Gates v. Gates

• Decision Date: 10 November 1945
• Docket Number: 36332.
• Citation: 160 Kan. 428,163 P.2d 395
• Parties: GATES v. GATES.
• Court: Kansas Supreme Court

163 P.2d 395

160 Kan. 428

GATES v. GATES.

No. 36332.

Supreme Court of Kansas

November 10, 1945

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by Geneva Gates against L. C. Gates for divorce, division of property and custody of a minor child. From all orders judgments and decisions of the trial court, the defendant appeals.

Judgment modified and as modified affirmed.

Syllabus by the Court.

1. When in a divorce action a motion to reopen the case and permit the introduction of additional testimony is filed and presented on the ground no judgment divorcing the parties and awarding the custody of a minor child had been theretofore rendered, the trial court finds that such a judgment had actually been rendered by it and those matters determined the finding of the court on such factual situation is conclusive and will not be reviewed on appeal.

2. The fact a journal entry of judgment is not filed until long after a judgment is rendered does not abrogate the judgment nor does its validity or effect remain in abeyance until such journal entry is filed or placed upon the record.

3. In a divorce action on June 4, 1943, the court rendered judgment granting the plaintiff a divorce and giving her custody of a minor child but retained jurisdiction for the purpose of making a division of property at a future date. Later, and on November 22, 1944, property rights were determined and disposed of by judgment. Still later, and on December 4 1944, defendant filed a notice of appeal stating he appealed from all orders, judgments and decisions made by the court in the case. The record examined, and held: (1) The attempted appeal from the judgment of June 4, 1943, was too late and matters therein involved cannot be reviewed, and (2) the appeal from the judgment rendered on November 22, 1944, was in time and that decree is subject to review.

4. The record in the proceeding described in syllabus 1 and 3, with respect to the judgment making division of property examined, and it is held: (1) The order of the trial court in retaining jurisdiction for the purpose of making disposition of property rights was valid and the subsequent decree making division of such property, if otherwise unimpeachable, was valid and binding. (2) No abuse of discretion in the rendition of such judgment having been clearly shown it is approved except as expressly modified in syllabus 5 following.

5. There is no statutory authority for the rendition of a judgment in a divorce action against a husband for fees owed by him to his own attorney in such proceeding. The portion of the decree of November 22, 1944, taxing such a fee as a part of the costs of the case is a nullity and the judgment is modified in that particular.

Austin M. Cowan, of Wichita (John Madden, Jr., of Wichita, on the brief), for appellant.

Walter F. McGinnis, of El Dorado, for appellee.

PARKER Justice.

This was an action by a wife against her husband for divorce, division of property, and custody of a minor child. The husband appeals from all orders, judgments and decisions of the trial court under which the property of the parties was divided, the wife was granted a divorce and given custody of the child, and the costs including attorneys fees were taxed against him.

The petition in this case was filed March 17, 1943. Defendant answered in due time and on June 4, 1943, all parties being personally present and represented by counsel, the cause proceeded to trial and was completed. The only record made on such date of the judgment rendered appears in the trial docket. There the following notation is found, 'June 4, 1943, both parties present and presented their evidence, court takes case under advisement.'

No further proceedings worthy of note were had in the cause until November 12, 1943. On that date the defendant through an attorney other than the one who represented him at the trial filed a motion alleging in substance that at the original hearing the court had not rendered a final decree divorcing the parties and awarding the custody of the child to the wife but had merely continued the cause until some later date at which time all matters therein involved were to be finally determined. The prayer of such motion was that the court reopen the case, permit the defendant to introduce additional evidence, grant him an absolute divorce with care and custody of the minor child, and award him all property owned by the parties at the time the action was instituted. This motion was overruled on November 15, 1943.

While the record does not so state we assume from what transpired subsequently that the trial court on November 15, 1943, or some later date, required the parties to appear on March 9, 1944, for the purpose of holding a hearing on the question of how the property belonging to the parties was to be divided. At any rate, all parties appeared that day and were informed by the court that was the subject to be considered and determined. However, before the hearing proceeded there ensued a long colloquy between counsel for defendant and the trial judge. Counsel sought to again present his motion to reopen the case and renewed his contention that at the hearing on June 4, 1943, no final judgment as to divorce and custody had been rendered and that such matters as well as questions pertaining to division of property were still open for further consideration. No useful purpose would be served by relating in detail the extended argument appearing of record. It suffices to say that the trial judge in plain and unequivocal language advised counsel that, irrespective of whether a journal entry had been prepared or filed and notwithstanding what might or might not appear of record, he had on June 4, 1943, at a time when all parties were present and represented by counsel, rendered judgment granting plaintiff a divorce and awarding her the custody of the child and had continued only that phase of the case having to do with disposition of the property. He then announced the matter was before him only on the issue of division of property, refused to permit defendant to adduce evidence on any other subject, and proceeded with the hearing on that basis. On its conclusion he took the subject under advisement and on November 22, 1944, rendered judgment, setting over to the plaintiff certain property valued at $2,955.02, and to the defendant other property valued at a like amount, and directing that defendant pay the costs of the action including attorneys fees. The same day defendant's motion for new trial was filed, presented, and overruled. A journal entry of this judgment was signed by the court and filed on November 23, 1944.

Subsequently, the journal entry of the judgment rendered on the 4th day of June, 1943, was signed by the trial judge and on November 30, 1944, it was filed in the office of the clerk of the district court. Recitals therein to be found with respect to action taken by the trial court and the judgment rendered by it on such date read as follows:

'It is Therefore by the Court Ordered, Adjudged, and Decreed that the plaintiff be, and she hereby is divorced from the defendant herein and all marital relations heretofore existing between the parties hereto are hereby canceled, set aside, and held for naught.

'It is further ordered that the plaintiff have the care, custody and control of the minor child, David Wayne, subject to the defendant's right to visit with said minor child at any and all reasonable times and to take him into his custody for visits from time to time.

'It is further ordered that defendant pay to plaintiff the sum of $15.00 per week beginning with the date hereof and continuing weekly during the minority of said child or until further order of this Court.

'It is further ordered that the settlement of property rights as between the parties hereto be made at a future date and jurisdiction therefore is retained by the Court.'

December 1, 1944, defendant filed a second motion for new trial, described by his counsel as a formal motion for new trial. It does not appear this motion was ever presented or passed upon by the trial court.

Notice of appeal was served on counsel for plaintiff on December 1, 1944. We are not advised by the parties as to when it was filed with the clerk of the district court and have been obliged to search the case file in order to obtain the information. It discloses such notice was not filed with that official until December 4, 1944.

Appellants specifications of error are quite numerous but their nature is such they need not be detailed. Most of them hinge around the proposition of whether a judgment was actually rendered by the trial court on June 4, 1943. If that question is answered in the affirmative other contentions become of little or no consequence. We direct our attention therefore to its decision.

It is first urged there was no judgment because of the notation on the trial docket to the effect the court had taken the case under advisement. Conceding as we must, such was the entry that fact in itself is not decisive. Long ago this court held that the minutes made by the judge of the court upon his trial docket constitute no part of the record of the case. Pennock v. Monroe, 5 Kan. 578. In commenting upon that decision this court in Gilmore v. Royal Salt Co., 92 Kan. 18, 20, 139 P. 1168, said: '* * * The entry made upon the trial docket by the judge was a mere memorandum not a formal record. Pennock v. Monroe, 5 Kan. 578. It served to indicate the general scope of the decision, but did not preclude a subsequent amplification and formulation of details. The statement of the judge as to what was actually decided is necessarily conclusive. * * *' 92 Kan. at page 20, 139 P. at page...