Kelso v. Kelso, 40800

• Decision Date: 12 April 1958
• Docket Number: No. 40800,40800
• Citation: 182 Kan. 665,324 P.2d 165
• Parties: Christeen E. KELSO, Appellant, v. James I. KELSO, Appellee.
• Court: Kansas Supreme Court

Page 165

324 P.2d 165

182 Kan. 665

Christeen E. KELSO, Appellant, v. James I. KELSO, Appellee.

No. 40800.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court.

1. In an action for a divorce and division of property, the record is examined, and it is held: There was substantial competent evidence to support the trial court's finding that the wife was guilty of gross neglect of duty which justified the granting of a divorce to the husband.

2. In an action such as that described in the foregoing paragraph of this syllabus, where the divorce was granted to the husband by reason of the fault of the wife, the record is examined, and it is held: There was substantial competent evidence to sustain the division of property made by the trial court, and a money judgment in favor of the husband pursuant to G.S.1949, 60-1511, was properly made a lien upon the property of the wife.

3. In a divorce action where the record title to real estate is in the wife at the time of the marriage and the husband makes valuable improvements thereon during the course of the marriage, the provisions of G.S.1949, 60-1511, do not require that all real estate to which the wife has record title shall be restored to her, but that the property owned by her before the marriage shall be awarded to her. Thus, a money judgment in favor of the husband based upon an equitable division of accumulations of property acquired during the marriage, including improvements to real property to which the wife had title, is proper.

4. There is a considerable overlapping in the statutory grounds for divorce of extreme cruelty and gross neglect of duty. While the expression 'gross neglect of duty' is indefinite and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits, on facts more specifically related in the opinion, the seizure by a wife of all property and funds accumulated during the course of the marriage, coupled with deliberate acts of cruelty calculated to drive the husband away from the home at the most opportune time, after she had taken unto herself all the property and accumulations of the marriage, constitutes gross neglect of marital duty.

5. In a divorce action it is the duty of the trier of the facts to determine both the credibility and the weight of conflicting testimony, and when the trial court has made findings which resolve these questions, the responsibility of this court on appellate review is limited to determining whether there is substantial evidence, which, if believed, supports or tends to support the findings made.

6. The trier of the facts has the right to draw reasonable inferences from the testimony of the witnesses in making its findings, and where legitimate inferences are reasonably drawn from the evidence and supported thereby, this court on appellate review will refuse to interfere with the findings of the trial court based upon such inferences.

7. The provisions of G.S.1949, 60-1509, requiring that the testimony of a complaining spouse as to the delinquencies of the other, alleged as grounds for the divorce, be corroborated, do not require corroboration of each and every detail concerning which testimony has been given. The requirement of corroboration is met if there remains corroborated testimony of acts or conduct sufficient to justify a judgment for divorce.

Martin C. Crawn, Kansas City, argued the cause and was on the briefs for appellant.

James Yates, Kansas City, argued the cause and was on the briefs for appellee.

SCHROEDER, Justice.

This is a divorce action in which the husband was granted a divorce from the wife on his cross petition and awarded a judgment in the sum of $15,000 as his share of the accumulated property. The wife appeals.

Briefly, the questions presented for review are whether the evidence sustains the findings of the trial court and whether the judgment making a division of the property complies with G.S.1949, 60-1511.

In her petition, filed May 2, 1955, the plaintiff alleged, among other things, her marriage to the defendant and that he had been guilty of gross neglect of duty and extreme cruelty. She also alleged that at the time of her marriage she was the owner of certain real estate, hereafter described in the journal entry, and personal property.

The defendant filed an answer admitting the marriage, among other things, denying that he was guilty of the grounds for divorce alleged by the plaintiff, and filed a cross petition. In his cross petition defendant alleged the plaintiff was guilty of gross neglect of duty and extreme cruelty. He also set up at great length his version of the accumulation of property during the marriage, and prayed for a divorce and for a fair and equitable division of property. He sought judgment against the plaintiff in the sum of $22,450.

Plaintiff's reply was a general denial.

In addition to the testimony of the plaintiff and the defendant the trial court heard twenty witnesses testify in the trial of this case. The ruling was taken under advisement. The parties submitted briefs and on the 7th day of January, 1957, the court announced its decision. The journal entry recited findings as follows:

'1. That the plaintiff and defendand have been actual residents in good faith of the State of Kansas for more than one year next preceding the filing of the petition and answer herein, and were at the filing thereof, actual residents of Wyandotte County, Kansas.

'2. That plaintiff and defendant were legally married on the 31st day of March, 1950, at Lincoln, Nebraska.

'3. That no children were born as the issue of said marriage and none are expected; but plaintiff and defendant did legally adopt, during the marriage, one girl child, Sharon Sue Kelso, now 6 years of age. The plaintiff is a fit and proper person to have custody of said child, and should have the custody, subject to reasonable visitation rights of the defendant.

'4. The defendant has performed his duties as the husband of the plaintiff, but the plaintiff has been guilty of gross neglect of duty toward the defendant, and the defendant should be granted a divorce from the plaintiff.

'5. That prior to the marriage plaintiff owned the following described real property, being the only real property involved in the above cause in which defendant claims an interest, to-wit:

'Lots 12 and 13, Block 1, in Clifton Hills, and addition in Kansas City, Wyandotte County, Kansas;

'And

'A 193 acre farm in Leavenworth County, Kansas.

'6. That during said marriage, through their joint efforts, they accumulated property and improved plaintiff's property above described whereby the value of said properties increased by approximately $30,000, and that $15,000 over and above any setoffs and counterclaims of plaintiff should be given to the defendant as his share of said accumulation and improvement, which amount should be a lien on all property owned by plaintiff, including:

'[a.] Lots 12 and 13, Block 1, in Clifton Hills, an addition in Kansas City, Wyandotte County, Kansas;

'And

'[b.] The North 76.4 feet of Lots 5 and 6, Block 1, in Reynolds Grandview Park, an addition in Kansas City, Wyandotte County, Kansas;

'And

'[c.] A 193 acre farm in Leavenworth County, Kansas.

'7. The defendant should pay to the plaintiff the sum of $12.50 per week, commencing this date, as and for the support of the parties' minor child, Sharon Sue Kelso.'

Pursuant to the foregoing findings the court decreed that the defendant be divorced from the plaintiff; that the plaintiff have the care, custody and control of the parties' minor child, Sharon Sue Kelso, subject to reasonable visitation rights of the defendant; and that the defendant pay the sum of $12.50 per week, commencing on the 7th day of January, 1957, as and for the support of said child. The journal entry then recites:

'It Is Further Considered, Ordered, Adjudged and Decreed that the defendant be and is hereby allowed the sum of Fifteen Thousand Dollars ($15,000) for his share of the accumulation of personal property and for improvements made through the joint efforts of plaintiff and defendant on real property which plaintiff owned prior to her marriage to defendant, and for profit derived from the sale of real property consisting of a farm in Leavenworth County, Kansas, of 190 acres hereinafter set out under Item 'c' that belonged to plaintiff prior to said marriage which was sold on Option Contract and on which there is a balance to be paid of $20,000, over and above and clear of any setoffs and counterclaims of the plaintiff against the defendant, and that said sum be and it is hereby made a lien on all of the property owned by the parties hereto, including:

'[All real estate described in Finding No. 6.]

'That all the remainder of the parties' property, except the personal effects of the defendant now in his possession, be and it hereby is awarded to the plaintiff subject to the lien of the defendant described above.

'It Is Further Considered, Ordered, Adjudged and Decreed that the court costs be assessed against the plaintiff.' (Emphasis added.)

The plaintiff filed a motion for a new trial which was presented to The Honorable O. Q. Claflin, III, successor to Judge Fischer. Subsequent to denying the motion Judge Claflin stated in an order denying the plaintiff's application for a change of venue: 'I read the record, thought there was ample evidence to sustain Judge Fischer's decision and found there was no basis for a new trial or for setting aside the judgment.'

The parties stipulated among other things that '* * * there is now accrued unpaid support money for the support of one minor child in the amount of $980.' They also stipulated that the defendant (appellee) '* * * bases his claims on services performed pertaining to real properties at 2500 Grandview and the farm in Leavenworth County, Kansas, and accumulations of properties;'.

The plaintiff (appellant) contends that the...