Noonan v. Noonan

• Decision Date: 12 January 1929
• Docket Number: 28,384
• Citation: 127 Kan. 287,273 P. 409
• Parties: HANNAH C. NOONAN, Appellee, v. EDWARD GRANT NOONAN, Appellant
• Court: Kansas Supreme Court

273 P. 409

127 Kan. 287

HANNAH C. NOONAN, Appellee, v. EDWARD GRANT NOONAN, Appellant

No. 28,384

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Osborne district court; WILLIAM R. MITCHELL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

DIVORCE--Allowance of Alimony--Construction of Decree. Where a plaintiff wife was divorced from her husband in 1914 and awarded the custody of their three minor daughters, and the decree provided "that she was entitled to an allowance of twenty-five dollars ($ 25) per month as support and for the education of her children . . . until the further order of the court," which order was faithfully obeyed by the defendant husband for thirteen years, it is held, that the order for such monthly allowance thus entered fourteen years ago is not now susceptible of an interpretation that any part of it was or lawfully could have been intended as permanent alimony to the plaintiff wife; and held, also, that since the children have now reached maturity--two being married and one dead--defendant is entitled to be relieved from any payments under the divorce decree of 1914.

Bert J Lempenau, of Topeka, and David G. Fink, of Osborne, for the appellant.

H. McCaslin, of Osborne, for the appellee.

OPINION

DAWSON, J.:

This appeal questions the propriety of a recent order of the district court of Osborne county concerning alimony to a woman who was divorced from her husband fourteen years ago.

The facts were these: In 1914, in the district court of Osborne county, the plaintiff, Hannah C. Noonan, obtained a divorce from the defendant, Edward Grant Noonan. She was given the custody of their three daughters, who were then of the ages of fifteen, thirteen and eight years, respectively. By the judgment it was decreed--

"That plaintiff have the care and custody of the children born as the issue of her marriage with the defendant, to wit: Florence Carmen Noonan, Laura Antoinette Noonan and Ethel Gertrude Noonan, . . . . And that she is entitled to an allowance of twenty-five dollars ($ 25) per month as support and for the education of her children, and that said monthly payment shall become due and payable on the 1st of November, 1914, and on the 1st day of each succeeding month thereafter until the further order of this court."

On April 14, 1927, the defendant filed a motion in the same cause showing that he had complied with the court's order for all these years, that his youngest daughter died in 1925 when she was nineteen years of age, that his other two daughters had attained the ages of 28 and 26 years, respectively, and both of them were now married. Defendant concluded with a prayer that he be relieved from further payments under the judgment entered in 1914.

Plaintiff countered with a motion alleging that defendant's financial condition had greatly improved since 1914, that plaintiff's health was impaired and that she had little earning capacity, that the $ 25 monthly payment was insufficient for her necessities, that she had overtaxed her strength in rearing the children. She prayed that her allowance be increased to $ 50 per month.

Affidavits and counter affidavits pertinent to these motions were submitted. Both motions were denied. The court made a finding--

"That the allowance of twenty-five dollars ($ 25) per month made in this cause at the time of the rendition of the divorce decree was for the support of the plaintiff as well as for the children whose custody was awarded to her; that such award should stand as made at the time of the rendition of such decree."

Judgment was entered accordingly and defendant appeals. He stands on the familiar rule of law that after parties are divorced alimony cannot be awarded, and that the judgment of 1914 decreeing that plaintiff was "entitled to an allowance of $ 25 per month as support and for the education of her children . . . until the further order of the court" is not susceptible of an interpretation that any part of $ 25 per month was or could have been intended as permanent alimony. The matter is covered by the statute which provides that where permanent alimony is allowed it must be decreed in a specified sum of money. It may be made payable in gross or...