Baird v. Baird, 46386

Decision Date10 June 1972
Docket NumberNo. 46386,46386
Citation209 Kan. 604,498 P.2d 83
PartiesRuth BAIRD, Appellee, v. Charles Elmer BAIRD, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

The record in a proceeding to modify a divorce decree with respect to alimony granted on a separation agreement, is examined, and it is held: The agreement prescribed for subsequent modification of the alimony allowance in conformity with the provisions of K.S.A.1971 Supp. 60-1610(c) and (d).

Charles D. Kugler, of Carson, Mahoney & Fields, Kansas City, argued the cause and was on the brief for appellant.

Jerry J. Hess, Overland Park, argued the cause, and John C. Eisele, Overland Park, was with him on the brief for appellee.

FATZER, Chief Justice.

This is an appeal from an order denying a motion to modify a divorce decree with respect to payment of alimony not yet due.

The parties were married July 8, 1933, in Wyandotte County, Kansas. Five children were born of the marriage, but all had reached the age of majority before the facts material to the issue came before the district court.

On May 14, 1968, the appellee, Ruth Baird, received a divorce from the appellant, Charles Baird. The divorce was not contested. The parties did, however, submit to the court a stipulation and property settlement concerning all matters involving division of their property and property rights, and permanent alimony for the plaintiff subject to the approval of the court.

The division of property is not an issue, and it is sufficient to say the wife was allotted all of the furniture and household effects, the home at 8501 Santa Fe Drive, Overland Park, Kansas, subject to a mortgage, and 80 acres of unimproved land near Bennett Springs, Missouri. The defendant was allotted a pick-up truck subject to a purchase money mortgage and real estate at Lake Havesau City subject to $3,100 due on the purchase price.

The stipulation for alimony provided:

'The Defendant agrees to pay and the Plaintiff agrees to accept as permanent alimony of and from the Defendant the sum of $325.00 per month until Plaintiff remarries or is deceased as provided by the alimony laws of the State of Kansas. . . .'

The district court found that the stipulation and property settlement should be incorporated in the journal entry and decree, which recited in part:

'All sums due and payable as permanent alimony shall be paid into the office of the Clerk of the District Court of Johnson County, Kansas, and this Court shall retain permanent jurisdiction of this cause . . .'

In its conclusion, the district court decreed:

'That this Court shall retain jurisdiction of this cause and of the parties herein concerned.'

On June 22, 1970, the appellant filed his motion to modify the divorce decree with respect to the payment of alimony, in which he informed the district court in substance that the alimony order was predicated solely upon his future earnings and was not in any way a part of a division of accumulated property; that the defendant's income has dropped from a net of $850 to $397 per month; that appellee is the governess of a widower's two children, she has a place to live, and food and an undetermined salary, and that the appellant has remarried and his wife is not working. The motion concluded:

'Defendant has such high blood pressure that he cannot pass a physical examination for permanent employment, and has no prospects for the future. Also, that he has had two heart attacks and he has been advised by his doctor not to overdo in any respect. This was definitely a factor in his retirement from General Motors Corporation.

'That effective June 1, 1970, the defendant was retired by action taken solely by his employer, General Motors Corporation, and upon his retirement he will receive as retirement pay the sum of $397.59 monthly. That this is his sole and only income and means of livelihood for he and his present wife.'

The appellant introduced evidence to establish the above alleged facts, and further testified his retirement will be about $380 per month and he has no other income. His necessary living expenses were about $370 per month.

The district court, after hearing the evidence, entered a memorandum decision as follows:

'Now on this 30th day of July, 1970, the Court finds that, on the basis of the present financial situation of the defendant, the alimony payments to be made by defendant should be reduced, but the Court is without power to modify a property agreement entered into by the parties and approved by the Court, without the approval of the parties, where no provision for such modification is included in such agreement.'

The movant has appealed, challenging the conclusion of the district court that there was no provision for such modification included in the settlement agreement.

We agree with the appellant that the agreement made provision for the court to modify the payment of alimony not yet due.

The law of divorce and alimony was materially changed in 1964. Up until that time, the judgment for alimony was a final judgment of the rights of the parties with respect to alimony. A court could not give itself power by its own order to make future revisions of the alimony judgment, and the parties could not confer such jurisdiction by agreement. (Conway v. Conway, 130 Kan. 848, 851, 288 P. 566.)

In 1964, the Legislature, among other changes in the divorce laws, enacted K.S.A. 60-1610 designating the matters which might be included in the decree. Included therein was care of minor children, division of property, maintenance, and separation agreements.

K.S.A.1971 Supp. 60-1610(c) provides that the decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all the circumstances and that it may make the future payments conditional or terminable under circumstances prescribed therein. Subsection (c) reads in part:

'. . . The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without...

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3 cases
  • Sweeney's Estate, In re, 46631
    • United States
    • Kansas Supreme Court
    • July 19, 1972
    ...parties may subsequently consent.' The section has been touched upon in Drummond v. Drummond, 209 Kan. 86, 495 P.2d 994; Baird v. Baird, 209 Kan. 604, 498 P.2d 83; Cramer v. Wohlgemuth, 195 Kan. 622, 408 P.2d 644; Tager v. Tager, 199 Kan. 26, 427 P.2d 484; Tyler v. Tyler, 203 Kan. 565, 572,......
  • Fleming v. Fleming
    • United States
    • Kansas Supreme Court
    • January 22, 1977
    ...alimony decree in Jarvis v. Jarvis, 218 Kan. 679, 544 P.2d 1384; Carlton v. Carlton, 217 Kan. 681, 538 P.2d 727; and Baird v. Baird, 209 Kan. 604, 498 P.2d 83.) Here the appellant' motion for an order terminating alimony, filed April 1, 1975, stated in '. . . (E)ven should a common-law marr......
  • Lewis v. Lewis, 50773
    • United States
    • Kansas Court of Appeals
    • December 7, 1979
    ...Curtis v. Curtis, 218 Kan. 130, 131, 542 P.2d 330 (1975); Ostrander v. Ostrander, 214 Kan. 859, 522 P.2d 183 (1974); Baird v. Baird, 209 Kan. 604, 607, 498 P.2d 83 (1972); Drummond v. Drummond, 209 Kan. 86, Syl. P 2, 495 P.2d 994 (1972). It is also clear that all separation agreements which......

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