Marriage of Sedbrook, Matter of

• Decision Date: 13 March 1992
• Docket Number: No. 66410,66410
• Citation: 16 Kan.App.2d 668,827 P.2d 1222
• Parties: In the Matter of the MARRIAGE OF Luanne SEDBROOK, Appellant, and Delbert Sedbrook, Appellee.
• Court: Kansas Court of Appeals

Page 1222

827 P.2d 1222

16 Kan.App.2d 668

In the Matter of the MARRIAGE OF Luanne SEDBROOK, Appellant and Delbert Sedbrook, Appellee.

No. 66410.

Court of Appeals of Kansas.

March 13, 1992.

Review Denied April 29, 1992.

Syllabus by the Court

1. The fault of either party to a marriage is not to be considered in determining the financial aspects of the dissolution of the marriage unless the conduct is so gross and extreme that the failure to penalize therefor would, itself, be inequitable. In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005 (1990).

2. The determination of the allowance of maintenance must be based on a realistic evaluation of the parties' circumstances, future income, and needs.

3. A finding of cohabitation may not be equated with the conclusion the relationship has become that of wife and husband and is not, by itself, sufficient to justify denial of spousal maintenance.

4. It is not improper for the trial court to consider the nature and extent of the financial contribution of an unrelated party, or that which he or she may be capable of assuming, in order to maintain a relationship with a spouse seeking continued maintenance from a former spouse.

5. The determination of maintenance and the division of property should be made at the same time, but, if separately determined, the allowance of maintenance or the lack thereof should be considered before making a division of property. K.S.A.1991 Supp. 60-1610(b).

6. To the extent earned during the marriage, retirement benefits represent compensation for marital effort and are substitutes for current earnings which would have increased the marital standard of living or would have been converted into other assets divisible at dissolution of the marriage.

7. Exemption and anti-alienation provisions restricting garnishment, attachment, execution, and prohibition of assignment are designed to protect benefits from creditors and do not apply to the claims of a spouse at the time of the dissolution of a marriage.

8. Municipal pensions are considered as marital property under K.S.A. 23-201(b) for the purpose of making the division of property upon the dissolution of a marriage as provided under K.S.A.1991 Supp. 60-1610(b).

9. Under the facts and circumstances of this case, the trial court erred in denying spousal maintenance solely on the grounds of cohabitation with an unrelated member of the opposite sex. The trial court further erred in ruling, as a matter of law, that a municipal firefighter's pension benefits were not marital property subject to equitable division upon the dissolution of a marriage.

Stephen J. Blaylock and Cindy Cleous-Stang, of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, for appellant.

David J. Lund, of Dewey & Lund, Wichita, for appellee.

Before LARSON, P.J., ELLIOTT, J., and NELSON E. TOBUREN, District Judge, assigned.

LARSON, Presiding Judge:

This is a divorce action in which Luanne Sedbrook appeals the trial court's ruling that she is ineligible to receive maintenance from Delbert Sedbrook because she was cohabiting with an unrelated male. Luanne also claims the trial court erred by ruling Delbert's City of Wichita firefighter's pension is not a marital asset subject to division and may only be considered as a source of funds for the payment of child support or maintenance.

The parties married in August of 1964. After 25 years, the parties separated and Luanne filed for divorce in November of 1989.

Delbert commenced his firefighting employment in May of 1963. Wichita established by charter ordinance its police and fire retirement system on January 1, 1965, which after numerous amendments became Charter Ordinance No. 131. Delbert became a member of the system and continued his uninterrupted employment until he retired in April of 1985 with a monthly pension for life of $1,022.94. Cost of living adjustments increased his monthly pension to $1,084.29 by the time of trial.

Luanne's contention that Delbert's pension was marital property subject to division was resolved adversely to her as a matter of law by the trial court in January 1991.

At the time of trial in late January and early February of 1991, Delbert was a mechanical maintenance engineer for St. Joseph Medical Center, earning approximately $1,500 gross per month in addition to his Wichita retirement pay. Luanne was a receptionist at Family Physicians and earned approximately $1,200 gross per month. She was 44 years old; he was 50 years old.

Luanne had been a homemaker for 14 years of the marriage. Three of the parties' four children were adults and the youngest was 17 at the time of the trial. Luanne has worked for Sears and Montgomery Ward, and had a variety of other jobs during the marriage.

During the pendency of the divorce, an auction liquidated the real and much of the personal property of the parties. After giving credit for payment of debts, the cash monies were divided: $17,414.85 to Luanne and $19,118.81 to Delbert.

A hearing on the maintenance issue was held in late February, and in early April the trial court ruled:

"The Court finds that the petitioner has been continuously cohabiting with a gentleman since approximately September, 1990. As a result, the Court finds that this conduct makes the petitioner ineligible to receive payment of spousal maintenance from the respondent. Therefore, the petitioner's motion for a determination of spousal maintenance is denied."

Luanne appeals. We reverse.

The trial court abused its discretion in holding Luanne was precluded from receiving spousal maintenance solely because she cohabited with an unrelated male.

"The trial court has wide discretion when it comes to matters relating to alimony, and its judgment in awarding alimony will not be disturbed absent a clear abuse of discretion." Parish v. Parish, 220 Kan. 131, 134, 551 P.2d 792 (1976). K.S.A.1991 Supp. 60-1610(b)(2), which relates to maintenance, provides in part: "The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree."

Many of the statutory considerations relating to the division of property by case law are required to be considered in the determination of maintenance. Justice Herd, in Powell v. Powell, 231 Kan. 456, 460, 648 P.2d 218 (1982), stated:

"[T]he judicial considerations regarding alimony are well settled. They were capsulized in Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976):

'Fault is but one element which may be considered in fixing alimony. Other matters which may be considered include the age of the parties, their present and prospective earning capacities, the length of the marriage, the property owned by them [citation omitted], the parties' needs [citation omitted], the time, source and manner of acquisition of property, the family ties and obligations [citation omitted], and the parties' overall financial situation [citation omitted]. There is no fixed rule on the subject and the district court in a divorce action is vested with wide discretion in adjusting the financial obligations of the parties. Thus, its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.'

See also Parish v. Parish, 220 Kan. at 134 ."

Other than fault, which has been eliminated by the legislature as a factor, the foregoing provisions are similar to those in K.S.A. 60-1610(b)(1), setting forth considerations in the division of property, which include the allowance of maintenance or lack thereof.

The Kansas Supreme Court in In re Marriage of Sommers, 246 Kan. 652, 658-59, 792 P.2d 1005 (1990), determined that fault may no longer be considered in the division of property, award of maintenance, or award of attorney fees when the divorce is sought and granted on the ground of incompatibility, except in rare and unusual situations.

In Sommers, over the husband-petitioner's objection, evidence was admitted that he was having an extramarital affair. In a memorandum opinion the trial court stated:

" 'The Court specifically finds that the primary cause of the destruction of the marriage was the Petitioner's involvement with [name deleted], which the Court finds relevant to the issue of maintenance.

....

" 'While this Court recognizes that this is a no-fault divorce case, nonetheless, there is still some room in these cases for fault....' " 246 Kan. at 654, 792 P.2d 1005.

Following a discussion of Maxwell, In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177 (1983), Justice McFarland concluded: "[I]n domestic relations actions it was the legislative intent that, in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault." 246 Kan. at 657, 792 P.2d 1005. The court further stated:

"It is difficult to conceive of any circumstances where evidence of marital infidelity would be a proper consideration in the resolution of the financial aspects of a marriage. Consideration of such evidence could result only on a decision of whether or not to impose a penalty for such conduct, as it does not relate to the present or future financial circumstances of the parties or the award of any particular property." 246 Kan. at 658, 792 P.2d 1005.

The court held: "Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party's conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable." 246 Kan. at 658-59, 792 P.2d 1005.

The parties'...