LaRue v. LaRue

Decision Date25 January 1975
Docket NumberNo. 47604,47604
Citation216 Kan. 242,531 P.2d 84
PartiesNina Davis LaRUE, Appellee, v. John A. LaRUE, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Incompatibility as a ground for divorce may be broadly defined as such a deep and irreconcilable conflict in personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconciable and irremediable.

2. Our divorce law has been changed by K.S.A.1974 Supp. 60-1609(d) (L.1970, ch. 240, § 1) so that either party may, in the trial court's discretion, obtain a decree of divorce or separate maintenance upon the uncorroborated testimony of either or both of the parties.

3. Where a case is tried to the court, the trial court as the trier of facts is the sole judge of the credibility of the witnesses and of the weight to be given the evidence presented at the trial.

4. Under K.S.A.1974 Supp. 60-1610(b) (L.1963, ch. 303) the district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action, and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of a clear abuse.

5. The discretion vested in the trial court must be exercised in whole-hearted good faith and be guided by the statutes, not by the court's private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.

6. The significant change brought about by the adoption of K.S.A.1974 Supp. 60-1610(b) (L.1963, ch. 303) in the law regarding division of property in a divorce action is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.

7. Under Kansas decisions the trial court in divorce cases under K.S.A.1974 Supp. 60-1610(b) is required to make a just and reasonable division of all the property of the parties between them, and in determining a just and reasonable division the trial court should take into consideration the following factors: (1) The ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of the property; (6) family ties and obligations; (7) the question of fault; and (8) the alimony allowance or lack thereof.

John L. Richeson of Anderson, Byrd & Richeson, Ottawa, argued the cause, and Jon J. Indall, Ottawa, was with him on the brief for appellant.

Thomas E. Gleason, Ottawa, argued the cause, and Thomas E. Gleason, Jr., Ottawa, and F. Duane Roberts, Baldwin, were with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal by John A. LaRue (defendant-appellant) from an order of the Franklin County District Court dissolving his marriage with Nina Davis LaRue (plaintiff-appellee) and dividing their property.

The appellant contends: (1) There was no substantial evidence to support the trial court's finding that the parties were incompatible; (2) the trial court erred in giving credence to the appellee's testimony in view of her demeanor; and (3) the property settlement award granted the appellee is not supported by substantial evidence.

Nina Davis LaRue and John A. LaRue were married February 12, 1945. At the time of their marriage Nina was a 56- year-old widow and John was 39. The parties were living in Carthage, Missouri, where Nina managed a hotel and John worked as a projectionist in the hotel theater.

In 1947, the couple moved onto a 210 acre farm northeast of Ottawa, Kansas, owned by Nina. She inherited the farm from her previous husband. The parties farmed the tillable land and raised cattle.

On May 15, 1973, John became ill, and Nina called an ambulance to have him taken to a hospital where he underwent surgery. Upon release from the hospital, John was not permitted by Nina to return to their home. John initially stayed in a motel and then moved into a small boarding home.

On July 6, 1973, Nina sued for a divorce alleging irreconcilable incompatibility John answered with a general denial, and filed a cross-petition in which he also sought a divorce on the ground of irreconcilable incompatibility. John abandoned his claim for divorce at the trial.

The appellant first asserts the trial court's conclusion that the parties were incompatible is unsupported by the evidence. It is argued the record is void of any showing of temperament that represents the destruction of the parties' marital relationship and the appellee's testimony does not establish an irremediable rift or discord.

The only testimony included in the record on appeal concerning the parties' marital relationship is that of the appellee. She was asked by her attorney why, after 28 or 29 years of marriage, all of a sudden when the appellant went to the hospital, she filed for a divorce. The appellee replied as follows:

'. . . Cause he hadn't done anything for so long and I got so tired of keeping him and cooking for him, and cooking fish and hamburgers. He couldn't eat anything else and I just decided that I didn't want to do it any longer, I couldn't do it any longer. . . .'

The appellee further stated:

'. . . I was so sick and tired of looking at him that I hated him and then I said when I-they took him out of that door, when they took him onto that little back doorstep and I made up my mind this is the last time I want to see you, I am through.'

The appellee also complained that the appellant never really did any of the farm work because he was 'too damn lazy', and on at least one occasion the appellant refused to assist with the dehorning, branding, clamping of the cattle and the loading for market. The appellee claimed the cattle belonged to her and she had raised them. Furthermore, according to the appellee, the appellant tried to get money from her all the time and he used to get into her pocketbook and take money before she stopped him.

Also indicative of the state of the parties' marital relationship was the appellee's repeated references to the appellant as 'that thing over there', and descriptions of the appellant such as 'dumb' and 'lazy'.

The appellant argues that the foregoing evidence falls short of establishing the couples' incompatibility.

Recently, this court had occasion to consider incompatibility as a ground for divorce in Berry v. Berry, 245 Kan. 47, 523 P.2d 342. There it was said incompatibility may be broadly defined as such a deep and irreconcilable conflict in personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable.

It is also recognized in Berry, supra, that incompatibility does not refer to petty quarrels and minor bickerings which are merely evidence of normal human frailty, but refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship.

While a divorce should not be granted perfunctorily or merely upon a party's charge of incompatibility without real proof of the fact, undoubtedly the legislature in supplying the additional ground of incompatibility intended to liberalize our divorce laws by broadening the basis upon which it may be granted. (Berry v. Berry, supra).

In our opinion the appellee's testimony sufficiently supported the trial court's finding of incompatibility. Her testimony clearly demonstrates a long-standing, deep-seated dispute between the parties as to work load responsibilities on the farm and financial matters generally. The appellee quite evidently harbors nothing but hostility and resentment for the appellant. It is inconceivable that appellant's temperament can be compatible with the appellee's, if hers is incompatible with his. (Burch v. Burch, 195 F.2d 799 (3rd Cir. 1952).)

The appellant contends the trial court abused its discretion by not requiring corroboration of the appellee's testimony. The appellant states if he is 'correct in his contention that there is no evidence on record showing the parties incompatible, the trial court abused its discretion by not requiring corroborating testimony to fill the void of the Appellee's direct testimony.'

Actually, the appellant seems to be reasserting his argument that there is insufficient evidence to support the finding of incompatibility. Having already concluded that sufficient testimony exists, this claim has no merit. It was recognized in Berry v. Berry, supra, that our law is now changed so that either party may, in the trial court's discretion, obtain a decree of divorce or separate maintenance upon the uncorroborated testimony of either of both of the parties. (K.S.A.1974 Supp. 60-1609(d).) The record does not disclose any abuse of the exercise of the power of discretion in the instant case.

The appellant contends the trial court erred in the weight and credibility given the appellee's testimony because of her demeanor as shown by the record. It is readily apparent from the record the appellee, 85 years of age at the time of trial, was uncooperative and refused to testify as to the disposition of certain assets; she refused to abide by the court's order restraining her from disposing of liquid assets; she was evasive, and rude to the court and counsel. However, there is no indication in the record the trial court was deprived of its ability to weigh the evidence and determine this case by reason of the appellee's demeanor during the trial. The point is...

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26 cases
  • Wallop v. Wallop
    • United States
    • Wyoming Supreme Court
    • April 27, 2004
    ...what is just and reasonable in the division of marital property. The breadth of this discretion was recognized in LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975), where the court stated: "Nowhere in any of our decisions is it suggested that a division of all the property of the partie......
  • In re Traster
    • United States
    • Kansas Supreme Court
    • December 19, 2014
    ...embraced. As this court has previously stated, a property division need not be equal to be just and reasonable. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975) (“Nowhere in any of our decisions is it suggested that a division of all the property of the parties must be an equal divisio......
  • Traster v. Traster
    • United States
    • Kansas Supreme Court
    • December 19, 2014
    ...embraced. As this court has previously stated, a property division need not be equal to be just and reasonable. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975) (“Nowhere in any of our decisions is it suggested that a division of all the property of the parties must be an equal divisio......
  • Grant v. Grant, 55835
    • United States
    • Kansas Court of Appeals
    • August 9, 1984
    ...marriage, but rather gives the court discretion to consider all property to arrive at a just and reasonable division. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975); Zeller v. Zeller, 195 Kan. 452, 459, 407 P.2d 478 (1965). To determine what property is subject to division, the court......
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