Drummond v. Drummond

• Decision Date: 08 April 1972
• Docket Number: No. 46273,46273
• Citation: 495 P.2d 994,209 Kan. 86
• Parties: Maurice D. DRUMMOND, Appellee, v. Peggy J. DRUMMOND, Appellant.
• Court: Kansas Supreme Court

Page 994

495 P.2d 994

209 Kan. 86

Maurice D. DRUMMOND, Appellee, v. Peggy J. DRUMMOND, Appellant.

No. 46273.

Supreme Court of Kansas.

April 8, 1972.

Syllabus by the Court

1. Alimony is a future support concept and it has no relationship to a division of property aspect.

2. A trial court after entering an original decree which determines a division of property has no continuing jurisdiction of that part of the decree and no power to modify that part of the decree.

3. A motion to modify an award of alimony is also a motion to modify a division of property when said motion seeks to have a portion of an alimony award designated as a division of property.

4. The intent of the parties to a separation agreement is determined by the agreement when its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must be gleaned from its contents alone and words cannot be read into an agreement which import an intent wholly unexpressed when the agreement was executed.

5. A party who seeks and obtains from a trial court its approval of a separation agreement and its incorporation in a judgment and thereafter accepts the benefits of the judgment cannot avoid its disadvantages by a motion to modify except as to those matters over which the court has continuing jurisdiction.

J. W. Mahoney, of Carson, Mahoney & Fields, Kansas City, argued the cause, and Charles D. Kugler, Kansas City, was with him on the brief, for appellant.

Harold Kip Wells, of Ross, Wells & Barnett, Kansas City, argued the cause and was on the brief, for appellee.

OWSLEY, Justice.

The parties to this appeal were divorced on the 25th day of July, 1969, in the District Court of Wyandotte County, Kansas. The decree of divorce incorporated a separation agreement which had stipulations for a division of property, alimony, and custody and support of the parties' children. On the 14th day of May, 1970, the defendant wife filed a motion to modify the decree of the court with respect to alimony. The motion to modify was denied and the defendant appeals.

In denying the motion to modify the court found that the defendant wife had remarried and by reason of said marriage the alimony award as provided in the decree of divorce, and in the stipulation and agreement, should cease as of the date of said marriage. The date of said marriage is not disclosed by record. The defendant wife does not complain of this ruling and does not deny the fact of remarriage. In view of this, we accept the trial court's findings and judgment as to the effect of remarriage except as said findings and judgment may be affected by the motion to modify.

The plaintiff and the defendant were married on July 18, 1957. Subsequent to their marriage the parties adopted two children and on July 25, 1969, after twelve years of marriage, they obtained a divorce each from the other as above recited. During the course of the marriage the parties through their joint efforts, plaintiff as a dentist and defendant as his assistant, accumulated a sizable estate. Prior to the trial of the divorce, which came on as a default matter, the litigants by and through their attorneys were negotiating a property settlement agreement.

The negotiated agreement provided for a division of property and $2,900 a month alimony for the first ten months, and $1,900 a month alimony thereafter until the death or remarriage of the defendant. The agreement also made proper provision for custody and support of the children.

The motion to modify alleged that a portion of the alimony award was, in effect, a division of property, and that in view of defendant's impending remarriage it would unjustly deprive her of property unless modified.

In overruling the motion the court made the following findings:

'From the oral arguments of counsel it has been indicated to the Court that the defendant, Peggy J. Drummond, has since entered into a marriage contract with a third party.

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'Not appearing in the record was a statement by counsel for the defendant, and an offer of proof by oral testimony, to the fact that the alimony provisions provided in the stipulation and agreement, and included in the decree of divorce, was not in the nature of an award for future support for the defendant but was in the nature of a division of the assets of the parties accumulated during the course of the marriage. From all the records it indicates that the bulk of the accumulated assets were set over to the plaintiff husband, however, there was set over to the defendant as her sole and separate property the homestead, a half interest in the farm, all the personal household goods, including tractors, lawnmowers, miscellaneous machinery, and also some horses. This Court refused the offer of proof by the defendant in this matter at the oral argument of the motion on May 22nd. However, during the course of the argument, plaintiff, by and through his attorney, did stipulate that the alimony award was not future support for the defendant but was a means of equalizing the division of the property.

'The Court finds that to strictly enforce the provisions of the decree of divorce and the stipulation and agreement in this respect as to alimony would materially and substantially reduce the division of property in favor of the defendant in this case, with somewhere in the vicinity of one-third to three-quarters of the accumulated assets of the marriage being awarded to the plaintiff, if the support payments in the nature of alimony to the wife in the amount of $1900 per month were to be terminated by reason of her remarriage.

'However, from a review of the authorities cited in the respective briefs, that being the case law as well as the statutory law, this Court concludes that it is without authority at this time for the reasons set forth in defendant's motion, oral statements, in the memorandum and exhibits presented, to grant the relief requested, that being to reduce to a lump sum the alimony award and require the payment over a given period of years.

'The Court, therefore, denies defendant's motion for this relief and does find that by reason of the remarriage of the defendant that the alimony award as provided for in the decree of divorce and stipulation and agreement should cease as of the date of said marriage. This order is effective as of date it is filed.'

We are controlled by K.S.A.1971 Supp. 60-1610(b), (c), and (d), which reads as follows:

'(b) Division of property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.

'(c) Maintenance. The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating to liability for the unpaid alimony beyond what was prescribed in the original decree.

'(d) Separation agreement. If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe...