Clark v. Chipman

• Decision Date: 09 June 1973
• Docket Number: No. 46780,46780
• Citation: 212 Kan. 259,510 P.2d 1257
• Parties: Thelma N. CLARK, formerly Thelma N. Chipman, Appellant, v. Marion W. CHIPMAN, Appellee.
• Court: Kansas Supreme Court

Page 1257

510 P.2d 1257

212 Kan. 259

Thelma N. CLARK, formerly Thelma N. Chipman, Appellant, v. Marion W. CHIPMAN, Appellee.

No. 46780.

Supreme Court of Kansas.

June 9, 1973.

Rehearing Denied July 13, 1973.

Syllabus by the Court

1. Under Rule No. 6(d) of the Supreme Court no issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, may be briefed or will be considered on the appeal unless included in the statement of points.

2. A voluntary payment, within the meaning of the rule that such a payment cannot be recovered, means a payment made by a person of his own motion without compulsion, a payment made without a mistake of fact or fraud, duress, coercion, or extortion, on a demand which is not enforceable against the payor; and whether in a given case a payment is voluntary depends on the facts of the particular case, as indicating an intention on the part of the payor to waive his legal rights.

3. Where the appellant fails to present a record showing that the trial court erred in making findings of fact, and the finding support the judgment entered thereon, the judgment will not be overturned on appeal.

4. In a divorce action a husband and wife may enter into a marriage settlement whereby they agree upon a division of property as between themselves and payments to be made by the husband to the wife for the care and support of their children, regardless of their age, as may be necessary for their care, support and education, including college and professional school education. Such an agreement, where it has been freely and fairly made, may be made a part of the judgment in a divorce action, and the judgment thereby entered as to payments to be made is valid and binding upon the parties as a part of the judgment.

5. In a divorce action, where the parties entered into a settlement agreement which was approved by the trial court and incorporated as a part of the divorce decree, providing that the wife should pay the initial sum of $200 per month for the support of the parties' children, and that the husband should provide such further support for his children, regardless of their age, as may be necessary for their care, support and education, including college and professional school education, an attempt by the wife after the children had become of age to recover from the husband payments made by her over and above the $200 per month for and on behalf of the children for more than five years after the divorce decree was entered, was held by the trial court to constitute laches. On appeal it is held that inasmuch as the trial court's final decree approving the agreement contained no specific order for a specific amount of child support, and no demand was made by the wife upon the husband for such intervening period of five years, the doctrine of laches was properly applied by the trial court.

6. The doctrine of laches is an equitable device designed to bar stale claims, and courts of equity will regard long passage of time in asserting claims with disfavor apart from any particular statute of limitations.

7. The mere passage of time is not enough to invoke the doctrine of laches. Lapse of time is necessarily a relative matter in which all surrounding circumstances must be taken into account. Each case must be governed by its own facts and what might be considered a lapse of sufficient time to defeat an action in one case might be insufficient in another.

8. Laches in legal significance, is not mere delay, but delay that works a disadvantage to another.

9. Where it becomes necessary to interpret a written agreement, extrinsic evidence attempting to show the real intention of the parties under the facts and circumstances must be distinguished from evidence admitted to show the 'surrounding facts and circumstances' at the time the agreement was executed. Such evidence which tends to show the situation of the parties at the time the agreement was executed, the nature of the business, the extent of their property, and facts relating to the family itself may all be received in evidence if it assists in clarifying language used in the instrument, but not to change it.

Charles S. Fisher, Jr., Topeka, argued the cause and Clayton S. Flood, of Flood, Martin, Coffelt & Flood, Hays, was on the brief for the appellant.

Randall W. Weller, of Jones & Weller, Hill City, argued the cause and was on the brief for the appellee.

SCHROEDER, Justice:

This is an appeal in a divorce action by Thelma N. Clark (formerly Thelma N. Chipman) wherein she seeks recovery of money which she allegedly expended for the support of the parties' two children after the divorce was granted.

Thelma was granted a divorce from Marion W. Chipman on July 15, 1965, in the district court of Graham County, Kansas. The parties are the parents of two children, Clark Chipman, age twenty at the time of the divorce, and Jill Chipman, age fifteen at the time of the divorce.

The parties entered into a 'settlement agreement' which provided for a division of property, child custody and child support when the divorce was granted. The 'settlement agreement' was incorporated into the judgment of the trial court and made a part thereof. At the time of the original divorce action, Clark Chipman was a student at Ft. Hays Kansas State College. Since then Clark has graduated from that institution, and at the time judgment was entered denying the appellant's motion for past child support allegedly due and owing, Clark was a senior at the University of Kansas Medical School, and Jill was attending Ft. Hays Kansas State College.

Upon the filing of Thelma's motion seeking a judgment for back child support allegedly due and owing, the judge of the district court of Graham County disqualified himself for personal reasons and the case was referred to an assigned judge.

The assigned judge, after hearing the matter, issued a memorandum decision which was fully incorporated into his journal entry. The memorandum in pertinent part reads:

'The questions involved in this matter are the legal obligation of defendant to contribute to support of his children after majority and until they complete college, the extent of discharge of defendant's duty to support the children to this date, and the amount, if any, of recovery for money purportedly spent by plaintiff for support of the children of the parties.

'The parties signed a settlement agreement dated July 15, 1965. In addition to division of property, Paragraph No. V of said settlement agreement provides as follows:

'V. As an integral part of this settlement it is agreed that Thelma N. Chipman shall provide the initial sum of $200.00 per month for the support of the minor children of the parties. It is further contemplated and agreed that Marion W. Chipman shall provide such further support for his children, regardless of their age, as may be necessary for their care, support and education, including college and professional school education.'

'The court in its Journal Entry filed July 15, 1965, found the agreement to be fair, just and equitable and approved the settlement, and it was made a part of the judgment of the court as though set out in full.

'The plaintiff alleges since the divorce she has expended the sum of $23,270.40 over and above the agreed support money payment of $200.00 per month for the care, support and maintenance of the children of the parties. Plaintiff asks judgment for this amount with interest at the rate of 8% per annum.

'The defendant, since the decree of divorce, alleges he has paid for the support, care and maintenance of Jill Ellen Chipman the sum of $6,674.47, and for Clark D. Chipman the sum of $9,402.05.

'Therefore, according to the testimony of the parties, the amount of approximately $55,746.92 has been spent upon the children of the parties since the divorce.

'It is not clear to the court as to whom the defendant made his payments, but the inference is the money was sent directly to the children and used for their welfare.

'It should be noted the court specifically finds and orders in its decision of July 15, 1965, support payments have been arranged for the children of the parties, and the arrangements were approved by the court, subject, however, to the continuing jurisdiction of the court. It should be further noted that specific order for a specific amount of child support is not contained in the court's final decree.

'The defendant, who is a competent, qualified attorney, with advice of his attorney, voluntarily signed the agreement of settlement and approved the journal entry filed in the divorce action. Until this matter arose upon the motion, defendant acquiesced in the judgment and contributed to the support of his children, presumably under the judgment of the court. (Feldmann v. Feldmann, 166 Kan. 699 at page 703 (204 P.2d 742))

'The defendant correctly states the law in regard to the obligation of a parent for support of his adult children. That authority, however, is not pertinent to the case at Bar. There is a distinct difference between what the court has authority to do under the law and what the parties agree upon. (Feldmann v. Feldmann, 166 Kan. 699 at page 705 (204 P.2d 742))

'The court finds, pursuant to the settlement which was incorporated into the judgment, defendant has the obligation to support the children of the parties as may be necessary for education, including college and professional school education. The evidence discloses Clark D. Chipman will graduate from medical school within a short time. Upon graduation he intends to enter an internship or a residency for a specialty. In either event the need for support for Clark D. Chipman would expire upon his graduation from medical school, since either internship or residency is self-supporting.

'The obligation of defendant under the property settlement and judgment will extend to Jill Ellen Chipman until such time as she graduates or...