Carpenter v. Carpenter

• Court: Kansas Supreme Court
• Writing for the Court: PARKER, Justice.
• Citation: Carpenter v. Carpenter, 165 Kan. 42, 193 P.2d 196 (Kan. 1948)
• Decision Date: 08 May 1948
• Docket Number: 36976.
• Parties: CARPENTER v. CARPENTER.

193 P.2d 196

165 Kan. 42

CARPENTER v. CARPENTER.

No. 36976.

Supreme Court of Kansas

May 8, 1948

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Action by John Willis Carpenter against Eleanor Joanna Carpenter for divorce wherein defendant cross-petitioned. Judgment for plaintiff and defendant appeals.

Reversed and remanded with instructions.

Syllabus by the Court.

1. In an action by the husband against the wife for a divorce where the only complaint against the wife is failure to live with the husband and it is contended such conduct constitutes gross neglect of duty and extreme cruelty failure and refusal of the wife to live with the husband during the pendency of his suit against her is not an element to be considered in determining whether his evidence established a cause of action.

2. The record in an action such as is described in paragraph one of the syllabus examined, and it is held, the plaintiff's evidence failed to sustain a cause of action for divorce on grounds of gross neglect of duty or extreme cruelty.

Guy Lamer, of Iola (W. H. Von Der Heiden and Cliff A. Morgan, both of Newton, on the brief), for appellant.

Frederick G. Apt, of Iola (Mitchell H. Bushey and Howard M. Immel, both of Iola, on the brief), for appellee.

PARKER Justice.

This case was commenced on the 29th day of January, 1946, by a husband against his wife for a divorce on the ground of gross neglect of duty only and the custody of their infant child. The wife answered denying the charge and in a cross petition charged the husband with abandonment, extreme cruelty and gross neglect of duty. In such cross petition the wife did not seek a divorce but merely prayed that the action be dismissed, that she be given custody of the child and that plaintiff be required to contribute a reasonable amount for its support. Plaintiff's answer to the cross petition was a general denial of all allegations contradicting factual statements set forth in his petition and in his supplemental petition presently mentioned.

Issues having been joined on claims of the parties with respect to divorce and custody, as just related, the case was tried by the court. After plaintiff had adduced his evidence he sought and obtained leave to amend his petition and file a supplemental petition to conform to the evidence. This supplemental pleading, filed on March 14, 1947, charged the defendant had been guilty of extreme cruelty and gross neglect of duty toward plaintiff in that she had failed and neglected to live with him for more than one year prior to its date of filing and still refused to do so and that by reason of such action on her part his health had been injured and impaired. Defendant then demurred to plaintiff's evidence. When this demurrer was overruled she offered evidence in her own behalf and rested her cause. Ultimately the trial court found the plaintiff had sustained his charges of gross neglect of duty and extreme cruelty and held that by reason thereof he should be granted a divorce. Judgment was rendered accordingly. In addition such decree, without any allowance for child support, awarded joint custody of the child to each of the parties. Thereupon defendant perfected this appeal.

Stripped of matters incidentally material but not decisive of its decision we are convinced from oral argument of the cause and an examination of the entire record that the vital and all important question involved in this case is whether appellee's evidence established grounds for divorce or upholds the judgment. Hence our brief and summarized statement respecting pleadings and proceedings had in the court below, devoid of all reference to all matters we regard as nonessential to its determination.

Decision of the question to which we have just referred requires, of course, a careful survey of all evidence adduced by appellee and its analysis under the well established rule that it is to be viewed in the light most favorable to his cause.

Before relation of the facts actually responsible for this lawsuit we believe a preliminary statement with respect to the situation of the parties prior to their occurrence will be of value. When the original petition was filed on January 9, 1946, appellee was 30 years of age and appellant 27. Prior to 1945 appellee was a soldier in the Army Air Forces of the United States and appellant was an employee of the Santa Fe railroad at Newton. They became very much interested in each other and were married at the Roswell New Mexico Army Air Field, where appellee was located, early in 1945. Since both realized that the army post was not an ideal place for a soldier's wife it was agreed that appellant should, and she did, return to her work at Newton shortly after the marriage. Some time thereafter it was ascertained that she was pregnant. When so advised appellee set about to obtain a discharge from the army. He was successful and received an honorable discharge on the 9th day of November, 1945. He came at once to his wife. On November 14, 1945, appellant gave birth to a baby boy at a hospital in Wichita. There it was determined she and the baby should return to Newton and live with her parents temporarily. Appellee was to secure a place to live and establish a home for his wife and baby as soon as possible and they were to come to the home when she was able. For a time appellee frequently visited appellant at her parents' home. Eventually he advised her he was ready to establish their home and they discussed when she would come to live with him.

It will likewise be of value, and obviate further reference thereto throughout the course of this opinion, to state that in this action, the moral conduct, reputation and character of the parties is conceded to be above reproach. Since we are at the moment giving consideration to the sufficiency of appellee's evidence it can and should also be said there is nothing in the record to indicate that the conduct, on which he bases his right to divorce at the time he filed his petition, was intentionally calculated by his wife to cause him mental anguish or physical pain or result, as a matter of law, in extreme cruelty as such term is defined in our decisions. In fact, during the course of his testimony as a witness in his own behalf appellee stated, not once but several times, that the only complaint he ever had against his wife prior to bringing his suit for divorce was that she would not leave her parents' home at Newton and come with him.

Having thus ascertained the gist of appellee's complaint from his own testimony we now proceed to relate the substance of the material facts disclosed by the record with respect thereto.

Discussion between the parties as to where they should live did not result in agreement. Ultimately appellant told appellee she could not come and live with him and that she wanted to live six months apart. Following this statement they went together to the home of a minister in Newton and discussed the situation with him. Appellee admits that during that conference they decided to live six months apart so that appellant could determine how she might then feel toward appellee and, although he did so reluctantly, he agreed they would live separate for such period of time. The exact date or dates of the statement and conference above mentioned are not found in appellee's evidence and we are required to speculate as to when they occurred. However since the baby was born on November 14, 1945, and this suit was filed on January 29, 1946, it can be definitely ascertained such statement was made and such conference occurred within two months and fifteen days from the date of the birth of the child. Thus it affirmatively appears that when appellee commenced the case at bar he relied on failure of his wife to come and live with him for a period of time not exceeding two months and fifteen days, coupled with her announced refusal to do so for six months, as constituting gross neglect of duty, and that he brought such action in violation of his conceded agreement she was to have and he was to give her six months time...