97 Kan. 433 | Kan. | 1916
The opinion of the court was delivered by
Pauline Milberger sued Anna Veselsky for alienation of her husband’s affection, and obtained a judgment for $500, which is not appealed from. At the commencement of the action an attachment was issued and levied- upon a note for $2000 (on which $400 had been paid), payable to the defendant, executed by her former husband, John Veselsky. A motion was made to discharge the note from the attachment on the ground that it was exempt for these two reasons: (1) the consideration of the note was a part of the proceeds of her interest in the sale of her homestead, and she had at all times intended to reinvest it in another homestead for herself and her dependent children; and (2) it Was given her as alimony. On November 9, 1914, just before the trial of the main case, the motion to discharge the attachment was heard and sustained. The plaintiff appeals.
. The following facts may be regarded as established beyond controversy: On March 28, 1912, John and Anna Veselsky, being then husband and wife, entered into a written agree-, ment, which recited that they could not continue that relation, and desired to make a division of their property and to arrange as to the custody of their minor children. It made these provisions: the husband was to pay the wife $1000 at once, and $2000 within a year, the deferred payment to bear interest; if he sold the land which was occupied as a homestead (and which was all the real estate that either owned) within a year he was to pay the $2000, with interest, at the time of sale, and in the meantime that amount was to be a lien against it; with this exception the husband was to own absolutely all the property, real and personal, the latter being worth $2000; the wife was to have the custody of their two daughters, and the husband that of their four minor sons; in case of a divorce
The plaintiff asserts that the defendant and Alex Milberger formed illicit relations in this country which have ever since continued, and that they are living together as husband and wife. The defendant denies such present relationship and avers that her home and that of Alex Milberger are two miles and a half apart.
(1) With respect to the claim of exemption founded upon the homestead theory a number of serious legal questions are suggested, such as whether that privilege can be asserted by a resident of another country; whether the homestead right should be deemed to have been lost by abandonment; and whether the note on which the attachment was levied is to be regarded as the proceeds of a homestead. In this connection it is to be borne in mind that the note represents a part of the lump sum of $3000, which it was agreed should be paid to the wife on a division with her husband of all their property, consisting of personalty worth $2000, as well as the homestead. While it was made a lien on the land, the maker was at liberty to satisfy it with funds derived from any other source. He retained the homestead, and did not sell it until later. The divorce was granted on the ground of Anna Veselsky having abandoned her husband. However, it will not be necessary to decide these questions, because of the conclusion reached with regard to the facts.
(2) The evidence on which the motion was heard was all in writing, and therefore this court may determine its effect as
(3) The trial court held that the note was not exempt as alimony, and this ruling is approved. Alimony, being an allowance to the wife in pursuance of the husband’s obligation of support, is exempt from seizure to satisfy any of her debts except those contracted after the decree, but this exemption does not extend to a payment ordered as her share in a division of community property. (1 R. C. L. 869, 870.) The note involved was not alimony. Nor was it given in lieu of alimony. It was executed by the husband to the wife in pursuance of an agreement for the division of their property, which contained a provision that all rights of either party, including possible alimony, were settled by it. The divorce was granted for the fault of the wife, and no obligation for her continued support was cast upon her husband. When the property was divided, doubtless the wife’s share was fixed with reference to the fact that she was to have the custody of two of the children, but no specific part of it was shown to have been appropriated to that use.
The judgment is reversed and the cause remanded with directions to overrule the motion to discharge the attachment.