Moran v. Moran

• Court: Kansas Supreme Court
• Writing for the Court: O'CONNOR
• Citation: Moran v. Moran, 411 P.2d 677, 196 Kan. 380 (Kan. 1966)
• Decision Date: 05 March 1966
• Docket Number: No. 44363,44363
• Parties: Joan C. MORAN, Appellee, v. Donald F. MORAN, Appellant.

Page 677

411 P.2d 677

196 Kan. 380

Joan C. MORAN, Appellee, v. Donald F. MORAN, Appellant.

No. 44363.

Supreme Court of Kansas.

March 5, 1966.

Rehearing Denied April 6, 1966.

Syllabus by the Court

1. The provisions of K.S.A. 60-1609(d) proscribe the granting of a decree of divorce or separate maintenance upon the uncorroborated testimony of either husband or wife, or both of them.

2. In testing the sufficiency of evidence for corroborative purposes, it is sufficient if there exists corroborated testimony of acts or conduct sufficient to justify a judgment of divorce on statutory grounds. It is not essential that such evidence alone sustain the judgment; nor must each and every detail of a party's testimony be corroborated. Mere corroboration of indignities or abuses which do not relate to the grounds for divorce is insufficient.

3. Pursuant to K.S.A. 60-1610(c) the trial court may award alimony to a wife even though she is not the innocent party.

4. The terms of K.S.A. 60-1610(c) are to be invoked when one party's needs and the other party's ability to pay are such that support should be ordered. In making an award of alimony, under the statute the trial court is possessed of considerable judicial discretion, and absent manifest abuse thereof, its judgment will not be disturbed on appeal.

5. When the issue of child custody lies between the parents, the paramount consideration of the court is the welfare and best interests of the child. In the absence of abuse of sound judicial discretion in awarding the custody of a minor child, the judgment of the trial court will not be disturbed on appeal.

6. The record is examined in a divorce case, and under the facts and circumstances more fully set forth in the opinion, it is held: (1) The trial court erred in granting a divorce to the wife for the husband's fault; (2) the amount of alimony to which the wife is entitled must be reconsidered by the trial court; and (3) the trial court did not err in awarding custody of the minor child to the wife.

John Anderson, Jr., Olathe, argued the cause, and was on the brief for appellant.

Thomas R. Martindale, Overland Park, argued the cause, and David R. Gilman, Overland Park, was with him on the brief for appellee.

O'CONNOR, Justice.

This appeal is the outgrowth of a divorce action initiated by Joan C. Moran (plaintiff-appellee) in which she charged her husband, Donald F. Moran (defendant-appellant), with gross neglect of duty and extreme cruelty. Defendant answered and filed a cross petition for divorce on the grounds of adultery, gross neglect of duty and extreme cruelty. After a full and complete hearing, the trial court, on February 15, 1965, granted a divorce to each of the parties on the grounds of gorss neglect of duty and extreme cruelty; divided net assets valued at $7,660--$4,270 to the plaintiff and $3,390 to the defendant; awarded alimony to the plaintiff in the amount of $325 per month 'until her death or remarriage;' granted custody of the minor child to the plaintiff, subject to reasonable visitation by the defendant; and ordered the defendant to pay child support of $225 per month until further order of the court. Defendant filed a motion for new trial, which was overruled, and he now appeals.

Briefly, the questions presented for review are adequately specified by defendant's contentions that (1) the evidence did not support the judgment granting plaintiff a divorce; (2) the award of alimony was excessive and unreasonable; and (3) the granting of custody of the minor child to the plaintiff was contrary to the weight of the evidence.

The record reveals the parties were married August 14, 1948, and have one son twelve years of age. The plaintiff is now thirty-seven years of age. The defendant is assistant controller at Hallmark Cards and his annual income is approximately $18,550. Sometime during the marriage plaintiff started a ceramics business, which venture was apparently unsuccessful, for she lost $2,500; but at the time of the divorce it does not appear she was employed.

Discord developed early in the marriage and steadily progressed to the time divorce proceedings were commenced. No useful purpose would be accomplished in detailing the evidence of either party. Specific findings of fact were not made by the trial court; however, the record is replete with evidence of misconduct on the part of the plaintiff which warranted the court's finding that defendant was entitled to a divorce.

Defendant first contends the court erred in granting a divorce to the plaintiff because there was insufficient evidence to support the plaintiff's allegations of grounds for divorce and to corroborate her testimony. We note defendant does not question the authority of a trial court to grant a divorce in a proper case when both parties are found to be at equal fault. The plain terms of K.S.A. 60-1606 empower the court to grant as well as to refuse a divorce in such instance.

The only evidence relating to plaintiff's grounds for divorce was her own testimony which disclosed that the parties' bed was broken, the defendant would not repair it, and for a period of time she slept in a separate bed in the guest room; that an uncle finally repaired the bed, and when she attempted to return to the bed the defendant told her to get out because he liked to sleep alone; that she attempted to return to the bed on several occasions but was rebuffed by the defendant, and finally he moved into the guest room, where he slept until they separated; that defendant told her he no longer loved her but they could live together until the child was reared; and that she asked defendant to seek a marriage counselor but he refused. She also complained the defendant did not cooperate in disciplining the child.

In view of our ultimate conclusion that there was insufficient evidence presented to corroborate the plaintiff's testimony, we need not burden the opinion by determining whether or not plaintiff's evidence supported her allegations of grounds for divorce. Suffice it to say, her evidence was meager.

The evidentiary requirement that the testimony of the complaining spouse relating to the delinquencies of the other spouse alleged as grounds for divorce must be corroborated by evidence is firmly entrenched in the statutory provisions of our law on divorce and separate maintenance. K.S.A. 60-1609(d) provides that a decree of divorce or separate maintenance shall not be granted upon the uncorroborated testimony of either party or both of them. The statute creates 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 separation from obtaining relief by collusion or connivance. (Gardner v. Gardner, 192 Kan. 529, 389 P.2d 746; Hoppe v. Hoppe, 181 Kan. 428, 312 P.2d 215.)

In testing the sufficiency of evidence for corroborative purposes, the evidence may be circumstantial as well as direct. (Carter v. Carter, 191 Kan. 80, 379 P.2d 311; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P.2d 755.) It is not essential that such evidence alone sustain the judgment; nor must each and every detail of a party's testimony be corroborated. (Saint v. Saint, 196 Kan. 330, 411 P.2d 683.) Mere corroboration of indignities and abuses which do not relate to the grounds for divorce is insufficient. The requirement is met, however, if there exists corroborated testimony of acts or conduct sufficient to justify a judgment of divorce on statutory grounds. (Gardner v. Gardner, supra; Kelso v. Kelso, supra; Tuley v. Tuley, 168 Kan. 106, 211 P.2d 95.)

With the foregoing rules in mind, let us examine the evidence on which plaintiff relies to corroborate her testimony. Mary Robbins and Joan Buddenbagen appeared as witnesses on behalf of the plaintiff and said to their knowledge she conducted herself as a lady, that she cared for her son as a good mother, and that the defendant was a good father. Ruth Firling, another witness for the plaintiff, testified the marriage was not a happy one, that she had visited the home of the parties on many occasions and had seen defendant's shoes and clothing in the family room and bedroom off the family room, which indicated to her the parties were not staying together in the same bedroom.

Although the testimony of the witnesses Robbins and Buddenhagen hardly reaches the dignity of being character evidence, even if it were, it is legally insufficient. Neither of them testified about matters pertaining to the alleged faults of the defendant. In Frye v. Frye, 134 Kan. 3, 4 P.2d 415, this court, in discussing the effect of somewhat similar evidence presented for corroborative purposes, said:

'* * * there was no testimony produced as to the alleged delinquencies of the defendant, except that given by the plaintiff. He did introduce six other witnesses who testified only as to the reputation and standing in the community of the plaintiff. They stated that his character and reputation [were] good, that he was regarded to be an honest, industrious, truthful and peaceable man, but none of them testified as to any defaults of the defendant. So there was no corroboration of the plaintiff's testimony as to the neglect of the wife of marital duties. This cannot be regarded as a compliance with the statute barring the granting of a divorce upon the uncorroborated testimony of the husband or wife. * * *' (p. 4, 4 P.2d 415.) (Emphasis added.)

The evidence of the witness Firling, so far as it related to the conduct of the parties, was that there were indications they were not occupying the same bedroom. It would be resorting to sheer speculation to say that testimony of boudoir incompatibility, even if sufficient to constitute a ground for divorce, is corroborated by evidence of the husband's clothing being...