Durland v. Durland
| Decision Date | 07 November 1903 |
| Docket Number | 13,222 |
| Citation | 74 P. 274,67 Kan. 734 |
| Parties | S. H. DURLAND v. STANLEY DURLAND, as Administrator, etc |
| Court | Kansas Supreme Court |
Decided July, 1903.
Error from McPherson district court; M. P. SIMPSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. MARRIAGE AND DIVORCE--Power of Legislature. Under the provisions of section 18, article 2, of the constitution vesting the power to grant divorces in the district courts, subject to regulation by law, the legislature may forbid divorced persons to marry within six months of the date of the decree, and may require the decree to recite the day and date of its rendition and that it does. not become absolute and take effect until the expiration of six months from such date.
2. MARRIAGE AND DIVORCE--Effect of Death of Wife During the Six Months. If, pursuant to a decree of divorce adjusting property rights, the divorced husband pay money to his former wife within six months from the date of the judgment, the title to such money passes absolutely to her and could not be reclaimed by him from the administrator of her estate should she die within six months from the. date of the decree with the money in her possession.
3. MARRIAGE AND DIVORCE--Decree Ends Relation of Husband and Wife--Descents and Distributions. Upon the rendition of a decree of divorce the relation of husband and wife no longer exists between the parties to the suit, and if one of them should die within six months following the date of the decree the survivor would take no share of the property of the deceased under the statute of descents and distributions, by virtue of the former relationship.
Frank O. Johnson, and W. D. Schoch and F. G. Drenning, as amici curiae, for defendant in error.
OPINION
S. H. Durland and Debbie Durland were married October 2, 1870. On June 22, 1901, the district court of McPherson county rendered a decree divorcing them. They made an amicable adjustment of their property-rights and the court adopted their agreement in that respect as a part of its judgment. In this manner S. H. Durland became obligated to pay to Debbie Durland the sum of $ 2000 in money within a stated period of time. The journal entry of judgment contained the following provision, placed there to comply with section 8, chapter 107, Laws of 1889 (Gen. Stat. 1901, § 5142):
"This decree was rendered Saturday, June 22, 1901, and does not become absolute and take effect until the expiration of six months from said date."
No notice of appeal from this judgment was filed by either party. Prior to September 2, 1901, S. H. Durland paid to Debbie Durland the full sum of $ 2000 required of him. On that day she died, intestate, leaving surviving her a number of children, the fruit of the marriage, and with $ 1755 of the money received from S. H. Durland unexpended and in her possession. An administrator of her estate was duly appointed, after which S. H. Durland undertook, by proceedings in the probate court, to establish his right to the money Debbie Durland had left. Defeated there, he appealed to the district court. Again he suffered an adverse judgment, whereupon this proceeding in error was commenced to reverse the judgment of the district court.
S. H. Durland claims all the money Debbie Durland left as his own, upon the theory that the title to it would not change until the decree under which it was paid became absolute by the expiration of the six months' period fixed by the decree itself. But in any event he asserts title to one-half the money under the statute of descents and distributions, as Debbie Durland's surviving husband, upon the assumption that the relation of husband and wife was not dissolved by the decree of divorce but continued to exist until Debbie Durland's death, because that decree had not then become absolute or taken effect.
The solution of the problem presented depends upon a proper interpretation of the provisions of the constitution and statutes of this state upon the subject of divorce. Under the territorial organic act extending the legislative power of the governor and legislative assembly to all rightful subjects of legislation, the legislature of the territory of Kansas passed many acts dissolving the bonds of matrimony between husbands and wives. According to the weight of judicial decision, the consensus of opinion among the members of the legal profession and the general legislative practice of the country such acts were valid as rightful exhibitions of legislative power. (Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654.) When a constitution for the state was framed the power to grant divorces was taken away from the legislature and vested in the district courts, but the exercise of such power by the courts was expressly made subject to regulation by law.
"All power to grant divorces is vested in the district courts, subject to regulation by law." (Const. art. 2, § 18).
The word "regulation" is of broad signification, and in the absence of restrictive words the power granted must be regarded as plenary over the entire subject. The causes for which a divorce may be granted may be prescribed, and none other will suffice. Rules of procedure to be followed by the courts in granting relief for the causes named may be established, and no other course may be pursued. The rights, duties and obligations of the parties may be fixed and their social status determined as a consequence of divorce, and so far as this is done it is conclusive. The period for which a breach of matrimonial duty must be endured before an action may be brought may be ordained. The conduct of the cause may be prolonged and the ultimate effect of the decree postponed. And since a judgment of divorce is, in the absence of some countervailing law, self-executing, the legislature may impose upon the judgment itself such limitations as shall effect a stay. What declarations then has the legislature made respecting the subject in review?
In the revision of the statutes made in 1868 the subject of divorce and alimony was given a place in the code of civil procedure, section 647 of which was as follows:
"A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other."
Such judgments were reviewable by proceedings in error commenced within three years under the general provisions of law, but no method of staying them was provided. In 1881, section 647 of the code of 1868 was amended to read as follows:
"A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it, was granted in or to the property of the other; and no proceeding for reversing or vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgment or decree it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy; provided, such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceeding in error be given in open court and noted on the journal of the court, within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree." (Laws 1881, ch. 126, § 1.)
Section 2 of the same act reduced to one year the time within which proceedings for reversing judgments generally might be commenced. In 1889 the present law, purporting to amend section 647 of the code of 1868, was enacted, sections 6, 7, and 8 of which are as follows:
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