99 P.2d 750 | Kan. | 1940
The opinion of the court was delivered by
This case has to do with a property settlement made in a divorce proceeding. A divorce was granted to the husband on the grounds of gross neglect of duty and extreme cruelty. The wife appeals only from the allowance made to her by the trial court.
Henry Wittig, the plaintiff, and Mary Wittig, the defendant, were married in July, 1934. He had twelve children and she had seven children by prior marriages. All of her children but one were then married, and all were married when this action was brought. All of his children were over sixteen years of age except one boy, who was twelve. Several of plaintiff’s children were living at home with their father when defendant came to make her home there. Everything seems to have gone along fairly well for a couple of years, but friction between the defendant and some of the plaintiff’s children increased and finally the defendant gathered up all her personal belongings and left. The divorce action was filed in August, 1938. Plaintiff alleged that by the joint efforts of himself and his former
The findings of fact by the trial court which bear upon the property division are:
*442 “And the court, having heard further arguments from counsel and being fully advised, finds that the plaintiff had made full and complete account to the defendant of all of her property and that he has used none of her .property for bis personal obligations; that there has been no accumulation of property as the result of the joint efforts of plaintiff and defendant, but that the defendant has contracted additional obligations and now has debts of approximately six thousand dollars ($6,000).
“That the plaintiff has twelve children, two of whom are minors and one a crippled daughter, who are entirely dependent upon the plaintiff for their support; that the defendant is the mother of seven children and has had restored to her the personal property which she brought to plaintiff at the time of their marriage; that none of her children are dependent upon her.
“That a fair and equitable distribution of the property as between the parties hereto, under all of the circumstances, would be that plaintiff pay to the defendant the sum of twelve hundred dollars ($1,200), which would be in full and complete settlement of all property rights between the parties hereto and the cancellation of the obligations of the plaintiff insofar as the antenuptial contract between the said parties is concerned.”
In addition to the allowance to the defendant of $1,200 the court also allowed her $200 attorneys’ fee.
We are confronted at the outset with the rule of law many times declared by this court that a property division or award of alimony made by the trial court in a divorce proceeding will not be set aside unless it is clearly shown that there was abuse of discretion. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695; Hay v. Hay, 130 Kan. 81, 285 Pac. 520; Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804; Walker v. Walker, 137 Kan. 614, 21 P. 2d 375; Falk v. Falk, 139 Kan. 51, 30 P. 2d 124; Savage v. Savage, 141 Kan. 851, 44 P. 2d 272.)
Appellant concedes that this is the rule. The only issue, therefore, is whether the court abused its discretion.
•Determination of the issue must be made in the light of the provisions of our statute, G. S. 1935, 60-1511, which apply to property allowance to the wife where divorce is granted to the husband for the fault of the wife. ■ The statute provides, in substance that the court should order restoration to the wife of the property owned by her before or by her separately acquired after the marriage and not previously disposed of; also such share of the husband’s property as may appear just and reasonable, and should also make just and reasonable division of such property as may have been jointly acquired by the parties during their marriage.
• The record is not entirely clear as to -the property- which the wife brought to the marriage. It was agreed that she had $1,500, but our examination of the record leaves some uncertainty as to whether
"Appellant urges that although the granting of the divorce is not at issue, the record discloses very little fault on the part of the wife and that this fact should be taken into consideration here in connection with the property division. We agree that upon the record before us the faults of the wife do not appear very grievous, but the.
Motion to dismiss the appeal was filed by appellee, but it was not urged in the oral argument, and our understanding was that it was virtually abandoned. In any event, the conclusion heretofore stated makes it unnecessary to consider the motion.
The judgment is affirmed.