Hoch v. Hoch

Decision Date04 March 1961
Docket NumberNo. 42085,42085
PartiesEthel HOCH, Appellee, v. Harry HOCH, Appellant.
CourtKansas Supreme Court

Syllabus by the Court.

The record in an action for divorce brought by the wife is examined, and held that the postnuptial agreement of the parties settling their property rights and fixing the amount of alimony to be paid the wife in the event of divorce was fairly and understandingly made, was fair and equitable, was binding upon them and was properly approved by the trial court.

A. B. Fletcher, Jr., Junction City, argued the cause, and C. L. Hoover and Robert A. Schermerhorn, Junction City, were with him on the briefs for appellant.

Lee Hornbaker, Junction City, argued the cause, and H. W. Harper, Richard F. Waters, and B. L. Abbott, Junction City, were with him on the brief for appellee.

WERTZ, Justice.

This was a divorce case. Plaintiff sued her husband for divorce upon the grounds of gross neglect of duty and extreme cruelty, and asked the trial court to approve a postnuptial contract settling the property rights of the parties and fixing the amount of alimony to be paid the wife in the event of divorce. This contract was entitled 'Separation Agreement' and was attached to and made a part of the petition.

The contract stated that the parties desired to amicably settle their rights, one toward the other, with respect to their property, and provided, among other things, for payment to plaintiff by defendant of $10,000 as support money and/or alimony in the event of divorce; that the rest, residue and remainder of the property, which included 160 acres of land, an automobile, a pickup truck, the cattle, machinery and bank account, would become solely that of defendant. Plaintiff, as beneficiary, agreed to surrender her rights under two life insurance policies having a cash value of $3,027.57, and to sign the necessary papers to effect the change. The parties also agreed that the contract was a fair, full and complete settlement of their rights and that thereafter neither would have any claim against the other; that in the event of divorce the agreement would be presented to the trial court as a property settlement and they would ask the court to approve the same.

Defendant (appellant) husband answered, denying the allegations of plaintiff's petition for divorce. He also filed a cross petition, in which he sought a divorce from plaintiff upon the ground of extreme cruelty and asked the trial court to set aside the postnuptial contract for the reason that it was not fairly and understandingly made, was not just and equitable in its provisions, had been induced by fraud and overreaching, duress, coercion and undue influence, and that the court should make a just and equitable division of the property when granting the divorce. Plaintiff replied by denying the new matter contained in defendant's answer and cross petition.

The trial court heard the evidence and granted plaintiff a divorce, finding that the parties had entered into a separation agreement for settlement of their rights, one against the other, arising out of the marital relationship and that the separation agreement was a fair, full and complete settlement of those rights and should be approved and adopted as the order of the court. Judgment was entered in accordance therewith. Defendant has appealed from that part of the trial court's judgment approving the separation agreement.

It is contended by defendant that the separation agreement approved by the lower court was not entered into fairly and understandingly, was not just and equitable in its provisions, was induced by fraud, coercion and undue influence and was overreaching.

At the outset, it may be stated that postnuptial agreements, fairly and...

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14 cases
  • In re B.D.Y., 99,509.
    • United States
    • United States State Supreme Court of Kansas
    • July 18, 2008
    ...agency relationship exists); In re Kerns, 225 Kan. 746, 594 P.2d 187 (1979) (permanent deprivation of parental rights); Hoch v. Hoch, 187 Kan. 730, 359 P.2d 839 (1961) (fraud); Jackman v. Development Co., 106 Kan. 59, 187 P. 258 (1920) (action to cancel oil and gas We first examine what is ......
  • Estate of Bennett, Matter of, 68912
    • United States
    • Court of Appeals of Kansas
    • December 30, 1993
    ...and bona fide. Fraud is never presumed; it must be proved. Mere suspicion is not sufficient. [Citation omitted.]" Hoch v. Hoch, 187 Kan. 730, 732, 359 P.2d 839 (1961). We note that the Supreme Court in Hoch talks about the burden being not only by a preponderance of the evidence but by a pr......
  • Chute v. Old American Ins. Co., 51961
    • United States
    • Court of Appeals of Kansas
    • June 5, 1981
    ...so doing it was necessary for defendant to prove the alleged fraud by clear and convincing evidence. As was stated in Hoch v. Hoch, 187 Kan. 730, 732, 359 P.2d 839 (1961): "It is hardly necessary to list the citations of authority on the long-standing rule in this state that one who asserts......
  • In re Traster
    • United States
    • United States State Supreme Court of Kansas
    • December 19, 2014
    ...Kan. 630, 631, 383 P.2d 983 (1963) (“separation agreement” entered on November 23, 1960; divorce granted December 13, 1960); Hoch v. Hoch, 187 Kan. 730, 731–32, 359 P.2d 839 (1961) (summarizing that property agreement was reduced to writing and signed by both parties and defendant “[s]ubseq......
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