Hipple v. Hipple

• Decision Date: 08 June 1929
• Docket Number: 28,760
• Citation: 278 P. 33,128 Kan. 406
• Parties: LULITA HIPPLE, Appellant, v. FLOYD J. HIPPLE, Appellee
• Court: Kansas Supreme Court

278 P. 33

128 Kan. 406

LULITA HIPPLE, Appellant, v. FLOYD J. HIPPLE, Appellee

No. 28,760

Supreme Court of Kansas

June 8, 1929

Decided January, 1929.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed as to custody of children, judgment disallowing attorney's fee reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. VENUE--Grounds for Change--Prejudice of Trial Judge. On an application for a change of venue on account of bias and prejudice of the trial judge, he may take into consideration his knowledge of his own feelings toward the applicant and may refuse the application where he knows that he has no bias or prejudice against the applicant.

2. DIVORCE--Application for Reduction of Alimony--Limitation as to Findings. In an application in a divorce action for reduction of alimony previously granted in that action, it is not reversible error for the court to find that all alimony due before the time of trial on the application has been paid although payment had not been put in issue by the pleadings.

3. SAME--Modification of Alimony Award--Effect of Appellate Court Order. The order made by this court in In re Hipple 124 Kan. 3, 256 P. 1015, did not deprive the trial court of jurisdiction to modify the award of alimony previously made in the present action.

4. SAME -- Modification of Alimony Award -- Allowance of Attorney Fees. In an application by a husband to reduce the alimony previously allowed to his wife for herself and their children in an action for divorce, and to take from her the custody of their children which had been awarded to her in that action, attorney's fees should be allowed to her for resisting the application.

C. H. Brooks, Willard Brooks and Howard T. Fleeson, all of Wichita, for the appellant.

J. R. Beeching and C. E. Chalfant, both of Hutchinson, for the appellee.

OPINION

MARSHALL, J.:

The defendant made application to the district court of Reno county for a modification of the judgment in a divorce action between the plaintiff and the defendant by which the custody of their minor children was given to the plaintiff and certain alimony was given to her for their support. The defendant asked that he be given the custody of the children; that he be given the use and possession of the home theretofore set aside as the home of the children; and that the decree of the court with reference to alimony be modified. The court refused to modify the decree concerning the custody of the children or concerning the use and possession of the home, but did reduce the amount of alimony that should be paid to the plaintiff for the support of the children from $ 100 per month to $ 50 per month. The court refused to allow any attorney's fee to the plaintiff for resisting the application. She appeals.

In order to get a fair understanding of the circumstances surrounding the present application, it is necessary to look into the previous litigation between these parties.

We quote from Hipple v. Hipple, 121 Kan. 495, 247 P. 650, as follows:

"Lulita Hipple brought this proceeding to vacate and modify a judgment that had been rendered divorcing her from her husband, giving her the custody of three minor children, setting aside and placing in trust property of the defendant for the plaintiff and the children by providing that it should be held in trust for the children; that plaintiff should reside thereon as long as she remained single, and that if the children died before the death of defendant the property would revert to him, but if he died first then the property should go to the children absolutely. It was also decreed that defendant should pay to plaintiff as alimony $ 150 per month, and also pay to her for the support of the children $ 100 per month. Jurisdiction of the case was retained by the court for the purpose of modifying the judgment as to alimony and allowances for the support of the children. The decree was entered June 29, 1925, and on August 25 plaintiff filed a motion alleging that the terms of the decree were unjust towards her; that she had been led to believe by her attorneys that more liberal allowances of alimony would be awarded; that she informed her attorneys that she did not desire a divorce, but was led to believe that if she did not obtain a divorce one would be awarded to the defendant; she also alleged that when the case came up for trial, which was very brief, attorneys gave her no advice or information; that they filed no motion for a new trial and did not have a record made of the testimony taken at the trial . . . Testimony was taken on the motion to vacate the judgment, and at the conclusion the motion was denied.

"Plaintiff contends that the action of the court in the trial for divorce betrayed an attitude of prejudice against her; that attorneys did not fairly represent her; that the amount of property owned by the defendant was not fairly presented to the court, and that she consented to ask for a divorce because of statements by the court to the effect that a divorce would be granted to her husband if she did not amend her petition and ask for one." (pp. 496, 497.)

The next appearance of these parties in this court is found in In re Hipple, 124 Kan. 3, 256 P. 1015, where this court said:

"This is an original proceeding in habeas corpus wherein Floyd Hipple, a resident citizen of Hutchinson, seeks to obtain the custody of his two small children now with their mother, Lulita Hipple, who resides in Wichita.

"The pertinent facts are these: In June, 1925, the parents, Floyd and Lulita Hipple, then residents of Hutchinson, Reno county were divorced. Lulita was given the custody of their three children, Miriam, Betty Jean and Francis Byron. The eldest daughter, Miriam, presumably because she was of an age which privileged her to choose her own guardian, continued to make her home with her father, the petitioner herein. The petitioner's fine modern ten-room, well-furnished family residence, situated in spacious grounds in a restricted district, close to school and church and to a city park, was set apart by the court as a home for the children, together with a monthly allowance of $ 100 to the mother for their maintenance, and the mother was given the privilege of residing in the home thus provided so long as she remained unmarried, and she was also awarded $ 150 per month on her own behalf as alimony. The father was permitted to visit the children at reasonable intervals, and he was required to pay the taxes and insurance on the home and keep it in repair. (See Hipple v. Hipple, 121 Kan. 495, 247 P. 650.)

"That arrangement was followed until early in 1926, when the mother went to Excelsior Springs for two months, leaving the two children in their father's care. Later, in the summer of 1926, the mother took the two children to Peck, in Sumner county, and a month later to Wichita, where she rented an apartment of two rooms and a kitchenette and set up housekeeping therein for herself and the children, and had them enrolled in the Wichita city schools.

"The father complained of this to the district court, and that court dispatched the sheriff of Reno county to Wichita to bring the children back to their Hutchinson city home. He was halted with a writ of habeas corpus issued by one of the judges of the Sedgwick county ...