Goetz v. Goetz

• Court: Kansas Supreme Court
• Writing for the Court: FATZER; HALL
• Citation: Goetz v. Goetz, 306 P.2d 167, 180 Kan. 569 (Kan. 1957)
• Decision Date: 12 January 1957
• Docket Number: No. 40326,40326
• Parties: Eudora GOETZ, Appellant, v. Albert John GOETZ, Appellee.

Page 167

306 P.2d 167

180 Kan. 569

Eudora GOETZ, Appellant, v. Albert John GOETZ, Appellee.

No. 40326.

Supreme Court of Kansas.

Jan. 12, 1957.

Syllabus by the Court.

1. Following Reedy v. Reedy, 175 Kan. 438, 264 P.2d 913, under the provisions of G.S.1949, 60-1511 where a husband is granted a divorce by reason of the fault of the wife, the division of the property to be made between the parties, irrespective whether such property has been jointly acquired or is the separate property of the husband, is a matter which rests in the sound judicial discretion of the district court.

2. A division of property made by the district court in a divorce action will not be disturbed unless it is clearly shown that there was an abuse of discretion.

3. In a divorce action the jurisdiction of the district court over minor children is a continuing jurisdiction and its orders concerning the custody and control, or support, of the children may be changed from time to time as conditions require.

4. In the absence of abuse of sound judicial discretion in awarding the custody and control of minor children the judgment of the district court will not be disturbed on appeal.

5. The condonation of a marital offense, except the offense of adultery, is not absolute but is conditioned upon the future good conduct of the offending spouse, and, as a general rule, on a breach of the condition the original offense is revived. Where condonation takes place after acts of cruelty, subsequent cruel conduct of the guilty spouse revives the former acts and permits a divorce on the grounds of all acts of cruelty whether before or after the condonation and the rule is not limited by a repetition of the same offense, nor is it essential that the subsequent acts of misconduct of the offending spouse be such as in themselves justify a divorce.

6. Where the injured spouse has knowledge of the acts of cruelty and forgives the guilty spouse, and there is a reconciliation and restoration of marital rights, it will stand as a bar as grounds for divorce unless there are elements vitiating the conditions on which the condonation occurred.

7. Fraud inducing condonation prevents the latter from taking effect, however, the rule must be applied in consideration of the well-established maxim that fraud is never presumed, it must be proved by a preponderance of the evidence.

8. The record in a divorce action examined, considered and it is held: that the trial court did not err for the asserted reasons:

A. The defendant's testimony was not sufficiently corroborated.

B. The award of the property was improper.

C. Abused its discretion in its child custody and support order.

D. Refusing to admit into evidence plaintiff's Exhibit 7.

E. In not setting apart to the plaintiff property owned separately by her.

F. Plaintiff's motion for a new trial should have been sustained.

C. H. Morrris, Wichita, argued the cause, and Robert F. Bailey, Wichita, was with him on the briefs, for appellant.

Wesley E. Brown, Hutchinson, argued the cause, and D. C. Martindell, W. D. P. Carey, Edw. B. Brabets and Elwin F. Cabbage, Hutchinson, George B. Powers, Carl T. Smith, John F. Eberhardt, Robert C. Foulston and Robert M. Siefkin, Wichita, were with him on the briefs, for appellee.

FATZER, Justice.

This was a divorce action brought by the plaintiff wife, appellant, against the defendant husband, appellee, on the grounds of extreme cruelty and gross neglect of duty. In addition to the divorce plaintiff asked for the custody of their two minor children; a reasonable sum for their support; an equitable division of the property, and that her separate property be awarded to her. The defendant answered and cross-petitioned, alleging the same grounds and sought custody of the minor children. Following trial by the court, a divorce was granted to the defendant; the property of the parties was divided and custody of the two minor children was awarded the plaintiff with rights of visitation by the defendant on alternate weekends with the privilege of removing them from the home as a part of the visitation; to have the children with him for the first half of the summer vacation; and, to pay child support in the sum of $200 per month.

Plaintiff has appealed, contending the trial court erred (1) in finding that defendant's testimony as to his grounds for divorce was corroborated; (2) in not setting aside to the plaintiff her separate property acquired by gift and by agreement of the parties on their previous reconcilation and abused its discretion in dividing the property jointly acquired by the marriage; (3) in denying plaintiff the right to introduce evidence of acts and conduct of the defendant prior to their reconciliation in October, 1954; (4) and abused its discretion in granting custody of the minor children to the defendant during half of the summer vacation and the right to remove them from their home as part of the right of visitation; (5) and abused its discretion in setting a minimum figure for the support of the minor children, and (6) in overruling plaintiff's motion for a new trial.

The parties were married in Wichita February 14, 1942, where appellee was engaged in the aircraft industry. They then moved to Ft. Worth, Texas, where he was engaged in similar work and later moved to Denver, Colorado, where he was employed by a large rubber manufacturing company on a special assignment to the production manager. They are the parents of two minor children, ages 8 and 11 years; both are from fine families; they are well educated and attended the same college where they kept company. The appellee has a degree in business administration and the appellant studied home economics and nutritions, she taught music in the public schools, she is a licensed cosmetologist, the holder of a real estate broker's license, she has studied various subjects such as child psychology and parent-child relationship, is a leader in the PTA organizations, and both are ambitious for the welfare and normal development of their children. The appellee is considered an able business man of good judgment and was described by a business associate as a brilliant person.

In December, 1944, appellee's parents gave to him and his brother Harold a 440-acre farm in Ford County. The names of the appellee and his brother Harold appear as grantees in the deed filed of record in Ford County. Appellee's parents wrote a letter advising of the gift and addressed it to 'Dear Albert, Eudora, and dear little Johnny' in which it was stated 'We bought 440 acres of land and want to give you half and Harold half for your Christmas present.' Appellee's father managed the farm and the appellee and his brought each received one-half of the income therefrom. All income from the farm received by appellee was included in the joint income tax returns of appellee and appellant.

In 1947 appellee and his family moved to Hutchinson where he and his brother Harold founded a manufacturing company; appellee was the president and general manager and received a salary of $350 per month until September, 1954. To finance their share of establishing this company, appellee and appellant sold their car, their furniture and cashed their government bonds. For some period of time they lived in a two-room motel; as the company grew and prospered financially they made investments in real estate in Hutchinson, which proved profitable, and later they acquired a home. Subsequently, the home was sold and the proceeds placed in a savings account in both their names. Marital difficulties arose resulting in appellant instituting an action for divorce against the appellee in the district court of Reno County in November, 1953, on the grounds of extreme cruelty and gross neglect of duty. Following lengthy negotiations the parties effected a reconciliation on October 5, 1954, and the divorce action in Reno County was dismissed by appellant with prejudice and she resumed living with the appellee upon the following conditions: That he sell his stock in the manufacturing company at par value for cash; that he obtain his share of the 1953 undivided profits and the company's note and mortgage for $10,000 payable to the parties jointly; that the money held in joint deposit in Hutchinson be transferred to the sole deposit of appellant with which to purchase a new home in Wichita and if the purchase price exceeded the amount available in this fund, a note and mortgage would be executed for the balance and appellee would insure his life in sufficient amount to guarantee payment in case of his death; that appellee would perform the responsibility of providing for the family and appellant would assume the responsibility of keeping the home and the family, but, with the understanding she had the right to engage in outside business activities; that the balance of the money appellee received from the sale of the manufacturing company's stock would be used by him to re-establish himself in business and appellant would be kept fully informed with respect to his business transactions, his debts and contingent liabilities; that he make full disclosure to her of his social and business affairs; that he would be temperate with his drinking habits, and would bestow his love and affection upon the appellant.

In September, 1954, appellant and the two minor children moved to Wichita where she rented a home. Following the reconciliation in October, 1954, appellee moved to Wichita and joined his wife and sons. In compliance with their reconciliation agreement he deposited in appellant's name in the First National Bank of Wichita $26,989.56. The record is not clear as to whether this money was from the sale of the stock in the manufacturing company or from their joint savings accounts in Hutchinson or both. However, it was conceded by both parties this fund was to be used by appellant to purchase or build a new home for their family needs. Within 30 days after appellee...