Baumgardner v. Baumgardner
| Decision Date | 10 April 1971 |
| Docket Number | No. 45927,45927 |
| Citation | 207 Kan. 66,483 P.2d 1084 |
| Parties | William E. BAUMGARDNER, Plaintiff-Appellee, v. Doris L. BAUMGARDNER, Defendant-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action for divorce is examined, and, under the facts and circumstances more fully set forth in the opinion, it is held the district court did not err in granting the parties a divorce from each other on the grounds of extreme cruelty and gross neglect of duty. It is further held the district court did not abuse its judicial discretion in making a just and reasonable division of the personal property accumulated by the parties during their marriage, or in denying the defendant alimony.
John S. Seeber, of Adams, Jones, Robinson & Manka, Wichita, argued the cause and was on the brief for defendant-appellant.
Hubert R. Kuhn, of Arn, Mullins, Unruh & Kuhn, Wichita, argued the cause and was on the brief for plaintiff-appellee.
The plaintiff, William E. Baumgardner, commenced an action against the defendant, Doris L. Baumgardner, for a divorce on the grounds of extreme cruelty and gross neglect of duty. The defendant filed a cross petition for divorce alleging the same grounds. Subsequently, and with permission of the district court, the defendant amended her cross petition to include the ground of adultery. Both parties sought an absolute decree of divorce from the other, an equitable division of the property accumulated by them during the marriage, and in addition, the defendant sought alimony in the amount of $50,000.
The district court granted both parties a divorce from each other on the grounds of extreme cruelty and gross neglect of duty. The defendant was denied a divorce on the ground of adultery, and was also denied alimony.
On appeal, the defendant complains of the district court's refusal to grant her a divorce on the ground of adultery, the granting of a divorce to the plaintiff on the grounds specified, the division of the property of the parties, and its order refusing to grant her a substantial alimony award.
The parties will be referred to as they appeared in the court below.
The plaintiff and defendant were married at Caldwell, Kansas, on June 24, 1954, and separated on April 14, 1968. No children were born to their marriage. When the action was commenced, the plaintiff was 36 years of age and the defendant was 34 years of age. Both parties were regularly employed at the Boeing Corporation during the period of their marriage, and at the time of trial on November 21, 1968, the plaintiff was receiving $358 biweekly, or $9,308 annually. In addition to the plaintiff's regular employment, he realized additional income from square dance calling for the following years and in the following amounts: 1965, $449.39; 1966, $1,378, and 1967, $868. His 1968 gross income from this pursuit at the time of trial was $1,575. The defendant received $231.22 biweekly, or $6,011.72 annually.
The defendant first contends the district court erred in refusing to grant her a divorce from the plaintiff on the ground of adultery. The plaintiff candidly admits that the evidence presented to the district court shows he became romantically involved subsequent to the parties' separation and the filing of his action for divorce. He denied that his romantic involvement was the cause of the breakup of the marriage and did not precipitate the parties' action for divorce from each other. The defendant admitted she had no knowledge of any adulterous conduct of the plaintiff prior to the filing of his petition, and her cross petition, for divorce. Under the record presented, we think the district court did not abuse its discretion in refusing to grant a divorce to the defendant on the ground of adultery. The district court granted her the relief she prayed for, but granted it on a different ground than that theorized by her. A divorce granted on one ground is as final and effective as a divorce granted on any other ground. It is unnecessary for this court to decide the point whether conduct subsequent to the commencement of an action can be the basis of grounds for divorce. Under the new Code of Civil Procedure, the rights of divorced parties are not altered by the nature of the ground on which the divorce is granted. The record shows the district court received the evidence concerning the plaintiff's infidelity subsequent to the filing of the action, and that it took that evidence into consideration in granting the defendant a divorce on the grounds of extreme cruelty and gross neglect of duty. She obtained what she sought -a divorce from the plaintiff. At most, the refusal of the district court to grant her a divorce on the ground of adultery does not appear to have prejudicially affected her substantial rights. (Berndt v. Berndt, 175 Kan. 134, 259 P.2d 197.) We cannot say the district court abused its discretion in any respect. A determination that lies in the discretion of the district court will on appeal be presumed to have been made in the proper exercise of that discretion where the contrary does not appear from the record. An appellant claiming abuse of discretion has the burden of proving that contention. (Roberts v. Roberts,103 Kan. 65, 173 P. 537; Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621; 5 Am.Jur.2d Appeal and Error, § 775, p. 218.) See, also, 12 Kan.L.Rev. 27, 33.
The defendant next contends the district court erred in granting the plaintiff a divorce on the grounds of extreme cruelty and gross neglect of duty. She argues there is a lack of evidence showing such grounds for divorce, or any corroboration thereof. The point is not well taken. It would not further the interests of either of the parties to detail the evidence. The record has been carefully reviewed and we are of the opinion there was ample evidence to support the district court's finding granting the plaintiff a divorce on both grounds. It is sufficient to say the evidence established that the defendant's conduct during the marriage was such as to destroy the legitimate ends of the matrimonial objectives of the parties. Indeed, for the most part, the record is lacking of a denial by the defendant of the several accusations made by the plaintiff. The patient endurance by one spouse of the never be allowed to weaken his or her right never be allowed to weaken his or her right to relief. (Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102.)
The district court heard the parties' evidence and observed them testify. It fulfilled its duty to determine the weight and credibility to be given to their testimony and the testimony of their witnesses. Moreover, we believe the corrboration here to be ample as required by the provisions of K.S.A.1970 Supp. 60-1609(d). In Haynes v. Haynes, 202 Kan. 83, 446 P.2d 749, it was said that corroboration need not support each and every detail of the injured party's testimony, nor is it essential that corroborating testimony alone essential the judgment. It is sufficient if the corroboration be such as will tend to establish some fact of facts testified to by the complaining party, which, if believed, would justify the granting of a divorce. See, also, Saint v. Saint, 196 Kan. 330, 411 P.2d 683. On appellate review this court will not overturn findings or a judgment where there is substaintial competent evidence to support them. (Cool v. Cool, 203 Kan. 749, 457 P.2d 60.)
The defendant strenuously complains of the district court's division of the property of the parties accumulated during their marriage. In their brief both parties set forth the accumulated property and their estimated values thereof as reflected by the record. The district court is authorized (K.S.A.1970 Supp. 60-1610(b)) to divide the property of the parties, whether owned by either spouse prior to the marriage, acquired by either spouse in his or her own right after the marriage, or acquired by their joint efforts, in a just and reasonable manner, either by 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...
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Carlton v. Carlton
...P.2d 465.) The amount thereof is to be based upon the needs of one party and the ability of the other party to pay. (Baumgardner v. Baumgardner, 207 Kan. 66, 483 P.2d 1084; Cool v. Cool, 203 Kan. 749, 457 P.2d 60.) A change of circumstances may justify a reduction of alimony. (Blair v. Blai......