Preston v. Preston
| Decision Date | 14 July 1964 |
| Docket Number | No. 43686,43686 |
| Citation | 394 P.2d 43,193 Kan. 379 |
| Parties | H. L. PRESTON, Appellee, v. G. PRESTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is not the function of this court to weigh conflicting evidence on appeal or to substitute its judgment for that of the frial court.
2. The division of property made by a trial court in a divorce proceeding will not be set aside in the absence of a clear abuse of discretion.
3. The record in a divorce action is examined and it is held: (1) That the judgment awarding the husband a divorce is sustained by the evidence; (2) that abuse of discretion in the division of property is not shown; and (3) under the facts disclosed in the opinion, the monetary award to the wife should be made a lien upon certain real estate set apart to the husband.
Douglas Hudson, Fort Scott, argued the cause, and Howard Hudson and Douglas G. Hudson, Fort Scott, were with him on the briefs for the appellant.
Charles Rooney, Sr., Topeka, argued the cause, and Charles Rooney, Jr., and James R. Ward, Topeka, were with him on the brief for the appellee.
This appeal stems from a divorce action brought by the husband, H. L. (Harlow) Preston, against his wife, G. (Gaynelle) Preston. Each party has charged the other with extreme cruelty and gross neglect of duty. After a thorough hearing, the trial court granted the husband a divorce on the ground of extreme cruelty; awarded the wife the household goods, the 1956 Cadillac in her possession, and $10,000.00 alimony payable $150.00 per month; awarded the husband the real estate at 708 Kansas Avenue and the balance of the personal property; and ordered that plaintiff pay an additional fee of $500.00 to defendant's attorney. This appeal is by the defendant wife from such judgment.
The contentions of the defendant, as set out in the brief filed by her able counsel, are three in number: First, that she should have been granted the divorce; second, that the 'niggardly' award to her should be disapproved; and third, that the money award should be made a lien against the defendant's real estate. These will be considered in order.
From the record it may be gleaned that the parties were married in October, 1939, and that they have no children. At the time of their marriage Harlow was employed by the Federal Revenue Service at $150.00 per month, and Gaynelle was a telephone operator making from $125.00 to $135.00 monthly. Both continued to work during the early years of their marriage, and they lived together in comparative harmony until Harlow entered military service in World War II.
Their married existence continued to flow in relatively peaceful channels throughout the war, although there is evidence that Gaynelle was angered when Harlow went into the army. However, she quit work and lived with her husband before he was sent overseas and then went to reside with her parents. Harlow allotted Gaynelle $100.00 per month while he was overseas and sent her $2,500.00 in addition. By the time of Harlow's return $6,000.00 in bonds had been accumulated, some $400.00 of which Gaynelle bought from the $1,400.00 or $1,500.00 she received from the sale of the Preston car. Harlow also had about $1,800.00 mustering out pay. About this time, an investment of $11,000.00 was made in a pool hall, which ultimately resulted in a $10,000.00 loss.
It is not clear just when their amicable relationship began to deteriorate or what was the cause of its decay. Whatever may have been the origin of dissension, the year 1953 saw the parties separated. The following year witnessed their reconciliation which endured, as the record reveals, until their final divergence in November, 1958. Thereafter, the parties lived apart, with Harlow, according to his evidence, supplying Gaynelle with substantial sums of money as well as paying her car expense and liquor bills.
No good purpose would be served in depicting in detail the evidence of either side. Harlow's evidence, as corroborated, showed that Gaynelle commonly, and with no discretion, belittled him, his deceased father, and his friend and benefactor, Pete Charowhas, also deceased; that she complained of her husband's failure to provide her with vacations, and of having to live in apartments and of Harlow's not buying a home; that on nocturnal social occasions she would become quarrelsome and argumentative and refuse to go home unless forced to leave; and that on a couple of such occasions she had to be taken home.
It is quite true that much of the defendant's offensive conduct may have occurred when she was drinking, or as one witness said, 'had a few snorts under her belt,' but not all of her complaints about or disparagement of her husband may be attributed to insobriety. For, despite her cavalier counsel's mellifluous assertions that Harlow held the mellow cup of Bacchus to her lips while his partner drained the sweetness of its contents, there is little, if any, evidence to reflect reluctance on the part of Gaynelle to accept the proffered draughts.
We think the evidence was ample to establish a course of conduct on the part of the defendant sufficiently disruptive of matrimonial harmony and humiliating to her husband as to be characterized as extreme cruelty within the meaning of the statute. This court has long held that physical hurt is not required to meet the law's intention. In Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127, it was said:
(162 Kan. p. 193, 175 P.2d p. 130.) See also Walton v. Walton, 166 Kan. 391, 202 P.2d 197; Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102.
Admittedly, the defendant's own testimony contradicts that of her husband in many respects. Furthermore, the record contains abundant evidence which, if credited by the trial court, would have supported a judgment awarding the defendant a divorce. However, it is not the function of this court to weigh conflicting evidence or to substitute its judgment for that of the judge by whom the case was tried. The reason underlying this salutary legal principle was well expressed in Hoppe v. Hoppe 181 Kan. 428, 312 P.2d 215, where the court said:
* * *' (181 Kan. p. 431, 312 P.2d p. 218.)
On conflicting evidence, the trial court in the instant case determined that a divorce should be granted plaintiff on the basis of extreme cruelty. We cannot say, from a review of the record, that such decision was wholly lacking in evidentiary support. Accordingly, the trial court's determination must stand.
The defendant next asserts that the award to her was 'niggardly,' and for such reason should be disapproved. In passing on this phase of her complaint, note need be taken of the relevant provisions of G.S.1949, 60-1511:
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...Before concluding, we note the trial court's reference, in its memorandum decision, to the latter part of our opinion in Preston v. Preston, 193 Kan. 379, 394 P.2d 43. We believe the court mistook the import of our decision in that case. Although we there determined that an alimony award pa......
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