husband time of the the farm. She states that moved to they “and bank and bonds money she had marriage “plenty” However, either doesn’t remem- she every year.” a new car bought time. status was at that what financial ber or refuses to state still lived the parties in 1947 while A tractor had been purchased their they bought 1948 and farming in Missouri. started John stock twenty about keep tried to year. They first cattle that for two weaning age. Except past cows and calves raise the was ill and underwent about 1949 and when years, about until ground of farm he farmed all of the 100 acres surgery, late as 1965. His outside of it as continued to farm part 1957. He neighbors for the to hauling grain was limited generally work 1946 International truck. their farm, in a cabin. log lived they moved to
When the rock farm. He quarried part built new fences 5& was 40' x Later a house of a 20' x 60' barn. construction from settlement received with funds appellant built partially $7,269.46. A mortgage amount of estate his mother’s to complete apparently October 1947 on the farm in placed amount machinery, and purchase of the home construction obliga- with an $5,300. it was consolidated On January *5 $8,000. at tion Credit to Production Association increased 62, 1967, In at with a age drawing Security Social began John sum month lump per $683.30. $60 benefits started at payment His are now He A. $85.20. $127. also receives V. benefits monthly 1955, Nina with a sum began drawing Security lump pay- Social now $777. $51.80 $101.00 ment Her benefits started and are month. Twenty-five There 150 to 155 remains acres of farm. acres $12,300 were taken in 1957 for 1-35 at a a compensation plus few hundred for dollars some burdens the remaining additional This tract. was used to from to mortgage remove the $4,300 a 1957 still purchase Chrysler which the own. 2, 1973, a May by On was Nina and preliminary signed contract Hiatt, latter of the neighbor, purchase Joe “landlocked” “33 1-35 for tract of more or less” south of lying acres $4,500 with faith the real being paid “good deposit” $500 3, 1973, agent. May estate The real estate contract signed brother, Hiatt and At the both and Nina and outset single, John. case, ruled of this on December 14 that the constituted a valid the Hiatts to agreement adjudged contract owners of the balance of upon payment purchase thereof $4,000 have since the balance of price. paid apply The Hiatts Also, $230, agent thereon. has balance of paid $500 earnest money after deducting commission. $270 15, On May 1973, hospital entered the sur- underwent John gery. When Nina did not permit him to return the farm, John eventually moved into a small boarding home where he currently receiving board and room within total of his Security Social V. A. cash, benefits. He for the paid ambulance He pur- $22.50. chases approximately $5.50 worth of medicine each week. His un- paid $1,581.50. medical and hospital bills amount to In May or early June, after entered hospital, sold some worth cattle. testify While she refused to regarding disposition of the proceeds, she opened savings account 7, 1973, Peoples $5,317.28. National Bank on with a deposit June Withdrawals were made as follows: subsequently $1,000.00 October 1973 .......................... 1,894.62 November account checking 14,1973, 1,000.00 December account ... checking checking At Nina had in her the time trial December *6 in the amount 1973) account National Bank Peoples (opened July $1,743.29. This account was about December subsequently, 1973, withdrawn and closed Nina. by real estate that the remaining portion
The court found the $62,000. acre, fur- at at least The court valued $400 $500 was valued parties found 'the owned the personal property by ther $24,621.38. the amount of Included in was figure Na- from the Peoples December by withdrawn on $2,999.90 account. savings in a tional Bank account checking farm had not At the com on the crop growing time of trial the the harvested, was undetermined. been its value consequently $4,660.25. amounted to outstanding obligations taxes, included, the 1973 real estate things, This other figure among attorneys’ due on medical and the balance appellant’s expense, the attorneys. fees for three the farm
In the court awarded original journal entry, a granted judg- and all to Nina except other assets $10,000, Nina in amount of against “being approximately ment the obligations the assets less the as property] one-half of [personal the received one-half of determined the also findings.” John landlord’s share of the corn to be harvested. a opinion, also inoluded memorandum journal entry into court’s the insight reasoning dividing
offers some the It states: twenty-nine years ago, marriage plain- “It is clear that at time of the the Also, they and, until tiff owned the farm no doubt had other assets. 210-acre employment managing a moved to farm in continued her hotel the she $7,269.46 Carthage, went into Missouri. The defendant’s inheritance parties, primarily the construction of residence the common venture the the hand, proceeds depletion of on the farm. the other from the On taking for 1-35 in 1957 and the recent sale from 210 to 155 acres parties. of 1-35 has inured to the benefit of both An award 33 acres south give of the assets other than the real estate will not to defendant one-half any improvements has him benefit from of the real estate which he con- physically, financially, and nor of in value as the increase tributed well give twenty-nine years substantial, it does him thereof over which has been during marriage. portion While defendant a of the assets accumulated breadwinner, put apparently vigorous he has reasonable effort was not improvements, marriage farming, caring in- for the livestock and into cluding buildings and fences.” new motion for after a hearing appellant’s Subsequently, fact, memorandum findings trial or to amend law, conclusions court the award to allow the ap- amended $800, an omission pellant additional due to the inadvertent Association, equity owned in the Ottawa Cooperative and also some for an expenditures by attorney prior appellee to commencing this on a matter not action disclosed record.
The thrust argument .of the appellant’s property is that trial court only erred to the source of by looking real it granting where house appellee, $7,269.46 barn were built in from the part appellant’s investment (the inheritance from his mother) and labors. physical S. argued under K. A. 1974 Supp. (b) 60-1610 is directed of all disregard source income and to all the place assets into a to be hodgepodge equitably reasonably divided. appellant contends of its court abused the exercise power discretion in granting the real *7 and in dividing the only personal between the property parties.
The $7,269.46 appellant argues further that if his investment on the house had been invested 3% the simple elsewhere interest $6,324.32 earnings $13,593.78 would been the total of $2,793.78. and principal earnings, which exceeds his judgment by by asserted the to him the award is approximately 10% net of the assets of the in- which is so and parties, inadequate as equitable an constitute abuse of the trial court’s discretion in the dividing
The statute the governing trial court to the division of property in divorce cases S. A. is K. 1974 60-1610 It reads: Supp. (b). personal property parties, “The decree shall divide the real and spouse by marriage, acquired prior by spouse
whether owned either either right marriage, acquired by joint efforts, in his or own after in a her or their manner, just kind, by by property and reasonable either of the or setting part requiring spouses the same or a thereof over to of the one and pay may just proper, by ordering either to such or sum as be and a sale may prescribe dividing pro- such same under conditions as the court and of such ceeds sale.” in 1963 foregoing adopted by The section was the legislature 1963, ch. law. (L. 303) change and about a brought prior Under the section the court is with wide foregoing district vested the financial adjusting obligations discretion action, and its discretion not dis- divorce exercise will turbed on of a a clear abuse. appeal showing absence 1172, 560, 211 506 P. 2d One Syl. 1.) v. Kan. (Stayton Stayton, ¶ burden, heavy establish an abuse discretion assumes a seeking 250 action the propriety “If could differ reasonable men court that the trial be said trial then it cannot court
taken by On the 562.) supra, p. Stayton, v. (Stayton its discretion.” abused exer court must be in the trial hand, “The vested discretion other statutes, by be guided faith and good oised in whole-hearted to be. statute ought what the not court’s by private and judicial, arbitrary is of discretion Where the exercise v. St. (St. set Clair will be aside.” is it the judgment inequitable, 6; 206, Almquist, Clair, Almquist Syl. 507 P. 2d 211 Kan. ¶ 383.) 2d Kan. P. commenting wrought in our divorce law changes Zeller, enactment of that in Zeller v. the 1963 statute 478, the said: 407 P. 2d property significant change regarding division of is that law “The required separate longer property to the court is no set aside wife acquired marriage. marriage brought she or with own funds after given authority property is to divide all of the owned court now acquired, just parties, regardless of in which in a the source manner 459.) (p. manner.”
reasonable applied section of the statute discussed foregoing Clair, Almquist St. Clair v. St. and in the more recent case supra, v. Almquist, supra.
Under our court in decisions divorce cases under the statute foregoing required to make a just reasonable division of all them, between and in determining a just and reasonable division the trial court should take con- into the following sideration (1) ages factors: the parties; (2) the duration of marriage; (3) owned parties; their (4) present future earning capacities; (5) the *8 time, source and manner of acquisition property; family (6) fault; ties and the of obligations; (7) question and (8) alimony the allowance thereof. or lack v. and (Almquist Almquist, supra, cited In therein.) authorities the court added con- Almquist merely of be alimony” weight sideration “lack factors to given Zeller, in previously Saint, announced Zeller v. and supra, Saint 330, 411 P. 2d 683. in any Nowhere of our decisions is it suggested that division all the must in property the be an order equal reasonable, be just to and appellant’s the brief. suggested In court found that Almquist majority the trial court’s settlement the “manner of property acquisi- order based estate, the sole which it considered be tion” of real parcel prop- of that disposition and factor in controlling determining settlement fell trial court’s erty. property The court held the there statute” “just requirement short of and reasonable discretion. The opinion such failure constituted an abuse of that of alimony a consideration of the combination reflects concern for and reasonable” determining “just settlement awards in property In results. court said: suggest alimony property do not mean to “We that the line between 86, Drummond division drawn Kan. Beck [209 495 P. 2d 994] [208 Kan. 628] 490 P. 2d should be blurred. We do think that neither can be fixed itself,
by giving appropriate Almquist without consideration the other. Mrs. expect appropriate weight given was entitled to to all from the court be Saint, such cases as Zeller the factors mentioned and also to the lack of alimony. optimistic prospects self-support, While she was about her earning only after-tax from all sources the first nine months of 1972 were per work, $200 about month. About half of that came from her real estate cooking. in, and the balance from her the homestead Without reside merely housing herself Salina will make inroads into her income. serious apparent required dip It seems in order to survive she will into her should, think, weighed heavily share of the This factor we more balancing position.” (pp. 793, 794.) all over financial the instant case there is no brief suggestion appellant’s made the trial court findings supported by evidence. The on minor distinctions appellant’s argument proceeds in values or omissions from the court’s suggested findings. ap- pellant that a suggests valuation of acre should have been per $500 assigned to of the farm which the remaining acres inherited from her first husband. trial court found real acre, estate should have been valued at or at least $400 $500 $62,000. The contends the court failed to account for $5,200, proceeds whereas, cattle sold in $5,200 found that sold, worth of cattle were and the court associated that sale with the of a opening savings account in the Peoples Na- tional Bank $5,317.28. with a deposit June appellant suggests the trial court considered only acquired by joint efforts of the owned or parties, after acquired the date of marriage, to 60-1610 contrary (b), This supra. suggestion disregards made findings court wherein the court notes that 25 acres of the farm were taken condemnation and that more than received for this was used to remove on the farm and mortgage a 1957 purchase Chrysler automobile. The trial court also found a sale of approximately
252 subject into the assets which went
acres of the farm produced the court. to acres of 210 only original
It 100 acres should be noted how tillable, many not but the record does reflect in the farm were 155 were tillable. remaining acres the trial court gave record indicates A careful review of the determining enumerated factors foregoing consideration these factors Among just a and reasonable division of earning future to gave present the trial court consideration livelihood. That and their source of parties, of capacities time, of manner acquisition source and of trial court considered the its throughout reflected adequately of findings fact. con- elaborately clearly were obligations
The matter court, possession and the assets sidered all those for charged meeting with responsibility appellee after this matter The trial court even reconsidered obligations. trial, charged a new and specifically the motion hearing her separ- have been considered obligations may with appellee rela- obligations individual obligations, although appellant’s ate a responsibility appellee to treatment were made tive medical the trial court. The to only alimony pertains ap- reference to record motion for pellant’s temporary alimony and trial court’s order which continued August indefinitely appellant’s motion for alimony, required but temporary appellee pay that time attorneys on the fees. applied appellant’s $300
. a home and it pro- acre provided income, vided her other than her social only meager source of secur- the time trial. was 85 ity per years $101 benefits of month at She older than the age, seventeen appellant. had a V. security amounting social benefits and A. pension total of $212 month at the time trial. all factors
The trial court reviewed and considered determining has indicated as elements be considered in Its just and reasonable settlement. action was arbitrary or unreasonable. The record discloses substantial evi- findings, the district court’s support dence conclusions judgment. lower court is affirmed. judgment *10 from J., dissenting: formidable task to dissent
Fontron, attempt one Mr. Schroeder’s monumental but the opinions, Justice must be made nonetheless. I shall remarks to the my prop- confine court, division erty made of evi- overlooking paucity showing dence mutual incompatibility.
When was in this action in Alm judgment entered our decision had quist Almquist, 522 P. 2d not come down. In that case we out that all pointed specifically property constituting estate, of the taken into part family regardless source, should be account in at an marital assets. arriving equitable division of the court, course, The trial in opinion could not have foretold our Hence, it should be Almquist. my this case remanded opinion reconsideration in light Almquist. of the property view,
In in my very the facts the case at hand are similar to facts in here the source of the farm is found Almquist, except that wife, than in the is not rather husband. This difference material since what was for the in should be goose Almquist sauce sauce for the here. gander record in Almquist disclosed that some before twenty years farm, divorce husband’s him parents deeded referred to
as the “home on which the place”, their Almquists made home raised their family. before the Shortly marriage broke up mother, husband inherited an interest in the estate which was being still probated. gave certain items of property the husband, wife others to but the list did not include the home or place either the husband’s interest in his mother’s $115,849, items, estate. These two which had a total value awarded to Kenneth and we said: Almquist, place Apart “. . [the . from these two items home and the interest jointly property, against estate] Kenneth received accumulated pay $28,250, just one-half, all, which he was to about If cash. this were Almquist obviously ground complaint. Mrs. would little course, “This, Almquist’s complaint goes is not all. Mrs. chief to the fact making property apparently division the trial court first set aside place estate, to her home husband the and his interest his mother’s apportioned only says, doing, the balance. so she the trial court abused its (p. 791.) discretion.”
As Kenneth’s interest in his mother’s estate we could not “say considering that it necessarily subject should have been division” but our as to the home ruling its source and recent acquisition, farm, said: Concerning was different matter. we place, quite family it, parcel part property, of the . we see . This as 792.) assets, regardless (p. of its source.” all Almquist equitable portion to an “. . was entitled . Mrs. include, family might fairly part would of the estate. This be deemed which would, family Any case, other in our result in this home. under facts ‘just statutory opinion, demand that the settlement fall short (p.794.) and reasonable/” In a Almquist pattern. case within present fits well said: trial court memorandum the real assets other than “. . award to of one-half . An defendant estate to give any improvements the real from will him benefit estate financially, of the increase physically, well nor which he has contributed substantial, it does twenty-nine has been in value thereof over during marriage. . .” . give portion of the accumulated him a assets *11 assets, indebtedness, personal approxi- less amounted $20,000. mately The trial court awarded the personal property $10,000. In other defendant for plaintiff gave judgment words what this court did was to award all the real to the estate wife and and half—as had been personal property half split done Almquist.
For had their the land years some 29 this made home on couple plaintiff brought clearly The evidence marriage. LaRue did and about the property, shows that substantial work on cattle, improvement. sank entire inheritance its from assets which it assumed most accumulated may fairly be derived, were after the moved purchased couple Mr. them and their offspring LaRue is shown have cared for many thereafter.
It occurs to me defendant has received scant considera- tion tempered from a bad old him at lady who met door with a shotgun sojourn his return in' now from She hospital. emerges from the old worth twenty-nine year marriage with a farm $62,000, least at plus personal one-half value of years, over the Mr. comes short acquired while LaRue out with half end the horn other of the value of personalty, $10,000. the situation me. equities escape dissent, preparing recognize superior I occu- position by the trial court in pied viewing listening witnesses to their I also have Coffman’s testimony. great respect Judge integrity not, however, did judgment. He benefit of our reason, case. For this I Almquist dissent opinion respectfully so much from as relates to division I of return would the case for as previously reconsideration indicated. C. J., J., join dissent. foregoing Fatzer, Owsley,