Perkins v. Perkins

• Court: Kansas Supreme Court
• Writing for the Court: THIELE, Justice.
• Citation: Perkins v. Perkins, 154 Kan. 73, 114 P.2d 804 (Kan. 1941)
• Decision Date: 05 July 1941
• Docket Number: 35183.
• Parties: PERKINS v. PERKINS.

114 P.2d 804

154 Kan. 73

PERKINS v. PERKINS.

No. 35183.

Supreme Court of Kansas

July 5, 1941

Syllabus by the Court.

In action for alimony, before an award may be made, the plaintiff must plead and prove, and the trial court must find, that a cause exists for which a divorce may be granted but in an action for divorce in which a divorce is refused the trial court for good caDuse shown may make such order as may be proper for the equitable division and disposition of the property of the parties. Gen.St.1935, 60-1506, 60-1516.

In husband's divorce action where wife answered praying denial of divorce and allowance of permanent alimony and husband dismissed his petition, and trial was had on wife's answer and cross-petition, that court found that wife was not entitled to alimony as such did not preclude the court from considering the property settlement which husband and wife had entered into, and from settling their property rights. Gen. St.1935, 60-1506.

Postnuptial agreements fairly and understandingly made, settling property rights between husband and wife and binding on them whether or not an action for divorce may be instituted are not against "public policy" and are enforceable.

A postnuptial settlement may be valid, though husband and wife do not each receive the same amount under the settlement.

In husband's divorce action, where wife answered praying denial of divorce and allowance of permanent alimony and husband dismissed his petition and trial was had on wife's answer and cross-petition, evidence sustained finding that postnuptial agreement settling the property rights of the parties was fairly made and that it provided for a fair and equitable division of the property of both spouses so as to be binding on them. Gen.St.1935, 60-1506.

Where spouses in a postnuptial agreement agreed that property settlement was binding whether separation was had or not that each waived all rights given under the laws of the state, by reason of the marriage contract, and the agreement provided that neither was responsible for the other's debts, in husband's divorce action where wife answered praying denial of divorce and allowance of permanent alimony and husband dismissed his petition and trial was had on the answer and cross-petition, wife was not entitled to any further amounts whether denominated alimony, separate maintenance or equitable division of property. Gen.St. 1935 60-1506.

Where husband instituted divorce suit against wife, and she filed a cross-petition for permanent alimony and the setting aside of a postnuptial agreement, and when the cause came on for trial, the husband dismissed his petition, and trial was had on wife's answer and cross-petition and husband's reply and answer, and trial court rendered judgment denying wife's divorce and holding that postnuptial agreement was binding, and wife was financially able to pay a reasonable attorney fee and her expenses of preparing for the trial, trial court did not err in denying wife's motion for allowance for attorney's fees, etc., and she was denied any allowance on unsuccessful appeal to the Supreme Court. Gen.St.1935, 60-1507.Syllabus by the Court.

1. In an action for alimony, before the trial court may make an award, the plaintiff must plead and prove and the trial court must find that a cause exists for which a divorce may be granted, but where a divorce is denied it may, for good cause shown, make an order for the equitable division and disposition of the property of the parties.

2. Postnuptial agreements, fairly and understandingly made, settling property rights between husband and wife and binding upon them whether or not an action for divorce may be instituted, are not against public policy and are enforceable.

3. The record examined in an action originally brought by the husband for a divorce, in which the wife filed a cross-petition seeking alimony and division of property, and held that a postnuptial agreement of the parties settling their property rights was fairly and understandingly made, provided for a fair and equitable division of the property of both of them, was binding upon them and was properly approved by the trial court.

4. The trial court did not err in denying the wife's motion for an allowance for attorneys' fees, etc., and the record discloses she is not entitled to any allowance in this court.

Appeal from District Court, Allen County; Wallace H. Anderson, Judge.

Action for divorce by George Raymond Perkins against Elsie Victoria Perkins, wherein the defendant filed an answer and cross-petition. From an adverse judgment, the defendant appeals.

Judgment affirmed.

Walter B. Patterson and A. M. Keene, both of Fort Scott, for appellant.

Douglas Hudson and Howard Hudson, both of Fort Scott, and Kenneth H. Foust, of Iola, for appellee.

THIELE Justice.

Plaintiff commenced an action for a divorce from the defendant, the petition alleging the marriage of the parties, that they had one child who would soon be twenty-one years of age; that the parties had settled their property rights by a separation agreement which would be submitted to the court; that defendant had been guilty of extreme cruelty and gross neglect of duty and plaintiff was entitled to a divorce from defendant. Defendant filed a motion for an allowance for attorney's fees which the trial court denied.

Later the defendant filed an answer and cross-petition which, so far as need be noticed, denied plaintiff's allegations as to her conduct and alleged that plaintiff had been guilty of gross neglect of duty and extreme cruelty toward her, and further he had been guilty of adultery; that plaintiff was not entitled to a divorce and that she was entitled to an allowance of permanent alimony. She further alleged that the property rights of the parties had not been fully settled by the separation agreement for the reason the same was not fairly entered into in that she did not receive a fair share of the property; that she was without benefit of legal advice; that plaintiff and the scrivener of the contract, D. R. Kuns, were guilty of fraud, duress, concealment and undue influence in that they represented to her that plaintiff was leaving her and unless she executed the agreement she would be left with practically nothing, etc. She offered to do equity and place the plaintiff in status quo as nearly as she could, and except as to properly which she sold, she offered to restore the same, etc. She prayed plaintiff be denied a divorce; that she be allowed permanent alimony; that the alleged separation agreement be set aside and that the court settle the property rights and that she have an allowance for attorneys' fees. Plaintiff filed a reply and answer.

The separation agreement referred to is summarized. The settlement was made because the parties felt they could no longer live together in harmony and was to be binding whether they were divorced from each other or not and was to be a final property settlement. First party (plaintiff) waived any and all rights given him under the laws of Kansas by reason of the marriage contract and conveyed to second party (defendant) 160 acres of land in Bourbon County, Kansas, with all the farm machinery and household goods thereon, also one cow, a mare and colt, one mule, one horse and the corn and sorgho crop growing on the land, also the family bull dog and $1,350 in money. Using similar language, second party conveyed to first party 80 acres of land in Allen County, one and one-half lots in the city of Moran, the oat and flax crop growing on the Bourbon County farm, and one Ford sedan and, except the personal property mentioned, all personal property in possession or under control, or in the name of second party.

When the cause came on for trial, plaintiff dismissed his petition and trial was had on defendant's answer and cross-petition and plaintiff's reply and answer. The trial court heard the evidence and rendered judgment that the defendant should take nothing under her answer and cross-petition; and that the separation agreement was fair...