Powell v. Powell, 53458
| Decision Date | 11 June 1982 |
| Docket Number | No. 53458,53458 |
| Citation | 648 P.2d 218,231 Kan. 456 |
| Parties | Dorothy May POWELL, Appellant, v. Benson M. POWELL, II, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a divorce action the district court is vested with broad discretion in adjusting property rights and financial obligations of the parties. Its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.
2. The chief elements of good will are continuity of place and continuity of time. Good will is that advantage which is acquired by an establishment in consequence of the general public's continued patronage of the place because of its reputation; it is the probability that old customers will resort to the old place.
3. A professional medical practice does not have a good will value which becomes a part of the marital property divisible at divorce.
4. Pursuant to K.S.A.1981 Supp. 60-1610(h ), the district court is vested with wide discretion in determining the amount and recipient of attorney fees. The trial judge is considered an expert in determining attorney fees and an attorney fee award will not be set aside on appeal when supported by substantial competent evidence.
5. An appeal from a divorce decree must be filed within thirty days from the entry of the judgment. K.S.A. 60-2103(a ).
6. When one party requests separate maintenance and the other party asks for divorce, the trial court is vested with discretion in determining how the interests of the parties and the public welfare are best served.
7. In a divorce action it is held : The trial court did not err in 1) dividing the marital property; 2) awarding alimony; 3) refusing to place a good will value on appellee's medical practice; 4) awarding attorney fees to appellant, and 5) granting a decree of divorce instead of separate maintenance.
Danton C. Hejtmanek, of Jones, Schroer, Rice, Bryan & Lykins, Chartered, Topeka, argued the cause and was on the brief for appellant.
Malcolm G. Copeland, Topeka, argued the cause and was on the brief for appellee.
Dorothy Powell appeals from the trial court's order granting a divorce to Ben Powell and dividing the marital property.
Dr. Ben Powell and Dorothy Blair were married September 3, 1949. At that time Ben had completed medical school and commenced his residency at Kansas City Research Hospital. Dorothy worked for most of the first years of the marriage. Ben became the major breadwinner of the family when he entered the Air Force in 1953. The couple raised six children, all of whom were adults at the time of trial. Due to Ben's long working hours as a surgeon, the majority of the child-rearing duties fell upon Dorothy.
The thirty-one years of the Powells' marriage were not without their problems. According to Dr. Powell, marital difficulty began when the honeymoon ended. He testified Mrs. Powell was extremely suspicious and would frequently call him in the evenings while he was at the hospital. There were physical altercations several times during the marriage. According to Dr. Powell these were the result of the need to restrain Mrs. Powell when she became irrational. Mrs. Powell testified her husband's uncontrollable anger precipitated these episodes. Dr. Powell's concern over his wife's behavior even led him to dispose of all the firearms in the house.
The strain in the Powells' marriage came to a head in January of 1980. One night, early in the month, Mrs. Powell threw her husband out of the house. He came back for a short period of time but moved out permanently on January 20, 1980.
Mrs. Powell filed for separate maintenance April 24, 1980. Dr. Powell cross-petitioned for divorce on the grounds of incompatibility. On May 11, 1981, the court granted an absolute divorce and took the issues of property division and alimony under advisement.
Mrs. Powell is a registered nurse. She has a bachelor of science degree and a master's degree in Adult and Occupational Education. She worked during the early years of the marriage and after her children began to get older she held various part-time jobs including teaching at Stormont-Vail Hospital and Clark's Business School in Topeka. In 1970 she began working as her husband's scrub nurse. This relationship terminated in 1977. Since Dr. Powell left the home Mrs. Powell has made sporadic attempts at finding employment. She claims no one will hire her because of her age, 57 at the time of divorce, and lack of experience. Dr. Powell continued to pay her a monthly allowance until the court made an alimony award.
Dr. Powell was 54 at the time of the divorce. In 1955 he joined his father in surgical practice in Topeka. Since that time he has become a respected member of his profession and has built a successful practice in thoracic and vascular surgery. He is recognized as a knowledgeable doctor and a skilled surgeon. His adjusted gross income for 1979 was $99,204.00.
During the marriage the Powells acquired a considerable amount of property. The marital property included two houses in Topeka, bank and savings accounts in institutions in Topeka and Arizona, numerous stock, bonds and investments assets, Dr. Powell's medical practice, one-half interest in the Vascular Diagnostic Center of Topeka (VDCOT), one-half interest in the Broadway Professional Plaza in Tucson, Arizona, one-half interest in the Glenn East Apartments in Tucson, Arizona, and an interest in Halric, Inc., which counted an airplane as its only asset. In addition to the liabilities of the Broadway Plaza, the Glenn East Apartments and the Halric corporation, Dr. Powell had borrowed approximately $171,900.00 from his retirement funds to allow him to make investments. He was paying this debt off at the rate of $1,702.00 per month.
After taking the matter under advisement the trial court, on June 12, 1981, reached the following property division:
"TO DR. BEN POWELL
Medical practice, equipment
accounts, pension, profit
sharing $105,000.00
VDCOT 7,000.00
Energy Investments 2,692.00
Home on Pennsylvania (St.) 10,000.00
Halric 2,000.00
Glenn East Apartments (his
share) 250,000.00
One-half Broadway Plaza (his
share) 61,250.00
Topeka Country Club 6,750.00
Flight simulator 1,000.00
------------
TOTAL $445,692.00
------------
TO DOROTHY POWELL
Home on Mulvane $ 90,000.00
Furnishings, appurtenances
appliances and contents 10,000.00
Cash and savings accounts with
Postal Savings 3,700.00
Stocks, bonds and investment
assets 28,260.00
One-half Broadway Plaza (her
share) 61,250.00
------------
$193,210.00"
The court ordered Dr. Powell to pay costs of the litigation, including $5,000 to Mrs. Powell's attorney, along with all current bills and expenses of the parties. Alimony was awarded to Mrs. Powell beginning with $1,500.00 per month from 1981 to 1983, then decreasing to $1,200.00 per month from 1983 to 1985; $900.00 per month from 1985 to 1987 and finally $600.00 per month from 1987 to 1989, for a total sum of $100,800. Division of the personal property of the parties is not in dispute except for Mrs Powell's claim the household furniture was overvalued.
Appellant first attacks the trial court's division of the marital property. K.S.A.1981 Supp. 60-1610(d) provides:
"The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse's own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale."
The judicial rules governing division of property pursuant to divorce are well settled.
"In determining a just and reasonable division of property, the trial court should take into consideration the following factors: (1) The ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the question of fault when determined; and (8) the allowance of alimony or lack thereof." Parish v. Parish, 220 Kan. 131, 133-34, 551 P.2d 792 (1976).
See also, LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975); Smith v. Smith, 5 Kan.App.2d 117, 119, 612 P.2d 1257 (1980).
"In a divorce action the district court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse." Downing v. Downing, 218 Kan. 549, 542 P.2d 709 (1976). See also LaRue v. LaRue, 216 Kan. at 249, 531 P.2d 84; Almquist v. Almquist, 214 Kan. 788, 791, 522 P.2d 383 (1974).
Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973); Downing v. Downing, 218 Kan. at 550, 542 P.2d 709; Almquist v. Almquist, 214 Kan. at 791, 522 P.2d 383.
Measured against the foregoing standards it is clear there was no abuse of discretion. When the alimony award is deducted from that portion of the property set aside to...
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