Gordon v. Gordon

• Court: Kansas Supreme Court
• Writing for the Court: PRAGER
• Citation: Gordon v. Gordon, 218 Kan. 686, 545 P.2d 328 (Kan. 1976)
• Decision Date: 24 January 1976
• Docket Number: No. 47842,47842
• Parties: W. Lowell GORDON, Appellee and Cross-Appellant, v. Donna Jean GORDON, Appellant.

Page 328

545 P.2d 328

218 Kan. 686

W. Lowell GORDON, Appellee and Cross-Appellant, v. Donna Jean GORDON, Appellant.

No. 47842.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. The record on appeal is examined in a divorce case and it is held that there was evidence to support the trial court's finding that the parties were incompatible and the trial court did not abuse its discretion in its award of alimony to the wife.

2. Under Supreme Court Rule No. 6 (j) a motion by appellee for dismissal of the appeal on the ground that the appellant has acquiesced in the judgment should be filed in the supreme court, not in the district court.

3. As a general rule anything that savors of acquiescence in a judgment by a party to the lawsuit cuts off the right to appellate review.

4. The general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.

5. A wife's appeal for a greater alimony allowance is not barred by the fact that she has accepted periodic payments ordered by the district court unless it clearly appears that by accepting such payments she intended to acquiesce in the alimony judgment or unless the husband can show that he is prejudiced by such acceptance.

Robert F. Duncan, of Duncan, Senecal & Bednar, Chartered, Atchison, argued the cause, and was on the brief for appellant.

John Q. Royce, of Hampton, Royce, Engleman & Nelson, Salina, argued the cause and was on the brief for appellee and cross-appellant.

PRAGER, Justice:

This is an action for divorce. The case was hotly contested. At the conclusion of the trial a divorce was granted on the grounds of incompatibility. The agreement of the parties for the division of their property was approved by the court as fair and equitable. The court also awarded permanent alimony to the defendant-appellant, Donna Jean Gordon. Mrs. Gordon has appealed to this court claiming that the evidence presented at the trial was insufficient to establish a state of incompatibility between the parties and further that the trial court abused its discretion in its award of alimony. The plaintiff-appellee, W. Lowell Gordon, has cross-appealed contending that the district court erred in refusing to sustain the plaintiff's motion to dismiss the appeal on the ground that the defendant by accepting alimony payments had acquiesced in the judgment and was precluded from obtaining appellate review.

The defendant first contends that the evidence discloses only minor bickerings and petty quarrels which do not amount to incompatibility and furthermore that if incompatibility existed at all, it was strictly unilateral. In three recent cases this court fully considered the nature of incompatibility. (Berry v. Berry, 215 Kan. 47, 523 P.2d 342; LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84; and North v. North, 217 Kan. 213, 535 P.2d 914.) In Berry we stated that incompatibility, as a ground for divorce, may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. Where incompatibility exists as a result of the misconduct of the complaining spouse, the trial court is vested with broad discretion in weighing the possibilities of reconciliation and restoration of a normal marital status in granting a divorce. In applying the definition of incompatibility as set forth in Berry and as approved in LaRue and North, we are satisfied the trial court acted within its discretion in granting the divorce on the grounds of incompatibility. We see no reason to spread for public view the parties' marital difficulties as shown by the evidence at the trial. The record shows that strife and serious disagreements between the parties existed for a period of over eight years prior to the trial of the action. There was evidence presented that the parties fought and disagreed about everything. Approximately seven years before the divorce was filed the defendant left her husband to see 'if things would work out.' They consulted a marriage counselor and attempted to continue the marriage. Plaintiff testified that although they lived under the same roof they were not maintaining a satisfactory marital relationship. He further testified that in his opinion there was no possibility of his living amicably and peaceably with the defendant in a proper marital relationship or that they could ever become reconciled so as to live together again as husband and wife. This testimony was never denied by the defendant. We have concluded that there is evidence to support the trial court's finding that the parties were incompatible.

The defendant's second point is that the district court abused its discretion in its award of alimony by failing to take into account the impact of income taxes. In Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172, this court held that the district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse. After careful consideration of all the facts and circumstances as disclosed in the record and taking into consideration the agreed property settlement of the parties, their financial situations, and their needs, we are unable to say that the trial court abused its discretion in its award of alimony to the defendant wife in this case. It is undisputed that Mr. Gordon earned approximately $32,000 per year from his employment. The court in its alimony judgment awarded defendant $10,600 per year to be reduced at the end of two years to $9,600 per year. The court stated that it took into consideration the fact that Mrs. Gordon had received by way of property division approximately $50,000 in sound assets, much of which was in cash. Such property afforded her an interest income over and above the alimony to be received from the plaintiff. There was also evidence that during the year just prior to the granting of the divorce Mrs. Gordon had been able to live without difficulty on $750 per month, out of which she had purchased shares of corporate stocks and paid for a trip to Europe. The impact of income taxes was only one factor among others for the court to consider in determining an alimony award. We cannot say that the trial court acted beyond the bounds of reason and abused its discretion in its award of alimony to the defendant in this case.

Additional questions have been raised by the plaintiff-appellee which should be considered and determined. The record shows that following the district court's announcement of its decision on February 14, 1974, the plaintiff complied with the court's judgment awarding alimony by paying to the defendant periodic alimony payments which were accepted by the defendant. On April 9, 1974, the defendant filed her notice of appeal to the supreme court. On August 8, 1974, the plaintiff filed in the district court a motion to dismiss the defendant's appeal on the ground that the defendant by accepting alimony payments under the court decree had acquiesced in the court's judgment and was therefore precluded from obtaining appellate review. This motion was heard by the district court on September 12, 1974, at which time it was stipulated that alimony payments had been made and accepted. The district court found that a notice of appeal having been filed in the supreme court, the district court had no jurisdiction to entertain the motion to dismiss or to grant the relief sought therein and therefore overruled the motion to dismiss. On September 17, 1974, the plaintiff filed his notice of cross-appeal to the supreme court from the order of the district court made on September 12 overruling his motion to dismiss the appeal. Following the docketing of the appeal in the supreme court and concurrently with the filing of his brief, plaintiff-appellee filed in the supreme court his motion to dismiss the appeal on the basis that the defendant by accepting alimony payments as ordered by the court had acquiesced in the judgment of the district court and was precluded from obtaining appellate review.

The cross-appeal and the motion to dismiss filed in this court raise two questions for determination: First, whether following the filing of a notice of appeal in district court, the district court has jurisdiction to entertain a motion to dismiss the appeal on the ground that the appellant has acquiesced in the judgment and, second, whether the acceptance of periodic payments under an alimony decree in a divorce case constitutes such an acquiescence in the judgment as to preclude the right of the wife to appellate review. We will consider each of these questions separately. The question raised on the cross-appeal involves the jurisdiction of the district court to entertain a motion to dismiss an appeal then pending at a time when the appeal has not yet been docketed in the supreme court. The issue presented is controlled by Rule No. 6 (214 Kan. xxii) relating...