Blair v. Blair

• Decision Date: 07 January 1939
• Docket Number: 34069.
• Citation: 85 P.2d 1004,149 Kan. 3
• Parties: BLAIR v. BLAIR. [*]
• Court: Kansas Supreme Court

85 P.2d 1004

149 Kan. 3

BLAIR v. BLAIR. ^[*]

No. 34069.

Supreme Court of Kansas

January 7, 1939

Syllabus by the Court.

Under statutes providing that an action for a divorce or to annul a contract of marriage or for alimony may be brought in the county of which plaintiff is an actual resident at the time of filing the petition or where defendant resides or may be summoned, and under statute defining the term "residence" a place may in good faith become one's actual "residence" the first day he arrives there if he really intends to make it his domicile or home. Gen.St.1935, 60-508, 77-201(23).

In divorce cases, the "residence" contemplated is of a more permanent and fixed character than in other cases. Gen.St.1935, 60-508, 77-201(23).

In wife's action against husband for alimony or separate maintenance, an antenuptial agreement, which contained no provision as to separate maintenance, was not entitled to any more consideration than any other contract, where husband had been found guilty of gross neglect of duty.

Allowance to wife, in separate maintenance action, of $60 a month for the 20 years of her life expectancy, was not excessive, where value of husband's land was found to be $6,400 and his royalty therein about $12,000, and during the first three months of the year he had received about $429 a month from his royalty interest.

In an action by a wife against her husband for separate maintenance where an antenuptial agreement had been made, which contained no provision as to separate maintenance, and the trial court found the husband to be guilty of gross neglect of duty, the antenuptial agreement need not, any more than any other contract, be taken into consideration to determine the question of the right of the wife to separate maintenance.

Appeal from District Court, McPherson County; John G. Somers, Judge.

Action by Anna Blair against Steve M. Blair for alimony or separate maintenance. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

John B Bryant and B. Mack Bryant, both of Wichita, for appellant.

Arnold C. Todd, of Wichita, for appellee.

HUTCHISON Justice.

This action was commenced December 30, 1937, in McPherson county Kan., by a wife against her husband for alimony or separate maintenance.

The petition alleged that they were married December 28, 1936 and that the husband had been guilty of gross neglect and extreme cruelty toward her. The petition further alleged the extent and amount of property owned by defendant and that she was without property or means with which to support herself. It is stated in the brief of defendant that service was had by attachment upon the real property of defendant in that county and later by alias summons. The answer was a general denial except as to the fact of the marriage and a special denial as to the residence of the plaintiff being in McPherson county and that the defendant at any time or place ever neglected or refused to provide for the plaintiff to the best of his means and ability. The answer further alleged the execution of an antenuptial agreement and attached a copy thereof to the answer as an exhibit. The reply was a general denial and a special denial as to the antenuptial agreement except as to its execution.

The defendant filed a plea in abatement which after a hearing thereon and a stipulation the trial court overruled. The court also overruled the motion of defendant for dissolution of the attachment, finding "that said plea in abatement and said statement made by counsel for the defendant in open court constitute a general appearance in said court." Later after the introduction of evidence by the plaintiff the court overruled defendant's demurrer thereto. After hearing the evidence of defendant and the evidence in rebuttal, the court filed a decision containing findings and conclusions, and among other matters shown in the journal entry are that the allegations in the petition are true, that the defendant has been guilty of gross neglect of duty toward the plaintiff, that on account thereof the plaintiff is entitled to separate maintenance and alimony. And the journal entry, after stating the value of certain property owned by the defendant, found the plaintiff should be paid as alimony the sum of $14,400 at the rate of $60 per month and that it be made a lien on certain described land in McPherson county. From these rulings and this judgment the defendant appeals to this court, assigning the following specifications of error:

"1. The court erred in not sustaining defendant's plea in abatement.

"2. The court erred in not sustaining defendant's demurrer to the evidence, as plaintiff was not a resident of the county as required by the code.

"3. The court erred in not sustaining defendant's demurrer to the evidence on the grounds that there was no corroboration of plaintiff's testimony as required by statute.

"4. The court erred in that he entirely ignored the antenuptial agreement between plaintiff and defendant, and neither upheld it nor set it aside.

"5. The court erred in that the award of alimony was grossly excessive and amounts to more than the entire total value of defendant's property."

We have in this appeal an abstract and brief of the appellant, but only an application of the attorney for appellee for an additional attorney fee for services rendered in examining the transcript of the evidence and the abstract and brief of the appellant and for time spent in a preliminary way for the preparation of a counter abstract and brief. The clerk of this court has letters from the attorneys for both appellant and appellee stating that the litigants have reconciled and settled at least some of their difficulties and differences and are now living together, which would ordinarily make the issues moot, but appellant by letter insists "that the matter proceed to a final determination and an opinion written by the court in the regular manner."

The abstract does not contain any of the evidence except that of one witness concerning the reading and explaining of the antenuptial contract to the plaintiff and the execution of the same thereafter. Many of the matters forcibly argued by counsel for the appellant entirely depend upon the nature and extent of the evidence.

Appellant first urges his plea in abatement, citing Chicago, K. & W. R. Co. v. Com'rs of Chase County, 42 Kan. 223, 21 P. 1071, and Brock v. Francis, 89 Kan. 463, 131 P. 1179, 45 L.R.A.,N.S., 756, the former holding that the actual date of service of process will fix the time when the court takes jurisdiction, and the latter where an alias summons was issued and served the action was not to be considered as commenced until the date of the last mentioned summons. The alias summons, however, in the case cited followed earlier regular summons and the statute of limitations was involved. In the case at bar, as far as we are informed, the alias summons followed the service of summons by an order of attachment, which would give jurisdiction naturally to the extent of the property attached, and the subsequent alias summons personally served would give unlimited jurisdiction. The brief of appellant compares the date of this service with the date of a divorce action commenced by the husband in another county and service of summons had upon the wife, and argues that if the service in this action was later than that in the case brought by the husband, the case should be abated. That argument may be sound, but without knowing how much and what evidence along these lines was furnished to the trial court we cannot say that the court was in error in overruling that plea in abatement.

The next error assigned is the want of jurisdiction in that the wife never was an actual resident of McPherson county. The statute, G.S.1935, 60-508, is as follows: "An action for a divorce, or to annul a contract of marriage, or for alimony, may be brought in the county of which the plaintiff...