Berndt v. Berndt, 39029
| Decision Date | 06 July 1953 |
| Docket Number | No. 39029,39029 |
| Citation | 175 Kan. 134,259 P.2d 197 |
| Parties | BERNDT v. BERNDT. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action for divorce examined, considered and held, to disclose (1) sufficient evidence to sustain the trial court's finding plaintiff should be granted a divorce from defendant on the ground of abandonment; (2) nothing to permit a conclusion such court disregarded the provisions of G.S.1949, 60-1511 or was guilty of abuse of sound judicial discretion in making a division of property between the parties; and (3) no grounds warranting a reversal of the judgment.
Aldeverd Metcalf, of Oberlin, argued the cause and was on the briefs for appellant.
L. F. Cushenbery, of Oberlin, argued the cause, and John M. Bremer, of Oberlin, was with him on the briefs for appellee.
This is a divorce action in which judgment was rendered for the plaintiff and defendant appeals.
On April 23, 1950, plaintiff, Herman F. Berndt, who was then about seventy-one years of age, and the defendant, Elizabeth Berndt, approximately seventy years of age, were married in Englewood, Colorado, after having been acquainted for fifty-seven years. Plaintiff's first wife, who died in 1948, was the defendant's sister. The parties lived together as husband and wife in Oberlin, Kansas, for one year and four days until April 27, 1951. On that date defendant left the marital home for a trip to California, where she had lived from 1903 up to or about the time of the marriage, and never returned. However, in the fall of 1951, she came back to Herndon, Kansas, a town located approximately twenty-two miles from Oberlin, where she stayed for a short time and then returned to California, without having contacted the plaintiff in any manner.
Plaintiff commenced the action on May 7, 1952, by filing a petition in which he charged the defendant with abandonment and asked for a divorce. Thereafter, by way of answer and cross-petition, defendant denied the allegations of the petition; charged the plaintiff with extreme cruelty, gross neglect of duty and abandonment; and asked for a divorce, alimony, attorney's fee and restoration of all property owned by her on the date of the marriage. Plaintiff's reply consisted of a general denial and allegations to the effect he made no claim to defendant's property and that he was willing to return such of it as was in his possession to her at any time.
With issues joined as above related the cause was tried by the district court which, after hearing the testimony of each of the parties and of their respective witnesses, found that plaintiff should be granted a divorce against defendant on the ground of abandonment; that no property had been accumulated by the parties through their joint efforts during the marriage and that they had no common property; that the defendant had property of her own that should be awarded to her; that the plaintiff had property of his own which should be awarded to him; that the defendant should be allowed additional expense money in the sum of $75; that the defendant's attorney should be allowed a fee of $150, to be taxed as costs; that the cost of the action should be taxed to the plaintiff; and rendered judgment accordingly.
Following the rendition of judgment as above indicated defendant filed a motion for a new trial. Thereafter, such motion having been overruled, she perfected this appeal wherein she has filed specifications of error which, for all purposes essential to the disposition of the cause on appellate review, charge that the trial court erred (1) in granting plaintiff the divorce and (2) in failing to award her a share of his property.
At the outset it may be said that the rule in this jurisdiction as to what appellant must establish with respect to each of the questions raised by the instant appeal in order to obtain reversal of the trial court's judgment is well settled by our decisions.
Touching the first question this court in Currie v. Currie, 114 Kan. 37, 216 P. 1083, held:
'In a suit for divorce, where the evidence is conflicting, a decree for plaintiff, supported by ample evidence, will not be disturbed.' (Syl. 1.)
And in Rolland v. Rolland, 148 Kan. 851, 85 P.2d 21, stating the rule in another way, said:
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Baumgardner v. Baumgardner
...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 d......
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Perry v. Perry, s. 38965 and 38986
...219 P.2d 454; Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102; Henry v. Henry, 171 Kan. 307, 232 P.2d 473; Berndt v. Berndt, 175 Kan. 134, 259 P.2d 197. The fact, as may be noted, that the foregoing rules are stated and applied in a case where a husband was granted the divorce f......
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Reedy v. Reedy, 39124
...171 Kan. 249, 232 P.2d 603; Henry v. Henry, 171 Kan. 307, 232 P.2d 473; Harris v. Harris, 169 Kan. 339, 219 P.2d 454; Berndt v. Berndt, 175 Kan. 134, 136, 259 P.2d 197; Taylor v. Taylor, 174 Kan. 21, 254 P.2d 301; Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127, and the many cases cited and approv......