McCain v. McCain

Decision Date08 May 1976
Docket NumberNo. 48005,48005
Citation219 Kan. 780,549 P.2d 896
PartiesLyla Rae McCAIN, Appellee, v. Marshall Earl McCAIN, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The time for filing an appeal runs from the time judgment is entered, whether it be by entry of judgment in the appearance docket at the direction of the court or by the filing of a journal entry.

2. In a divorce case where the trial court bifurcates its ruling and causes the decree of divorce to be entered on a date different from that upon which it enters final rulings on other issues in the case such as child custody, alimony and division of property, the entry of whichever order is later fixes the date from which the time for taking an appeal runs, and upon such an appeal all rulings of the trial court are properly before this court for review.

3. Under K.S.A. 1975 Supp. 60-1610, and under our decisions, the trial court is not obligated to award to each party all property owned by such party prior to the marriage, nor is the court required to award to each the property inherited by each during the marriage. The court is required to make a fair and equitable division of the property.

4. In an appeal in a divorce case, the reocrd is reviewed and it is held that the trial court did not err in taking into consideration the present value of future interests in land when dividing the property of the parites, and the division of property made by the trial court is approved.

Leonard W. McAnarney, Lyndon, argued the cause and was on the brief for appellant.

Stephen Jones, of Coffman, Jones & Hederstedt, Lyndon, argued the cause and was on the brief for appellee.

MILLER, Justice:

This is an appeal by Marshall McCain from a decree of the District Court of Osage County, Kansas, divorcing Lyla and Marshall McCain, and dividing their property.

The parties were married at Michigan Valley, Kansas on July 9, 1961. Lyla was then 19 years of age and had just graduated from high school. Marshall was 32 years old and was established in a farm operation. He owned an improved 80-acre tract (the home place) plus some livestock and farm machinery. The marriage prospered and lasted some 14 years. Two sons, Mark and Todd, were born in 1962 and 1964, respectively. The parties acquired a nearby 80 acres which was purchased from Marshall's aunt at half of its then value, thus Marshall regards half of it as a gift. Marshall acquired by gift or inheritance a one-sixth remainder interest in 160 acres, subject to the life estate of Pearl Stitt, and a one-third remainder interest in another 160 acres subject to the life estate of Alice McCain. Pearl Stitt is an aunt of Marshall. She was 71 years of age at the time of trial. Alice McCain is also Marshall's aunt. Her age was 68.

Lyla acquired by gift or inheritance a one-third interest in a 127 1/2 acre farm in Franklin County, Kansas and a one-fifteenth interest in another acreage, the latter being in the Pomona lake area and subject to a flowage easement. Lyla also inherited some money and received income from the Franklin County farm, some of which she invested and $12,000 of which was spent to remodel and build an addition to the parties' residence on the home place. Both parties were industrious and contributed labor to the farm and livestock operation. Later Lyla became a licensed practical nurse and worked at a nursing home for about a year before the parties spearated. During the marriage the parties accumulated additional farm machinery, livestock and personal property, and there were growing crops at the time of separation. The proceeds of a sale of livestock and machinery was in escrow at the time of trial, amounting after payment of expenses of sale and indebtedness to the bank, to about $29,000. The 1974 crops were sold for approximately $16,000. Defendant spent about $10,000 of that money for 97 head of cattle which he held at the time of trial.

Plaintiff filed her petition on July 23, 1974, seeking a divorce on the ground of incompatibility, custody of the two boys, child support, division of property and attorneys' fees. She later amended to add other grounds for divorce. Defendant answered and filed a cross petition by which he sought a divorce on the ground of incompatibility. He also later amended to add additional grounds and to seek custody of the children.

Trial was held on December 11, 1974. Both parties and several witnesses testified, including an expert who gave his opinion as to the value of each tract of real estate. At the conclusion of trial the court granted a divorce to each party on the ground of incompatibility. He awarded custody of the two sons to Lyla until the further order of court, fixed child support at $200 per month, and granted Marshall reasonable visitation. The court made the divorce effective on that date and directed the clerk to make an appropriate propriate entry on the appearance docket. Division of property was taken under advisement.

The trial court announced its further decision on January 6, 1975. It awarded to Lyla the south forty acres of the home place, on which she and the children were living and on which the improvement were situated; the one-third interest in the Franklin Courty farm and the one fifteenth interest in the acreage subject to flowage easement; certain investments; the household goods; a 1970 Maverick automobile; and $18,000 from the escrow account. The court awarded to Marshall the north 40 acres of the home place; the 80-acre tract acquired subsequent to the marriage; the one-third and one-sixth remainder interests in the two quarter sections; certain shares of stock; two late model vehicles; a one-half interest in a pontoon boat; 97 head of cattle; the balance of the 1974 crops and crop proceeds; and $11,000 from the escrow account. Plaintiff claims that the value of the assets awarded was $89,929 to her and $91,626 to defendant. Defendant computes it as $89,286 to plaintiff and $89,016 to him. The journal entry was filed January 29, 1975.

Defendant's motion for a new trial was overruled, and he appeals, listing nine separate grounds of error. These really amount to three claims of error, which are:

(1) that the court erred i granting a divorce on the ground of incompatibility as pertains to appellee, when the evidence failed to support that finding, and clearly supported the additional grounds alleged by appellant, gross neglect of duty and extreme cruelty;

(2) that the court erred in considering appellant's contingent or future interest in the two quarter sections of land, and in the method utilized in establishing the value placed on these interests by the court; and

(3) that the court abused its discretion in making the division of property decreed.

Before we consider the merits of the first of these, a question of jurisdiction arises. Appellee notes that the divorce was granted on December 11, 1974, and the notice of appeal was not filed until February 25, 1975. The time for filing an appeal runs from the time judgment is entered, whether it be by entry of judgment in the appearance docket at the direction of the court or by the filing of a journal entry. K.S.A. 60-258 and 60-2103; and see Corbin v. Moser, 195 Kan. 252, 403 P.2d 800, and Van Brunt, Executrix v. Jackson, 212 Kan. 621, 625, 512 P.2d 517. The divorce was granted, and was effective between the parties on December 11, 1974. Van Brunt, Executrix v. Jackson, supra. The remaining issues in the case were not resolved and no appealable order was entered thereon until the filing of the journal entry covering all of the issues on January 29, 1975.

K.S.A. 60-2103(i) provides in applicable part that:

'When an appeal . . . has been timely perfected the fact that some ruling of which the appealing . . . party complains was made more than thirty (30) days before filing of the notice of appeal shall not prevent a review of the ruling.' K.S.A. 60-2102(a)(4) also providents that:

'. . . In any appeal . . . from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.'

Our code and our rules envision and are designed to provide but one appeal in most cases, that to come after all issues have been determined on the merits by the trial court. Interlocutory and fractionalized appeals are discouraged, and are the exceptions and not the rule.

We conclude that in a divorce case where the trial court bifurcates its ruling and causes the decree of divorce to be entered on a date different from that upon which it enters final rulings on other issues in the case such as child custody, alimony and division of property, that the entry of whichever order is later fixes the date from which the time for taking an appeal runs, and upon such an appeal all rulings of the trial court can properly be reviewed by this court.

We turn now to the granting of this divorce. There was an abundance of competent evidence before the trial court supportive of its finding of incompatibility with which we need not burden this record. That evidence came from both sides. The quantum of proof supporting other grounds was much smaller. We did not see and hear the witnesses. Suffice it to say that we will not substitute our judgment for that of the trial court, where as here the judgment entered is supported by substantial competent evidence.

Marshall owned specific undivided future interests in the two quarter sections of land. Neither of these will ripen into a possessory interest until the termination of the estate of the life tenant of each tract. Nevertheless his interests are vested remainders which may be sold (Hull v. Prather, 161 Kan. 264, 167 P.2d 600; Stevenson v. Stevenson, 102 Kan. 80, 169 P. 552; Ghormley v. Kleeden, 155 Kan. 319, 124 P.2d 467; Woolums v. Simonsen, 214 Kan. 722, 522 P.2d 1321) or otherwise alienated, transferred or mortgaged. (McCartney v. Robbins, 114 Kan. 141, 217 P. 311; Schneider v. Schneider, 135 Kan. 734, 12 P.2d 834.) They...

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23 cases
  • Davidson v. Davidson
    • United States
    • Appeals Court of Massachusetts
    • February 20, 1985
    ...13, infra.) For instance, some States include non-possessory remainders which are not subject to divestment. See e.g., McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976) (vested remainder, in land, which could be transferred, alienated or mortgaged subject to division); In re Marriage of H......
  • Williams v. Lawton
    • United States
    • Kansas Court of Appeals
    • October 26, 2007
    ...policy in Kansas to discourage interlocutory appeals and avoid piecemeal and fractionalized litigation. See McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1976). Notwithstanding certification of an interlocutory appeal by a district court, granting permission for such an appeal is solel......
  • Lauricella v. Lauricella
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 22, 1991
    ...On a related question, at least two States have held that vested remainders in land are divisible on divorce. See McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976); Hill v. Hill, 197 Mont. 451, 643 P.2d 582 (1982).5 See and compare the opinions of common law States and States with propert......
  • Cady v. Cady
    • United States
    • Kansas Supreme Court
    • July 15, 1978
    ...obligated to divide the property in a just and equitable manner, regardless of the title or origin of the property. (McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976); McCrory v. McCrory, 216 Kan. 359, 533 P.2d 278 (1975); Almquist v. Almquist, 214 Kan. 788, 522 P.2d 383 We hold that the ......
  • Request a trial to view additional results
5 books & journal articles
  • § 8.05 A Spouse's Interest in a Trust
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 8 Miscellaneous Property Interests
    • Invalid date
    ...Paulson v. Paulson, 783 N.W.2d 262 (N.D. 2010).[390] In re Brownell, 44 A.3d 534 (N.H. 2012).[391] See, e.g.: Kansas: McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976). Montana: In re Marriage of Hill, 197 Mont. 451, 643 P.2d 582 (1982). New Hampshire: Flaherty v. Flaherty, 138 N.H. 337, ......
  • Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons
    • United States
    • Kansas Bar Association KBA Bar Journal No. 78-4, April 2009
    • Invalid date
    ...34 Kan. App. 2d 340, 118 P3d 704 (2005). [21] AMCO Ins. Co. v. Beck, 258 Kan. 726, 729, 907 P2d 137 (1995). [22] McCain v. McCain, 219 Kan. 780, 549 P2d 896 (1976). [23] Rossville Twp. v. Bd. of County Commrs, No. 99,223, unpublished order by the Court of Appeals filed Oct. 18, 2007. [24] F......
  • Spendthrift Trust Clauses and Kansas Divorces: Does a Settlor's Intent Still Matter?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 81-5, May 2012
    • Invalid date
    ...such as the health of the beneficiaries and specific assets in the trust. Id. at 30-33. Chorney references McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976) as evidence of the Kansas approach to trust valuation. That is mistaken, however, as McCain did not involve a trust, but vested rema......
  • Spendthrift Trust Clauses and Kansas Divorces: Does a Settlor’s Intent Still Matter?
    • United States
    • Kansas Bar Association KBA Bar Journal No. 81-5, May 2012
    • Invalid date
    ...such as the health of the beneficiaries and specific assets in the trust. Id. at 30-33. Chorney references McCain v. McCain, 219 Kan. 780, 549 P.2d 896 (1976) as evidence of the Kansas approach to trust valuation. That is mistaken, however, as McCain did not involve a trust, but vested rema......
  • Request a trial to view additional results

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