Burnham v. Burnham

• Decision Date: 09 January 1926
• Docket Number: 26,344
• Parties: CHARLES E. BURNHAM, Appellee, v. CORA A. BURNHAM, Appellant
• Court: Kansas Supreme Court

242 P. 124

120 Kan. 90

CHARLES E. BURNHAM, Appellee, v. CORA A. BURNHAM, Appellant

No. 26,344

Supreme Court of Kansas

January 9, 1926

Decided January, 1926.

Appeal fro Cheyenne district court; WILLARD SIMMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS--Opening or Vacating--Authority of Court During Same Term. Rule followed that within the same term at which a judgment is rendered the trial court has absolute power over it, and may modify, alter, change or vacate it in whole or in part; and no error can be predicated upon the mere fact that at the conclusion of a trial the court first announced that its decision would be in favor of defendant, but ultimately and within the same term of court gave judgment in favor of plaintiff.

2. DIVORCE--Domicile or Residence--Cross Complaint by Nonresident Defendant--Nonprejudicial Error. Plaintiff, a resident of Cheyenne county sued his wife, a resident of Colorado, for a divorce. Service was had by publication, but the wife appeared and filed a cross action for a divorce and alimony. On the evidence adduced, the trial court found both parties so greatly at fault that a divorce might be granted to either or denied to both. The court first announced its intention to grant a divorce to the wife and to award her an attorney's fee and costs; but within the same term, and on further reflection, the court became solicitous about the possible inconclusiveness of such a judgment to bind and protect the parties and others concerned in their separate property rights which had been defined by an antenuptial contract and approved by the court, and concluded that for the best interests of all concerned the divorce should be awarded to the resident plaintiff rather than the nonresident defendant. Held, a judgment so rendered was not prejudicially erroneous.

Joel E Stone and Joseph A. Biglin, both of Denver, Colo., for the appellant.

John L. Finley, of St. Francis, for the appellee; T. F. Garver, of Topeka, of counsel.

OPINION

DAWSON, J.:

This was an action for a divorce by Charles E. Burnham, of Cheyenne county, against his wife, Cora A. Burnham, a resident of Colorado, and a cross action by the wife for a divorce and alimony.

Both parties had been married before. By his first wife, with whom plaintiff had lived for thirty years, he had six children, two of whom were grown and married. The younger three, ranging from nine to seventeen years old, resided with plaintiff. The defendant had several children by a former husband, from whom she had been divorced some ten years before.

The litigants first met in Denver, in January, 1921. Plaintiff employed defendant to act as his housekeeper in St. Francis. She served in that capacity for six months. Then they agreed to marry, and as a preliminary thereto they executed an antenuptial contract, in which they renounced for themselves, and those who might otherwise claim under them, all rights in their respective properties.

For about a year after their marriage the litigants got along together fairly well. After that came discontent and discord. Defendant would not willingly stay at home and look after plaintiff's home and children. They frequently quarreled. In a dispute over a social game of cards she called him a liar. He says she called him a damned liar, and he thrust her out of doors. She admitted the use of the epithet, but not its accompanying adjective, and says she seldom used an oath. Plaintiff testified that their domestic situation went from bad to worse; it was "living in a little hell a great deal of the time." Defendant testified that plaintiff had a terrible temper; that he took such offense at her asking him what he had given his sister-in-law as a Christmas present that he absented himself from home. "He flew into a rage on many occasions over little things." "This treatment by Mr. Burnham of me during our married life has made me suffer greatly and has rendered me nervous and caused me a great deal of worry."

Judgment was entered granting a divorce to the husband; the antenuptial agreement of the parties touching their respective properties was upheld; and the costs, including defendant's attorney's fee of $ 250, were taxed against the plaintiff.

This judgment was rendered on December 16, 1924, and on December 18 the defendant served notice of appeal and filed the notice with the clerk of the district court on December 20, 1924. A motion for a new trial had been filed December 16, but was not ruled on by the trial court until December 23, 1924, and no appeal has been taken therefrom.

In appellant's assignment of errors defendant chiefly urges matters not reviewable for want of an appeal from the trial court's ruling on the motion for a new trial. Defendant's counsel appreciate this situation, but hope this court may find a way to review the whole record nevertheless. There is, indeed, nothing to prevent us from a painstaking perusal of the record, and this perusal has been made; but our appellate jurisdiction is regulated, limited and defined by statute, and we must conform thereto. Errors involved in the trial court's determination of issues of fact and in rulings on the admissibility of evidence and similar so-called trial errors are reviewable on appeal only where the trial court has first been given an opportunity to reconsider them itself pursuant to a timely motion for a new trial. (Harder v. Power Co., 93 Kan. 177, 148 P. 603.) Want of an appeal from a ruling on a motion for a new trial is equivalent to acquiescence in that ruling. (City of Atchison v. Byrnes, 22 Kan. 65, syl. P 2.) However, a failure to appeal from much a ruling is not altogether fatal to an appellate review, but its scope is greatly restricted thereby. (Buckwalter v. Henrion, 111 Kan. 781, 208 P. 645.) So the case at bar comes to us as if the appellant were altogether satisfied with the trial court's determination of the facts, and was merely complaining of the judgment entered pursuant thereto. (McLeod v. Palmer, 96 Kan. 159, 162, 150 P. 535, syl. P 4, 150 P. 535.) Here the trial court made extended findings of fact which settled the substantial issues in the case, and these findings formed the basis of the judgment and controlled it. (Filter Co. v. Bottling Co., 89 Kan. 645, 132 P. 180; Hurst v. Stout, 105 Kan. 54, 181 P. 623; Murray v. Close, 118 Kan. 430, 234 P. 60.)

Accepting these findings of fact as conclusive, what prejudicial error can be found in the judgment? The findings are too long for reproduction, but in effect they declare that both parties had been so much at fault that a divorce might have been denied to either or both; that they never could peaceably live together and might as well be divorced; that on first reflection the trial court believed the husband had...