Lindeman v. Lindeman

Decision Date17 August 1965
Docket NumberNo. 44158,44158
Citation404 P.2d 958,195 Kan. 357
Parties, 14 A.L.R.3d 698 George W. LINDEMAN, Appellee, v. Louella B. LINDEMAN, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. G.S.1949, 60-1509, [K.S.A. 60-1609(d)] prohibits the granting of a divorce upon the uncorroborated testimony of either husband or wife, or both of them.

2. The record in an action in which a husband was granted a divorce from the wife and the wife a divorce from the husband upon the grounds of extreme cruelty and gross neglect of duty, is examined, and as more fully set forth in the opinion it is held: (1) The trial court erred in granting a divorce to the husband for the reason that no evidence was presented to corroborate his testimony; and (2) the trial court further erred in granting the wife a divorce where she asked only for a decree of separate maintenance.

3. Corroborating testimony must pertain to the statutory grounds upon which a divorce is sought and may be obtained, and corroboration of indignities and abuses which do not justify a divorce is insufficient to support a decree. A wife who alleges sufficient grounds for divorce but specifically prays for a decree of separate maintenance only cannot properly have a divorce forced upon her against her will.

C. Bruce Works, Topeka, argued the cause and was on the brief for appellant.

Leland M. Spurgeon, Topeka, argued the cause, Eugene W. Hiatt, Topeka, with him on the brief, for appellee.

The following opinion was propered by Mr. Justice ROBB and approved by the court during his lifetime:

This is an appeal from a final decree in a divorce action wherein a divorce was granted to both parties.

Plaintiff, George W. Lindeman, commenced the action by filing a petition against his wife, Louella B. Lindeman, praying for a divorce on the grounds of extreme cruelty and gross neglect of duty. Thereafter, the defendant filed an answer denying the alleged grounds for divorce. She also filed a cross-petition in which she alleged the plaintiff was guilty of extreme cruelty and gross neglect of duty and prayed that she be granted a decree of separate maintenance.

The record discloses that a trial was held on December 3, 1963, at which time evidence was presented by both parties, but only a narrative statement of this evidence is contained in the record. Although no specific findings of fact were made, the trial court on December 16, 1963, entered a decree granting the plaintiff a divorce from the defendant and the defandant a divorce from the plaintiff. In addition, provision was made for attorneys' fees and for a division of certain property owned by the parties. Defendant timely filed a motion for a new trial which was considered by the trial court and overruled. This appeal was subsequently perfected.

Defendant contends the trial court erred in granting the plaintiff a divorce on the ground that no evidence was presented to corroborate his testimony.

In respect to this contention, the controlling statute, G.S.1949, 60-1509, [K.S.A. 60-1609(d)] provides:

'In all actions for divorce * * *, hereafter to be tried, the parties thereto, or either of them, shall be competent to testify upon all material matters involved in the controversy to the same extent as other witnesses might do: Provided, however, That nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or both of them.'

It has long been settled in this jurisdiction, in accordance with the above statute, that there must be corroborated evidence of the testimony given by the complaining spouse as to the delinquencies of the defendant spouse alleged as grounds for divorce. The principal object of corroboration is to prevent two people who are dissatisfied with the burdens of their marriage relation from obtaining relief through the courts by agreement or connivance and without legal reason. The statute contains no exceptions and courts are not permitted to nullify its intendment by reading exceptions into it. (Frye v. Frye, 134 Kan. 3, 4 P.2d 415; Walton v. Walton, 166 Kan. 391, 202 P.2d 197, Thornbrugh v. Thornbrugh, 175 Kan. 56, 259 P.2d 219; Smeltzer v. Smeltzer, 175 Kan. 293, 262 P.2d 826; Rosander v. Rosander, 177 Kan. 45, 276 P.2d 338.)

Even though it may be exceedingly difficult to obtain corroborating testimony concerning the conduct between spouses, such difficulty does not eliminate the requirement for corroboration. (Tuley v. Tuley, 168 Kan. 106, 211 P.2d 95.) Of course, where an essential fact is difficult of proof the corroboration of that fact may in some cases be sufficient though weak. (Walton v. Walton, supra.)

In examining the record we find that no evidence was presented which satisfactorily corroborated the plaintiff's testimony. The plaintiff's son by a former marriage and daughter-in-law appeared in his behalf and testified in substance they did not feel welcome in the senior Lindeman's home. This testimony does not satisfy the corroboration requirement contained in G.S.1949, 60-1509, for the reason that it does not pertain to the alleged grounds for divorce. In other words, there was no corroboration of the alleged acts of extreme cruelty and gross neglect of duty, the real basis for the divorce.

This court in Walton v. Walton, supra, 166 Kan. at page 394, 202 P.2d at page 199 stated:

'Without indulging in an extensive review of the...

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4 cases
  • Ripatti v. Ripatti
    • United States
    • Idaho Supreme Court
    • 13 Marzo 1972
    ...See discussion in Annotation, 14 A.L.R.3d 703, 706-711.6 LeSeuer v. LeSeuer, 197 Kan. 495, 419 P.2d 817 (1966); Lindeman v. Lindeman, 195 Kan. 357, 404 P.2d 958 (1965); Greene v. Greene, 371 Mich. 170, 123 N.W.2d 271 (1963); Reed v. Reed, 130 Mont. 409, 304 P.2d 590 (1956); DeReus v. DeReus......
  • LeSueur v. LeSueur
    • United States
    • Kansas Supreme Court
    • 5 Noviembre 1966
    ...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 it......
  • Moran v. Moran
    • United States
    • Kansas Supreme Court
    • 5 Marzo 1966
    ...a fixed rule without exception, and courts are not permitted to frustrate its intendment by reading exceptions into it. (Lindeman v. Lindeman, 195 Kan. 357, 404 P.2d 958; Kelso v. Kelso, 182 Kan. 665, 324 P.2d 165.) The purpose of the statute is to prevent parties seeking a divorce or legal......
  • Marshall v. Marshall
    • United States
    • Kansas Supreme Court
    • 6 Noviembre 1971
    ...the corroboration must have pertained to the statutory grounds for divorce. Moran v. Moran, 196 Kan. 380, 411 P.2d 677; Lindeman v. Lindeman, 195 Kan. 357, 404 P.2d 958; Walton v. Walton, 166 Kan. 391, 202 P.2d 197; Frye v. Frye,134 Kan. 3, 4 P.2d 415. Those principles were undoubtedly appl......
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