Brown v. Brown, 38257
| Decision Date | 09 June 1951 |
| Docket Number | No. 38257,38257 |
| Citation | 232 P.2d 603,171 Kan. 249 |
| Parties | , 32 A.L.R.2d 102 BROWN v. BROWN. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In an action for a divorce and division of property, the record is examined, and it is held there was sufficient evidence to warrant the court in finding for the plaintiff and against the defendant for divorce.
2. Subsequent conjugal unkindness will avoid condonation of cruel treatment, although it is insufficient of itself as a ground of divorce.
3. Under the provisions of G.S.1949, 60-1511, when a husband in granted a divorce by reason of the fault or aggression of the wife, the division of property to be made between the parties, irrespective whether such property has been jointly acquired or is the separate property of the husband, is a matter which rests in the sound judicial discretion of the trial court.
4. A division of property made by a trial court in a divorce proceeding will not be disturbed on appellate review unless it appears the pertinent statute has been disregarded or is clearly shown the trial court's action in making such division is so unjust and unreasonable as to constitute an abuse of discretion.
5. Under G.S.1949, 60-1510, the amount allowed for the support and education of the minor child or children of the marriage rests in the sound discretion of the trial court, and any order made with reference thereto may be modified or changed whenever the circumstances render such change proper.
Everett E. Steerman and Elvin D. Perkins, both of Emporia, (Robert A. Schermerhorn, of Junction City, on the briefs), for appellant.
I. M. Platt and Charles I. Platt, both of Junction City, for appellee.
This is an action by a husband for divorce on the grounds of extreme cruelty and gross neglect of duty, and asking for custody and control of the minor child, and other equitable relief. Defendant wife's answer denied plaintiff's charges and, by way of cross petition, charged plaintiff with the same faults and in addition thereto, abandonment, She sought separate maintenance, custody of the child, and reasonable support money for the child.
Each party filed a lengthy bill of particulars setting up the acts of extreme cruelty, gross neglect of duty, and abandonment relied on under the pleadings, and showing a chain of events from the time shortly after their marriage in 1926 until the time of the filing of this action in the latter part of 1949 or early 1950.
This appeal is from the judgment of the lower court granting appellee husband a divorce on the grounds of extreme cruelty and gross neglect of duty, and awarding appellant specified real and personal property and child support. Appellant wife charges error of the trial court in that the judgment is not supported by sufficient corroborating evidence; that the acts complained of were condoned by appellee; that the property and child support awards are not supported by the evidence; and in overruling appellant's motion for a new trial.
The facts disclosed by the pleadings and evidence leading up to this action are briefly as follows: The parties hereto first became acquainted when appellee husband was a high school student and appellant wife a rural school teacher boarding and rooming at his home; they were married some four years later on May 26, 1926, appellee then being twenty years of age and appellant twenty-four. Their married life was from the beginning somewhat turbulent, appellant expressing disapproval of appellee's choice of jobs, his family, his hobbies and recreation choices, their houses and furniture (they moved twenty-three times in the twenty-four years of their married life); her constant nagging pertained also to the way he drove a car, his smoking, drinking, and so forth. Appellant continually complained of poor health, and at various times through the years used the persuasive powers of that elusive health, threats of suicide, becoming a nun, and similar 'arguments' to gain her way. The parties have one child, a daughter, seventeen years of age at the time this action was brought by appellee.
Appellee left the home twice previous to the time this action was instituted; first in December, 1931, and again in 1947; but both times was induced to return by appellant's pleading and promises to change her behavior, but the promises were soon forgotten and the record of nagging, faultfinding and public accusations continued until, and even after, appellee left the home and instituted this action for divorce.
The court's journal entry of judgment granted the divorce to appellee; found appellee's net worth to be $41,272; awarded appellant as a division of the property the home, valued at $13,000, the household furniture and effects located therein, and the sum of $9,500 to be paid in five annual installments; set aside $3,095 (not a part of the mentioned assets) to appellant as her separate property; and gave appellant custody of the minor child until she reached the age of eighteen, with child support set at $60 monthly.
As to appellant's first complaint, that the judgment of the court is not supported by the evidence, we might say that no useful purpose could be gained by setting out in detail the evidence supporting plaintiff's allegations. The record in this case is replete with evidence showing a course of conduct of the defendant towards her husband which tended to humiliate and degrade him and which could properly be characterized as extreme cruelty.
Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physicial violence. It is now generally held that any unjustifiable and long practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. Under some circumstances it may not be necessary that...
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