Allison v. Allison

• Decision Date: 17 July 1961
• Docket Number: No. 42336,42336
• Citation: 363 P.2d 795,188 Kan. 593
• Parties: Helen Rose ALLISON, Appellee, v. James A. ALLISON, Appellant.
• Court: Kansas Supreme Court

Page 795

363 P.2d 795

188 Kan. 593

Helen Rose ALLISON, Appellee, v. James A. ALLISON, Appellant.

No. 42336.

Supreme Court of Kansas.

July 17, 1961.

Syllabus by the Court.

1. The provisions of G.S.1959 Supp. 60-1510, repose in the trial court the right and duty to require parents properly to care for, maintain and educate their children, notwithstanding the fact of the divorce, and to make such orders relative to payments of money from time to time unitl this result has been fully effectuated.

2. An order of a trial court should be so construed as to uphold its validity where possible.

3. Where parents have been granted a divorce the provisions of G.S.1959 Supp. 60-1510, authorize the making of provision for the children of the marriage only during their minority.

4. In a divorce action, where the welfare of minor children is involved, the trial court's power in dealing with the property of parents is necessarily very broad, and unless that power is obviously abused, its exercise will not be distrubed on appeal. Thus, an order requiring the father of a minor child to establish a trust fund to provide for the college education of the child, as more particularly set forth in the opinion, is construed and held to be properly within the discretion of the trial court.

5. The provisions of G.S.1959 Supp. 60-1510, are sufficiently broad to authorize a trial court to make provision for the college education of a minor child, where the evidence shows a plan for such education, and ability on the part of a parent to provide such education. Thus, it is proper for a trial court to require a suitable life insurance policy designating the child as beneficiary to assure the child an opportunity for a college education, provided the responsible parent is not bound to continue such policy of insurance beyond the age of the child's majority.

Mearle D. Mason, Wichita, Theodore H. Hill, Wichita, on the brief, for appellant.

Robert H. Nelson, Wichita, W. A. Kahrs, H. W. Fanning and Richard C. Hite, Wichita, on the brief, for appellee.

SCHROEDER, Justice.

This is an appeal by the husband in a divorce action from on order of the trial court increasing support payments for a minor child.

The appellee, Helen Rose Allison, obtained a decree of divorce from the appellant, James A. Allison, in the district court of Sedgwick County, Kansas, on the 3rd day of August, 1949. In addition to granting the divorce, the decree gave custody of the minor child of the parties, Ashley Allison, to the appellee and directed the appeallant to pay the sum of $50 per month for the support and maintenance of the child.

On the 29th day of August, 1960, the trial court heard evidence upon the appellee's application for an increase in child support payments, and to require the appellant to make financial arrangements to provide funds sufficient to guarantee a suitable college education for the minor child, and other matters. After taking the case under advisement the trial court on the 15th day of September, 1960, made his findings and entered an order, which insofar as material herein reads:

' It Is By the Court Considered, Ordered, Adjudged and Decreed that the said defendant, James A. Allison be and he is hereby ordered to pay to the plaintiff, payment being made through the Clerk of the District Court, for the month of September, and on or before the 15th day of each month thereafter, subject to the further order of this court, the sum of $125.00 per month, until further order of said court, for the support and maintenance of the minor child, Ashley Allison.

' It Is Further Ordered that the defendant James A. Allison, shall forthwith establish in some banking institution in the City of Wichita, Kansas, an account to provide funds for the proper education of his minor child; said defendant shall during the month of October, 1960, deposit the sum of $50.00 and a like sum shall be deposited in said fund each month thereafter up to and including the month of November, 1963; said account to be so arranged so that same will draw interest on funds so deposited. Within one year after said minor child graduates from high school and enrolls in a college, said minor child shall be entitled to withdraw from said fund, the sum of $75.00 per month so long as she remains enrolled in college or until the fund and accumulated interest thereon is depleted. In the event said minor child shall not enroll in college following graduation from high school or should she voluntarily withdraw from college after having enrolled, the balance of said fund remaining on deposit shall thereupon be made payable to said defendant, his heirs or assigns.

' It Is Further Ordered that the said defendant, James A. Allison, shall forthwith take the necessary steps to provide that the said minor child shall be named as beneficiary of one-half of the defendant's $10,000.00 government insurance policy or policies and she shall remain as the designated beneficiary in said policy until graduation from college or having reached the age of 25; upon said minor child reaching the age of 25 or having graduated from college, whichever happens first, said defendant shall thereupon have the right to change the beneficiary on said policy as he deems advisable.

'It Is Further Ordered that in the event the defendant, James A. Allison, shall die prior to the minor child having completed her college education and while she is enrolled in a college, such amount as may have accumulated in the fund in the banking institution for the education of said minor shall be thereupon immediately payable to said minor. Provided, further however, in the event said minor child shall die prior to having completed her college education or prior to the depletion of said funds, thereupon said funds shall be payable to the defendant, his heirs or assigns.

' It Is Further Ordered that James A. Allison shall pay to the Clerk of the District Court, the sum of $100.00 as attorney's fees for plaintiff's attorneys; same being for legal services rendered in the presentation of said motion.'

Appeal has been duly perfected from the foregoing order presenting questions relating to each of the foregoing paragraphs which have been numbered for clarification.

The appellant contends the increase of child support payments from $50 a month to $125 a month is an abuse of discretion by the trial court, and not warranted by the facts disclosed at the hearing. It is the appellant's position that prior to the time this divorce was granted some years back, the parties had not accumulated property of any substantial character, but were living on a gross income in the amount of $400 a month, which the appellant received as an oil field worker. At the hearing the appellee frankly admitted she merely wanted to maintain the same standard of living that she did prior to the time she received the divorce.

The appellee has had the custody of the child and testified that she has lived with her mother and father for a long period of time. The total rent paid for a two-bedroom duplex in which they lived was $150 per month. Of this amount the appellee paid $50 a month for herself and the child, who at the time of the hearing was fourteen years of age. The appellee further testified she spent at least $100 per month over the $50 supplied by the appellant for the support of the child, and that she was employed receiving an income of $268.65 'take-home' pay per month.

Since the divorce the appellant has remarried and is supporting his present wife and her two children, who are fourteen and sixteen years of age, respectively. They now have an additional child of their own. The appellant testified he had been in business together with his father and brother, the business being known as the A. D. Allison Oil Company; that at the present time he was an oil producer and is just starting in the ranching business. He testified that he had traded for a house and ranch in El Dorado, Kansas, and was trying to sell the real property in Wichita where he had resided in which he had a $2,500 equity. He traded a one-sixteenth interest in fifteen oil wells on an appraisal basis of $65,000 for the equity in a 1,000-acre ranch and assumed a $50,000 mortgage. The ranch has been stocked with registered cattle purchased from the Turner Ranch in Oklahoma, and he placed a value of $42,000 upon his cattle and $120,000 upon the ranch. His testimony further disclosed that his oil properties and the cattle were mortgaged. His balance sheet as of July 1, 1960, indicates gross assets in the sum of $269,640.60, which after deducting liabilities discloses a net worth of $107,212.59. Among the assets was approximately $16,000 cash on hand in bank accounts which he described as operating capital for his business.

The appellant testified his monthly income from oil 'varies, around four to five thousand dollars.' His total income for the year 1959 on the income tax return from oil was in the gross sum of $71,000 and the return showed a net income of $10,000. Adjusted gross income was in the amount of $26,800 and there was a depletion allowance in addition of $19,000.

The foregoing gives a brief summary of the evidence presented. The record discloses the testimony of the witnesses and the evidence in far more detail than is necessary to set forth herein.

The appellant contends his net income at the present time budgeted for living expenses is $550 a month, after he pays the mortgages due on the ranch in Butler County, Kansas, and after he pays for the other outstanding obligations, which call for monthly, semi-annually or yearly payments. In his brief he argues:

'* * * Because of the orders of the court, the entire financial structure created by the defendant and his present wife and all they have accumulated, is jeopardized. If the defendant should not make the monthly, semi-annually or yearly payments as specified, he stands to lose all the gains that he has made...