Burnap v. Burnap
| Decision Date | 07 November 1936 |
| Docket Number | 33062. |
| Citation | 144 Kan. 568,61 P.2d 899 |
| Parties | BURNAP v. BURNAP. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Wife held entitled to maintain action for unpaid amount of allowance of $50 monthly awarded for support of children in final divorce decree rendered in another state, though decree reserved power to modify judgment.
Supreme Court held without authority to award attorney fee, suit money, and money for support pending appeal to wife suing for unpaid amount of money awarded for support of children in divorce decree rendered in another state.
In an action for divorce of husband and wife, prosecuted and determined in a foreign state, the wife was awarded custody of minor children, and the husband was ordered to pay to her for support of the children, $50 per month, until further order of the court. Held, the wife may maintain an action in this state against her former husband for amounts due and unpaid.
Appeal from District Court, Reno County; John G. Somers, Judge.
Petition by Lena Belle Burnap against Jay E. Burnap. From an order overruling a demurrer to the petition, defendant appeals and files a motion for allowances.
Affirmed and motion denied.
J. S Simmons, Alva L. Fenn, and Herbert E. Ramsey, all of Hutchinson, for appellant.
J. N Tincher, Clyde Raleigh, and Leaford F. Cushenbery, all of Hutchinson, for appellee.
The appeal is from an order overruling the demurrer to a petition.
The petition of Lena Belle Burnap alleged that she and her husband, Jay E. Burnap, were divorced by decree of a court of competent jurisdiction in Colorado. Copies of material portions of the proceedings were attached to the petition. The final decree contained the following:
"*** it is ordered by the Court that said defendant [Lena Belle Burnap] shall have the care, custody and control of their minor children, Mary Louise Burnap and Jeanne Marie Burnap, until the further order of the Court, and that said plaintiff [Jay E. Burnap] shall pay to said defendant for the care, support and maintenance of their minor children the sum of $50.00 per month, payable on or before the 10th day of each month, until the further order of the Court. ***"
The petition alleged defendant had paid nothing on the decree for support of the children since March, 1932, and prayed judgment for $1,950, the amount due for the period, March, 1932--June, 1935. Defendant filed a general demurrer to the petition.
The district court overruled the demurrer on the analogy of Restatement, Conflict of Laws, § 464, which reads:
"A valid judgment for alimony granted in one state can be enforced in another state to the extent of the amount already due and unpaid...
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Tolley v. Tolley
...clearly stated the law of that State; and we quote: "With respect to installments due and unpaid, the judgment was final. Burnap v. Burnap, 144 Kan. 568, 61 P.2d 899; Wilkinson v. Wilkinson, supra [147 Kan. 485, 77 P.2d 946]. In Paul v. Paul, 121 Kan. 88, 245 P. 1022, , in a divorce action ......
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Tolley v. Tolley
... ... ... "With respect to installments due and unpaid, the ... judgment was final. Burnap v. Burnap, 144 ... Kan. 568, 71 P.2d 899; Wilkinson v ... Wilkinson, 147 Kan. 485, 77 P.2d 946. In ... Paul v. Paul, 121 Kan. 88, 245 P. 1022, 46 ... ...
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Boyce by Boyce v. Boyce
...Perrenoud, Syl. p 14. An action to enforce a parent's common-law duty to support is equitable in nature. Burnap v. Burnap, 144 Kan. 568, 569, 61 P.2d 899 (1936). Therefore, the equitable doctrine of "clean hands" discussed in Perrenoud should also apply to actions to enforce the common-law ......
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Davis v. Davis
... ... 526, 160 N.W. 218. In support of the ruling of the trial ... court, appellee also cites Hyde v. Hyde, 143 Kan ... 660, 56 P.2d 437, and Burnap v. Burnap, 144 Kan ... 568, 61 P.2d 899. In the Hyde Case the question was not ... squarely before us and the author of that opinion cautiously ... ...