160 P.2d 653 | Kan. | 1945
The opinion of the court was delivered by
This was an action for divorce in which a decree of divorce was granted to plaintiff, and defendant has appealed. ■ Appellant does not question the part of the decree granting the divorce, but complains of the judgment for alimony in favor of the plaintiff. Plaintiff is the daughter of a well-known physician in Topeka. She is a graduate in home economics and dietetics of Kansas State College and had a year of postgraduate work in the Woman’s Educational and Industrial Union in Boston. Defendant is a graduate of Northwestern University with a degree in commerce from the School of Business. The parties became acquainted in July, 1941, and were married March 14, 1942. At the time of their marriage plaintiff was employed as a dietitian at the N. Y. A. school in Arkansas City and was receiving a salary of $90 to $100 per month plus her board and room. The defendant was doing clerical work in the New Era Mill in Arkansas City at a salary of $114 per month and was taking a pilot’s training course at Ponca City, Olcla., in order to qualify as a civilian instructor. His father was employed at the mill where he worked and owned some shares of
When they were married plaintiff owned a 1939 Nash automobile which she had purchased by turning in a Ford car at $150 and agreeing to pay $583 in monthly payments, five of which aggregating $242.87, she had paid prior to the marriage. There was a balance due upon the automobile of about $340. She had no other property. At the time of the marriage defendant had between $400 and -$500 in money and a Ford car, which he soon sold for $620. During the nearly six months he was in training at San Antonio the mill where he had worked and his father sent him $100 per month. While they were in San Antonio a man boarded and roomed with them, for a time, but the financial arrangements with respect to that are not disclosed. When they came to Topeka in September, 1942, defendant had paid the balance due on plaintiff’s automobile and they had about $160. They rented a furnished apartment, for which they paid $65 per month. In October, 1942, they traded the 1939 Nash automobile for a new Nash 1942 model, the price of which was $1,177, on which they were allowed $425 for the 1939 Nash. The balance due on the new car was paid by defendant. From February 15 to August 1, 1943, plaintiff worked at the Santa Fe offices at a salary which began at $88 per month and was increased to $115, out of which she purchased three United States bonds of a total maturity value of $75. At Christmas, 1942, Mrs. Hunt gave defendant a United States bond of a maturity value of $50. Defendant was carrying a $2,000 life insurance policy, the cash surrender value of which, if any, was not shown. In August, 1943, plaintiff had a major operation performed at the hospital in which her father assisted the surgeon and who, because of a comity between physicians, made no charge for his services. Plaintiff’s father paid the hospital bill. Early in 1944 defendant had an operation for hernia,' and again plaintiff’s father assisted the surgeon, who made no charge. This operation incapacitated defendant for work for perhaps three months.
On July 7, 1944, plaintiff brought this action for divorce on the grounds of extreme cruelty and gross neglect of duty, and also asked for the restoration of her maiden name, for temporary and permanent alimony, suit money, and attorneys’ fees.
On August 4, 1944, defendant filed an answer which contained a general denial, with an admission of the marriage of the parties, the residence of the plaintiff, and that no child had been born to the union, all as alleged in the petition.
On the same day plaintiff filed a motion that an emergency be declared and that the action be heard before the expiration of sixty days after the filing of the petition (as authorized by G. S. 1935, 60-1517). This motion was heard promptly. It was supported by the testimony of plaintiff’s father and another witness to the effect that there was grave danger of a physical and nervous breakdown of plaintiff unless there was an immediate trial of the. divorce action so that she would be relieved of the mental and physical strain existing under the circumstances. The motion was sustained and the trial proceeded the same day.
After hearing the evidence and the argument of counsel the court announced its decision by which it granted plaintiff a divorce upon the sole ground of gross neglect of duty, restored plaintiff to her maiden name of Margery Berle Morris, awarded to plaintiff the Nash, 1942, automobile, and directed defendant to deliver to plaintiff a bill of sale for the automobile and all gas coupons for its use; told the parties to divide the wedding presents, the plaintiff to have those given by her friends, the defendant to have those given by his .friends; decreed that each party should retain the United States bonds then in the possession of each, and that the defendant retain his life insurance policy and bank account, then $57.13; and further awarded plaintiff a judgment for alimony against defendant for the sum of $2,500, to be paid through the office of the clerk of the district court at the rate of $50 per month until the full sum was paid; and further rendered judgment in favor of plaintiff and against de
In this court appellant complains only of the $2,500 alimony award, contending it was grossly excessive, if indeed any sum should have been awarded for that item, and of the judgment of $250 for plaintiff’s attorney’s fee, contending it was grossly excessive. Since defendant, as appellant here, does not complain of the fact that a decree of divorce was granted to plaintiff, his counsel did not abstract the evidence relating thereto. Counsel for plaintiff has brought that evidence before the court by a counter abstract, perhaps for the reason that he thought it would be helpful to the court in passing upon the questions raised here by appellant, and we shall so consider it. Plaintiff testified to their marriage, where they lived and what they did substantially as hereinbefore stated; that they kept a joint bank account in which was deposited his earnings and hers; that she .“kept the check stubs.” She testified that she knew defendant had no property, except that above enumerated, and that he had no income other than his salary. There is no suggestion in her testimony that defendant was either reckless or extravagant in the use of their money, which appears to have been used for their living expenses and the purchase of automobiles. She further testified that at the time of her operation in 1943 she was advised by. her physician that.if she ever wanted a family she should not put it off long. She told defendant about that and asked what he thought about it. He said he didn’t feel it was the time to have a family and asked her opinion. She said she thought it was not the most ideal time, but if it was a matter of having a family now or never she thought they should, if they ever wanted children, which she did. She thought they were not living a normal married life and worried about it. There were several occasions when he came, home from his work an hour or two later than she had expected him, and'on a few occasions when he was not busy with work on Saturday afternoons he went down town for several hours instead of staying at the apartment and visiting with her; and on one occasion when she expected him to treat her with affection he did not do so, and when she mentioned the matter to him he said it meant
Plaintiff’s father, called as a witness in her behalf, testified:
“I had a conversation with the defendant shortly after my daughter came home in June; this was the occasion of their separation. The defendant called at the house and wanted to know if Margery was there. I told him she was, but she wasn’t well and didn’t feel like talking to him at that time, but that I would like to talk to him later and see what we could do about the situation. My object in seeing him was to see if something could be done to bring them together. Dee seemed to take all the blame; he said he guessed he just couldn’t make Margery happy; he didn’t condemn Margery in any way but said she was a fine girl and there wasn’t any complaint he could make; he said, ‘I guess it is all me. I guess I just don’t have enough love and affection to make Margery happy.’ ”
Later he went to defendant’s apartment, where he talked with him for quite awhile, with substantially the same result. He testified that he had these talks with the defendant in order to see if he could get the two young people back together and see if they could make a success of their marriage; that he did everything in his power to make it work out. He was asked and answered the following question:
“You did that, of course, in an attempt to get them back together? A. Sure. I like Dee, and I wanted to see them be happy.”
Defendant, called as a witness in his own behalf, testified that at the time of the marriage he was doing clerical work at the mill; that although he was a graduate of Northwestern University, with a degree in commerce from the school of business, he had no technical skill along mechanical or any other lines, only his flight instructor’s ability; that his employment as flight instructor at Washburn
It was stipulated that at the time of the trial the top ceiling price of the 1942 Nash automobile owned by the parties was $1,030.
We turn now to the questions argued here. Since the evidence disclosed that the parties could not continue their marital relations harmoniously defendant makes no complaint of the fact that the court granted a divorce to plaintiff. Neither does the defendant object seriously to the division of the property between the parties made by the trial court, although the overall picture of the testimony pertaining to that matter discloses that plaintiff’s financial status was improved as a result of the marriage and divorce from the possession of an automobile on which there was an indebtedness of $340 to that of having, clear of debt, an automobile of the -value of $1,030; while defendant’s financial status decreased from the approximately $1,100 he had at the time of paarriage to less than $100. But in view of the fact that the court had made this division of the property defendant complains bitterly, (1) that the court made an award and rendered a judgment against him in favor of the plaintiff in the sum of $2,500, to be made in monthly payments
Respecting the alimony award, the legal questions involved are quite well settled by former decisions of this court and are to this effect: Under G. S. 1943 Supp. 60-1511, the court, in the proper case, may in its discretion render a judgment for an alimony award to be paid from future earnings; that the exercise of this authority is a judicial discretion and must be predicated upon a good reason therefor shown by the evidence in the case. It is not a power to be exercised without just cause. When complaint is made in this court that such a judgment is excessive, or that it is inadequate, the court will examine the question and decrease the judgment or increase it as it determines the facts justify. (See Flautt v. Flautt, 126 Kan. 21, 266 Pac. 746; Mann v. Mann, 136 Kan. 331, 15 P. 2d 478; Landers v. Landers, 138 Kan. 538, 27 P. 2d 231, and authorities cited therein.) Counsel have cited and commented upon our earlier cases dealing with this question. Only as they tend to emphasize the general principles just stated they are not particularly helpful to the solution of the problem before us, for the reason that each of them deals with its own particular state of facts. Without restating the facts hereinbefore set out it seems clear to this court that the judgment against defendant for alimony in the sum of $2,500 was not justified. There had been no trouble between the parties over financial matters. Aside from the few months directly after the marriage when defendant was taking training, of which the plaintiff nowhere complains, defendant was employed at a fairly good salary, plaintiff was employed for about five and one-half months; they had no income other than their earnings, which were put in a common fund and used in a manner of which no complaint is made by either of them. The charge against defendant of extreme cruelty made by plaintiff in her petition was not sustained by the evidence and the court did not find that any such cruelty existed. There was no evidence that defendant had. any bad habits such as drinking or gambling, or that he had any immoral habits or associated with persons of ill repute. The only difficulty between them, which perhaps was serious enough, arose from incompatibility respecting their domestic and private relations. In this case, after defendant had paid the normal court costs, he had nothing more than one would need for current expenses.
Plaintiff did not bring suit for alimony alone, in which if she recovered she might receive payments indefinitely; she brought an action for divorce, the very nature of which is to close not only the marital relations but the financial affairs of the parties as between them.
After the decree of the court defendant could not make any of the payments on the alimony judgment without placing himself in such a position that he would have been held to have complied with the judgment and could not proceed with his appeal. After the case reached this court, upon plaintiff’s application, the court made an order that defendant should pay to the clerk of this court, for the benefit of plaintiff, $50 per month pending the further order of the court, and also should pay $50 to be used by plaintiff as expense money in the preparation of her defense to the appeal. This court is always slow to set aside an order of the trial court which is in its discretion. In deference to that this court feels it should sustain as much of the order as under any circumstances it would be possible for the court to conceive that the trial court was justified in making. The only reason we find for any additional allowance of alimony to be paid from future earnings is the fact that at the time of the trial plaintiff was nervous and worried.
Respecting the second item complained of by defendant in this court, the judgment against defendant for an attorney’s fee of $250 to be paid as a part of the costs of the action, for which execution should issue, it is this court’s judgment that the sum was too large and that an allowance of $150 is the maximum which should have been allowed. Inasmuch as the defendant brought the case to this court and plaintiff had to have an attorney to represent her here, for which an attorney’s fee is claimed, we'have concluded to allow an attorney’s fee for the services of plaintiff’s attorney in this court of $100 and to further modify the judgment of the trial court with respect to when the attorney’s fee should be paid so as to provide that the, total attorneys’ fees of $250 for services in both courts instead of being subject to execution shall be made payable at the rate of $50 per month beginning at the termination of the payment of the alimony judgment to plaintiff of $900, with the credits above mentioned. The payment of alimony through the clerk of this court shall cease with the payments made by the date of the filing of this opinion and the future payments of alimony and attorneys’ fees shall be made through the office of the clerk of the district court, beginning August 1, 1945.
The judgment of the trial court should be modified in harmony with the views of this court. It is so ordered.