Mann v. Mann

• Decision Date: 05 November 1932
• Docket Number: 30555.
• Citation: 15 P.2d 478,136 Kan. 331
• Parties: MANN v. MANN.
• Court: Kansas Supreme Court

15 P.2d 478

136 Kan. 331

MANN v. MANN.

No. 30555.

Supreme Court of Kansas

November 5, 1932

Syllabus by the Court.

Property acquired by gift from husband constitutes wife's "separate property," within statute governing division of property upon divorce (Rev. St. 1923, 60--1511).

Whether conveyance from husband to wife was gift, constituting property conveyed her separate property, held question of fact (Rev. St. 1923, 60--1511).

Where husband borrowed money from wife, and deeded land to wife as security, court, in action for divorce, is without power to cancel obligation and render money judgment, unless requested by wife (Rev. St. 1923, 60--1511).

Allowance of alimony or division of property upon divorce rests largely in discretion of trial court.

Allowance of alimony or division of property between husband and wife upon divorce, if arbitrary and inequitable, will be set aside.

1. Where the wife acquired property by gift from the husband, it is her separate property within the meaning of the statute (R. S. 60-1511), but whether the conveyance was in fact a gift, under the issues and evidence of this case set out in the opinion, was a question of fact to be determined by the trial court.

2. Where the husband borrows money from the wife and to secure the note evidencing the indebtedness deeds land to the wife the court, in a divorce suit, has no power to cancel the obligation thus created and render a money judgment, unless requested by the wife.

3. An allowance of alimony or division of property rests largely in the discretion of the trial court, but, where such discretion is arbitrary and not judicial, and the judgment inequitable it will be set aside.

Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.

Action for divorce by Olive Mann against W. K. Mann. From part of the judgment relating to the division of property, the plaintiff appeals.

Reversed and a new trial ordered.

James A. McDermott and Richard B. McDermott, both of Winfield, and Edward J. Fleming, of Tulsa, Okl., for appellant.

L. D Moore and H. O. Janicke, both of Winfield, and J. T. Boyle, of Arkansas City, for appellee.

SLOAN J.

This was an action for divorce, division of property and alimony. The plaintiff's right to a divorce and the custody of the child were not contested. The contest between the parties was on the division of the property and alimony. A divorce was granted to the plaintiff, and she was given the care and custody of the child, aged 10 years. The defendant was directed to pay $45 a month to the plaintiff for the support of the child, commencing August 1, 1931, and continuing until the further order of the court. Certain property was set apart to the plaintiff, and the defendant was ordered to pay to the plaintiff the sum of $4,820 within two years from the date of the decree. The plaintiff appeals from the judgment of the court dividing the property.

The parties were married March 14, 1917. The appellant was at that time 17 years of age and the appellee 21. Appellee claimed that at the time of the marriage he was worth $80,000, and that the appellant brought no property to the marriage. Appellee was engaged in the oil business, and it is claimed that in 1921 he met with reverses and was practically insolvent; that afterwards, in 1924, he met with success and accumulated considerable property. The appellant received $500 from her grandmother shortly after their marriage, and later an inheritance of $885. This money was used by the appellee in his oil operations. The appellant estimated the net value of appellee's property at the time of the trial to be $49,779.38, while the appellee estimated the value to be $30,250. A large volume of testimony was offered on both sides as to the value of the property and how it was accumulated. The court did not make any special findings, and the estimates above suggested are taken from the evidence of the respective parties. The trial court set aside to the appellant the home, household goods, and an automobile, which are estimated to be of the value of $4,330; required the appellee to pay the taxes on the home, amounting to $250, and an attorney fee of $500, and in addition thereto a money judgment in favor of the appellant in the amount of $4,820.

Among the property involved in the litigation are three city properties in the city of Arkansas City, one of which is the homestead, and a farm in Hamilton county. The city properties were estimated by both parties to be of the value of $10,000 and the farm $1,400. The legal title to this real estate, at the time of the trial, was in the name of the appellant. It is the contention of the appellant that this real estate was her separate property, acquired in her own right, and should be set apart to her. The appellant alleges in her petition "that some of said property, both real and personal, is owned in the name of the plaintiff, other of it owned in the name of the defendant, but howsoever the title may be held it and all of said property of every kind owned by them or either of them was accumulated by their joint efforts." The appellant, when questioned on this subject, testified as follows:

"Q. Do you have any property that you claim you own now, you own sole and separate property? A. I have property that I figure is part mine because I have worked with him.

"Q. That wasn't the question. Do you have any property now that you claim as your sole and separate property? A. I figure that land is really mine, the 160 acres in Hamilton County, at Syracuse; he told me I might have that for security. He told me that I might have that for security on my $500.00; I also figure that a part interest in the gas property is mine because my inheritance went into it.

"Q. I was wondering if you had any kind of property of any kind or character now, individual property, not what we call community property, but your own absolutely and not involved in your controversy with your husband? Do you own any property in which your husband has no interest whatsoever? A. ...