Lindbloom v. Lindbloom

• Decision Date: 22 January 1955
• Docket Number: No. 39508,39508
• Citation: 279 P.2d 243,177 Kan. 286
• Parties: Teresa LINDBLOOM, Appellant, v. Gerald B. LINDBLOOM, Appellee.
• Court: Kansas Supreme Court

Page 243

279 P.2d 243

177 Kan. 286

Teresa LINDBLOOM, Appellant, v. Gerald B. LINDBLOOM, Appellee.

No. 39508.

Supreme Court of Kansas.

Jan. 22, 1955.

Syllabus by the Court.

1. It is the duty of a husband to provide and care for his wife in her illness as well as in her health.

2. The fact that the wife, in the intervals between her temporary hospitalization, and with three small children, ages 3, 2 and 1, and without help the husband was able to provide, did not keep her house or the children as clean as they should have been, did not constitute 'gross neglect of duty' justifying the granting of a divorce to the husband upon that ground.

3. Under the facts as more specifically set out in the opinion, the court was not justified in finding that the wife was an unfit person to have the custody of the children.

4. The court was not justified in giving the custody of the children to the husband when he was not giving them any attention himself, but had turned the care of them over to his mother whose attitude toward the wife was such that she could not visit them with comfort while the husband's mother was present.

5. The last time the wife was at the hospital and the doctor there had advised that she ought to have the children with her, the husband did not take her to see the children, nor to their home, but took her to the home of her parents and stated in substance: that he had had enough of her housekeeping; that they were not going to live at their home any more, and that his mother would rear the children. Held: This conduct amounted to extreme cruelty sufficient to authorize the wife's petition for separate maintenance.

Keith Martin, Mission, argued the casuse, and Thomas Sullivan, Kansas City, on the briefs for appellant.

Herbert L. Lodge, Olathe, on the briefs for appellee.

HARVEY, Chief Justice.

On September 10, 1953, plaintiff filed her petition for separate maintenance. The defendants were her husband and his parents. Hereafter when we speak of defendant we mean plaintiff's husband, and when we speak of his parents we will identify them. In plaintiff's petition she alleged that she married the defendant, Gerald B. Lindbloom, July 19, 1947; that they are the parents of three children: Rachel, age 3; Kristine, age 2; and Karen, age 1; that she had performed her duties as the wife of defendant; that the defendant had been guilty of extreme cruelty and gross neglect of duty; that prior to the filing of the petition she was ill and defendant had the care of the children; that she is presently able to care for them but that defendant refuses to let her have the care, custody and control. That she believes the children are presently residing with Con Lindbloom and Mary Lindbloom, parents of the defendant, of Osage City, Kansas. The petition alleged other facts not necessary to state here. The prayer was that she be granted the custody of the children, separate maintenance for herself and children, and that the court make other proper orders. On the same day she filed a motion for an order granting her the custody of the minor children pending the action, and for temporary support money and attorneys fees.

To this petition defendant filed a motion to dismiss and abate upon the grounds that prior to the time this action was brought defendant filed in the district court of Osage County a petition against plaintiff for a divorce and a determination of the custody of the children and the rights of the parties, which action was still pending.

These motions were heard by the court on October 9, 1953. Defendant's motion to dismiss and abate was denied. The court denied plaintiff's motion for temporary custody of the children but did arrange for her to visit them, and made an order for defendant to pay plaintiff a stated sum for temporary alimony and also a sum to apply upon her attorneys fees, and fixed the times for such payments.

To this petition defendant filed an answer and cross-petition. In the answer he denied the material allegations to the petition, except as admitted. The answer specifically admitted the marriage of the parties; that they are the parents of the three minor children named in the petition; and other facts no longer in controversy. In the cross-petition defendant alleged that during their married life he had demeaned himself as the husband of plaintiff but that plaintiff had been guilty of extreme cruelty and gross neglect of duty. Defendant further alleged that plaintiff was not a fit and proper person to have the care, custody and control of the three minor children, but the defendant was a fit and proper person to have such custody. The prayer was that plaintiff take nothing by her petition; that defendant be granted a divorce upon his cross-petition; that he be awarded the care, custody and control of the minor children; and that the court determine and decree an equitable division of the property rights of the parties.

In reply to the cross-petition plaintiff denied she had been guilty of extreme cruelty and gross neglect of duty; denied that she was not a fit and proper person to have the care and sustody of the minor children, and asked relief in harmony with the prayer of her petition.

On February 19, 1954, the parties appeared before the court and offered testimony and the court took the same under advisement until March 1, 1954. At that time the court found that the allegations contained in plaintiff's petition were not sustained by the evidence, and that plaintiff was not entitled to the relief prayed for. The court further found the allegations contained in defendant's cross-petition were true and that defendant was entitled to be divorced from plaintiff upon the grounds of gross neglect of duty. The court further found plaintiff not a fit and proper person to have the care, custody and control of the minor children, and that defendant was a fit and proper person to have such custody. The court made a division of the property of the parties and fixed the final fee for plaintiff's attorneys. Judgment was entered in accordance with these findings.

Plaintiff filed a timely motion for a new trial upon the grounds that the judgment of the court was not supported by the evidence. This motion was considered and denied, and the court fixed a definite period for plaintiff to have the children with her, or to visit them.

On March 9, 1954, plaintiff filed a motion of her intention to appeal from the order granting the divorce and other orders adverse to her made by the court. Notice of appeal was duly served and filed on March 16, 1954.

The evidence may be summarized as follows: Plaintiff and defendant were married in Los Angeles, California, on July 19, 1947; prior to their marriage plaintiff had lived with her parents who resided in Kansas City, Missouri, and had worked for seven years for the Hall Brothers Greeting Cards in Kansas City; defendant was a Navy career man. At the trial in December, 1953, he testified he had been in the Navy more than twelve years and that further service of less than eight years would permit him to retire. The circumstances of their meeting and becoming acquainted is not disclosed. Soon after their marriage defendant went of Japan. In December, 1948, Plaintiff went to Japan on a transport ship to join her husband. In route she had a miscarriage at which time she was about six months with child. She remained in Japan until March, 1951, and while there two children were born to the parties: Rachel, on November 16, 1949, and Kristine on January 15, 1951. In March, 1951, plaintiff and the two children returned to Kansas City; defendant stayed with the naval service in Japan. Upon her return to the states plaintiff and her children lived, for a short time, with her parents in Kansas City and then rented an apartment. Plaintiff and the children later went to the home of defendant's parents in Osage City; defendant's mother noticed some strange conduct on the part of plaintiff and notified plaintiff's parents to come and get her, which they did. Plaintiff's parents got her admitted to the General Hospital in Kansas City where she remained about six weeks, and was given some shock treatments. After her release from the hospital she went back a few times for further treatment as an outpatient.

Sometime in the summer of 1951 defendant visited his family in Kansas City and returned to duty at San Diego, California. Later defendant's mother wrote him three letters. While the contents of these letters are not disclosed in the abstract, as the result of them defendant got a two-year humanitarian leave to come home and be with his wife and children. In December, 1951, the parties moved into a farm home not far from Olathe. About July 1, 1952, they contracted to purchase a residence in Olathe and moved there. On August 24, 1952, the third child, Karen, was born. In December, 1952, defendant had plaintiff committed to Osawatomie State Hospital for observation and treatment. She stayed there about 90 days. During this time defendant's mother kept the two older children and plaintiff's mother kept the baby. When plaintiff was released from the hospital in February, 1953, she stayed part of the time with her mother and part of the time with defendant's mother over a period of about five weeks, and went back to housekeeping in their home in Olathe. She remained there about two months and again went to defendant's parents' home in Osage City for about a month. Defendant again took her to Osawatomie State Hospital late in June, 1953. She was ready to leave there in about a month. On July 27, defendant went there for her and took her to the home of her parents in Kansas City without permitting her to see their children, then at the home of his parents in Osage City, and without stopping at their home in Olathe.

During the trial plaintiff was asked and answered the following question:

'Q. And what happened when he came to the hospital the last time to...