Jarvis v. Jarvis, 47838

• Decision Date: 24 January 1976
• Docket Number: No. 47838,47838
• Parties: Mary C. JARVIS, Appellant, v. Melvin L. JARVIS, Appellee.
• Court: Kansas Supreme Court

Page 1384

544 P.2d 1384

218 Kan. 679

Mary C. JARVIS, Appellant, v. Melvin L. JARVIS, Appellee.

No. 47838.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

In an action granting a modification of an existing alimony judgment the record discloses substantial competent evidence to support the trial court's findings of fact and conclusions of law.

Philip Shaffer, Salina, argued the cause, and Frank C. Norton, Salina, was with him on the brief for appellant.

Arthur B. Dillingham, Salina, argued the cause, and John Q. Royce, Hampton, Royce, Engleman & Nelson, Salina, was with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal from an order of the district court modifying the amounts of unaccrued alimony payments originally awarded the plaintiff-appellant, Mary C. Jarvis. Plaintiff's principal complaint is that there was not a sufficient showing of changed circumstances to justify a modification of the earlier award.

Mary Jarvis was granted a divorce from the defendant-appellee, Melvin L. Jarvis, on September 8, 1965, on the ground of extreme cruelty. As part of the divorce decree Mary was awarded the custody of the three minor children; child support in the amount of $325.00 per month; various stocks and bonds valued in excess of $19,500.00; and certain described real estate commonly referred to as the 'sand pit' property. As part of the property award Mary was granted the sum of $30,000.00 to be paid by defendant in quarterly installments at the rate of $500.00 per quarter until fully paid. In addition, she was awarded $10,000.00 in permanent alimony, payable in twenty semi-annual installments of $500.00 each, and terminable alimony of $500.00 per month to end upon her death or remarriage. Defendant Melvin Jarvis was awarded various stocks and bonds, his interest in the partnership of Mid-States Finance Company, all interest in several life insurance policies, certain described real estate, and personal belongings.

Defendant made full alimony and property settlement payments until May 21, 1970. On June 8, 1970, defendant filed a motion in the district court, pursuant to K.S.A.1969 Supp. 60-1610(c) (now K.S.A.1975 Supp. 60-1610(c)), seeking a modification of the alimony judgment. Defendant's motion alleged a reduction or termination in alimony was necessary as a result of changed circumstances. The court heard the motion and made extensive findings and conclusions of law. It noted that since the issuance of the decree of divorce the circumstances of the parties had changed. Specifically, the court found that the parties' three children had attained the age of majority and child support payments had been terminated; that plaintiff had been employed as a teacher from 1966 until May, 1970, at which time she enrolled in graduate school; that plaintiff sold ninety-eight acres of the 'sand pit' property for $140,000.00; that plaintiff had contracted to sell the remaining acreage but the contract was in default and completion of the sale was doubtful; that plaintiff's net asset value had increased to $131,570.00; that although there had been changes in defendant's financial condition resulting principally from the sale of the two subsidiary corporations and restrictions on the amount of salary paid to him, he had a very substantial asset in the Jarvis Construction Company which he started in 1950; that the deterioration in defendant's financial condition was not of a permanent nature; and that defendant had made no alimony payments since May, 1970.

Despite these changes in the parties' conditions since the date of the divorce, the court did not consider them of such a substantial nature as to justify or require a reduction in the alimony judgment. The motion was denied in its entirety.

On February 23, 1973, defendant filed another motion in the district court seeking a modification or termination of the alimony judgment. In support of his motion defendant alleged there were further changes in plaintiff's and defendant's circumstances since the filing of the previous motion to modify.

On July 13, 1973, a pre-trial conference was held and the parties stipulated to the following facts:

'(a) That property settlement payments heretofore ordered by the Court to be made by the defendant were current to July 1, 1973, and since the former hearing in April of 1971, the defendant has paid $6,000.00 to the Clerk of the Court to apply on said property settlement judgment.

'(b) Plaintiff has completed her postgraduate work and received a Masters Degree in history in October, 1972. She completed work toward said Masters Degree in May, 1972.

'(c) Plaintiff sold her home in Salina at 114 Overhill Road for $35,000.00. . . . She netted from said sale approximately $23,500.00.

'(d) Plaintiff would receive a starting salary of from $8,000.00 to $10,000.00 if she were employed as a school teacher.

'(e) The real estate sales contract entered into in 1968 between the plaintiff and John Ryberg for his purchase of 38 acres, referred to as the 'sand pit property' for the sum of $80,000.00 plus interest on deferred payments was paid in full recently and during the year of 1973. Said payment being in the sum of $72,250.00.

'(f) Property settlement payments are current except for one Five Hundred dollar installment which became due on or about July 1, 1973.

'(g) The four children of the plaintiff and defendant are now all over the age of eighteen years. . . .'

After hearing the merits of the motion and giving careful consideration to the evidence before it, the trial court adopted the stipulations and issued further findings of fact and conclusions of law which we quote in pertinent part:

'(g) . . . The court finds that the Plaintiff received the following sums of money in 1973 which she used to purchase securities: net from the sale of the property at 114 Overhill Rd., Salina, Kansas.$23,500; net from the sale of Thirty-Eight acres of land to Ryberg $70,250, and property settlement payments received from Mel Jarvis $6,000.00, or a total of $99,750.00. . . .

(h) The sale of the house and land, referred to in the finding above, converted $93,750.00 worth of real estate to cash, which was used to buy some of the income-producing securities. Plaintiff's 1973 income will be substantially greater than her 1972 income.

'(i) . . . She is currently working toward a doctor's degree and preparing herself to take a comprehensive examination before proceeding with her thesis. . . .

'(j) By the terms of the property settlement provisions of the decree dated Sept. 8, 1965, plaintiff was awarded real and personal property of the approximate value of $123,617.00, not including her automobile, furniture and personal belongings, nor the judgments for permanent and terminable alimony. In April 1971, her assets were valued at $133,570. It is noted that at that time the value of the equity in the home at 114 Overhill Road, Salina, Kansas was $4280.00 and that it was subsequently sold and plaintiff realized the net sum of.$23,500 for her equity, an increase of $19,220.00, less payments made by her on the loan principal during the interim. The total value of plaintiff's assets on August 1, 1973 is the sum of $135,653. She does not own any real estate. All of the plaintiff's assets are now invested in bank certificates of deposit, G.S.A. bonds, treasury note, and certain corporate stocks and industrial bonds, as shown on Defendant's Exhibits One and 4. In addition the plaintiff has accrued and unaccrued but unpaid judgments against the defendant in this case in the total sum of $40,500.00 as shown in Defendant's Exhibit One. Said exhibits are incorporated in these findings by reference. These are conservative investments and the amount of annual return of interest and dividends is fairly predicatable at about $9600.00.

'(k) Substantially all assets originally awarded to plaintiff by the court's decree have been sold and most of the proceeds invested in income producing securities. The plaintiff is in a better position financially because of the sale of her home, excising the expense of maintenance, taxes, interest on the mortgage, and insurance. At the time of the previous hearing, the balance due for sale of the thirty-eight acre tract to Ryberg was a questionable asset because the contract had been in default for several...