Dick v. Dick

Decision Date08 July 1961
Docket NumberNo. 42158,42158
Citation188 Kan. 487,363 P.2d 457
PartiesM. E. DICK, Appellant, v. Maxine DICK, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Notwithstanding an appellant appeals from an order overruling his motion for a new trial, failure to specify such ruling as error precludes review of alleged trial errors, and the scope of review is limited to the question whether the judgment is supported by the pleadings and the findings.

2. A general finding by a trial court determines every controverted question of fact in support of which evidence has been introduced, and a general finding raises a presumption that it found all facts necessary to support and sustain the judgment.

3. When, under the provisions of G.S.1949, 60-1516, separate maintenance is awarded to the wife, without a divorce, the journal entry of judgment should contain a finding setting forth the specific ground or grounds upon which the judgment is based.

4. In an action by the husband for a divorce, in which the wife cross-petitioned for separate maintenance, and in which the trial court denied a divorce to the husband and awarded separate maintenance, the record is examined and it is held the judgment is supported by the pleadings and the findings, and no reversible error is shown.

John W. Sowers, Wichita, argued the cause, and Clarence R. Sowers, Wichita, was with him on the brief, for appellant.

Louis W. Cates and Thomas A. Wood, Wichita, argued the cause, and Ora D. McClellan and Dan J. Skubitz, Wichita, were with him on the brief, for appellee.

PRICE, Justice.

This appeal arises out of a divorce action and is by plaintiff husband from a judgment granting separate maintenance to his wife.

Plaintiff sued his wife for divorce--charging extreme cruelty. She filed an answer in the form of a general denial, and a cross-petition seeking separate maintenance of $500 per month on the ground that he was guilty of gross neglect of duty and extreme cruelty.

Considerable evidence was introduced at the trial. At the conclusion thereof her demurrer to his evidence was sustained, and his demurrer to her evidence was overruled. From the bench the court stated that plaintiff's evidence was insufficient to support his petition for a divorce, and further that the prayer of the wife's cross-petition for separate maintenance was sustained. Judgment was entered directing plaintiff to pay the sum of $270 per month as separate maintenance to the wife and $80 per month for the support of their infant child.

Plaintiff husband has appealed----

'* * * from the Order of the Court overruling the plaintiff's Motion for a New Trial and particularly the Order and Judgment denying a divorce herein and particularly to the Order and Judgment pertaining to permanent alimony.'

The specifications of error are that the court erred in sustaining defendant's demurrer to his evidence; in overruling his demurrer to defendant's evidence; in granting a judgment of separate maintenance without making a specific finding that a cause existed for which a divorce may be granted; that the court abused its discretion in failing to grant a divorce and in granting a pretended separate maintenance judgment, and that the judgment rendered was grossly excessive.

It is to be noted that plaintiff did not appeal from either of the rulings on the demurrers.

It also is to be noted that plaintiff did not specify as error the order overruling his motion for a new trial.

No appeal being taken from the rulings on the demurrers, they are not subject to appellate review--even though specified as error.

Notwithstanding the fact plaintiff appealed from the order overruling his motion for a new trial, his failure to specify such ruling as error precludes review of alleged trial errors, and the scope of review is limited to the question whether the judgment is supported by the pleadings and the findings. Morgan v. Morgan, 146 Kan. 880, 73 P.2d 1105; Jelinek v. Jelinek, 161 Kan. 362, 168 P.2d 547; Shelton v. Simpson, 184 Kan. 270, 336 P.2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P.2d 657 [opinion on motion for rehearing at 185 Kan. 36, 340 P.2d 927].

In connection with the question whether the judgment is supported by the pleadings and the findings, attention is called to G.S.1949, 60-1516, which provides that a wife may obtain alimony from the husband without a divorce in an action brought for that purpose for any of the causes for which a divorce may be granted.

Plaintiff complains of the fact the findings of the trial court, as orally announced from the bench or as set forth in the journal entry of judgment, do not contain a specific finding that a cause existed for which a divorce might be granted--that is, there is no specific finding by the court that plaintiff was guilty of any of the statutory grounds for divorce enumerated in G.S.1959 Supp. 60-1501, and our attention is directed to Perkins v. Perkins, 154 Kan. 73, 114 P.2d 804, where it was said that in an action for alimony, before the trial court may make an award the plaintiff must plead and prove, and the trial court must find, that a cause exists for which a divorce may be granted, and to Paul v. Paul, 183 Kan. 201, 326 P.2d 283, where it was held that before the trial court could grant separate maintenance it would be necessary for the wife to plead and prove, and it would be incumbent that the trial court find, that a cause existed for which a divorce could be granted.

We have no fault to find with the holding in either of those cases. Both correctly state the law, but on the precise question now before us neither is in point. In the Perkins case the trial court, after hearing the evidence, found that the wife should take nothing under her cross-petition seeking permanent alimony, and in the Paul case the wife, during the course of the trial, had dismissed her cross-petition, leaving no pleadings on file to support an award of separate maintenance in her favor.

In the case before us plaintiff husband sued for a divorce on the ground of extreme cruelty. Defendant entered a general denial, and filed a cross-petition seeking separate maintenance on the grounds of gross neglect of duty and...

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2 cases
  • Kramer v. Farmers Elevator Co.
    • United States
    • Kansas Supreme Court
    • 14 July 1964
    ...130; In re Estate of Duncan, 186 Kan. 427, 433, 350 P.2d 1112; Smith v. Smith, 186 Kan. 728, 730, 731, 352 P.2d 1036; Dick v. Dick, 188 Kan. 487, 489, 490, 363 P.2d 457; American Fence Co. v. Gestes, 190 Kan. 393, 402, 375 P.2d 775; Browning v. Lefevre, 191 Kan. 397, 400, 381 P.2d 524; Wyco......
  • Donaldson v. State Highway Commission
    • United States
    • Kansas Supreme Court
    • 7 April 1962
    ...new trial since it would be in the nature of a trial error (Russell v. Phoenix Assurance Co., 188 Kan. 424, 362 P.2d 430; Dick v. Dick, 188 Kan. 487, 363 P.2d 457; Ford v. Sewell, 188 Kan. 767, 366 P.2d All that remains to be said is that the motion of the State Highway Commission to dismis......

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