Brunhoeber v. Brunhoeber

• Decision Date: 08 December 1956
• Docket Number: No. 40244,40244
• Citation: 180 Kan. 396,304 P.2d 521
• Parties: Nancy BRUNHOEBER, Appellant, v. Henry BRUNHOEBER, Appellee.
• Court: Kansas Supreme Court

Page 521

304 P.2d 521

180 Kan. 396

Nancy BRUNHOEBER, Appellant, v. Henry BRUNHOEBER, Appellee.

No. 40244.

Supreme Court of Kansas.

Dec. 8, 1956.

Syllabus by the Court.

1. The moral obligation of a defendant husband to pay sums of money owing to his wife at the time the divorce decree is rendered, and in which payment is not expressly provided for, is not extinguished by such decree and imports a sufficient consideration to support a promise to pay such sums made subsequent to such decree, notwithstanding his legal liability to pay was fully and completely discharged by the divorce decree.

2. Following In re Estate of Clover, 171 Kan. 697, 237 P.2d 391, 28 A.L.R.2d 779, a promise in writing to pay 'as soon as I can' is not an absolute but a conditional promise to pay and it is incumbent upon the person seeking to enforce such promise to allege and prove the present ability of the promisor to pay the obligation.

R. E. Angle, Wichita, for appellant.

Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Theodore C. Geisert and Philip Kassebaum, Wichita, for appellee.

FATZER, Justice.

Nancy Brunhoeber instituted this action against Henry Brunhoeber, her former husband, to recover money on a written contract executed by him approximately six months after they were divorced wherein he promised to pay certain enumerated items totaling in the sum of $3,800 'as soon as I can.'

The petition, omitting formal allegations and the prayer, reads:

'Plaintiff further states that she and the defendant were at one time husband and wife, and were divorced on the 7th day of August, 1953. That after said divorce, and on February 26, 1954, the defendant herein promised, in writing, to pay this plaintiff $3800.00, a true and correct copy of said writing is hereto attached, marked Exhibit 'A', and by this reference made a part hereof.

'Plaintiff further states that she is the owner and holder of said indebtedness; that it is due, demanded and unpaid.'

The exhibit referred to in the petition reads:

'I owe my former wife, Nancy Brunhoeber, these items and will pay them to her as soon as I can.

'1. $2,000.00 her money I promised her back always, above any settlement.

'2. $500.00 borrowed on the insurance.

'3. $250.00 attorney fees she paid for our divorce.

'4. $600.00 she lost down payment on a house.

'5. $450.00 support money ordered by the court and unpaid last summer while she worked.'

The instrument was signed by Nancy and Henry Brunhoeber.

Upon motion of the defendant the trial court required plaintiff to attach to her petition a copy of the divorce decree. It provided, in part:

'The court finds that plaintiff and defendant have, by stipulation and agreement, settled their property and financial rights. That said stipulation is presented to the court and the court having read said stipulation finds that the same is just and reasonable and should be by the court approved and the same made a part of the judgment of this cause, and attached to the Journal Entry of Decree to be filed herein.'

The property agreement, made a part of the divorce decree, in part, reads:

'That on the execution of this stipulation the defendant agrees to pay plaintiff the full sum of $2500.00 and in consideration thereof and the other provisions herein set forth, plaintiff agrees to receive and accept the same in full and final settlement of their property rights and hereby releases the said defendant from further payment of support money and alimony and from further financial obligation to her, except payment to her for support of their children. * * *

'It is agreed that this is a final and complete division and settlement of the property and financial rights of the parties hereto and that neither party shall have or make any demands on the other except as herein provided.'

The divorce decree further provided;

'It is further ordered * * * that plaintiff be and is hereby granted the care and custody of the minor children * * * and the defendant be and is ordered to pay * * * for the use of plaintiff, for the support and maintenance of said minor children, the sum of $90.00 on the first day of each month, beginning October 1st, 1953 until the further order of this court. * * *

'It is further ordered, adjudged and decreed that, in accordance with said stipulation, plaintiff be and is awarded the full sum of $2500.00 and the defendant ordered, adjudged and decreed to pay the same.'

Defendant demurred on the ground that the petition failed to state cause of action and that another action was pending by the same parties for the same cause. The trial court sustained the demurrer to all the items enumerated for the reason that the first four items should have been settled at the time the divorce was granted, and, hence, unenforceable in this action, and that the last item--support money for the minor children--ordered to be paid in the divorce action, was enforceable in that proceeding, and, thus, unenforceable here. Plaintiff was granted leave to amend, but, instead, has appealed.

Two questions are presented: Was there sufficient consideration to support the promise to pay the items enumerated in the written contract of February 26, 1954? And, if so, is it incumbent upon the plaintiff to plead and prove defendant's financial ability to pay when his promise to do so is upon the express condition 'as soon as I can'?

Appellant contends that the moral duty of the defendant to pay the legal obligation he agreed he owed his wife, although extinguished by the judgment in the divorce case but never performed, was a sufficient consideration to support his new promise and to permit its enforcement by this action.

Appellee contends that the several amounts which the plaintiff claims to be due on the contract, except the amount set forth in item 5, were claims that should have been settled at the time of the divorce, and that her failure to assert such claims, if she did fail to do so, does not alter the fact that the divorce decree freed the defendant from them, and cites and relies upon Mayfield v. Gray, 138 Kan. 156, 23 P.2d 498; Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750, and Zellner v. Zellner, 155 Kan. 530, 127 P.2d 428, which held in effect that in an action for divorce, matters of alimony, division of property, and all obligations arising out of or connected with the marital relationship may be presented and adjusted; that if not then presented the...