76 P.2d 850 | Kan. | 1938
The opinion of the court was delivered by
In September, 1936, plaintiff filed this action for divorce. He alleged the parties were married in January, 1924; that two children had been born to them, and charged defendant with extreme cruelty, gross neglect of duty, and abandonment for three years. The prayer was for divorce and that the court make such an order for the care and custody of the children as would be deemed proper. The defendant answered, admitting the marriage and the birth of the children, but denied the charges against her, and by cross petition sought a divorce from plaintiff on the grounds of extreme cruelty and gross neglect of duty. She asked for the custody of the children, and that the court approve a separation agreement entered into between the parties in 1933. The abstracts do not show
“Findings of Fact
“1. The plaintiff is a citizen and resident of the city of Salina, Saline county, Kansas, and has been for more than one year last past before the filing of his petition in this case.
“2. The plaintiff and defendant were married at Tulsa, Olda., January 12, 1924. Two children, Denoya Petty, aged eleven years, and Marcheta Petty, aged ten years, are the children and the only children bom of said marriage.
“3. The plaintiff at all times since the birth of said children has endeavored to maintain a home for the sake of said children.
“4. Defendant has the custody of both children at this time and has had at all times since 1933, and the court finds that she is a competent and capable mother and a fit and proper person to have custody of said children.
“5. Defendant has been and is now enrolled as a student in Chicago University for the purpose of qualifying herself as a psychiatric social worker, and it will take one more year at the Chicago University to complete her course. After defendant has completed the course which she is now taking in Chicago University she will be able to earn approximately $100 a month.
“6. The plaintiff is employed and earns the sum of $200 per month as salary and receives the sum of $50 per month as a bonus, making his total monthly income at this time the sum of $250 per month.
“7. During the year 1933, plaintiff and defendant entered into a written contract denominated ‘Separation Agreement and Property Settlement.' At the time the parties entered into said separation agreement the plaintiff agreed and consented thereto; but the court finds that said separation agreement is unfair, unreasonable and unjust, and on account of the conduct and action of the defendant, was not freely and intelligently made and entered into by the plaintiff, and the court refuses to approve said separation agreement and property settlement. The court further refuses to approve said separation agreement for the reason that it is indefinite.
“8. Since 1927 the defendant has been guilty of gross neglect of duty and extreme cruelty toward plaintiff, and on account of the acts and conduct of defendant the plaintiff’s peace of mind has been destroyed and his ability to work has been materially impaired and his income materially reduced.
“Conclusions of Law
“1. The plaintiff should be granted a divorce from the defendant on the grounds of gross neglect of duty and extreme cruelty.
“2. The defendant should be given custody, care and control of the said minor children, Denoya and Marcheta, subject to the right of the plaintiff to visit said children at all proper and reasonable times.
“3. Said separation agreement and property settlement is void and is unfair, unreasonable and unjust, and should not be approved by the court.
“4. The plaintiff should pay the defendant alimony in the sum of $900, payable at the rate of $50 per month commencing on July 1, 1937, until fully*344 paid, and in addition thereto the plaintiff should pay the sum of $75 per month for the support, maintenance and education of said children for a period commencing July 1, 1937, and continuing until the youngest child shall attain the age of 18 years, unless the court makes other and further orders for the support, maintenance and education of said children. All payments to be made through the clerk of the district court of Saline county, Kansas. Plaintiff should pay all costs of this action and $100 attorney fees for the defendant’s attorney.”
Judgment was entered accordingly. Defendant’s motion for a new ■ trial was overruled, and she has appealed.
On behalf of appellant it is contended there was no corroboration of plaintiff’s testimony. We think the point is not well taken. Both parties testified at length, and two additional witnesses were called who supported the testimony of plaintiff in some particulars.
On behalf of appellant it is argued there was no substantial evidence to sustain the court’s finding of extreme cruelty and gross neglect of duty. This requires an examination of the evidence tending to support the findings. The parties were married January 21, 1924, at defendant’s home at Tulsa, Okla., while they were students at our state university at Lawrence. Plaintiff had done newspaper work, was taking the course in journalism, and working part time as a printer. Defendant was taking a college course, and working part time. They began housekeeping in an apartment at Lawrence. Defendant continued in school and completed her course. Plaintiff quit school, lacking one semester of graduating, and took full-time work as a printer in order to make enough money to pay their joint living expenses. When school was out they moved to Osborne, where plaintiff was employed. While there defendant was treated for anemia, and perhaps it was while they lived there she had a miscarriage. In a few months, perhaps early in 1925, plaintiff procured employment at West Palm Beach, Fla., and the parties moved there. His salary there was $75 per week at.first and was increased to $100 per week. The work lasted about two years. In 1926 the daughter Denoya was born. When the second child was expected in 1927, defendant was exceedingly nervous, dissatisfied with the hospital service there, with her doctor, with her home, with living in Florida, and had varying and changing ideas about what to do. She and plaintiff discussed the situation, and concluded it would be better for her to be with her mother at Tulsa when the next child was born, and plaintiff prepared to take her there. When the time came to go she was uncertain about the move, but they went, mak
In 1933, perhaps in the spring, though the specific date is not shown, the parties executed the “separation agreement and property settlement” which defendant in her cross petition asked the court to approve. This recited “the parties hereto have developed differences which make it impossible for them to continue to live together” ; that they desired the agreement to be drawn up, and “it is mutually agreed by and between the parties hereto that the husband will pay to the wife for the support of said wife and for the support, maintenance and education of the minor children of said parties,” naming them, “two thirds of husband’s income until the remarriage of the wife or until the said children have been graduated from high school and college if said wife does not remarry before that time.
Soon after this agreement was executed defendant took the children and her automobile and went to Piedmont, Cal., where she had the children in school for one year, then to Alameda for two years. During this time plaintiff sent her $150 per month (except for four months from November, 1935, to February, 1936, when he sent $50 per month). His salary during that time was $225 per month. While there defendant got employment with an association of merchants, contacting new residents, or demonstrating household equipment, which enabled her to earn from $80 to $100 per month a part of that time. She made, at the best, a bad business deal, in that she loaned some money to a man on whom she said she had to rely for information in making contacts with new residents, and took his note, of which only a small part has been repaid. It does not appear that plaintiff paid her any additional money by reason of it. Early in 1935 plaintiff got employment in San Francisco, across the bay from Alameda. In the five months he worked there the parties saw each other a few times, but did not resume marital relations. On one occasion she called him to come to her apartment. He found her in a very serious mental state; upset, worried, despondent; she spoke of the business transaction above mentioned; thought her competitors were in league against her, tapping her telephone wire, watching her home at night, and following her in the daytime. At her request he spent several evenings with her, endeavoring to quiet her. A few days later she took a trip to Mexico for three weeks. In the summer he returned to his work at Salina. In the fall of 1935 he got an almost new used automobile. She learned of this and wanted to trade the car she had for it. He agreed to this if she would pay the balance, about $200, due on the car he had — deductions to be made from his monthly remittances to her. She consented to this and the exchange was made. He made some reductions from his remittances, but she wrote that she needed all the money and he ceased making them. Several months later she sold the car for $400 and kept all the money.
In the fall of 1936 she went to Chicago, rented an apartment, put the children in school, entered Chicago University, and took a course to qualify her as a pyschiatric social worker. She spent the school year there prior to the trial, and another school year will be required for her to finish the course, when she hopes to get employment in that work at from $100 to $125 per month.
The divorce was granted upon the ground, also, of gross neglect of duty. That term is indefinite, although it means something more than simple neglect. Each case must be examined by itself. (19 C. J. 69; Smith v. Smith, 22 Kan. 699.) Here, while each had, and apparently still has, a high regard for the other, and neither wants to see any specific harm come to the other, there never has been that real affection between them essential to a happy home and a successful marriage. The testimony of each of them disclosed that they never got along well together; there was a constant feeling of estrangement between them; repeated and almost continuous bickering and disagreements between them over relatively trivial things when they were alone. This destroyed plaintiff’s peace of mind, and decreased his efficiency to work, and affected his earning capacity. There is room to say the blame was not all on one side, but the trial court was in better position to say which party was responsible for it than is this court. In the division of responsibilities between husband and wife, the greater duty of having a harmonious home ordinarily falls upon the wife, just as the greater duty of providing a living falls upon the husband. Here the evidence sustains the view that defendant’s interest in a harmonious home was secondary to her own ambitions apart from the home, and that she carried this to such an extreme as to be primarily responsible for the failure of their marriage. Both knew their marriage had failed. Each wanted a divorce. To refuse a divorce would serve no good purpose. We are unable to say there was no substantial evidence of gross misconduct of defendant sufficient to sustain the judgment for divorce.
After granting the husband a divorce, because of the fault of the wife, the court gave the wife judgment for alimony against the husband for $900. Counsel for appellant points out that the court had no authority to do that under our statute (G. S. 1935, 60-1511). The point is well taken. In Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804, where a similar decree and judgment were rendered, it was held:
*350 “Where a divorce is granted by reason of the fault or aggression of the wife, the court does not have the power to require the husband to pay permanent alimony.”
Appellee has no cross-appeal from this portion of the judgment, but appellant is concerned with its validity. The ordinary rule is, a valid judgment must be within the power of the court to render. Whether, if this judgment were affirmed, appellee could hereafter raise the question of the validity of this judgment, we need not consider, as that question is not before us. We simply decline to approve an invalid judgment when its invalidity is called to our attention.
Counsel for appellant contends the court erred in finding the separation agreement unjust and unreasonable, that it was not freely and intelligently made by plaintiff, that it is indefinite, and in holding it to be void. There is merit in this contention. As previously noted, its validity does not appear to have been put in issue by the pleadings. It would seem plaintiff violated the agreement when he filed his petition without setting it up and asking the court to approve it. If he thought it invalid for any reason he might have set it up and stated the facts or reasons for which he thought it invalid, but this was not done. There is no evidence in the record as to who prepared the agreement, or at whose instance, or under what circumstance it was prepared; hence, there is no evidence to sustain the court’s finding that it was not freely and intelligently made by plaintiff. Plaintiff obviously sought to ignore this agreement, both in his pleadings and in the evidence. Plaintiff called defendant as his first witness. On cross-examination she was asked about the agreement and started to answer, when counsel for plaintiff objected that it was not proper cross-examination. This was sustained. Technically the ruling was correct; plaintiff’s counsel had not asked about that on direct examination. When plaintiff was on the witness stand his counsel asked him nothing about that matter. When defendant was testifying in her own behalf her counsel sought to introduce this agreement in evidence. The following occurred:
(Counsel for plaintiff): “We object to it on the grounds that it is incompetent, irrelevant and immaterial and not effective in this case and the terms of the contract that ever was recognized and in force — that arrangement has never been agreed on, that the parties have lived together since then.
(Counsel for defendant): “I think the court should have it to consider.
(The court): “Just what bearing does that have on what is going to happen now? You made your offer and I will pass on the admittance of it later.”
In passing on the validity of the agreement, when judgment was rendered the trial court had nothing before it but the agreement itself and defendant’s request in her cross petition that it be approved. We have the agreement before us and can read it and determine its meaning and validity as well as the trial court could do.
Looking at this agreement we see nothing unreasonable in its provisions respecting the custody, support and education of the children. The provisions are of the kind that an intelligent, fair-minded man, conscious of his duties and obligations with respect to his children, and desiring them to receive a good education, naturally would want to make. The court’s decree gave defendant the custody of the children, substantially as the agreement had done. Plaintiff had testified that she was a good mother to the children and that she would not rob them to clothe herself. There was other testimony that she is an exceptionally capable and intelligent mother, particularly respecting their diet and health. The court correctly found, under the evidence, that she is a suitable person to have control and ■custody of the children. The court required plaintiff to pay $75 per month for support and education of the children. By the agreement he was to pay one third of his income, which, at the time of the trial, was about the same as the amount the court ordered to be paid, but would, of course, vary with his income. Perhaps there was no reason for the court to change the amount which the agreement provides he should pay for the support of the children. If that should prove inadequate, the court, in any proper action or proceeding, could require him to pay more, for the children are not parties to the
The provisions for payment to the wife are not invalid as a matter of law. The amount the husband agrees to pay his wife may be based upon a share of his income (Lindey, Separation Agreements, p. 228, and authorities cited), and the husband may lawfully agree to continue such payments as long as his wife lives, or during her natural life (Lindey, Separation Agreements, pp. 221, 222, and authorities there cited), or for a shorter time, as until her remarriage (Id., p. 243). Such agreements may remain in full force after a divorce between the parties (Id.), particularly if they specifically so provide. (19 C. J. 250.) Neither is it so indefinite as to be invalid. It provides for several contingencies and makes specific provisions for each of them. It is indefinite only because it is unknown in advance which situation will arise, but it is not indefinite as to the obligations of the parties when they do arise.
In support of the holding of the trial court, counsel for appellee makes no analysis of this agreement, and does not attempt to point out which of its provisions is void. He contents himself by contending that it imposes obligations on plaintiff with respect to payments to the wife which the court, under our statute, could not impose on plaintiff in a divorce action, if no agreement between the parties had been entered into. Cases are cited (Noonan v. Noonan, 127 Kan. 287, 276 Pac. 826; Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Hardcastle v. Hardcastle, 131 Kan. 627, 293 Pac. 391; Revere v. Revere, 133 Kan. 300, 299 Pac. 595) in which it was held (where the divorce was granted to the wife because of the fault or aggression of the husband) the court could not give judgment for alimony to the wife in an indefinite sum, or for periodical payments over an indefinite time, as for life, or until the wife should remarry, but that the judgment for alimony must be in a specific sum, although it may be made payable at once or in future installments at the discretion of the court. This argument and this line of authorities are not in point. There is a distinct difference between what the court has authority under statutes to do with respect to alimony in a divorce case and what the parties may agree upon.
In granting a divorce the court has no authority under the statute to decree that a part of the property of the husband shall be the sole property of the children (Melton v. Every, 105 Kan. 255, 182 Pac. 543), but the parties to the action may agree that the fee to certain of their property shall vest in the children, and be bound by such an agreement. (Cowle v. Cowle, 114 Kan. 605, 220 Pac. 211.)
In Ross v. Boss, 103 Kan. 232, 173 Pac. 291, the parties had made a separation agreement by which the wife had accepted a certain sum as her full share of her husband’s property. Later the parties lived together for a time, then the wife brought an action for divorce, in which the court gave her an additional sum as alimony. This was held to be error; that the contract having been fairly entered into, the wife was bound by it.
• A husband and wife are competent parties to agree between themselves upon a division of property and payments to be made by the husband for the support of the wife. When such agreements are fairly and intelligently made — that is, when they are not induced by fraud, duress, concealment, or undue influence, not the result of mutual mistake, and when the parties fully understand what they are doing — they are uniformly upheld by the courts. (13 C. J. 465, 466; King v. Mollohan, 61 Kan. 683, 60 Pac. 731; Dondelinger v. Dondelinger, 101 Kan. 179, 165 Pac. 849; Blair v. Blair, 106 Kan. 151, 186 Pac. 746; Bradley v. Burgess, 109 Kan. 347, 198 Pac. 967;
Courts have no authority to ignore a contract, fairly and intelligently made by the parties, and to make another for them. (Shaffer v. Shaffer, 135 Kan. 35, 10 P. 2d 17.)
It was error for the court to hold this agreement void.
The result is, the judgment of the trial court should be affirmed insofar as it granted plaintiff a divorce on the ground of gross neglect of duty; the judgment for defendant against plaintiff for alimony in the sum of $900 should be reversed; the findings and judgment of the court respecting the invalidity of the separation agreement should be set aside, and with respect to that instrument the court should be directed to approve it. It is so ordered.