Anderson v. Anderson
| Decision Date | 07 March 1942 |
| Docket Number | 35406. |
| Citation | 123 P.2d 315,155 Kan. 69 |
| Parties | ANDERSON et al. v. ANDERSON et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The father of a minor child whose custody was awarded to its mother under a Colorado divorce decree requiring the father to make monthly payments for child's support did not, on theory of "unjust enrichment", hold title to land subsequently acquired by the father as a homestead under a "trust" for benefit of child to extent of accumulated unpaid installments represented by a judgment recovered against the father. Gen.St. 1935, 60-1510.
Under Kansas law, monthly installments required under a divorce decree for a minor child's support, when due and unpaid become "final judgments".
Generally all causes of action upon which suit is brought and judgment obtained are "merged" in the final judgment, and cannot be the foundation of a subsequent action.
Where a Colorado divorce decree contained provisions requiring the father of a minor child to make monthly payments for child's support, and the child's mother had brought an action against the father in Kansas courts on the decree and had recovered a money judgment for unpaid installments and that judgment was unappealed and final, the mother and child could not maintain a subsequent suit against the father to subject his homestead to lien of money judgment, since such cause of action, if any, was "merged" in judgment.
The homestead exemption rights of a divorced husband and his second wife in land acquired by them after a Colorado divorce decree requiring the husband to make monthly payments for support of a minor child by a prior marriage but before a judgment was obtained against husband for unpaid installments under decree was superior to lien of judgment. Gen.St.1935 60-3501.
1. The general rule is that all causes of action upon which suit is brought and judgment obtained are merged in the final judgment and cannot be the foundation of a subsequent action.
2. In an action to subject a homestead claimed by defendants to the lien of a judgment, the record is examined and held (1) the claim that the defendant held the land in trust for the support of the minor child is without foundation, and (2)the homestead exemption rights of defendants are superior to the lien of the judgment of plaintiffs.
Appeal from District Court, Republic County; Charles A. Walsh, Judge.
Action by Herbee A. Anderson and Florence Betty Anderson, a minor, by Herbee A. Anderson, her next friend, against Arthur P. Anderson and another, wherein plaintiffs sought to subject a homestead claimed by defendants to the lien of a judgment. From a judgment for defendants, plaintiffs appeal.
W. D. Vance, Fred Emery, and Perry L. Owsley, all of Belleville, for appellants.
N. J. Ward and Guy E. Ward, both of Belleville, for appellees.
On April 15, 1929, in a court of competent jurisdiction in the State of Colorado, Herbee A. Anderson secured a decree of divorce against Arthur P. Anderson. The care and custody of the minor daughter was awarded the mother Herbee A. Anderson. The decree provided that the defendant pay into court for the support and benefit of the minor child the sum of twenty-five dollars each month.
In October, 1931, the defendant Arthur P. Anderson removed to Republic county, Kansas, where he has since resided.
On July 24, 1939, Herbee A. Anderson brought an action in the district court of Republic county, Kansas, against Arthur P. Anderson, based on the judgment of the Colorado court, in which plaintiff prayed judgment for the unpaid installments for the child's support for a period of five years immediately prior to the filing of the action. On the 5th day of June, 1940, plaintiff recovered judgment against defendant in the sum of $1,794.35 with interest.
Shortly after defendant Arthur P. Anderson came to Kansas a farm of 160 acres was purchased and the title taken in the names of Arthur P. Anderson and his father John A. Anderson. On August 16, 1938, John A. Anderson conveyed his interest in the land to his son Arthur. Arthur and his father lived on the farm until the death of John A. Anderson which occurred shortly after the date of his deed to his son. Arthur P. Anderson continued to live on the land and in August, 1939, was married to one Anna Johnson. On September 1, 1939, Arthur conveyed the 160 acres of land to his wife. The consideration mentioned in the deed was $1. The deed recited: "No consideration excepting as above shown, hence no revenue required." Since the marriage Arthur P. Anderson and his wife have occupied the land claiming it as their homestead.
On January 22, 1941, a general execution was issued under the judgment of June, 1940, and the sheriff finding no goods or chattels, levied the same on the 160 acres occupied by Anderson as his homestead.
The petition of plaintiff, after setting forth the facts above outlined, further alleged that during the five-year period on which the judgment for child support was based, the defendant Arthur P. Anderson had no right or claim in the real estate above mentioned; that during the five-year period the defendant owned a large amount of personal property consisting of horses, cattle and farm machinery; that this personal property was sold subsequent to the filing of the action, and a part of the proceeds were used in discharging a part of a mortgage lien on the land; that defendant was under a legal and equitable duty and obligation to use the income from such personal property to provide for his minor child, and if the income was insufficient, to sell the same and to use the proceeds for the benefit of his child. The petition further alleged that by reason of the facts set forth, the defendant holds the legal title in trust for the benefit of his minor child to the extent of the accumulated unpaid installments of child support as determined by the judgment of the court, and plaintiff asks that the lien of the judgment be declared prior to the homestead of the defendants.
In the answer of defendants it is alleged that at all times since their marriage they have lived upon the land, claiming it as their homestead. Trial was had on the issues joined and judgment rendered in favor of defendants.
We think the judgment should be affirmed.
The defendant Arthur P. Anderson was the owner of and living on the land in question in August, 1939, when he married the defendant Anna. Since that time the defendants have lived upon the land claiming the land as their homestead. The judgment against defendant Arthur P. Anderson was entered in June, 1940. It is not contended the lien of the judgment...
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