Hayn v. Hayn

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL, Justice.
• Citation: Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127 (Kan. 1946)
• Decision Date: 07 December 1946
• Docket Number: 36633.
• Parties: HAYN v. HAYN.

175 P.2d 127

162 Kan. 189

HAYN v. HAYN.

No. 36633.

Supreme Court of Kansas

December 7, 1946

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action for divorce by Henry J. Hayn against Marion Y. Hayn, wherein the defendant filed a cross-petition for divorce. From a judgment in favor of plaintiff, the defendant appeals.

Judgment affirmed.judgment was for husband, denial of allowance to wife of attorney's fees was discretionary, where husband was unemployed and wife, six months before divorce action was brought, had had $11,000. Gen.St.1935, 60-1507.

Syllabus by the Court

1. Extreme cruelty as contemplated by our divorce statute is not limited to acts of physical violence. Any unjustifiable and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened.

2. A court, when functioning as a trier of the facts, determines the weight of evidence and the credibility of witnesses. It is not compelled to believe the testimony of any witness although the testimony is not directly contradicted.

3. Under the provisions of G.S.1945 Supp. 60-1511 it rests in the sound discretion of the trial court whether it will award any portion of the husband's separate property to the wife when the divorce is granted to the husband by reason of the fault or aggression of the wife.

4. Having granted a divorce to the husband, the court is without authority under the provisions of G.S.1945 Supp. 60-1511 to render a judgment for alimony in favor of the wife.

5. In an action for divorce and incidental relief the allowance of attorneys' fees to the wife for the preparation of her case rests in the sound judicial discretion of the trial court and its refusal to allow such fees will not be disturbed in the absence of facts disclosing abuse of such discretion.

6. In a divorce action the trial court may, for good cause shown deprive both parents of the custody and control of their minor child and award its custody and control to another, or others, in conformity with the best interests of the child.

7. In the absence of abuse of sound judicial discretion in awarding the custody and control of a child the judgment of the trial court will not be disturbed on appeal.

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

9. While ordinarily a parent cannot be compelled to create an estate out of his property to support a minor child beyond the period of minority, a judgment which may have that effect is not invalid when consented to by the parent whose separate property is so appropriated.

10. Under circumstances of this case, narrated in the opinion appellant's request for attorneys' fees covering services in this court is denied.

I. H Stearns and E. P. Villepigue, both of Wichita, for appellant.

Robert C. Foulston, George Siefkin, Samuel E. Bartlett, George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, and T. E. Woods, all of Wichita, for appellee.

WEDELL Justice.

This was an action by a husband for divorce, custody and control of a child and division of property. Defendant's answer denied plaintiff's charge of defendant's gross neglect of duty and extreme cruelty and in her cross petition defendant charged the plaintiff with the same faults. She sought a divorce, custody of the child, division of property, alimony and attorneys' fees.

The court granted plaintiff a divorce on the grounds alleged in his petition, gave plaintiff the automobile, awarded the custody and control of the seven year old daughter to the wife's parents, retained jurisdiction of the case for the purpose of making an order with reference to support of the child by the father, a veteran, until he obtained employment, directed that certain life insurance policies on the life of the plaintiff be assigned irrevocably to the wife's father with the minor child designated as the beneficiary, ordered plaintiff to keep the premiums thereon paid, denied alimony and attorneys' fees to the defendant and taxed the costs to plaintiff. Defendant appeals from every portion of the judgment except the order taxing the costs.

Error is charged in the granting of a divorce to appellee and in refusing to award it to appellant. The contention therefore concedes the evidence warranted a severance of the marriage relation. Appellant did not demur to the evidence of appellee but now contends it was insufficient to sustain a decree of divorce in appellee's favor. We do not deem it necessary to narrate in detail the evidence adduced by and on behalf of appellee. Some of the salient facts were:

This was appellee's first marriage and appellant's third; the parties met at Wichita in December, 1937; appellant had sued her second husband for a divorce the preceding September and was divorced in January; these parties were married February 10, 1938, in Oklahoma; one child, Saundra Sue, was born of the marriage; prior to entering the military service appellee was the manager of the Lassen Hotel at Wichita; his compensation was $300 per month plus a percentage of the earnings and his living quarters were provided in the hotel; at the time of his marriage he had approximately $3,000; the parties lived in the hotel and did not own a residence property; appellant had spent very little time with the child; her parents, Mr. and Mrs. Murphy, had taken care of the child since its birth; appellee entered the army as a captain in June, 1941, went overseas in May, 1943, served in the Pacific campaign and returned for a brief period in December, 1944; he again went to the Pacific and was discharged in October, 1945; he received terminal pay beginning November, 1945, and ending January 14, 1946; when he entered the service he had approximately $5,000 in bonds and cash and an automobile.

Among other things the record further, in substance, disclosed these pertinent facts:

Difficulty had arisen between the parties and their marriage relation ceased to be a happy one; when appellee left for overseas his wife inquired of him whether he would give her a divorce; she stated she didn't care if he never came back, that he was worth more dead than alive; during his absence overseas appellant became involved in an affair with one Dean Pricer which resulted in the filing of a damage action by Pricer's wife against appellant for alienation of affections; appellant apparently had many other men friends with whom she attempted to make engagements; she spent many evenings with a man in his room at the Broadview hotel, remaining there on occasions as late as midnight; appellant did not love appellee when she married him; she was disappointed in her failure to marry another person to whom she had been engaged and married appellee on the rebound.

Touching his earnings while in the service and some other matters appellee's testimony, in substance, further disclosed:

He was overseas approximately twenty-three months and allotments were made to his wife over that period; the allotments began when he was made a major; he became a lieutenant colonel June 13, 1944, and remained so until his discharge; his pay as a major was $462 while he was in the states and $494 while he was overseas; while he was a lieutenant colonel he received $526 a month out of which his wife received $250 a month with the exception of four months; he actually used less than $100 a month for his expenses and sent his wife additional money on several occasions amounting in all to approximately $400; appellant admitted she had withdrawn and spent $11,000 between September, 1945, and the time of trial in February, 1946; $8,000 was spent on trips to Indianapolis, Indiana, Albuquerque and Santa Fe, New Mexico, Kansas City a number of times, and for clothes and gifts for the daughter and her friends; she had also spent the other $3,000 and no portion of the funds remained; appellee has fourteen or fifteen suits of clothes, as overcoat and other accessories when he entered the service; when he returned his wife refused to deliver them voluntarily and he was obliged to obtain a court order for their delivery; only a small portion thereof was found: appellant's versions with respect to the disappearance of appellee's clothing were conflicting but she confessed to the deputy sheriff she had sold them; on one occasion prior to entering the service appellant had thrown a coca cola into his face in the presence of friends in a hotel room; he did not know why she did so and he had difficulty restraining her; and on one occasion appellee went to his room in the hotel to get his coat and hat but his wife refused to let him enter; his wife's mother was there and gave them to him; as he started to leave appellant came out into the hall and employed abusive language and removed his hat; when he bent over to pick it up she kicked him in the face.

Appellant asserts no divorce can be granted without corroborating evidence (G.S.1935, 60-1509) and contends appellee's evidence was uncorroborated. It is true appellee's testimony pertaining to the abusive language and physical violence was not corroborated. Appellant's parents who had been subpoened by appellee did not appear at the trial and were not compelled to testify. Testimony touching her indiscretions with other men were corroborated by a number of witnesses. Appellee called appellant as his own witness. She testified with respect to the disappearance of approximately $11,000 within six months...