Bourman v. Bourman
| Decision Date | 11 July 1942 |
| Docket Number | 35561. |
| Citation | 127 P.2d 464,155 Kan. 602 |
| Parties | BOURMAN v. BOURMAN et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 14, 1942.
Syllabus by the Court.
The statute providing that dormant judgments may be revived in same manner as is prescribed for reviving actions before judgment refers to procedure rather than to the substantive right of revivor. Gen.St. 1935, 60-3221.
Judgments for alimony must be for a fixed amount even though payable in installments. Gen.St.Supp.1941, 60-1511.
Judgments for alimony are "final" in character.
Where wife was awarded alimony in fixed sum payable in monthly installments and wife's death occurred before the entire sum was paid, the wife's judgment was subject to revivor by administrator of the wife's estate as to unpaid balance of alimony. Gen. St.1935, 60-3220; Gen.St.Supp.1941 § 60-1511.
1. Under our statute (G.S.1941 Supp. 60-1511), judgments for alimony must be for a fixed total amount, though such amount may be made payable in installments.
2. Judgments for alimony, under our statutes, are final in character.
3. In the record here examined, the wife was awarded alimony in the sum of $3,000, to be paid in monthly installments fixed at eighty dollars which might later be modified, upon condition stated in the decree, to sixty dollars. Held, that upon the death of the former wife, the judgment was subject to revivor by the administrator of her estate, as to the balance of the judgment unpaid at her death.
Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.
Action by Hazel Bourman against Charles Bourman, Jr., for divorce. Judgment for divorce was granted in favor of the plaintiff. On death of the plaintiff, C. A. Ratliffe, administrator of estate of Hazel Helen Ratliffe, deceased, filed a motion to revive the judgment for unpaid balance of alimony. From order granting the motion, defendant appeals.
Carl I Winsor, of Wichita (John E. Boyer and Harlin E. Bond, both of Wichita, on the brief), for appellant.
J Wirth Sargent, of Wichita (W. D. Jochems, Emmet A. Blaes, and Roetzel Jochems, all of Wichita, on the brief), for appellee.
The question presented is whether a judgment for alimony, payable in installments, may be revived by the administrator of the wife's estate as to the balance unpaid at the time of her death. The defendant appeals from an order reviving the judgment.
Hazel Bourman was granted a divorce from Charles Bourman on March 6, 1941. Confirming a stipulation entered into between the parties, the court gave "judgment against the defendant for alimony in the sum of $3,000". This amount was ordered paid at the rate of $80 a month, payable in semi-monthly installments, with the proviso that at any time prior to full payment the monthly payments might be reduced to $60 a month upon proof satisfactory to the court that the defendant was not financially able to make the eighty dollar payments. The judgment further provided that: "the defendant shall retain as his separate estate all property real and personal, tangible and intangible, in his possession at the time of the entry of this decree, and that the plaintiff shall retain as her separate estate and property, all property real and personal, tangible and intangible, that she may now have in her possession."
On June 27, 1941, Hazel Ratliffe (Bourman) died, at which time $228 had been paid, in regular payments, on the judgment.
C. A. Ratliffe was appointed administrator of the estate of Hazel Ratliffe (Bourman) and filed a motion in the district court of Sedgwick county in which the divorce action had been prosecuted to revive the judgment in his name as administrator. After proper hearing, the motion was granted and the judgment revived in the amount of $2,680, the unpaid balance. From that order this appeal was taken.
Appellant contends that the judgment was purely a personal judgment for the sole benefit of the divorced wife, that her heirs have no lawful claim upon installments not due at the time of her death, and that all rights to payments subsequently to become due and intended solely for her support and maintenance, expired with her death.
Appellant concedes that if the judgment that was rendered might be considered as part of a property settlement, it should be treated as any other money judgment and would be subject to revivor. But he urges that the judgment for $3,000 was not only designated as "alimony", but that in a later paragraph of the judgment above quoted the property rights of the parties were fully determined. Appellee contends that viewing the judgment as a whole, based on the stipulation, the judgment for $3,000 was in reality a part of the whole settlement and might well be regarded as partaking of the nature of division of property. However, appellee does not rest his case upon that contention.
Our statute (G.S. 60-3220) dealing with revivor of judgment after death of parties, is as follows: "If either or both parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered, and execution awarded, as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party."
It will be noted that the statute makes no exception for the case of judgments for alimony. But appellee calls attention to G.S.1941 Supp. 60-3201, dealing with survival of "causes of action" which is as follows: "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person or, to real or personal estate, or for any deceit or fraud or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same."
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