Kendall v. Kendall

• Decision Date: 24 January 1976
• Docket Number: No. 47851,47851
• Parties: Virginia KENDALL, Appellant, v. Marie KENDALL, Appellee. In the Matter of the ESTATE of Raymond P. KENDALL, Deceased.
• Court: Kansas Supreme Court

Page 346

545 P.2d 346

218 Kan. 713

Virginia KENDALL, Appellant, v. Marie KENDALL, Appellee In the Matter of the ESTATE of Raymond P. KENDALL, Deceased.

No. 47851.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. Care should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.

2. The general rule is that periodic payments of alimony to a divorced wife terminate upon the former husband's death in the absence of a provision in the settlement agreement, or in the decree, which expressly so states, or contains language which makes the intent unmistakably clear that such payments are to continue after his death. (Following In re Estate of Sweeney, 210 Kan. 216, Syl. 1, 500 P.2d 56.)

3. Parties to a divorce action have the right to contract in a separation agreement that alimony payments to the wife shall continue after the former husband's death, and where such agreement is approved by the court and incorporated in the decree, it may be enforceable against the husband's estate. (Following In re Estate of Sweeney, 210 Kan. 216, Syl. 2, 500 P.2d 56.)

4. A provision calling for a maximum number of alimony payments, standing alone, cannot be construed to be clear and unmistakable language evidencing the deceased ex-husband's intent that payments were to extend beyond the date of his death.

5. The record on appeal is examined and it is held: (1) The wife's claim for money alleged to be due was a claim for future alimony payments; (2) the separation agreement did not expressly state or contain language which clearly or unmistakably evidences the intent that obligations for alimony were to survive the death of the husband or to bind his estate; and (3) the wife's claim for future alimony payments is not valid and enforceable.

David H. Heilman, Council Grove, argued the cause and was on the brief for appellant.

Harold L. Haun, Council Grove, argued the cause and was on the brief for appellee. SCHROEDER, Justice:

This is an appeal by Virginia Kendall (plaintiff-appellant) from the trial court's order refusing to enforce a judgment lien for future alimony payments against the estate of her deceased ex-husband, Raymond P. Kendall.

Raymond P. Kendall and Virginia Kendall were husband and wife until November 1969. During the marriage Mr. Kendall was a funeral home director at 102 North Mission, Council Grove, Kansas, which also served as the Kendalls' residence. In August of 1969 Virginia Kendall filed a separate maintenance action. On November 24, 1969, she amended her petition seeking separate maintenance to a petition seeking divorce. On November 26, 1969, a divorce was granted.

A property settlement was mutually agreed upon between Virginia and Raymond after both had consulted with attorneys. Pursuant to this agreement Virginia received certain property owned by her prior to her marriage, her personal effects, an automobile, a cabin at the Council Grove Lake Park, and the sum of $3,000 cash. The agreement also ordered the husband to pay alimony in the sum of $350 per month for ten years, unless terminated by the death or remarriage of Virginia. The pertinent provision read:

'The husband is to pay the wife alimony in the sum of $350.00 per month, beginning December 1, 1969, and of which said monthly payments are to be for a period of ten years, or is to be terminated upon the death or remarriage of the wife, in the event of either said occurrences should occur prior to the ten year period. The payment for ten years has reference to the payment for the period of 120 months. In the event that the wife, Virginia Kendall, should die prior to the expiration of ten years from the first payment due on December 1, 1969, or should remarry then the alimony payments of $350.00 per month shall terminate, and of which the husband will be no longer liable or responsible for making of furture payments. It is further understood and agreed by the parties hereto that the alimony payments in the sum of $350.00 per month are to be considered as a judgment against the party of the second part, the husband, being Raymond P. Kendall, a/k/a Jerry Kendall, and of which the same is to have the same force and effect as a judgment on the date of which said property settlement agreement is incorporated into and made a part of the decree of divorce, if the same should be approved by the court.'

This provision was further supplemented by a clause which read in part as follows:

'It is further agreed by and between the parties hereto that all the property and money to be received in a lump sum payment as of that date by the wife is to be considered as a property settlement. The alimony thereon is to be in the sum of $350.00 per month for the period of time as set forth in said agreement, subject to modification as set forth in this agreement. The wife shall have a lien on the property of the husband to secure the payments as outlined herein; and it is further understood and agreed by the parties hereto that the same cannot be modified or changed except by the terms of this agreement and according to the provisions set forth in said agreement.'

Pursuant to this property settlement agreement the husband received his personal effects, all bank accounts, and all real estate, including the funeral home property at 102 North Mission, which was not otherwise given to Virginia. The property settlement agreement was duly merged in the divorce decree.

Raymond Kendall later married Marie Kendall on April 30, 1970. No children were born to this second marriage. On July 11, 1974, Raymond Kendall deeded certain property to himself and Marie as joint tenants with rights of survivorship and not as tenants in common. On August 21, 1974, Raymond Kendall died. Marie Kendall was duly appointed as executrix of his estate.

At the time of Mr. Kendall's death he had made his $350 monthly alimony payments as provided in the property settlement agreement, except he was delinquent in making three payments of $350 per month, or a total of $1,050. The appellant who has not remarried, sued in probate court to foreclose a judgment for $22,050-the sum which would be owing on $350 per month for the balance of the ten years mentioned in the agreement. The claim was transferred to the district court for a hearing. The trial court refused to enforce the judgment line of Virginia Kendall, beyond the $1,050 which was owing at Mr. Kendall's death. The funeral home property at 102 North Mission was further set aside as Marie's homestead.

The disposition of this appeal is controlled by In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56.

In the case at bar the appellant first contends the court erred in holding the $22,050 was future alimony and not a property settlement. The appellants in the Sweeney case, as here, place primary reliance on In re Estate of Shideler, 172 Kan. 695, 242 P.2d 1057. The Shideler case involved monthly payments made in connection with a property settlement which were not denominated as alimony. Here, and in the Sweeney case, the monthly payments were denominated as 'alimony.' A property settlement agreement involving a lump sum of $3,000 cash was made here. A similar cash property settlement was present in the Sweeney case. This court has often instructed:

'. . . (C)are should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.' (Herzmark v. Herzmark, 199 Kan. 48, 52, 427 P.2d 465.)

(See also, Beck v. Beck, 208 Kan. 148, 490 P.2d 628; Drummond v. Drummond, 209 Kan. 86, 495 P.2d 994; and Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221.) We reiterate that admonition today and hold the $22,050 alleged to be due was future alimony.

In the case at bar the appellant also contends the court erred in holding the monthly payments ceased on the date of Raymond P. Kendall's death. In the Sweeney case the parties' written property settlement agreement, denominated by them as a 'stipulation,' provided for the division of all real and personal property of the parties and provided for the future support of the wife, denominated as alimony. Under the property settlement agreement, the husband agreed to pay $650 per month 'until plaintiff's remarriage or death, in either of which event said support payments shall cease and terminate.' In the Sweeney case the husband died and his ex-wife asserted a contractual claim for future alimony for a life expectancy of 21 years at $650 per month. Following a detailed examination of the issues involved here and many of the principal authorities, we held the wife's claim was invalid. Two rules were announced which controlled the Sweeney decision:

'The general rule is that periodic payments of alimony to a divorced wife terminate upon the former husband's death in the absence of a provision in the settlement agreement, or in the decree, which expressly so states, or contains language which makes the intent unmistakably clear that such payments are to continue after his death.

'Parties to a divorce action have the right to contract in a separation agreement that alimony payments to the wife shall continue after the former husband's...