Paul v. Paul

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: Paul v. Paul, 183 Kan. 201, 326 P.2d 283 (Kan. 1958)
• Decision Date: 07 June 1958
• Docket Number: No. 40976,40976
• Parties: William F. PAUL, Appellant, v. Eva Helen PAUL, Appellee.

Page 283

326 P.2d 283

183 Kan. 201

William F. PAUL, Appellant, v. Eva Helen PAUL, Appellee.

No. 40976.

Supreme Court of Kansas.

June 7, 1958.

Syllabus by the Court.

1. Where the parties to a divorce action are refused a divorce by the trial court on the ground that the plaintiff husband failed to sustain the burden of proof, the wife resisting the divorce, it is held pursuant to G.S.1949, 60-1506, that the trial court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and make such order as may be proper for the control and equitable division and disposition of the property owned by the parties, but that it cannot award separate maintenance to the wife. Before the trial court could grant separate maintenance, it would be necessary for the wife to plead and prove, and it would be incumbent that the trial court find, that a cause existed for which a divorce could be granted. G.S.1949, 60-1516.

2. The supreme court accepts as true the trial court's findings of fact when they are based upon competent evidence; and on appeal it is of no consequence that there may have been much contradictory evidence adduced at the trial, which if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment.

3. Where evidence offered at a hearing on a motion for a new trial is presented as newly discovered evidence, and the facts clearly disclose that the complaining party was not diligent in producing the evidence before submission of the case to the court for decision, the order of the trial court overruling the motion for a new trial is discretionary and will not be disturbed on appeal.

John H. Foard, Kansas City, Mo., Rice Lardner, Olathe, on the brief, for appellant.

Appellee makes no appearance.

SCHROEDER, Justice.

This is an appeal in a divorce action in which the trial court denied the plaintiff husband a divorce on the ground that he had failed to sustain the burden of proof, granted custody of the children to the wife, and decreed child support payments, a division of the property and separate maintenance for the wife.

The wife, appellee, makes no appearance in this court and has not filed a counter abstract or brief in this case.

The husband filed a petition for divorce against his wife in the district court of Johnson County alleging for his cause of action, as a ground for divorce, that the wife had been guilty of extreme cruelty and gross neglect of duty. Thereafter the wife filed her answer denying that she had been guilty of extreme cruelty and gross neglect of duty toward her husband, plaintiff below, and also filed a cross petition wherein she stated that the plaintiff had been guilty of extreme cruelty and gross neglect of duty toward her and prayed, among other things, for a divorce and alimony. The plaintiff in reply interposed a general denial which joined issues.

The case proceeded to trial and the record as abstracted discloses that the wife fully resisted the efforts of the husband at the trial, by cross examining the plaintiff's witnesses and by testifying in her own behalf. She also called a witness who was a minister and a physician to testify in her behalf. After all the evidence was presented, including rebuttal testimony on behalf of the plaintiff, the hearing having terminated at the close of business on the 26th day of July, 1957, the court continued the trial to the 31st day of July, 1957, when pursuant to the wife's motion the court dismissed her cross petition. Thereupon the parties entered into the record a stipulation and agreement as to the division and settlement of the property of the parties, and the care, custody, control, support and maintenance of their two minor children, all subject to the approval of the court. The stipulation purports to make an equal division of the property. Among the stipulations was the following:

'* * * that plaintiff shall pay defendant a sum equal to one-half of the retirement funds allotted to plaintiff in plaintiff's employee's trust, or the sum of $1,205.00, to be paid in monthly installments of $50.00 a month until said home is sold and thereafter at the rate of $100.00 per month until said sum of $1,205.00 is paid in full; * * *'

For the support and maintenance of the children the parties stipulated:

'* * * that plaintiff shall pay defendant for the support and maintenance of the minor child, Lydia Helen Paul, the sum of $75.00 per month until said child reaches majority; and that plaintiff shall pay defendant for the support and maintenance of the minor child, Carole Anne Paul, the sum of $75.00 per month until said child reaches majority.'

The court took the ruling under advisement and on the 3rd day of August, 1957, announced its decision. That portion of the court's decision material to the issues herein set forth in its 'Memorandum Decision' reads:

'* * * The Court finds from all of the evidence that the plaintiff has failed to sustain the burden of proof as required to establish grounds for divorce. The divorce is therefore denied; however, it is apparent that the parties cannot live together at the present time and the Court grants separate maintenance under the terms of the stipulation entered into by and between the parties with the exception that until the real property is disposed of, the plaintiff shall pay to the defendant the sum of $50.00 per month for her support and keep the payments on the house in full force and effect as otherwise provided in the stipulation. Thereafter, he shall pay the defendant the sum of $100.00 per month for her support * * *' (Emphasis added.)

The journal entry of judgment recited, among other things, '* * * that plaintiff pay defendant for her support and maintenance $50.00 per month until the said home of the parties is sold, as above provided, and thereafter $100.00 per month until further order of this court.' (Emphasis added.)

The husband filed a motion for a new trial and at the hearing thereon presented a letter written by the wife on Sunday, July 28, 1957, which he received in his mailbox on the same day. This was the Sunday following the 26th day of July, 1957, when the case was heard before the trial court. The appellant husband contends that this letter, in which the wife admitted all the statements which the plaintiff had made at the trial of the case were true, was newly discovered evidence. The motion for a new trial was overruled. The plaintiff husband in due course appealed from the judgment of the trial court entered on the 3rd day of August, 1957, wherein it was adjudged that a divorce between plaintiff and defendant be denied and that defendant have separate maintenance, and also appealed from the order overruling the motion for a new trial.

The appellant specifies that the trial court erred in allowing the wife separate maintenance. The trial court found from all the evidence that the plaintiff, appellant herein, failed to sustain the burden of proof required to establish grounds for divorce and thereupon refused to grant a divorce. It further found at the time it entered judgment that the parties could not live together and as a further part of its judgment,...