Kershner v. Kershner
| Citation | 216 S.W. 547,202 Mo.App. 238 |
| Parties | ELSIE KERSHNER, Respondent, v. LOUIS KERSHNER, Appellant |
| Decision Date | 01 December 1919 |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court,--Hon. C. A. Calvird, Judge.
AFFIRMED.
Judgment affirmed.
C. A Denton for appellant.
T. W Silvers for respondent.
Plaintiff and defendant were husband and wife. There relations became strained and unhappy and they separated, leaving her with three minor children, two little girls and one boy 17 years old. Shortly before separating they entered into written contract "for the purpose of adjusting and settling all questions as to rights of property, both real and personal, all marital rights, personal obligations, and marital obligations as husband and wife," whereby he conveyed to plaintiff sixty (60) acres of land for her life, the remainder to the three children, and she released her dower to defendant in 100 acres of real estate, "during his life, remainder in fee to the children." It was further provided in said agreement that defendant was to pay her $ 200 in money and release to her certain peronsal property in consideration of release of her dower, or right of inheritance or other interest in his other property if he should die first. It was further agreed that plaintiff released defendant from all obligation to support and maintain her . . . or any claim for alimony under any legal proceeding. And as a further consideration she (plaintiff) agrees to keep, maintain and care for their said children until they arrive at the age of maturity.
A few months after the execution of this contract, plaintiff instituted an action for divorce from defendant and was granted a decree in which she was given the custody of the children and in which it was recited, "that the plaintiff and defendant have had a property settlement, so that neither can hereafter claim an interest in the property of the other, or any right to support or maintenance from the other or right growing out of the marital relations, except as is covered by the property settlement."
After the lapse of about eighteen months to-wit, on the 14th of April, 1919, plaintiff filed a motion in the divorce cause asking an allowance against defendant for support of the children, reciting that she had been granted a divorce with the care and custody of the children and that their property rights had been adjusted between them. It was then stated in such motion as cause for the application that she was without the means of support for the children, and that defendant had abundant money and property with which he could provide for their support and comfort. The motion closed as follows; "she prays the court to make an order on the defendant to pay to her, for the use and benefit of the aforesaid children a reasonable monthly amount for the year 1919 and until further orders of the court." (Italics ours.)
A trial was had both parties appearing, and the court granted the motion allowing to plaintiff $ 40 per month for the support of the two girls and nothing for the boy then about 17 years of age. The evidence showed, and the court found, that defendant was receiving a salary of $ 150 per month and that he was also possessed of ample funds with which to support himself and these children and that he had no one dependent upon him.
This finding as to defendant's financial situation was well justified by the evidence. As to the condition of plaintiff and the two girls, the evidence showed them to be reduced to bare necessities of life. They were illy clad and but for aid extended by relatives, would have been in a condition of want and suffering. It is true that on defendant's part there was evidence tending to show that he had, at times, come to their assistance, but not in keeping with what they should have, nor with his ability to supply.
The ground of defense to the motion is based on the contract of settlement with plaintiff wherein she was to have the...
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