Krueger v. Krueger, 38799
| Decision Date | 11 April 1953 |
| Docket Number | No. 38799,38799 |
| Citation | 174 Kan. 249,255 P.2d 621 |
| Parties | KRUEGER v. KRUEGER. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where two grounds are alleged for divorce and one of them is clearly established it is unnecessary on appellaate review to determine the sufficiency of evidence to support the other ground.
2. There is no hard and fast rule in this jurisdiction for determining the amount of an alimony award where a wife is granted a divorce by reason of the husband's fault. G.S.1949, 60-1511. Absent manifest abuse of judicial discretion the judgment will not be disturbed on appeal.
3. The purpose and function of a motion for new trial is to direct the trial court's attention to alleged trial errors, or to irregularities in the nature of trial errors, in order that the court may grant a new trial if it believes the complaints are meritorious and to thus avoid the necessity of an appeal.
Paul H. Ditzen, of Kansas City, argued the cause and was on the briefs for appellant.
John W. Breyfogle, Jr., of Olathe, and Fred Bellemere, of Kansas City, Mo., were on the briefs for appellee.
This was an action for divorce, custody, control of and support money for an infant daughter and for alimony and division of property.
Plaintiff was granted a divorce from her husband by reason of gross neglect of duty and extreme cruelty. She was awarded custody of an infant daughter, born February 19, 1951, with right of visitation to defendant. The court made an order for the support of the child by defendant. Its order for alimony and division of property was as follows:
'4. The court finds that the plaintiff owned at the time of said marriage or acquired with her own funds during said marriage the silverware, 234 shares of stock in Dye Candy Company, 48 shares of stock in Dye Nut Company, a $2500.00 note of Dye Candy Company and a partnership interest in an invention for which plaintiff paid the sum of $1980.00 and that plaintiff is entitled to have all of the aforesaid items of property set over to her as her sole and separate property.
'5. The court further finds that the plaintiff made the original $3400.00 down payment on the residence property purchased by the parties at 4211 W. 53rd Terrace, Johnson County, Kansas, and that such payment was made from funds owned by the plaintiff prior to said marriage.
'6. The court finds that plaintiff is entitled to receive the residence property legally described as follows, to wit:
'Lot Twenty-one (21), Shawnee Hills, a subdivision in Johnson County, Kansas, subject to the existing mortgage thereon, the furniture, household goods and furnishings within said dwelling, a certain Ford automobile now in her possession and registered in her name and a judgment against the defendant in the amount of $60.00 for tires sold by him, all of the aforegoing to be in full settlement of division of property and permanent alimony rights of the plaintiff.
'7. The court finds that the defendant is entitled to receive his personal effects, guns, Ford Victoria automobile now in his possession and that he shall not be required to account for the $500.00 withdrawn from plaintiff and defendant's bank account immediately after the filing of plaintiff's petition.'
Defendant has appealed from the judgment and all adverse orders. In fairness to counsel for appellant it probably should be stated he did not represent appellant at the trial.
Appellant's first contention is the evidence did not warrant the granting of a divorce to appellee. The civil code provides a new trial may be granted for the reason, 'That the verdict, report or decision is in whole or in part contrary to the evidence.' G.S.1949, 60-3001, Fourth.
Appellant filed no motion for a new trial. It, however, is particularly stressed that the evidence does not sustain such decree on the ground of gross neglect of duty. Appellee argues that absent a motion for new trial appellant is not entitled to a review of the evidence, citing Holton v. Holton, 172 Kan. 681, 683, 243 P.2d 222, and other cases. Appellant's first assignment of error could not be sustained even though he had filed such a motion. The record contains ample evidence to support the...
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Koerner v. Custom Components, Inc.
..."Appellants have a heavy burden, for one who claims abuse of discretion has the burden of proving that contention. Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621 (1953). To find the trial court abused its discretion, an appellate court must determine that no reasonable person could take the......
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Baumgardner v. Baumgardner
...claiming abuse of discretion has the burden of proving that contention. (Roberts v. Roberts,103 Kan. 65, 173 P. 537; Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621; 5 Am.Jur.2d Appeal and Error, § 775, p. 218.) See, also, 12 Kan.L.Rev. 27, The defendant next contends the district court erre......
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Perry v. Perry, s. 38965 and 38986
...from the record that it failed to exercise or abused that discretion. See Mathey v. Mathey, 175 Kan. 446, 264 P.2d 1058; Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621; DeWitt v. DeWitt, 170 Kan. 58, 223 P.2d 970; Carlat v. Carlat, 168 Kan. 600, 215 P.2d 200; Stanton v. Stanton, 166 Kan. 38......
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Kansas Homes Development Co. v. Kansas Turnpike Authority, 40410
...may avoid the trouble and expense of having them corrected on appeal. Holton v. Holton, 172 Kan. 681, 243 P.2d 222; Krueger v. Krueger, 174 Kan. 249, 255 P.2d 621; 7 A West's Kansas Digest, New Trial, k1, p. We do not deem it necessary to discuss the other reason stated by the trial court f......