Cool v. Cool

• Decision Date: 17 July 1969
• Docket Number: Nos. 45377,45583,s. 45377
• Citation: 203 Kan. 749,457 P.2d 60
• Parties: J. Bernice COOL, Appellant, v. Howard R. COOL, Appellee.
• Court: Kansas Supreme Court

Page 60

457 P.2d 60

203 Kan. 749

J. Bernice COOL, Appellant, v. Howard R. COOL, Appellee.

Nos. 45377, 45583.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. On appellate review it is not the function of this court to weigh conflicting evidence or to substitute its judgment for that of the trial court in granting a divorce.

2. A judgment granting a party a divorce will not be overturned on appeal for insufficiency of evidence where there is substantial, competent evidence to sustain it.

3. A division of property made by the trial court in a divorce action will not be set aside in the absence of a clear abuse of discretion.

4. The provisions of K.S.A. (now 1968 Supp.) 60-1610(c), whereby the court may award a party alimony, are to be invoked when that party's needs and the other party's ability to pay are such that future support should be ordered. In determining whether or not alimony should be awarded, and if so, the amount, the trial court is vested with considerable judicial discretion, and absent a clear showing of manifest abuse thereof, its judgment will not be disturbed on appeal.

5. Under the provisions of K.S.A. 60-260(b), a judgment may be attacked on the ground of fraud within one year after the judgment was entered, whether the fraud in intrinsic or extrinsic.

6. Where a judgment is sought to be set aside and vacated on the ground of fraud pursuant to K.S.A. 60-260(b), the burden of proof is on the movant, and the fraud must be proven by clear and convincing evidence.

7. In order for perjured testimony to warrant the setting aside of a judgment under K.S.A. 60-260(b), it must be shown by clear and convincing evidence to have been willfully, purposely and falsely given, to have been material to the issue tried, and to have significantly controlled the result reached; furthermore, the movant must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial.

8. The record in a divorce proceeding is examined, and it is held: The court did not err in (1) granting the husband, as well as the wife, a divorce; (2) dividing the property of the parties; (3) refusing to award alimony to the wife; and (4) denying the wife's motion to set aside the judgment denying her alimony, on the ground of fraud because of the alleged perjured testimony of her husband.

Walter F. McGinnis, El Dorado, argued the cause, and Allyn M. McGinnis, El Dorado, was with him on the brief, for appellant.

Warren Ralston, El Dorado, argued the cause, and O. J. Connell, Jr., El Dorado, was with him on the brief, for appellee.

O'CONNOR, Justice.

These two consolidated cases mark the end of a marriage spanning over four decades. Case No. 45,377 is the original divorce action instituted by plaintiff J. Bernice Cool against defendant Howard R. Cool, each charging the other with extreme cruelty and gross neglect of duty. On June 21, 1967, the district court granted both parties a divorce, equally divided property valued at approximately $50,707.61, but refused to grant plaintiff alimony. After denial of plaintiff's various post-trial motions, she perfected her appeal. Case No. 45,583 is merely an outgrowth of the divorce action in which plaintiff appeals from an order denying her motion to set aside the judgment of the ground of fraud, and will be discussed later in the opinion.

The parties were married December 10, 1921, and except for a short separation followed by a divorce and remarriage in 1939, lived together until plaintiff filed her petition on November 29, 1966. Two sons were born of the union. Both are now adults. One of them, following the death of his wife in 1956, moved back into the home of his parents with his young daughter, where they lived together for approximately nine years. Domestic strife was present throughout most of the marriage and finally culminated in these proceedings.

At the time of the divorce plaintiff was sixty-three years of age, had undergone two operations for cancer, and was unable to be gainfully employed. She received $36.80 per month from social security; and since the divorce, a small rental income from a converted garage located near the residence. Defendant was sixty-five years of age, was a blacksmith by trade, and operated his own shop where he also made loading chutes, fence panels, feed troughs and bunks for sale. He was receiving $83 per month in social security payments.

For purposes of trial, the court appointed appraisers to value various properties, including real estate accumulated by the parties during the marriage. The home and converted garage were appraised at $8,500. The rental unit, when utilized, brought in $60 per month, less utilities, which were paid by the landlord. The parties also owned property west of El Dorado on Highway 196, consisting of approximately seven acres on which the blacksmith shop, and a house trailer occupied by defendant since the separation, were located. This piece of real estate was valued at $37,500; the house trailer was appraised at $350; the building where the blacksmith shop was located at $250; shop equipment and supplies at $825; and two horses at $100. Several automobiles of rather nominal value were also included.

The trial court awarded plaintiff the residential real estate, including the rental unit; household goods valued at $500; a 1960 Chevrolet; and a savings and loan account of $2,611.63. Defendant was awarded the trailer home, blacksmith shop and equipment, horses, two automobiles-a 1956 Ford valued at $40, and a 1959 pick-up-plus a savings and loan account in the amount of $3,031. The seven-acre tract on the highway was apportioned between the parties in such a manner that the realty and personalty set over to each was of the approximate value of $25,353.80.

After the court expressed serious reservation about awarding plaintiff any alimony because defendant was 'apparently retired or in the process of retiring,' a separate hearing was ordered on that question alone, at which evidence was adduced by both sides. The testimony was sharply conflicting regarding the extent of defendant's work and activity in the blacksmith shop. Income tax returns for the past several years were produced, and plaintiff indicated that they reflected only income received by defendant in the form of checks, and that he accounted for no cash received in the course of his business. Plaintiff insisted that from 1960 through 1965 defendant's average annual income from the business was slightly in excess of $6,000; but it is not clear from the record whether this figure represented gross or net income. She did admit there had been a decrease in business over the years, and for that matter, the shop was closed during several periods.

On June 16, 1967, the court rendered a memorandum decision by letter, a part of which is as follows:

'The defendant is a man 65 years of age and is presently drawing $83 a month from Social Security; that the tax return filed by both parties to this action indicated a net income for the year of 1965 of $2,547.58, for his work as a Blacksmith. The year 1966 shows a gross income of $1,116.30, plus $225, which has failed to be reported as being received during the year of 1966; that is his income to date with the exception for the year of 1967, which is $116, as shown by the evidence submitted.

'It would appear to the Court that for the past two and a half years this man has not been making a large amount of money in his Blacksmith work and that receipts from the same continue to decrease. The Court further observes that Mr. Cool appears to be a man that is beginning to loose his coordination and questions how long he can continue to be engaged in this type of work in the future * * *.'

The contents of the memorandum concerning the granting of a divorce, division of property, and alimony was reduced to a journal entry filed June 21, 1967. Thereafter, plaintiff filed motions for a new trial and to alter or amend the judgment. Evidence in support of the motions was introduced by plaintiff tending to show that defendant was continuing to operate the business as in the past. Defendant, on the other hand, stoutly contended he had curtailed his activities at the shop, particularly the shodding of horses, which in earlier times had been a substantial source of his income. The motions were overruled.

Plaintiff urges that she alone should have been granted the divorce and to that extent the decision was contrary to the evidence. We cannot agree. She raises no question concerning possible lack of corroboration of defendant's alleged grievances against her. The essence of her argument, as we view it, is that we should reweigh the evidence and arrive at a conclusion different from that reached by the trial court. This, of course, overlooks our long-standing rule that the trial judge has the duty to determine the weight and credibility to be given to the testimony of the witnesses; and on appellate review, findings or a judgment will not be overturned for insufficiency of evidence where there is substantial, competent evidence to support them. (1 Hatcher's Kansas Digest (Rev. Ed.), Appeal and Error §§ 506, 507.) Admittedly, plaintiff's own testimony contradicts that of her husband in many respects; however, it is not the function of this court to weigh conflicting evidence or substitute its judgment for that of the experienced trial judge before whom the case was tried. (Haynes v. Haynes, 202 Kan. 83, 446 P.2d 749; Saint v. Saint, 196 Kan. 330, 411 P.2d 683; Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478; Preston v. Preston, 193 Kan. 379, 394 P.2d 43.) Nothing of value would be added to the annals of law in this state by our detailing the evidence about the discordant marriage and the behavior of each party which made their continued relationship as husband and wife intolerable. There was substantial evidence which if believed by...