Martin v. Martin

• Court: Kansas Court of Appeals
• Writing for the Court: ABBOTT
• Citation: Martin v. Martin, 5 Kan.App.2d 670, 623 P.2d 527 (Kan. App. 1981)
• Decision Date: 06 February 1981
• Docket Number: No. 51056,51056
• Parties: Laura A. MARTIN, Appellee, v. James R. MARTIN, Appellant.

Page 527

623 P.2d 527

5 Kan.App.2d 670

Laura A. MARTIN, Appellee, v. James R. MARTIN, Appellant.

No. 51056.

Court of Appeals of Kansas.

Feb. 6, 1981.

Review Denied April 13, 1981.

Syllabus by the Court

1. As a general rule, a litigant who has acquiesced in the judgment of the trial court by assuming the burden or by accepting the benefits of a judgment cannot thereafter appeal from such judgment.

2. The general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.

3. In a domestic relations case, when the complaining party cannot show prejudice, the determinative factors of acquiescence revolve around the consistency with which the litigant is attacking the judgment or the severability of the provision of the judgment under which the benefits have been accepted or the burdens assumed.

4. The marital and financial benefits of a divorce decree are divisible. When the marital dissolution is not challenged, remarriage of the appellant does not constitute acquiescence.

5. A trial court can reexamine its rulings within the time period allotted by K.S.A. 60-260 only if it does so prior to the time the appeal is docketed at the appellate level; otherwise it is without jurisdiction to consider motions filed pursuant to K.S.A. 60-260.

6. The grant or denial of a motion for new trial on the grounds of newly discovered evidence rests largely in the sound discretion of the trial court. It must first be shown to that court's satisfaction that such evidence could not with reasonable diligence have been produced at trial.

7. Rules relating to appellate review of alimony awards are restated and applied.

8. K.S.A. 1980 Supp. 60-1610(d ) gives the trial court continuing jurisdiction to modify an award of alimony or child custody or support at any time, even when an appeal attacking a prior judgment has been docketed.

9. In a divorce case, it is held: The trial court did not err in holding (1) that it did not have jurisdiction to hear a K.S.A. 60-260 motion; (2) that the defendant did not acquiesce in the judgment by remarrying. The trial court did err in not considering a motion to terminate alimony pursuant to K.S.A. 1980 Supp. 60-1610(d ).

Don W. Noah, of Noah & Harrison, P. A., Beloit, for appellant.

Frank C. Norton, of Norton, Wasserman & Jones, Salina, for appellee.

Before REES, P. J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge:

Defendant, James R. Martin, appeals from the trial court's ruling in a divorce action, contending the trial judge abused his discretion in making the division of property, in awarding alimony, in failing to set aside the decree and in refusing to hear a post-trial motion to terminate alimony. The plaintiff, Laura A. Martin, cross-appeals, arguing that the award of alimony to her should have been in a greater amount and that the trial judge abused his discretion in awarding her insufficient alimony. She also alleges the defendant, by his marriage to another person, acquiesced in the judgment.

1. Acquiescence. Plaintiff has raised a jurisdictional issue as to whether defendant is barred from challenging the orders for division of property and alimony because of his remarriage on October 26, 1978. The general rule, subject to certain exceptions, is that a litigant who has acquiesced in the judgment of the trial court by assuming the burden of such judgment or by accepting the benefits thereof cannot thereafter appeal from such judgment. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. P 6, 597 P.2d 1080 (1979). In support of her argument, plaintiff cites Patterson v. Patterson, 164 Kan. 501, 190 P.2d 887 (1948), in which the Supreme Court reversed the trial court's order setting aside a voidable divorce decree for the reason that the ex-wife (who had initiated the action to set aside the original decree) had acquiesced in the validity of the divorce decree by her actions on at least three important occasions, which included remarrying. 164 Kan. at 504, 190 P.2d 887. The most recent expression of the rule is found in Justus v. Justus, 208 Kan. 879, 495 P.2d 98 (1972), wherein the Supreme Court held that the former husband was estopped from challenging the validity of the original divorce decree since he had remarried on the strength of it, stating at page 880, 495 P.2d 98;

"When a former spouse takes advantage of a decree of divorce by remarrying he cannot question the validity of the decree in a collateral proceeding concerning any rights which arose from the marital relation and which were determined by the decree."

In the case before us, the defendant is not challenging the validity of the entire divorce decree, and neither party is attempting to have the marital dissolution set aside. The controversy is solely over the division of property and alimony. The appellants in both Justus and Patterson were attempting to have the entire divorce decree set aside. In Gordon v. Gordon, 218 Kan. 686, 691, 545 P.2d 328 (1976), our Supreme Court stated that "the general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved." As we view Gordon, it holds that when the complaining party cannot show prejudice, the determinative factors of acquiescence in a domestic relations case revolve around the consistency with which the litigant is attacking the judgment or the severability of the provision of the judgment under which the benefits have been accepted or burdens assumed.

Here, neither party has challenged the marriage dissolution, which would be the only portion of the decree inconsistent with remarriage. The marriage dissolution is not affected by this appeal and it is a final judgment. Other states are in accord with this view, having held that the marital and financial benefits of a divorce decree are divisible and that remarriage has no effect on the financial aspects of the decree as far as acquiescence is concerned. Alderson v. Alderson, 258 Ind. 328, 281 N.E.2d 82 (1972); Miller v. Miller, 202 N.W.2d 105 (Iowa 1972). See Annot., 29 A.L.R.3d 1167; Annot., 55 A.L.R.3d 1299.

We are not confronted with a question as to whether the marriage is void by reason of K.S.A. 1980 Supp. 60-1610(h) and express no opinion as to whether the legislature intended to prohibit the marriage of parties who have appealed a domestic relations case pending the receipt of the mandate where the marriage dissolution is not challenged. It appears to us that the legislature intended the prohibition to apply in those cases where the dissolution of the marriage is in issue so as to prevent the remarried party from being guilty of bigamy should the divorce decree be set aside. We conclude that this defendant did not acquiesce in the judgment of the district court so as to preclude him from appellate review of the property division and alimony judgment by reason of his marriage.

2. Division of Property. The parties accumulated a considerable amount of property during their marriage. Plaintiff had worked as a schoolteacher during most of the marriage. Defendant practiced law and is chairman of the board of directors of the First State Bank of Osborne. The trial court heard expert testimony and the opinions of the parties about the value of the various assets owned by them, and a value was placed on each of the assets. Based on the trial court's values placed on the assets and adjusting the figures to include liabilities the defendant was ordered to pay, the court awarded to each party property amounting to approximately one-half the value of the accumulated property. Defendant's complaints concerning the division of property fall into three distinct categories.

A. Requested Offset. In its decree dividing the properties, the trial court overlooked assigning a debt of $12,500. Defendant requested that the trial court give him credit for that amount against $137,000 he was ordered to pay to plaintiff as part of the property settlement agreement. The trial court ordered defendant to pay the indebtedness. The trial judge stated that although his memorandum decision did not assign the indebtedness to the defendant, the court was aware of the indebtedness and had intended to assign it to defendant. We find no abuse of discretion in the trial court's assigning the indebtedness to defendant for payment.

B. Contingent Liabilities. Defendant owned a one-third interest in WCM Company. The three owners of WCM Company personally guaranteed notes totaling $472,500 (the record indicates plaintiff also personally guaranteed the notes). The trial court found that defendant testified at trial that the possibility of liability was "a rather speculative liability that may or may not occur."

As we view the record, the trial court heard evidence at the trial concerning the contingent liability, and based on that evidence we cannot say the trial judge abused his discretion in assigning the contingent indebtedness to the defendant. The contingent liability was listed by defendant in his statement of assets; it is shown in the pretrial order and was testified to by the defendant. As discussed more fully below, the evidence offered on the motion for a new trial concerning the guaranteed notes is not newly discovered evidence under K.S.A. 60-259(a), Fifth. McHugh v. City of Wichita, 1 Kan.App.2d 180, 563 P.2d 497 (1977).

C. Newly Discovered Evidence. Defendant contends that the trial court erred in not allowing him to show that a bank audit required the bank to reevaluate the notes held by the bank and to consider some of them as losses. Defendant alleged in his motion for new trial that the expert witnesses who testified to the value of the bank stock had no way of knowing the true state of the loan file, hence the stock was valued higher than its actual worth. The...