Herzmark v. Herzmark

• Decision Date: 13 May 1967
• Docket Number: No. 44728,44728
• Citation: 427 P.2d 465,199 Kan. 48
• Parties: Nancy B. HERZMARK, Appellee, v. Edgar E. HERZMARK, Appellant.
• Court: Kansas Supreme Court

Page 465

427 P.2d 465

199 Kan. 48

Nancy B. HERZMARK, Appellee, v. Edgar E. HERZMARK, Appellant.

No. 44728.

Supreme Court of Kansas.

May 13, 1967.

Sylabus by the Court

1. A decree of future support denominated alimony may be modified on subsequent order of the court as provided by K.S.A. 1965 Supp. 60-1610(c).

2. Remarriage of a recipient of alimony does not of itself operate to release the obligation to pay alimony, but proof of remarriage on motion to modify makes out a prima facie case requiring termination of future alimony payments.

3. Upon proof of remarriage a burden rests upon the married recipient to prove special circumstances justifying continuance of alimony and absent strong and compelling reasons future alimony payments should be terminated.

4. Provisions for the support and education of a minor child and any modification or change thereof rest in the sound discretion of the trial court under K.S.A. 1965 Supp. 60-1610(a).

5. An order requiring the father of a minor child to establish a trust found to provide for the college education of the child, as particularly set forth in the opinion, is examined and it is held to be properly within the discretionary authority of the trial court. (Following Allison v. Allison, 188 Kan. 593, 363 P.2d 795.)

6. Allowance of attorney fee to a former wife required to defend against modification of a judgment decreeing alimony and child support rests in the sound discretion of the trial court under K.S.A. 1965 Supp. 60-1610(f).

Peter A. Martin, Olathe, argued the cause and was on the brief for appellant.

John H. Johntz, Jr., Olathe, argued the cause, and Howard E. Payne, W. C. Jones, Robert P. Anderson, Keith Martin, H. Thomas Payne, John T. Flannagan and Edward M. Boyle, Olathe, were with him on the brief for appellee.

FROMME, Justice.

This appeal is from an order modifying the amount of payments for alimony and child support.

The appellee, Nancy B. Herzmark, obtained a decree of divorce from the appellant, Edgar E. Herzmark, in the district court of Johnson County, Kansas, on February 16, 1965. Custody of the minor child, Jody Ann Herzmark, was given to the wife. A division of property was decreed and the husband, Edgar, was ordered to pay alimony and support payments. The parties had been married for almost sixteen years.

Edgar remarried in July 1965 and Nancy remarried in November 1965. Shortly after Nancy remarried a motion to modify the amount of alimony and support payments was filed by Edgar. After a full hearing on the motion a reduction of the amount payable was ordered. The husband appeals.

The financial statement of the parties at the time of the divorce indicated a net worth of approximately $64,000. The personal earnings of the husband averaged $1800 per month in 1963, and $1000 per month in 1964. He anticipated earnings in 1965 of $4800 plus income of $600 per month from payments to be received on a note of $33,100. The note represented the amount owing from the sale of his stock in a family business corporation and was payable without interest.

The decree of divorce provided for a division of property. The wife received the family residence which she sold and she received $9,000 net therefrom. In addition she received the contents of the residence valued at $5000 plus a car valued at $1440. The husband was given the balance of the property subject to debts. He was directed to deliver the $33,100 note to the clerk of the district court. The wife was given a lien upon the note for all payments due her under the decree. The defendant was ordered to pay $600 per month for the support of plaintiff and minor child until the further order of the court.

On the motion to modify it was stipulated that the court review all evidence introduced at the divorce hearing concerning the income and property of the parties and the pertinent evidence be considered by the judge. Additional testimony was given by the parties.

The plaintiff, Nancy, testified she was married to Simon Kraft on November 10, 1965. Simon Kraft is sales manager for a tool company and earns $917 per month. They are living in a two bedroom house which rents for $125 per month. Jody, the minor daughter of Edgar E. Herzmark, lives with them. Mrs. Kraft estimated that expenses for Jody amount to $40 a month for food, $20 for clothing, $17 for her share of utilities and $25 for transportation. She testified other incidental expenses for Jody varied in amount from $65 to $146 per month. Mrs. Kraft has $8500 from the sale of the residence in a savings account.

The defendant testified his earned income in 1965 averaged $600 per month and $600 per month was paid on the note. He further testified he remained a member of the Oakwood Country Club and his present wife was paying the dues. Prior to the divorce action his income was close to $20,000 annually and he had fringe benefits such as the complete use of a company car, hospital and medical insurance and company paid life insurance. He no longer has these benefits. At the hearing for modification he testified his daughter, Jody, was nine years old. He estimated the necessary expense of her support to be $75 per month. In addition he carried a life insurance policy for his daughter costing $23.93 per month, and she was included in benefits under his hospital and medical insurance policy. He was working for two companies. His combined salaries covering the period from January 1 through November 15, 1965, totalled $6880. There was evidence at the divorce hearing that he was capable of earning as much as $20,000 per year.

The district court modified the decree of divorce as it pertained to the alimony and support payments. The court found the wife had remarried in November 1965. The pertinent parts of the order modifying the decree are as follows:

'9. The Court finds after careful consideration of said motion and the evidence of the property of the parties at said divorce hearing, that said support order should be modified as follows:

'a. That a reasonable amount necessary for the support of the minor child, taking into consideration her station in life and needs, without provisions for education, to be the sum of $150.00 per month, commencing on January 1, 1966.

'b. That provisions should be made for the education of said minor during her minority as follows, to-wit:

'That the Defendant shall forthwith establish in some banking institution in Johnson County, Kansas, an account to provide funds for the proper education of said minor and shall forward to the Clerk of this Court each month, commencing January 1, 1966, the sum of $150.00 made payable to such designated banking institution, to be deposited in said account by said Clerk until a total of forty (40) such deposits shall be made, said account to be arranged to draw interest thereon. That within one year after said minor graduates from high school and enrolls in a college, said minor shall be entitled to withdraw from said funds an amount not exceeding $400.00 each calendar year for tuition and necessary books and the further sum of $100.00 per month so long as she remains in college or until the funds and accumulated interest thereon are depleted or until said minor attains legal majority. In the event said minor shall not enroll in college following one year from graduation from high school or should she voluntarily withdraw from college after having enrolled, the balance of said fund remaining on deposit shall thereupon be made payable to said Defendant, his heirs or assigns. That said banking institution should receive a copy of this order from the Clerk of this Court and receive such deposits and make such disbursements on the terms and conditions of this order; that the Defendant shall notify the Clerk of the designation of such banking institution. She Allison v. Allison, 188 Kan. 593, 363 P.2d 795, Gard's, Kansas Code of Civil Procedure, pages 729-730 and K.S.A.1965 Supp. 60-1610(a).

'c. That the Defendant should pay to the Plaintiff an allowance for future support, denominated as alimony the sum of $100.00 each month commencing on the 1st day of January, 1966, with a like sum each month thereafter until the further order of the Court.

'10. That Plaintiff should continue to have a lien on said note herein mentioned for said child support and alimony payments and that the remaining provisions of said decree should not be affected by this modification order unless same is so specifically provided herein.'

After a motion for rehearing was presented and overruled the court allowed Nancy Kraft $200 attorney fee for the attorney employed by her to defend against the motion to modify. The defendant appeals from the order making this allowance and from the order modifying the alimony and support payments.

The defendant contends on appeal the trial court erred: (1) In requiring payment of alimony after the remarriage; (2) In requiring an excessive amount of child support to be paid; (3) In requiring payment into an educational fund for the child, and; (4) In requiring defendant to pay plaintiff's attorney fee incurred on the motion to modify.

Significant change in our laws relating to divorce and alimony has come about by the enactment of the recent code of civil procedure effective January 1, 1964. K.S.A.1965 Supp. 60-1610 provides in separate sections for (a) care of minor children, (b) division of property and (c) maintenance. Care should be exercised in drawing decrees of divorce requiring future payments in cash. Future amounts payable for care of a minor child may be modified on subsequent order of the court to advance the welfare of the minor child. Amounts payable for future support denominated as alimony may now be modified on subsequent order of the court under the provisions of K.S.A.1965 Supp. 60-1610(c). (Moran v. Moran, 196 Kan. 380, 411 P.2d 677; Clugston v. Clugston, 197 Kan. 180, 415 P.2d 226; Craig v. Craig, 197 Kan. 345, 416 P.2d 297.)

The...