86 Kan. 519 | Kan. | 1912
The opinion of the court was delivered by
This action is for alimony. The court first found the appellant guilty of gross neglect of duty and adjudged that he should pay the appellee sixty
The petition charges extreme cruelty, reciting particular wrongs and grievances. Gross neglect of duty is not charged, at least not in those words, but the finding of extreme cruelty alone, if sustained by the-evidence, . is sufficient, and no argument is made to the contrary. Error is alleged in rendering judgment for any alimony, and in dividing the property. It is insisted that the charges of the petition were not sustained by the proof. The evidence covered much of the history of the married life of the parties extending through thirty years, involving many struggles and hardships, and resulting in the accumulation of property through the efforts of husband and wife. Each at the beginning possessed a little property, which has been so far increased that with prudent management and no great misfortune a reasonable livelihood for both seems secure. It would serve no good purpose to review the evidence, which is conflicting. The parties are not divorced, and it is possible that time may bring healing for their marital woes, and that in the years to come they may be reunited in one home, where with returning love and increasing patience they may com-
It is earnestly contended that the judgment, so far-as .it awards specific property to the wife, is void for lack of power under the statute to do so. The order first made for a monthly allowance is not complained of and has been complied with, treating it as temporary, covering only the intervening period between' the • first and second hearings, and this is understood to be-its effect. The precise contention of the appellant is that under section 678 of the civil code alimony only can be awarded, and that alimony is an allowance for support, not an estate assigned to the wife as her own, but an allowance out of it. Authorities are not wanting to support this view. (3 Enc. L. & P. 58, 92; Bacon v. Bacon, 43 Wis. 197; Cizek v. Cizek, 69 Neb. 797, 96 N. W. 657.) The decisions, however, are not in harmony on this subject. (Note to case last cited in 5 A. & E. Ann. Cas. 469.) Under a statute providing that “when a divorce is decreed, the court may make such order in relation to the children and property of the parties and the maintenance of the wife as shall be right and proper” (p. 194), it was held in Zuver v. Zuver, 36 Iowa, 190, reviewing earlier decisions, that a part of' the husband’s real estate might be set apart to the wife • in fee as for alimony. Under the Ohio statute, which provided that alimony might be allowed out of real and' personal property of the husband, it was held that a decree to that effect vests absolute title in the wife in an action for divorce. (Broadwell v. Broadwell, 21 Ohio St. 657.) Other decisions might be cited to illustrate the divergent views of courts on this subject. It may be conceded that authority to allow alimony, when there is no qualifying expression or other provision in the statute indicating a broader purpose, is generally construed to authorize only an allowance out of"
The power to give to the wife lands of her husband as alimony, when a divorce is granted in pursuance to section 673, has been long exercised and upheld, and the power to give the same relief where a divorce is refused is expressly declared in section 678, and the effect of an award in such a case to vest the title in fee, if doubtful before, is set at rest by the amendment re
The expressions in the opinions in Johnson v. Johnson, 57 Kan. 343, 46 Pac. 700, and in Bowers v. Bowers, 70 Kan. 164, 78 Pac. 430, giving color in support of the appellant’s contentions, refer to the distinctions between alimony in the strictly technical sense and a division of property. The application of that distinction to our statute although suggested in the Bowers case, was unnecessary to support the conclusion reached. We conclude' that under the statutes to which we have referred real estate of the husband may be set apart to the wife in actions for alimony alone, as well as in actions for divorce and alimony.
The judgment is affirmed.