Edwards v. Edwards, No. 40864

CourtUnited States State Supreme Court of Kansas
Writing for the CourtFATZER; JACKSON
Citation182 Kan. 737,324 P.2d 150
PartiesMary Evelyn EDWARDS, Appellant and Cross-Appellee, v. J. Renz EDWARDS, Jr., The Security National Bank, and the F. S. Edwards Tobacco Co., Inc., and Cornelia Smith, Appellees and Cross-Appellants.
Docket NumberNo. 40864
Decision Date12 April 1958

Page 150

324 P.2d 150
182 Kan. 737
Mary Evelyn EDWARDS, Appellant and Cross-Appellee,
v.
J. Renz EDWARDS, Jr., The Security National Bank, and the F.
S. Edwards Tobacco Co., Inc., and Cornelia Smith,
Appellees and Cross-Appellants.
No. 40864.
Supreme Court of Kansas.
April 12, 1958.

Page 153

Syllabus by the Court

1. An allowance of support under G.S.1949, 60-1507 pendente lite for the wife and minor child of the parties to an action for divorce does not become a final judgment on which execution can issue, but is merely a temporary or ad interim provision for their support until final determination of the action.

2. An order for support, such as described in p1 of the syllabus, is interlocutory in character, and, like other interlocutory orders made during litigation, remains solely in the sound judicial discretion of the court which made it and may be modified as varying circumstances justify during the pendency of the action in any form in the district court, even to the extent of discharging accrued and unpaid installments.

3. G.S.1949, 60-3302 does not expressly authorize the supreme court to reverse an order vacating an ex parte order entered pursuant to G.S.1949, 60-1507, allowing support pendente lite for the wife and minor child of the parties to an action for divorce. It confers such power only with respect to a final order, a provisional remedy, or an injunction.

4. An order of the district court setting aside and discharging a previous ex parte order for the support of the wife and minor child of the parties to an action for divorce entered under G.S.1949, 60-1507 pendente lite, is not appealable under G.S.1949, 60-3302 before final disposition of the action on its merits.

[182 Kan. 738] 5. An order such as described in p1 of the syllabus is not entered as a 'provisional remedy' as that term is used in G.S.1949, 60-3302, Second.

6. Following Breidenthal v. Breidenthal, 182 Kan. 23, 318 P.2d 981, the determination of the worth and extent of the husband's property is a necessary incident to an action for divorce, and third persons are proper and necessary parties defendant where their presence is necessary for the determination of what property is owned by the husband.

David W. Carson, Kansas City, argued the cause, and William A. Smith, John K. Dear and J. W. Mahoney, Kansas City, were with him on the briefs for appellant and cross-appellee.

F. Philip Kirwan, Kansas City, Mo., argued the cause, and Joseph H. McDowell, Kansas City, was with him on the briefs for J. Renz Edwards, Jr., appellee.

J. O. Emerson, Kansas City, argued the cause, and Edw. M. Boddington and Edw. M. Boddington, Jr., Kansas City, were with him on the briefs for appellee and cross-appellant Cornelia Smith.

FATZER, Justice.

The principal question presented is whether an order of the district court vacating a previous ex parte order for child support and alimony pendente lite entered at the commencement of a divorce action pursuant to G.S.1949, 60-1507, and uncomplied with by defendant husband, is subject to appellate review. The appellant wife contends the order is reviewable and that past-due and unpaid monthly payments for child support and alimony pendente lite become final judgments and that property of the defendant is liable to be taken on execution and sold to satisfy them. The appellee husband contends that all appeals are statutory and that the order dissolving the ex parte order pendente lite was not a final order, or one that involved the merits of the action or some part thereof, as provided in G.S.1949, 60-3302, and that this court does not have jurisdiction to review the order.

On May 9, 1956, the verified petition was filed for a divorce, alimony, support money, child custody and attorney's fee; the grounds alleged were extreme cruelty and gross neglect of duty. The F. S. Edwards Tobacco Co., Inc. and the Security National Bank of Kansas City, Kansas, were made parties defendant, together with the husband, J. Renz Edwards, Jr. (Edwards). It was alleged [182 Kan. 739] that Edwards was president and employed by the tobacco company, and his income from his salary after deductions was $800 per month; that he had an expense

Page 154

account of $250 per month and other income in the sum of $1,200 per annum; that Edwards owned stock in the tobacco company and in the Security National Bank, which were valid, subsisting assets to be considered by the court in adjusting the property rights of the parties, and that unless restrained, he would transfer the stock then standing in his name to persons unknown to plaintiff.

On the same day, the Honorable Willard M. Benton, Judge, division No. 2, entered an ex parte order pursuant to G.S.1949, 60-1507 for the payment by Edwards to plaintiff of $821.05 per month as support money for plaintiff and the minor child of the parties, which include $100 for car payment, $100 for furniture payment, $121.05 for house payment, and $150 for plaintiff's attorney to be paid within 30 days. Personal service of both the summons and the order was had upon Edwards May 9, 1956. No payments were ever made by Edwards in compliance with that order.

The parties became reconciled and resumed marital relations at a date which does not appear in the record. During the reconciliation the parties and their minor child went to California. Plaintiff and the minor child returned to Kansas, and on October 5, 1956, she filed a supplemental petition alleging the reconciliation, the resumption of marital relations, and further, that Edwards had resumed his ways and conduct of extreme cruelty and gross neglect of duty toward plaintiff, making life so miserable for her that she could no longer live with him as his wife. Summons was again issued, but personal service could not be had upon Edwards since he remained outside the state of Kansas. A second order was issued restraining the defendants tobacco company and Security National Bank from transferring any stock standing in Edwards' name.

On December 5, 1956, on motion of plaintiff, Cornelia Smith, the mother of Edwards and the then president of the tobacco company, was made a party defendant and restrained from transferring any property of Edwards under her control or standing in her name. On the same date plaintiff filed a second supplemental petition alleging that since the filing of her original petition Edwards had avoided the jurisdiction of the court, was outside the state, and had refused to make payments on the order of May 9, 1956; that [182 Kan. 740] Cornelia Smith was aiding Edwards in avoiding the jurisdiction of the court; that stock in the tobacco company, which was the property of Edwards, was in the name of Cornelia Smith and was of the value of $50,000; that Cornelia Smith was about to or had made transfers of stock of Edwards in avoiding payments on the order of May 9, 1956, and plaintiff was in need of support for herself and the minor child; that Edwards inherited property from the estate of his father which was standing in the name of Cornelia Smith who had records of transfers of property of Edwards' father's estate, and income tax statements of Edwards; that Edwards had assets in the jurisdiction of the court, at least a part of which were in the possession and under the control of Cornelia Smith, and that the books and records of Edwards' assets were under the control of Cornelia Smith who would not produce the same unless the court so ordered. Personal service was had upon Cornelia Smith and service by publication upon Edwards.

On December 14, 1956, Cornelia Smith demurred to the second supplemental petition upon the ground it failed to state a cause of action against her, which was overruled by the district court on January 11, 1957.

On February 8, 1957, Edwards entered his appearance to the supplemental petitions.

On May 9, 1957, plaintiff caused execution to issue against the goods and chattels of Edwards on the past-due and unpaid installments of the ex parte order of May 9, 1956. The sheriff attempted to levy the execution upon 1590 shares of stock owned by Edwards in the tobacco company pursuant to G.S.1949, 60-3409, which requires the official or agent of a corporation appointed

Page 155

to keep a record of the shares of stockholders to give a certificate of the number of shares or the amount of interest held by the judgment debtor when a copy of the execution is exhibited to him. The sheriff made return that he had served a copy of the execution upon...

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7 practice notes
  • Ediger v. Ediger, No. 45859
    • United States
    • United States State Supreme Court of Kansas
    • January 23, 1971
    ...a vested right and become final judgments, and may be collected as other judgments of courst of record in this state. (Edwards v. Edwards, 182 Kan. 737, 743, 324 P.2d 150; Conway v. Conway, 130 Kan. 848, 288 P. 566; Sharp v. Sharp, 154 Kan. 175, 177, 117 P.2d 561.) Final judgments for alimo......
  • Fangrow v. Fangrow, No. 41357
    • United States
    • United States State Supreme Court of Kansas
    • July 10, 1959
    ...616, 617, 237 P.2d 418; Peters v. Weber, 175 Kan. 838, 267 P.2d 481; Ortiz v. Ortiz, 180 Kan. 334, 338, 304 P.2d 490; Edwards v. Edwards, 182 Kan. 737, 744, 745, 324 P.2d 150), and may be collected in the same manner as other judgments. See, Hurd v. Hixon, 27 Kan. 722, 727; Butler v. Craig,......
  • Hurley v. Painter, No. 40860
    • United States
    • United States State Supreme Court of Kansas
    • April 12, 1958
    ...interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted. In the instant case [182 Kan. 737] we have carefully analyzed the answers to the special questions and find them, when construed together, to be in harmony with the general Pl......
  • In re Brown, No. 103,758.
    • United States
    • United States State Supreme Court of Kansas
    • October 26, 2012
    ...the cause and was on the brief.The opinion of the court was delivered by LUCKERT, J.: More than 50 years ago, in Edwards v. Edwards, 182 Kan. 737, Syl. ¶ 2, 324 P.2d 150 (1958), this court stated that a child support order entered during the pendency of a divorce action is interlocutory and......
  • Request a trial to view additional results
7 cases
  • Ediger v. Ediger, No. 45859
    • United States
    • United States State Supreme Court of Kansas
    • January 23, 1971
    ...a vested right and become final judgments, and may be collected as other judgments of courst of record in this state. (Edwards v. Edwards, 182 Kan. 737, 743, 324 P.2d 150; Conway v. Conway, 130 Kan. 848, 288 P. 566; Sharp v. Sharp, 154 Kan. 175, 177, 117 P.2d 561.) Final judgments for alimo......
  • Fangrow v. Fangrow, No. 41357
    • United States
    • United States State Supreme Court of Kansas
    • July 10, 1959
    ...616, 617, 237 P.2d 418; Peters v. Weber, 175 Kan. 838, 267 P.2d 481; Ortiz v. Ortiz, 180 Kan. 334, 338, 304 P.2d 490; Edwards v. Edwards, 182 Kan. 737, 744, 745, 324 P.2d 150), and may be collected in the same manner as other judgments. See, Hurd v. Hixon, 27 Kan. 722, 727; Butler v. Craig,......
  • Hurley v. Painter, No. 40860
    • United States
    • United States State Supreme Court of Kansas
    • April 12, 1958
    ...interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted. In the instant case [182 Kan. 737] we have carefully analyzed the answers to the special questions and find them, when construed together, to be in harmony with the general Pl......
  • In re Brown, No. 103,758.
    • United States
    • United States State Supreme Court of Kansas
    • October 26, 2012
    ...the cause and was on the brief.The opinion of the court was delivered by LUCKERT, J.: More than 50 years ago, in Edwards v. Edwards, 182 Kan. 737, Syl. ¶ 2, 324 P.2d 150 (1958), this court stated that a child support order entered during the pendency of a divorce action is interlocutory and......
  • Request a trial to view additional results

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