Berry v. Berry

• Decision Date: 15 June 1974
• Docket Number: No. 47289,47289
• Citation: 215 Kan. 47,523 P.2d 342
• Parties: Lavada Ann BERRY, Appellant, v. Floyd Thomas BERRY, Appellee.
• Court: Kansas Supreme Court

Page 342

523 P.2d 342

215 Kan. 47

Lavada Ann BERRY, Appellant, v. Floyd Thomas BERRY, Appellee.

No. 47289.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. Incompatibility, as a ground for divorce, may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict or personalities and dispositions must be so deep as to be irreconcilable and irremediable.

2. Where incompatibility exists as a result of the misconduct of the complaining spouse, the trial court is vested with broad discretion in weighing the possibilities of reconciliation and restoration of a normal marital status and in granting a divorce.

3. Incompatibility does not refer to petty quarrels and minor bickerings which are merely evidence of normal human frailty but refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other.

4. Where divorce is sought by one spouse on the ground of incompatibility and separate maintenance is sought by the other on grounds of misconduct, a trial court must have some discretion in determining how the interests of the parties and the public welfare are best served.

5. In an action for separate maintenance or divorce the record is examined and It is held: (1) The evidence sufficiently supports the trial court's finding of incompatibility as a ground for divorce; (2) abuse of discretion is not shown in the property division, alimony allowance, award of child custody or in the refusal to hear rebuttal testimony.

Ray Hodge, of Beaty, Hodge & Wood, Wichita, argued the cause and was on the brief for appellant.

W. E. Goering, of Goering, Silver & Clarkson, Wichita, argued appellee's motion to dismiss.

HARMAN, Commissioner:

This action commenced as one by a wife for separate maintenance. It culminated in divorce granted to the husband, division of property, alimony allowance and an award of child custody, from all of which orders the wife appeals.

Before going to the merits a preliminary matter requires consideration. On May 2, 1974, six days prior to the date set for oral argument of this appeal, the appellee husband filed a motion to dismiss the appeal, and brief in support thereof, on the ground the wife had acquiesced in the trial court's judgment. He had previously long been in default of appearance in this court and remains in default of brief on the merits. This court denied the motion to dismiss but granted leave to renew it at the time the case was presented on oral argument. Appellee's trial counsel appeared at oral argument and renewed the motion.

Nearly all the acts asserted by appellee as constituting acquiescence in the judgment by appellant occurred shortly after the filing of her notice of appeal and prior to the time she prepared and filed her record and brief. Appellee was aware of these acts but stood by while appellant timely processed her appeal and he made no response until shortly before oral argument here. No reason has been suggested for the delay in presenting his position to this court according to the ordinary rules of appellate practice. Under these circumstances we think appellee may be deemed to have waived any right to have appellant's appeal foreclosed upon the ground asserted, and we so hold.

Appellant Lavada Ann Berry and appellee Floyd Thomas Berry were married December 1, 1948. Ten children were born as a result of this union, six of whom were minors at the time of final action in the trial court.

On August 23, 1972, appellant filed her petition for separate maintenance, alleging appellee was guilty of extreme cruelty and gross neglect of duty. Appellee cross-petitioned for divorce on the ground of incompatibility. We consider first those aspects of the case.

In support of her charges of dereliction appellant in general terms expressed dissatisfaction with appellee as a parent and a provider. She also accused him of infidelity but presented no evidence of it. Appellant testified that appellee drank constantly, consuming about eighteen bottles of beer an evening; he had struck her and once knocked her unconscious; she does not believe in divorce.

A married daughter of the parties testified she had seen appellee strike appellant often; he consumed two to three six packs of beer an evening and became drunk from one to three times per week; that appellee remained away from home some nights and had been gone as long as three days.

Appellee testified in his own behalf: He drinks an average of a six pack from 4:00 p. m. to midnight and has patronized bars at private clubs; he has struck appellant in the face; appellant was a bad housekeeper and was always arguing.

The trial court found that standing alone, each of the parties had proven his case and would be entitled to the relief prayed for. The court further found that considering all the evidence, the preponderance was in favor of appellee and he was therefore entitled to a decree of divorce. Judgment was rendered accordingly, which decree is appellant's first target here. Simply put, she asserts she proved her case but appellee did not. She contends evidence of poor housekeeping and arguments cannot be said to constitute incompatibility.

Preliminarily it may be noted that once a decree of divorce is granted the marriage relation is completely dissolved and there is nothing upon which a decree of separate maintenence may operate; hence grant of a decree of divorce to one spouse precludes grant of separate maintenance to the other (Saint v. Saint, 196 Kan. 330, 411 P.2d 683). The first issue to be determined is whether the evidence before the court sufficiently supports the court's finding of incompatibility.

Incompatibility as an additional ground for divorce or separate maintenance came into our law only recently (Laws 1969, Ch. 286, § 1) and this is our first occasion to deal with it. Our law also is now changed so that either party may, in the trial court's discretion, obtain a decree dof divorce or separate maintenance, upon the uncorroborated testimony of either or both of the parties (Laws, 1970, Ch. 240, § 1; now K.S.A.1973 Supp. 60-1609(d)).

Incompatibility as a ground for divorce in modern American law had its origin in the Virgin Islands, which were purchased by this country from Denmark in 1917. Under Danish law divorce was allowed for reasons of incompatibility, which ground was retained in the Islands' territorial law (see Schulman, Incompatibility: A 'New' Approach to the Dissolution of Marriage, 20 Kan.L.Rev. 227). Since then several states have adopted that ground so that a considerable body of law on the subject has resulted. Problems have developed, however, because of the impossibility of defining the term with exactness and the difficulty in its application under particular sets of circumstances (see Anno: Divorce-Grounds-Incompatibility, 58 A. L.R.2d 1218) and it would be of little or no benefit to attempt a review of the cases. The annotator in the foregoing has supplied this broad definition which seems generally accepted:

'Incompatibility, or 'incompatibility of temperament,' as a ground for a divorce, may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. . . . The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable.' (p. 1219.)

Webster's Third New International Dictionary states simply: 'incompatibility: . . . inability to exist in peaceful harmony; esp: lack of adjustment in marriage. . . .' (p. 1144.)

It will be seen that fault, in the sense of matrimonial misconduct, is not an essential element of incompatibility; in fact, one reason for the new concept seems to be that it is designed to relieve some of the acrimony and trauma, as well as the hypocrisy, of securing a divorce based on the theory one spouse is at fault while the other is innocent. Evidence of fault will still be admissible in divorce proceedings where relevant in determining parental custody. And it has been said that a trial court has some discretion where fault exists on the part of the complaining spouse. In Wegener v. Wegener, 365 P.2d 728 (Okl., 1961) it was held:

'Where incompatibility exists as a result of the misconduct of the complaining spouse, the trial court is vested with broad discretion in the weighing of the possibilities of reconciliation and the restoration of a normal marital status and in the granting of a divorce.' (Syl. 2.)

In a case strongly relied upon by appellant it was said that incompatibility does not refer to petty quarrels and minor bickerings which are merely evidence of normal human frailty but refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the...