Calkins v. Calkins
| Decision Date | 07 March 1942 |
| Docket Number | 35320. |
| Citation | 155 Kan. 43,122 P.2d 750 |
| Parties | CALKINS v. CALKINS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In divorce action, matters of alimony, division of property and all obligations arising out of or connected with the marital relation, can be presented and adjusted, and if not presented, the judgment is as full and complete a bar to subsequent assertion of such rights, between husband and wife, as if such rights had been fully tried and determined in divorce action.
Where wife obtained a divorce and permanent alimony and failed in divorce action to present a claim for balance past due on previous order of separate maintenance, wife could not thereafter enforce such claim.
In order for divorce decree to constitute bar to subsequent assertion of rights between spouses, it is not necessary for decree to recite specifically that decree is a final and full adjudication of all property rights and claims between the spouses.
1. In an action for divorce, matters of alimony, division of property and all obligations arising out of or connected with the marital relation, may be presented and adjusted. If not then presented the judgment is as full and complete a bar to a subsequent assertion of such rights, between the husband and wife, as if they had been fully tried and determined in the divorce action.
2. The rule stated in the previous paragraph applies with equal force and effect to a balance past due, at the time of the divorce, on a previous order or judgment of separate maintenance where the wife sues for and obtains a divorce and permanent alimony and fails to present a claim for the installment payments then past due.
3. In order for a decree of divorce to constitute a bar to the subsequent assertion of rights between the spouses, it is not necessary for the judgment to specifically recite that it is a final and full adjudication of all property rights and claims between them.
Appeal from District Court, Shawnee County, Division No. 1; Geo. A Kline, Judge.
Garnishment proceedings by Bessie Calkins against Hira Calkins. From the judgment, the defendant appeals.
Reversed.
Frank E. Miller, of Topeka, for appellant.
Ed Rooney and J. A. Dickinson, both of Topeka, for appellee.
Warren Shaw, of Topeka, amici curiae.
This is an appeal by a divorced husband from an order overruling his motion to dismiss garnishment proceedings instituted, by his former wife against his employer, for the purpose of enforcing an order of separate maintenance which had been made prior to a judgment in her favor for divorce and alimony.
The order for separate maintenance, made in a prior action provided for monthly installment payments to the wife in the sum of $70 per month until further order of the court. Prior to the decree of divorce appellant had paid $425 and a balance remained due and unpaid on that order in the sum of $415 on the date appellee obtained a decree of divorce and an alimony judgment in the sum of $2,000. The permanent alimony judgment was made payable in semi-monthly installments of various amounts, during different periods, until it was fully discharged. It is the balance of $415 which remained unpaid under the separate maintenance order, at the time the divorce was granted, which appellee sought to collect by garnishment.
Appellant moved to have the garnishment proceedings dismissed upon the ground the trial court, in the action for divorce and alimony, found and determined appellee should be awarded the sum of $2,000 as and for permanent alimony and upon the ground the order for separate maintenance was merged in the subsequent decree of divorce and alimony. The motion was overruled and the husband appeals.
A number of questions are presented for review. The principal question pertains to the ruling on the above motion.
A few additional facts may be helpful. The divorce action was instituted by appellant. Appellee answered and filed a cross-petition in which she sought a divorce and alimony. At the time of trial appellant, with leave of court, withdrew his petition. Appellee introduced evidence in support of her cross-petition. The journal entry of judgment does not disclose that appellant introduced any evidence. It is conceded no evidence was adduced by appellee with respect to the balance which was then past due and payable on the previous order for separate maintenance and that no mention was made to the trial court concerning that subject. The order for separate maintenance and the judgment for divorce and alimony were rendered by trial judges of different divisions of the district court of Shawnee county.
Appellee concedes that an order or judgment for installment payments for child support or for the maintenance of a wife which are not yet due may be modified in accordance with changed conditions but insists past-due installments are fixed cannot be reduced, and are enforceable as any other judgment. Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946. That is ordinarily true. More recent decisions to the same effect are Burnap v. Burnap, 144 Kan. 568, 61 P.2d 899; Davis v. Davis, 148 Kan. 211, 81 P.2d 55; Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561; McKee v. McKee, 154 Kan. 340, 118 P.2d 544. But do those decisions reach the specific issue presented here?
The permanent alimony judgment in the sum of $2,000 clearly did not reduce the amount past due on the prior order for separate maintenance. The question of reducing past-due installments is, therefore, not here involved. The only question is whether the order for past-due installments for separate maintenance can now be enforced. That depends upon whether the subsequent decree of divorce and alimony judgment, in legal effect, constituted a final settlement and adjudication of all obligations, of both husband and wife, which inhered in and grew out of the former marital relation.
No property was involved. The alimony judgment was not for $2,415, the amount appellee now claims appellant owes, but for $2,000. In her cross-petition appellee expressly sought and was given a final alimony judgment. We are informed the alimony judgment in the sum of $2,000 was rendered pursuant to an oral agreement announced in open court. No mention, in the divorce and alimony action, was made by appellee concerning the previous order for separate maintenance or the amount then due pursuant thereto. In an action for divorce matters of alimony, division of property and all obligations arising out of or connected with the marital relation, may be presented and adjusted. In...
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Smith v. Smith
...of the parties may have changed (Noonan v. Noonan, 127 Kan. 287, 273 P. 409; Mayfield v. Gray, 138 Kan. 156, 23 P.2d 498; Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750; and Breidenthal v. Breidenthal, 182 Kan. 23, 29, 318 P.2d 981); (3) that after the term has expired the judgment is not on......
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Smith v. Smith
...to the opposing counsel for his approval prior to the appearance in court of the plaintiff to present evidence.3 Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750; Rio Vista Mining Co. v. Superior Court, 187 Cal. 1, 5, 200 P. 616; Wells Fargo & Co. v. City, etc., of San Francisco, 25 Cal.2d 37,......
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Ringstrom v. Ringstrom
...reference to any prior debts or child support arrearages. These facts bear a striking resemblance to the case of Calkins v. Calkins (1942), 155 Kan. 43, 122 P.2d 750. Calkins was the basis for the holding in Mitchell v. Mitchell (1951), 171 Kan. 390, 233 P.2d 517, which was relied upon by t......
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Breidenthal v. Breidenthal
...award of alimony can be made or changed (Roe v. Roe, 52 Kan. 724, 35 P. 808; Noonan v. Noonan, 127 Kan. 287, 273 P. 409; Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750, and cases cited therein). If the court does not accurately determine the extent of the husband's property and earnings by r......