LeSueur v. LeSueur
| Decision Date | 05 November 1966 |
| Docket Number | No. 44539,44539 |
| Citation | 419 P.2d 817,197 Kan. 495 |
| Parties | Dana Ann LeSUEUR, Appellant, v. James Leon LeSUEUR, Appellee |
| Court | Kansas Supreme Court |
Syllabus by the Court
Under the provisions of K.S.A. 60-1601 a wife may prosecute an action for separate maintenance and the trial court is without authority to grant her a decree of divorce over her objection.
F. C. McMaster, Wichita, argued the cause, and Stanford J. Smith, Wichita, was with him on the briefs, for appellant.
Milo M. Unruh, Wichita, argued the cause, and Edward F. Arn, Richard F. Mullins, H. R. Kuhn and Louis W. Cates, Wichita, were with him on the briefs, for appellee.
HATCHER, Commissioner.
This is an appeal from a decree of divorce granted a wife on her petition for separate maintenance.
The determination of the chief issue presented requires a consideration of only the procedural facts.
The plaintiff, in her petition, named three children and mentioned an expected fourth. She listed the assets accumulated during the marriage and alleged that the defendant had been guilty of gross neglect of duty and extreme cruelty toward her.
The prayer was for a decree of separate maintenance; custody and control of the minor children; permanent maintenance and support for herself and the minor children; permanent custody and control of the accumulated assets of the parties, and an order restraining defendant from molesting plaintiff or disposing of any of the assets of the parties.
The defendant answered denying that plaintiff was entitled to a decree of separate maintenance, but alleged in the alternative that if the court should find that the plaintiff proved one or more grounds for divorce or separate maintenance that a divorce be granted in lieu of separate maintenance. The answer was accompanied by a cross-petition in which defendant requested a divorce from plaintiff by reason of her gross neglect of duty and extreme cruelty.
In her answer to the cross-petition plaintiff generally denied the allegations but she did specifically state that she did not want a divorce from defendant but was desirous of obtaining separate maintenance.
At the trial on the factual issues the defendant made no attmept to submit corroborating testimony in support of his allegation that plaintiff was guilty of gross neglect of duty and extreme cruelty. In fact, his own testimony indicated nothing more than incompatibility. The plaintiff testified that she did not want a divorce.
The trial court's journal entry of judgment reads in part:
'* * * The court further finds that the defendant has been guilty of gross neglect of duty and extreme cruelty toward the plaintiff herein, by reason of which the plaintiff is entitled to a decree of separate maintenance or divorce from the defendant.
'THEREUPON, THE COURT inquired of the plaintiff if she desired to change her prayer for relief from one of separate maintenance from the defendant to one of divorce from the defendant and the plaintiff advised the court that she did not want a divorce from the defendant; that the relief requested of separate maintenance from the defendant was the relief she desired.
'THEREUPON, THE COURT entered the following order:
'IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the plaintiff be and she is hereby granted an absolute decree of divorce from the defendant but that the parties hereto are prohibited from contracting marriage with any other person within sixty (60) days after the entry of this decree, and if an appeal is taken, then until the receipt of the Mandate from the Supreme Court of the State of Kansas.'
The decree further provided for child custody and support, alimony, division of property and other formal matters which are not material to the issue to be determined.
The plaintiff has appealed.
Appellant contends that the district court was without authority to grant a party plaintiff a divorce when the prayer of the petition requested only separate maintenance and the court was informed at various stages of the trial that a divorce was not desired.
In support of her contention the appellant relies entirely on Lindeman v. Lindeman, 195 Kan. 357, 404 P.2d 958. She suggests that on June 18, 1965, the time the instant action was tried in the district court, this court had not rendered its opinion in the Lindeman case (opinion filed August 17, 1965) and, therefore, the court below did not have the benefit of this court's decision on the question.
In view of the stress that is placed on the Lindeman case we quote from the opinion at some length, beginning at page 359, 404 P.2d at page 960:
'Defendant further contends the trial court erred in granting her a divorce from the plaintiff where she only asked for a decree of separate maintenance.
'In this state, a wife may maintain an action for separate maintenance, independently of, and without asking for a divorce. Before an award of separate maintenance may be made, however, the trial court must find that a cause exists for which a divorce could be granted. In other words, in order for a wife to obtain an award of separate maintenance it is necessary for her to allege and prove grounds which would be sufficient for a divorce, should she ask for it. (G.S.1949, 60-1516 (repealed by L.1963, ch. 303, Sec. 60-2609. See K.S.A. 60-1601); Perkins v. Perkins, 154 Kan. 73, 114 P.2d 804; Paul v. Paul, 183 Kan. 201, 326 P.2d 283.)
'Defendant by asserting in her cross-petition that the plaintiff was guilty of extreme cruelty and gross neglect of duty did in fact allege sufficient grounds for a divorce; however, she specifically prayed for a decree of separate maintenance only. Despite defendant's prayer, the trial court granted her a divorce. This action of the trial court cannot be upheld.
'We need not inquire into the defendant's motives in not asking for a divorce. While the particular circumstances before the court might have entitled the defendant to a divorce, since she specifically requested a decree of separate maintenance only, we hold that a divorce should not be forced upon her so as to compel her to assume the status of a divorcee against her will. Furthermore, we cannot approve a decree which, in effect, would have made inoperative the governing statute, G.S.1949, 60-1516, to all intents and purposes.
'In 3 Nelson, Divorce and Annulment, 2nd Ed., Sec. 32.39, pp. 409, 410, it is stated:
"Contrary to the rule governing divorce actions in some jurisdictions, that absolute divorce may be decreed though the plaintiff ask only for a divorce from bed and board, if a wife, not desiring a divorce, proceeds for separate maintenance the court may not decree a divorce, but is bound to decree separate maintenance only. * * *'
The appellant suggests that the appellee in support of his cause for divorce merely stated that due to his wife's nagging he felf the legitimate ends of the marital relationship could not be achieved and he did not offer any corroborating evidence; hence the only relief possible had to favor the appellant and she requested only separate maintenance. Her conclusion is that under the Lindeman case the district court could not grant her a divorce when she specifically requested separate maintenance.
Appellee, although not taking issue with what was held in the Lindeman case, presents an entirely different theory. He states:
The appellee suggests that G.S.1949, 60-1501 and 60-1516 provided for two separate causes of action, the former for divorce by either party and the latter for separate maintenance by the wife. He further suggests that K.S.A. 60-1601, effective after January 1, 1964, vests in the discretionary power of the district court the relief to be granted to either spouse for the marital sins of the other.
We cannot agree with the suggestion of the appellee. We do not believe that such a drastic change was intended by the repeal of the former statutes and the enactment of the latter.
Considering briefly the two pertinent sections as they existed before the new code came into effect we find that G.S.1949, 60-1501 provides:
'The district court may grant a divorce for any of the following causes: * * *.' (The various grounds were then numbered and stated.)
It will be noted that under this section there is no limitation either on the husband or the wife, either may bring the action. The section anticipates, however, that the district court will not take...
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