Johnston v. Johnston, 49856
| Decision Date | 23 March 1979 |
| Docket Number | No. 49856,49856 |
| Citation | 3 Kan.App.2d 208,592 P.2d 132 |
| Parties | Gale F. JOHNSTON, Appellee, v. Dave J. JOHNSTON, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Under the principles of Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448 (1952), Kansas law shall be applied to determine what effect a subsequent remarriage and annulment in another state will have on alimony payments awarded under a prior Kansas divorce decree.
2. Where alimony payments awarded under a Kansas divorce decree are to cease upon remarriage, a later marriage will not terminate the alimony obligation if the later marriage is void because there was no marriage from the beginning.
3. Where alimony payments awarded under a Kansas divorce decree are to cease upon remarriage, a later marriage will terminate the alimony obligation if the marriage is merely voidable under Kansas law.
4. A marriage terminated due to the mental incapacity of a party at the time of entering into the marriage contract is void under Kansas law.
Gordon B. Stull, of Hampton, Hampton & Stull, Pratt, for appellant.
Larry T. Solomon, of Wunsch, Wunsch & Gaumer, Kingman, for appellee.
Before REES, P. J., and SPENCER and SWINEHART, JJ.
The defendant husband appeals from a decision requiring him to continue the payment of a previously entered alimony award where his former wife, subsequent to her divorce from the defendant, married another in the State of Colorado and then invalidated that marriage in the same state, alleging that she lacked capacity to enter into the marriage contract because she lacked mental capacity to consent to the marriage.
Plaintiff and defendant were married in Kansas on June 4, 1968, and at the time of the filing of the divorce petition (January 26, 1973) were residents of Pratt County. The parties were divorced on July 17, 1973, and the decree of divorce was filed on August 1, 1973. The decree, in addition to the usual orders as provided for in K.S.A. 60-1610, specifically disapproved that part of the property settlement agreement executed by the parties which provided for the payment of alimony by the defendant to the plaintiff (as set forth in paragraph 6 of said agreement) and in lieu thereof ordered as follows:
"(I)t is found and ordered that for the purpose of offsetting the property of the parties award to the husband by the Agreement, the husband is ordered to pay to the wife the sum of Eighteen Thousand Dollars ($18,000.00) as follows:
$600.00 per month for twelve (12) months;
$500.00 per month for the next twelve (12) months;
$200.00 per month for the next twenty-four (24) months.
As long as such payments are made as they become due, they will not bear interest; any payments in default to draw interest at eight percent (8%). In addition to such award, the Defendant is ordered to pay alimony to the Plaintiff in the sum of One Hundred Dollars ($100.00) per month beginning forty-eight (48) months from the payment of the first $600.00 monthly payment ordered above, and Continuing until such time as Plaintiff remarries. In case Plaintiff remarries prior to the time these alimony payments commence, she will not be entitled to receive any of the alimony award. The Defendant shall be entitled to credit for payments already made on the Property Settlement Agreement through July 1973, in the aggregate sum of $3,600.00. " Emphasis added.
The plaintiff subsequently married Randall Lee Coppernoll in the State of Colorado on July 13, 1976, and at a later date petitioned the Colorado court for a declaration of invalidity of said marriage. The petition was tried to the court in Colorado on October 29, 1976, and the trial court made the following findings and order:
It is readily apparent that the Colorado marriage of the plaintiff was declared invalid because of the plaintiff's lack of mental capacity. Under Colorado law, a marriage may be declared invalid for mental incapacity at the time of marriage and said marriage is voidable. Colo.Rev.Stat. § 14-10-111 states:
To continue reading
Request your trial
-
Joye v. Yon, 3335.
...is void ab initio and by definition, is no marriage at all. See Reese v. Reese, 192 So.2d 1, 2 (Fla.1966); Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132, 135 (1979); Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466, 470 (1996); Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn.Ct. App.1984). "[......
-
Joye v. Yon
...See Broadus v. Broadus, 361 So.2d 582, 585 (Ala.Civ.App.1978); Reese v. Reese, 192 So.2d 1, 2 (Fla. 1966); Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132, 135 (1979); Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466, 470 (1996); Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn.App. 1984).3 A vo......
-
Marriage of Quint, Matter of
...payee's remarriage is improper for two reasons. First, she contends that the remarriage may be invalid. Relying on Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132 (1979), Pfeifer points out that a marriage license alone is not enough to prove that a payee is validly remarried. The payo......
-
Brewer v. Miller
...no legal effect and annullment of such a marriage will serve to revive the obligations owed by a former spouse. Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132 (1979); Broadus v. Broadus, 361 So.2d 582 (Ala.Civ.App.1978). Others have ruled that any remarriage terminates the right to al......