North v. North

• Court: Kansas Supreme Court
• Writing for the Court: OWSLEY; FROMME
• Citation: North v. North, 535 P.2d 914, 217 Kan. 213 (Kan. 1975)
• Decision Date: 10 May 1975
• Docket Number: No. 47701,47701
• Parties: Patricia Anne NORTH, Appellee, v. Kenneth E. NORTH, Appellant.

Page 914

535 P.2d 914

217 Kan. 213

Patricia Anne NORTH, Appellee, v. Kenneth E. NORTH, Appellant.

No. 47701.

Supreme Court of Kansas.

May 10, 1975.

Syllabus by the Court

1. K.S.A. 1974 Supp. 60-1601(8) authorizes the district court to grant a decree of divorce for incompatibility.

2. Incompatibility as defined in Berry v. Berry, 215 Kan. 47, 523 P.2d 342, is restated and approved.

3. In an action for divorce the record is examined and the decree of divorce granted by the district court on the ground of incompatibility is found to be supported by substantial competent evidence.

4. Defendant's challenge as to the constitutionality and validity of K.S.A. 1974 Supp. 60-1601(8) is without merit.

Kenneth E. North, argued the cause and was on the brief for appellant, pro se.

John H. Johntz, Jr., of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

This is an appeal by the defendant husband from a decree of divorce granted to the plaintiff wife on the statutory ground of incompatibility. (K.S.A. 1974 Supp. 60-1601(8).) Defendant raises seven points on appeal which question the sufficiency of the evidence and attack the validity and constitutionality of the incompatibility statute.

Patricia Anne North and Kenneth Edmund North were married on June 22, 1968. At the time of the granting of the divorce Patricia was twenty-six years old and Kenneth was twenty-seven years old. The parties had one female child by their marriage.

After more than five years of marriage Patricia filed a petition for divorce, requesting custody of the child, support, and an equitable property division. Shortly thereafter, Kenneth moved the trial court for an order requiring the parties to seek marriage counseling pursuant to K.S.A.1972 Supp. 60-1608 (now K.S.A.1974 Supp. 60-1608). A hearing was held and after presentation of evidence the motion for marriage counseling was denied by the court. At the trial Patricia offered the testimony of six witnesses, in addition to her own statement, plus the testimony of a behavioral scientist. She also submitted various letters written to her by Kenneth both before and after the filing of the petition for divorce. Kenneth presented no evidence other than his own testimony.

After hearing the evidence the trial court issued a decree of divorce based upon the finding that the parties did not have common goals and interests in life, and that they argued and quarreled. The court concluded as a matter of law that the parties were incompatible.

Incompatibility as a ground for divorce was authorized by the 1971 Kansas legislature. Since the time of its enactment we have had two cases before this court contesting a decree of divorce granted solely for incompatibility. (See Berry v. Berry, 215 Kan. 47, 523 P.2d 342; and LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84.) Despite the infancy of this provision, In Berry, we said incompatibility may be In Berry, we said incompatibility may be broadly defined as such a deep and irreconcilable conflict in the personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable. Petty quarrels and minor bickerings are clearly not sufficient to meet this standard. The legislature, in supplying the additional ground of incompatibility, must have intended to liberalize our divorce laws by broadening the bases upon which divorces may be granted. This does not mean a divorce should be granted perfunctorily or merely upon a party's charge of incompatibility without real proof of the fact. It is the duty of the trial court to weigh the testimony before it, and our function on review is limited to an examination of the record to ascertain whether the findings of the trial court are supported by substantial, competent evidence.

In LaRue, we reasserted our approval of the foregoing definitions of incompatibility, and further stated it was difficult to imagine a situation in which a husband's temperament could be compatible with that of his wife if her temperament was incompatible with his.

The first point raised by defendant questions the sufficiency of the evidence to establish incompatibility in their marital relationship. The following is a summary of evidence before the trial court:

Plaintiff testified that she was not desirous of marriage counseling as she felt it would not be effective or contribute to their roles as parents; that their marriage had been a disaster from the beginning; that she had often asked her husband to go to a marriage counselor but he continually refused; that she no longer had any respect for his sincerity on any level; and that she no longer loved him and...