Effland v. Effland, 38419

• Decision Date: 10 November 1951
• Docket Number: No. 38419,38419
• Citation: 171 Kan. 657,237 P.2d 380
• Parties: EFFLAND v. EFFLAND.
• Court: Kansas Supreme Court

Page 380

237 P.2d 380

171 Kan. 657

EFFLAND v. EFFLAND.

No. 38419.

Supreme Court of Kansas.

Nov. 10, 1951.

Rehearing Denied Jan. 4, 1952.

Syllabus by the Court.

A husband, residing in Kansas, filed a suit for divorce from his wife, then living in Nebraska with their child, six months of age. The prayer included a request that the court determine and fix a sum which he should pay monthly for the maintenance and education of the child. Service was by publication. The wife did not appear and in due time a divorce was granted, but no order was made respecting the support of the child. About three and one-half years later she made an application in the same case for an order for past and future support of the child. Held, she was entitled to be heard upon her application.

Marlin Brown, Council Grove, argued the cause, and Constance L. Brown, Council Grove, and Marvin E. Larson, Topeka, on the brief, for appellant.

Walter E. Hembrow, Council Grove, argued the cause and was on the brief, for appellee.

HARVEY, Chief Justice.

On May 17, 1947 Howard L. Effland, a resident of Morris county, filed a petition for divorce on the ground of gross neglect of duty and extreme cruelty against his wife in which he alleged that she is a resident of Kansas and that her last known postoffice address was 2931 South 18th Street, Omaha, Nebraska. He alleged the date of their marriage, that they have one child, Bruce Howard Effland, then six months of age, who was residing with the mother, and that the parties have not jointly accumulated any property during their marriage. The prayer was for a divorce and 'that the court determine and fix an equitable sum which he should pay to defendant monthly for the support, maintenance and education of said minor child. * * *'

The case came on for trial July 30, 1947. The defendant made no appearance. The court found that she had been duly summoned as provided by law by publication service, which was approved. She was adjudged to be in default. The court heard the evidence and granted plaintiff a divorce. Nothing was said in the decree about the custody of the child, nor did the court pay any attention to plaintiff's prayer that a sum be fixed for plaintiff to pay defendant monthly for the support, maintenance and education of the child.

On October 2, 1950 the defendant filed in the same action a petition in which she alleged the filing of the petition for divorce by plaintiff, including the prayer that the court fix a sum which he should pay defendant for the support, maintenance and education of the child; that the decree of divorce was rendered on July 30, 1947, in which no mention was made of the child; that at all times since the petition for divorce was filed the child was residing with defendant and in her custody; that since the decree of custody was entered plaintiff voluntarily contributed $875 by irregular contributions for the care and maintenance of the child, but that the sum had been insufficient and that defendant has been compelled in addition to spend the sum of $1,638 for the past care and maintenance of the child, as per an itemized statement attached, which expenses were necessary and reasonable; that plaintiff has not been relieved of the duty of providing for the child; that he is a strong, able-bodied man, thirty years of age, capable of and is receiving sufficient earnings to properly care for the child; in fact is earning approximately $4,000 a year; that defendant has been ill and hard pressed financially to maintain the child, has been forced to seek employment to provide for herself and the child, is earning $125 per month; that plaintiff owes defendant the sum of $1,638 for the past maintenance of the child, for which sum she prayed judgment, and also prayed that the court make an order granting defendant the custody of the child and allowing her a reasonable sum for the future maintenance of the child. This petition was verified.

Plaintiff filed a motion to quash and dismiss the petition for the reasons, (1) that the proceeding was improperly brought and originates a new item in the case over which the court has no jurisdiction; (2) that it is not based on any principle of law; (3) it violates all established rules of pleading, and (4) that it does not state facts sufficient to constitute a cause of action.

In passing on the motion the court filed a written memorandum in which the court stated facts from the original petition and the one filed by defendant indicating the child was with defendant in Nebraska at the time of the divorce and since, and pointing out that she was asking to recover expenses for the maintenance of the child since the granting of the divorce; that the child was beyond the jurisdiction of the court at the time of the decree and since, and concluded that the court never had jurisdiction over the child, and concluded: 'there cannot be any jurisdiction now, as there was nothing to continue.' The court further pointed out that defendant's petition had not been filed within three years after the divorce, as provided by G.S.1949, 60-2530. The court expressed no opinion as to whether the defendant could maintain a separate action for the purposes involved and only held that she had no right to proceed in this action. The appeal is from that order.

We think the trial court erred in its reason and conclusions. Our laws register solicitude for the care, support and education of the minor children of the parents. G.S.1949, 60-1510 reads: 'When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.' See the many cases cited thereunder and Brown v. Brown, 171 Kan. 249, 253, 232 P.2d 603.

Here the custody of the child was not in controversy. The child was with the mother. Apparently plaintiff realized she was the proper person to have custody of the child notwithstanding her dereliction which caused the husband to want a divorce. He realized that she needed financial assistance for the support, maintenance and education of the child and asked the court to determine and fix the sum he should pay monthly for those purposes. We see no reason why his request was not given appropriate attention. It is now explained that the court did not have jurisdiction of the person of the child or of the mother. Is this a sufficient reason for ignoring his request? We shall not decide that question since there was no appeal from the divorce decree. We mention it only as it bears upon the appeal now before us. We only observe that the court had jurisdiction of the person of the plaintiff, and since he asked for such an order he would have been in no position to complain if the court had made the order requested. Since it would have been beneficial to the defendant presumably she would not have objected unless she regarded inadequate the sums required to be paid, in which event she could have applied to the court for an increase in the amount much as she is applying now for an allowance. The allowance of the order requested by plaintiff would not have been out of harmony with the statute above quoted.

But whatever may be said about the court not having authority to make an order for the support and education of the child at the time the decree of divorce was granted, for the reason it did not have jurisdiction of the person of the defendant, such impediment no longer exists. By making the application now being considered defendant submitted herself to the jurisdiction of the court just as plaintiff did when he filed his petition for divorce. So, when the court made the ruling from which this appeal was taken it had full jurisdiction of the person of both of the parties.

The court in stating its reasons for quashing and dismissing defendant's petition to open up the divorce decree and making an allowance for the past and future support of the child stated: 'This judgment having been rendered by default was subject to be opened up at any time within three years of its date, as provided by section 60-2530 G.S. 1935 (1949), but in the instant case that time has long since expired.'

In Lewis v. Lewis, 15 Kan. 181, 192, the identical statute was held inapplicable to a divorce case for the reason that our statute pertaining to summons by publication in divorce cases (now G.S.1949, 60-1504) required plaintiff to send a copy of the publication notice and of the petition to the defendant by mail, hence defendant could not make the showing required by G.S. 1949, 60-2530, that she had no notice of the case in time to defend. Also that section required defendant to file a complete answer.

The Lewis case was cited approvingly in Hemphill v. Hemphill, 38 Kan. 220, 222, 16 P. 457; Larimer v. Knoyle, 43 Kan. 338, 348, 23 P. 487; Ensign v. Ensign, 45 Kan. 612, 613, 26 P. 7; Roe v. Roe, 52 Kan. 724, 727, 728, 35 P. 808; Wesner v. O'Brien, 56 Kan. 724, 729, 44 P. 1090, 32 L.R.A. 289; In re Smith, 74 Kan. 452, 453, 454, 87 P. 189; McCormick v. McCormick, 82 Kan. 31, 45, 47, 107 P. 546. Also in Strode v. Strode, 6 Idaho, 67, 52 P. 161, 163; Medina v. Medina, 22 Colo. 146, 43 P. 1001, 1002; Graham v. Graham, 54 Wash. 70, 102 P. 891, L.R.A.1917B, 405; Matheson v. McCormac, 186 S.C. 93, 195 S.E. 122, 127; Rodgers v. Nichols, 15 Okl. 579, 83 P. 923, 925; Cordray v. Cordray, 19 Okl. 36, 91 P. 781, 783; and Young v. Campbell, 160 Okl. 265, 16 P.2d 65, 74, 75.

The case is criticized in Blair v. Blair, 96 Kan. 757, 763, 153 P. 544. There the husband had procured a divorce by publication, and many years later and after the death of the husband, the wife, the named defendant in the divorce case, brought an action to set aside the decree of divorce upon the ground that it was void because of the fraud of the husband in filing an affidavit that he did not know her address when in fact he did,...