Peters v. Weber, 39226

• Citation: 175 Kan. 838,267 P.2d 481
• Decision Date: 06 March 1954
• Docket Number: No. 39226,39226
• Parties: PETERS v. WEBER.
• Court: United States State Supreme Court of Kansas

Page 481

267 P.2d 481

175 Kan. 838

PETERS v. WEBER.

No. 39226.

Supreme Court of Kansas.

March 6, 1954.

Rehearing Denied April 14, 1954.

Syllabus by the Court.

In 1941 plaintiff wife was granted a divorce from defendant. They were the parents of a two-year-old son, Phillip, of whom plaintiff was granted custody. The decree provided that defendant was to pay $20 per month for the child's support, such payments to be made through the office of the clerk of the court.

About a year after her divorce from defendant the plaintiff married a man by the name of Peters, following which she, her son Phillip, and Peters lived as one family. She and Peters also had a child of their own. This marriage ended in a divorce in 1953. During all of the years of her marriage to Peters the latter supported Phillip as though the were his own child. During this period, and in fact ever since her divorce from defendant in 1941, plaintiff at no time requested defendant to pay anything for Phillip's support, and during those twelve years of defendant paid nothing.

In the meantime, after serving in the army, defendant remarried and established a home in Wichita. He and his second wife had a child of their own.

In the spring of 1953, following her divorce from Peters, plaintiff instituted a contempt proceeding against defendant because of his total failure to comply with the terms of the 1941 divorce decree providing for child support. At the same time she also filed a motion for an order determining the amount of such delinquency and directing that it be paid, and further sought an order increasing the amount of future monthly child support payments.

After a full hearing thereon the trial court found defendant not guilty of contempt, entered an order requiring him to pay $10 per week commencing in March, 1953, for the child's support, and further held that due to her laches plaintiff was barred from enforcing payment of all past-due child support. Plaintiff appealed.

Held: Under all of the facts and circumstances, more fully set out in the opinion, the court, with respect to the question of defendant's liability for past-due payments, erred in holding that laches of plaintiff was a defense and barred her from enforcing, in behalf of the child, defendant's liability. Further held: Defendant is liable for all past-due payments accruing within five years prior to the commencement of the instant proceeding.

A. Lewis Oswald and William L. Mitchell, Hutchinson, were on the briefs for appellant.

Max Wyman and Don Wyman, Hutchinson, were on the briefs for appellee.

PRICE, Justice.

Because of the facts and circumstances, the question presented in this appeal is rather unusual, and concerns the liability of defendant husband for long past-due payments for child support.

The trial court held that plaintiff wife was barred by laches from enforcing her ex-husband's liability for such delinquent payments, and she has appealed.

In June, 1941, plaintiff was granted a divorce from defendant. Certain property rights, with which we are not now concerned, were adjusted by the decree. They were the parents of a two-year-old son, Phillip, and plaintiff was granted custody of the child. Defendant was ordered to pay the sum of $20 per month for the child's support, such payments to be made through the office of the clerk of the court.

About a year after her divorce from defendant the plaintiff married a man by the name of Peters, following which she, her son Phillip, and Peters lived as one family. She had Peters also had a child of their own. This marriage ended in a divorce in January, 1953. Peters v. Peters, 175 Kan. 422, 263 P.2d 1019. During all of the years of her marriage to Peters the latter supported Phillip as though he were his own child. During this period, and in fact ever since her divorce in 1941 from defendant, plaintiff had not requested defendant to pay anything for Phillip's support. During all of this period defendant paid nothing.

In the meantime defendant, after serving in the army in World War II, remarried and established a home in Wichita. He and his second wife had a child of their own. Apparently his marriage to plaintiff, and their son Phillip, were a closed chapter in his life.

In the spring of 1953, following her divorce from Peters, plaintiff instituted a contempt proceeding against defendant because of his total failure to comply with the terms of the 1941 divorce decree providing for child support. She also filed a motion for an order determining the amount of such delinquency and directing that it be paid. She further sought an order increasing the amount of future monthly payments.

After a full hearing thereon the court found defendant not guilty of contempt, that due to her laches plaintiff was barred from enforcing payment of past-due child support, and ordered defendant to pay $10 per week commencing March 28, 1953, for the support of Phillip, who at that time was about fourteen years of age.

Plaintiff has appealed, and contends the lower court erred in its ruling with respect to past-due payments, and in ordering the payment of only $10 per week for future support.

At the outset, we note defendant's contention the appeal should be dismissed for the reason that plaintiff did not file a motion for a new trial--hence there is nothing open for appellate review. Under the circumstances presented we do not consider the rule contended for to be applicable. At the time of rendering judgment with respect to the liability of defendant for the delinquent payments the trial court filed a lengthy written memorandum in the nature of findings of fact and conclusions of law. In the absence of a motion for a new trial the facts as found by the trial court therefore stand as the unquestioned facts of the case, leaving, then, the only question whether they are sufficient to support the judgment rendered. Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 538, 142 P.2d 838. The court will consider the appeal.

Because of the nature of the question presented, and inasmuch as the trial court's written memorandum clearly sets forth the factual background of the matter and the reason for the judgment rendered, it is quoted in full:

'At the hearing of the citation for contempt, the plaintiff moved for an order determining that the defendant was delinquent in the payment of support ascertaining the amount of such delinquency and directing defendant to make regular payments thereon in specific amounts. It has been conceded that all amounts due over five years are barred by the Statute of Limitations, and that only those amounts which have become due within five years are in issue here.

'From the files in the case and the evidence introduced at the hearing the following are found to be the facts:

'On June 13, 1941, judgment was entered granting plaintiff a divorce, awarding her all of the household furniture and all the equity in the home being purchased by the parties, giving her custody of Phillip Eugene Weber, minor son of the parties, and ordering defendant to pay $20.00 per month for his support. The defendant was not present at the divorce hearing nor was her represented by counsel. He had not previously been served with any order for support, and there is no evidence that he was ever apprised of terms of the decree relating to support, although plaintiff testified that his mother and father knew of them.

'Shortly after the divorce was granted, in about August, 1941, plaintiff wrote the defendant who was then in Enid, Oklahoma, stating that she realized he was having a hard time, that she was getting along fine and that if he would just leave her alone he could see the boy whenever he wished. In a second letter sent defendant in April, 1942, while he was at Fort Riley, the plaintiff told defendant that she didn't want to ask him for any more money, but that there was a small automobile tax due and that she would be satisfied if he sent that. In response to that letter the amount of the tax was sent her by the defendant.

'Plaintiff never at any time requested any money from the defendant for the support of Phillip, from the time of the divorce until shortly prior to the contempt hearing, nor did she apply for any allotment for the boy while defendant was in service. She did not notify the defendant of the order for support or that she either wanted or expected him to contribute any amount to the support of Phillip.

'About a year after plaintiff secured her divorce from the defendant, she married again, this time to a man by the name of Peters. Thereafter and until her divorce from Mr. Peters shortly before the present hearing plaintiff and her son made their home with Peters, and her first demand on defendant for support for Phillip came a short time after she divorced Peters.

'The defendant remarried some time after the divorce and has a son by the second marriage. He has assumed heavy financial obligations, including the purchase of a $12,000.00 home on which payments are $85.00 per month and the purchase of a car requiring monthly payments of $61.00.

'It may be conceded that the Court, at this time, cannot modify the order for support previously made so far as past due amounts are concerned. The law seems clear that amounts past due may not be increased nor decreased. However, that does not dispose of the Question presented here. In this action, plaintiff seeks a determination of amounts due her and an order requiring their payment. This is, for practical purposes, a proceeding for the full support awarded by the Court. Under the circumstances disclosed in the instant case, may laches be interposed as a defense to such proceedings? In my opinion the question requires an affirmative answer.

'The doctrine of laches is equitable in character. In 19 Am.Jur., p. 343, it is said that the doctrine is applicable where the following are disclosed: (1) Conduct on defendant's part giving rise to the situation of which...