French v. French, 38219
| Citation | 171 Kan. 76,229 P.2d 1014 |
| Decision Date | 07 April 1951 |
| Docket Number | No. 38219,38219 |
| Parties | FRENCH v. FRENCH. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A contract entered into subsequent to the date of a divorce decree, wherein provision had been made for the custody and support of the minor children of the parties to the action, providing that the divorced husband would pay his former wife monthly payments in a stated amount for her support and for the support, maintenance and education of their minor children is a valid and binding agreement.
2. The record in a proceeding instituted by a divorced husband for the purpose of obtaining a modified child support order in a divorce action in an amount less than that he had agreed to pay his former wife for her support and the support of their children under the terms of a contract executed after date of the rendition of the divorce decree is examined, and it is held, that under all the facts and circumstances disclosed by the record and fully set forth in the opinion, the district court erred in granting the husband relief which would absolve him from liability on a portion of the obligation he had assumed under the terms of such contract.
John E. Shamberg, of Kansas City (Joseph Cohen, Thomas E. Joyce, Norma Braly, and Charles S. Schnider, all of Kansas City, on the briefs), for appellant.
J. Willard Haynes, of Kansas City, argued the cause and was on the briefs for appellee.
This case springs from litigation which had its inception in a divorce action and its incidents between the parties thereto.
For convenience the plaintiff, wife, who prevailed in that action will be referred to as appellant and the defendant, husband, as the appellee.
The appeal is from orders of the district court in (1) sustaining the appellee's motion to reduce child support payments, (2) in overruling appellant's motion for a nunc pro tunc order and (3) in overruling her motion for allowance of attorneys' fees to enable her to defend the proceeding instituted by the appellee.
On July 6, 1946, appellant and appellee, the parents of a son Robert, who was then of age, a daughter Margaret, sixteen years of age, and a son Harry, of the age of twelve years, entered into a separation agreement whereby they settled their property rights and agreed on an amount to be paid appellant, who was to have the custody of the minor children, for her support and that of such children. Among other things, and limited to issues involved on appeal, such contract provided:
'That party of the first part shall pay to party of the second part for her support and maintenance and for the support, maintenance and education of the minor children of the parties, the sum of Two Hundred, Fifty Dollars ($250.00) per month, * * *
'Should party of the first part sever his employment with the military or civil service of the United States Government, the amount which he shall be obligated to pay the said party of the second part for support maintenance and education of said children and herself shall be proportionately adjusted on the basis of the ratio of his total income at the time of such severance with the amount of his total income in private employment.
'As each of the children respectively arrive at the age of twenty-one years, marry or become self-supporting, whichever event occurs first, the amount which party of the first part shall be obligated to pay party of the second part under the terms hereof shall be reduced in an amount equal to one-fifth (1/5) of the amount which he shall be paying party of the second part at the time such event occurs.
'That the said Two Hundred, Fifty Dollars ($250.00), or adjusted portion thereof, as hereinabove provided, shall be paid to party of the second part so long as she shall live, or in the event the parties are divorced, then so long as party of the second part remains single and unmarried; that in the event of a divorce and the subsequent remarriage of party of the second part before the children become twenty-one years of age, self-supporting or married, party of the first part shall pay party of the second part for the support, maintenance and education of said children, Seventy-five Dollars ($75.00) per month for each child until each of said children becomes twenty-one years of age, self-supporting or marries, whichever occurs first.'
A few days after execution of such contract appellant commenced a suit against appellee in the district court of Wyandotte county for a divorce and thereafter on September 17, 1946, as a result of proceedings which are not in controversy, judgment was rendered against appellee by the district court granting appellant a divorce and awarding her the custody and control of the minor children. The decree of divorce states that the property settlement agreement entered into by the parties under date of July 6, 1946, was presented to and approved by the court. It also contains a summarization of the court's construction of the important provisions of the contract. Included in this summarization is a statement to the effect that the payments required by its terms were to be paid by appellee to appellant for the support of the minor children and her own support in accordance with the agreement. In addition, with respect to matters important to issues here involved, the district court found and such decree reads:
Shortly after rendition of the foregoing judgment, due to a change in appellee's employment status, the parties orally agreed to reduce the monthly payments required under terms of their original contract. The date of this second agreement and the amount of the payments to be made under its terms will be presently disclosed and hence need not be detailed.
Thereafter, on June 21, 1949, approximately three years after rendition of the judgment, the parties entered into a third contract, this time in writing, designated as a supplemental agreement, which, omitting formal portions thereof, reads:
'1. That the agreement heretofore entered into by and between them under date of July 6, 1946, be modified in this, towit:
'That because of the fact that the said party of the first part is no longer in the Military or Civil Service of the United States Government, and is no longer earning the amount which he was earning at the time he severed his employment with the United States Government, that the Two Hundred, Fifty ($250.00) Dollar monthly payments provided by paragraph four of said agreement shall be modified and changed in accordance with the formula provided in the second paragraph of said paragraph four, by reducing and adjusting the payments from Two Hundred, Fifty ($250.00) Dollars a month to One Hundred, Fifty ($150.00) Dollars a month, commencing May 1, 1947.
'2. That the oral agreement entered into by and between the parties hereto on or about October 1, 1946, for a reduction of said payments for the period from October 1, 1946, to April 30, 1947, from Two Hundred, Fifty ($250.00) Dollars per month to Two Hundred ($200.00) Dollars per...
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Holmes v. Kalbach
...of a violation of our rules, we are not disposed to and do not deprive litigants of the right to be heard on appeal. See French v. French, 171 Kan. 76, 83, 229 P.2d 1014. From the portions of the notice of appeal, heretofore quoted, it becomes obvious, in fact we have quoted them at length ......
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In re Estate of Mater
...of a nunc pro tunc order is not to make an order now for then, but to enter now for then an order previously made. French v. French, 171 Kan. 76, 82, 229 P.2d 1014 (1951). Moreover, "it is not the function of an order nunc pro tunc to alter the judgment actually rendered." Bush v. Bush, 158......
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Oehme v. Oehme
...We believe it still does. The certainty of an assertion that it no longer bound the parties was questioned in French v. French, 171 Kan. 76, 81, 229 P.2d 1014 (1951). If a question remained after French, it was answered by Thoele v. Thoele, 176 Kan. 655, 657, 272 P.2d 1082 (1954), when the ......
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Myers v. Kansas Stone Products Co., 38835
...violation of our rule, a litigant would not be deprived of appellate review. For another decision to the same effect see French v. French, 171 Kan. 76, 83, 229 P.2d 1014. Appellee's second contention, bottomed upon the premise that appellant failed to file a motion for a new trial until lon......