Almquist v. Almquist

• Decision Date: 11 May 1974
• Docket Number: No. 47285,47285
• Citation: 522 P.2d 383,214 Kan. 788
• Parties: Eileen M. ALMQUIST, Appellant, v. Kenneth T. ALMQUIST, Appellee.
• Court: Kansas Supreme Court

Page 383

522 P.2d 383

214 Kan. 788

Eileen M. ALMQUIST, Appellant, v. Kenneth T. ALMQUIST, Appellee.

No. 47285.

Supreme Court of Kansas.

May 11, 1974.

Syllabus by the Court

1. The district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.

2. The discretion vested in the trial court must be exercised in whole-hearted good faith and be guided by the statutes, not by the court's private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.

3. Under K.S.A. 60-1610(b) the court has authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.

4. A party to a divorce action is entitled to have consideration given to all property which might fairly be deemed part of the family estate. Any other result would fall short of the statutory demand that the property settlement be 'just and reasonable.'

5. In making division of property in a divorce action, the time, source and manner of acquisition of property owned by the parties is but one factor to be considered in connection with such others as the size and nature of the estate, the ages of the parties, their needs and future earning capacities, and the duration of the marriage.

6. While alimony and property division are separate and distinct concepts, neither can be intelligently fixed by itself, without giving appropriate consideration to the other.

7. In an appeal from the property division in a divorce decree it is held: the trial court erred in giving controlling weight to the fact that the family home, where the parties had lived for 36 years and raised four children, was a gift to him from the husband's parents; and in failing to make a realistic appraisal of the needs and earning capacity of the wife, who declined alimony.

Robert L. Marietta, of Marietta & Kellogg, Salina, argued the cause and was on the brief for appellant.

Phillip R. Shaffer, Salina, argued the cause, and Frank C. Norton, Salina, was on the brief for appellee.

FOTH, Commissioner:

In this divorce action we are concerned primarily with the division of property ordered by the trial court. The plaintiff wife was granted a divorce on the grounds of incompatibility on October 4, 1972. Further hearings were held on the property aspect of the suit, and on January 29, 1973, the court entered its order: of a net marital estate of.$176,707.86 the court awarded the husband $143,581.61 and the wife $33,126.25. She appeals.

The parties were married in 1936, when she was nineteen and he twenty. Neither brought any property to the marriage, but they set up housekeeping at the edge of Assaria, Kansas in a house belonging to Kenneth's parents. It was located on 76 1/2 acres which over the years formed the core of his farming operation. Some seventeen years later, in 1953, the senior Almquists deeded the property to their son; the parties continued to reside there for almost twenty years more. During the marriage the Almquists raised four children, who by 1972 were all grown, married, and living away from the family home.

At the time of the divorce Kenneth Almquist was 57 years old, Eileen 55. He, in addition to farming, had for some time held a federal civil service job at Schilling Manor, near Salina. He did maintenance work, specializing in electrical wiring, and earned around $9,000 a year. She had helped with the farm work, and in recent years had tried her hand at a series of unskilled jobs, earning at most $1.00 per hour. Her current venture was in the real estate business, where she was a licensed salesperson with a Salina agency. She supplemented her uncertain income from this source by cooking evening meals for a Salina family and noon meals for a Salina doctor. Her culinary skills brought in $39 a week; her real estate activities had grossed $50 in the sixty days before trial.

Mrs. Almquist nevertheless declined alimony, saying 'I think I can make a go of it in my real estate. I'm going to try if I can. I would just as soon have this considered anyway into the property settlement.'

The property division, with agreed values, went like this:

To Kenneth Almquist:

Corporate stock $ 3,250.00

Cattle, farm machinery,

crops 45,650.00

Car, cash, guns 1,328.00

Life insurance, retirement

fund 6,356.00

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56,584.00

The home place 45,500.00

Interest in mother's

estate 70,349.00

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115,849.00

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172,433.00

Less, judgment to Eileen (28,250.00)

-----------

144,183.00

To Eileen Almquist:

Corporate stock 158.25

Cattle 1,501.00

Car, cash, household

goods 3,217.00

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4,876.25

Plus, judgment from

Kenneth 28,250.00

-----------

33,126.25

In addition, Kenneth was ordered to pay the family debts of $601.29 and $1,395.00 to apply on her attorney fees (he had paid $200 in a prior abortive proceeding). Of the 'equalizing' judgment of $28,250, he was to pay $1,250 at once to defray her cost of moving from the family home and to 'assist her in making adjustments occasioned by the move.' The $27,000 balance was to be paid $15,000 on March 31, 1973, and $4,000 annually on March 31st thereafter until paid in full.

The record reflects no articulated reasons behind the trial court's decision, but we may glean some of the judge's thinking by examining the result he reached. The wife was awarded five cows, three calves and three shares of A. T. & T. stock, all purchased by her from her own earnings. She also received her savings account, her life insurance, one of the parties' two cars, and the household goods. The husband was awarded the property incidental to his farming operations, his insurance, his retirement fund, his guns. He, too, received a car, and corporate stock which had originated in gifts from his parents. Thus each received, by and large, the items having some personal attachment or which he or she was accustomed to using.

The key items omitted in the foregoing summary are the home place and Kenneth's inheritance, having a total value of $115,849. Apart from these two items Kenneth received $56,584 in jointly accumulated property, against which he was to pay $28,250, or just about one-half, in cash. If this were all, Mrs. Almquist would obviously have little ground for complaint.

This, of course, is not all. Mrs. Almquist's chief complaint goes to the fact that in making the property division the trial court apparently first set aside to her husband the home place and his interest in his mother's estate, and apportioned only the balance. In so doing, she says, the trial court abused its discretion.

The rules applicable to our review in such a case are easy to state but difficult to apply. 'The district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.' (Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172, Syl. 1.) One seeking to establish an abuse of discretion assumes a heavy burden, for 'If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said (Id., p. 562, 506 P.2d, p. 1175.) On the (Id., p. 562, 506 P.2d p. 1175.) On the other hand, 'The discretion vested in the trial court must be exercised in wholehearted good faith and be guided by the statutes, not by the court's private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.' (St. Clair v. St. Clair, 211 Kan. 468, 507 P.2d 206, Syl. 6.)

The governing statute, referred to in St. Clair, is K.S.A. 60-1610(b):

'The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.'

We commented on the changes in our divorce law wrought by the 1963 enactment of that statute in Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478:

'The significant change in the law regarding division of property is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.' (P. 459, 407 P.2d p. 484.)

No change was effected as to the husband's individual property. It is subject to division under the new law as it was under the old. The trial court, then, was not Required to set aside to the husband his separate property before dividing the marital estate. The question remains, was it proper to do so? Put another way, was it proper for the court to give the weight it obviously did to the source of these two assets?

Under the pre-1963 law the source of marital property was one of several factors to be considered, i. e., the court should take into consideration 'the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of the property owned by the parties, and how and when it was acquired.' (Mann v. Mann, 136 Kan. 331, 335, 15 P.2d 478, 480. Emphasis added. See also, Walno v. Walno, 164 Kan. 620, 192 P.2d 165.) The new law...