Salem v. Salem

• Decision Date: 11 May 1974
• Docket Number: No. 47296,47296
• Parties: S. L. SALEM, Appellant, v. V. J. SALEM, Appellee.
• Court: Kansas Supreme Court

Page 336

522 P.2d 336

214 Kan. 828

S. L. SALEM, Appellant, v. V. J. SALEM, Appellee.

No. 47296.

Supreme Court of Kansas.

May 11, 1974

Syllabus by the Court

1. Under K.S.A. 60-405 no judgment should be set aside by reason of the erroneous exclusion of evidence unless proponent of the evidence makes shown its substance.

2. In making a division of property following the granting of divorce the fact trial court made an erroneous statement as to the law does not affect the validity of a judgment which otherwise satisfies the statutory directive of 'just and reasonable' as set forth in K.S.A.1973 Supp. 60-1610(b).

3. In adjusting the financial matters of the parties to a divorce action the controlling test is the exercise of discretion in a just and reasonable manner, and a judgment thereon will not be disturbed unless it is clearly shown there was an abuse of discretion.

4. Child support may be modified at any time circumstances render such a change proper, but the modification operates prospectively only.

Gerald W. Scott, Blair, Matlack, Rogg, Foote & Scott, P.A., Wichita, argued the cause and was on the brief for appellant.

Hal H. Lockett, Wichita, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

In February, 1972, the trial court granted a default divorce to the plaintiff wife, deferring its decision on child support, alimony, division of property, and attorneys' fees to a later date. The wife appeals from a judgment on those matters entered following the deferred hearing on May 11, 1972. She claims the trial court erred in making a division of property without hearing evidence, in its construction of K.S.A.1973 Supp. 60-1610(b), and in granting an excessive portion of the marital estate to the defendant.

The plaintiff's opening statement, highly summarized, revealed the following: The parties were married in 1948 while both were students at Wichita University. In 1949 they moved to New York City where defendant attended Columbia University, from which he received his BS degree in English in 1952. The parties then returned to Wichita where defendant was employed by the Boeing Company. In 1956 the family moved to California where defendant went to work for the Douglas Aircraft Company. In 1962 defendant terminated his employment with Douglas Aircraft, and he remained unsalaried until 1970. In 1964 the family returned to Wichita. Six children were born to the union, five of whom remained in the home at the time of the divorce. In 1968 the defendant received a master's degree from Kansas State Teachers College of Emporia, and he worked on a doctorate at the University of Oklahoma in the year 1969. In 1970 he became an instructor at the Butler County Community Junior College. At the time of the trial the defendant was teaching at Friends University at an annual salary of $8,889.60.

From 1951 to the date of the filing of the petition for divorce in 1971, the defendant's total earnings were $67,750. Other than this amount the family was supported by the wife's income derived through gifts from her father. Her income from 1955 to the filing of the divorce action in 1971 totaled $390,288. Counsel detailed the source of these funds and stated the funds were applied to the support of the family.

At the time the petition of divorce was filed the parties had $4,355.47 in checking accounts and $6,749.77 in savings accounts. The plaintiff owned 138,911 shares of Raymond Oil Company stock which had been purchased from her funds at a total cost of $86,000. She also owned an interest in two oil leases which were in the process of being developed. The parties owned two automobiles, a 1968 Oldsmobile and a 1959 Ford Thunderbird; their home, appraised at $60,000; and their household furnishings and personal belongings.

Counsel for the defendant agreed the facts disclosed in plaintiff's opening statement were essentially correct. He did point out, however, that defendant's parents had passed away and defendant had acquired at the time of their passing $9,000 in insurance proceeds and $3,000 in a savings account which became a part of the marital property. At the close of the opening statements the following occurred:

'THE COURT: Well, before you start, 'I'm a little bit surprised from the opening statements as to what counsel had in mind. Now, I certainly don't see any point in going back here-I'm not going to take a running account of business investments for twenty-four years and trace it through and argue as to who was the smartest and who wasn't, who made the money and who did not, who had better judgment and who did not. We've had the divorce case here. We're here today to do one thing, that is divide the property equitable pursuant to law. To do that all we've got to know is what the property consists of and what each party thinks they're entitled to. I certainly don't intend to proceed here as if we were splitting up a business partnership after twenty-four years and tracing assets. I'm interested in what they have now, not what they had in 1948 or 1953, because that's not what I'm dividing.

'Now in that line, can you stipulate as to what property there is in the estate?

'MR. SCOTT: I am confident we can stipulate as to what property is there. The only evidence-and I'm not going through a great expanse-the only evidence that I want to show the Court is what of Mrs. Salem's money has been used over the years, and that it was the origin of what property they have now; and that's in two schedules, or it would actually be three schedules, a gift schedule, an income from the-just a summary by years of income from the parties, and then what has been paid out on these on Shirley Salem's account for personal draws only what went to the Salems for their personal living. Those three schedules show what I think the Court needs to know in dividing the property. That Mrs. Salem did support the family basically for the last ten years. That she did give her husband this fine education and that it was her money that acquired the properties that they have now. And those are just matters of record and they're simple compilations or summaries by an accountant who is here to testify that he made them. And that's about all his testimony is going to be, the accountant for Raymond Oil Company, to just introduce and lay the foundation for the records from which they are taken, and the accountant summarized it from that.'

The parties then stipulated the marital estate was in accord with the statement of plaintiff's counsel. The parties also stipulated the book value of the Raymond Oil Company, Inc., stock as of August 30, 1971, was approximately ninety-six cents per share; that if Francis Raymond were permitted to testify he would state there was little or no market value for the stock and if he were to purchase the same he would pay approximately forty cents per share. It was further stipulated the Raymond Oil Company, Inc., had made an offer to purchase the stock of other stockholders at one dollar per share upon the basis of a promissory note payable over a period of thirty-six months at no interest. It was also stipulated that if Francis Raymond and Michael Raymond were to testify they would state the oil leases owned by Shirley Salem had little or no value.

After the court announced there was no need to introduce evidence, counsel for the plaintiff submitted Exhibits 1 through 12 which, among other things, included accounting sheets showing the income of the parties during the marital years. Counsel for each of the parties then proposed a division of property. It was the position of the plaintiff that she was entitled to the whole of the assets in the marital estate since they were accumulated from her separate funds. The only concession plaintiff would make was to permit defendant to retain $2,000 of about $11,000 that was on hand at the time of the filing of the petition for divorce. The court commented, 'You can't very well say you divided the property if you give it all to one party.' Counsel for defendant suggested the home and the Raymond Oil Company stock be sold and that a substantial portion of these funds be set over to defendant. The judgment of the court was journalized and filed on December 8, 1972.

The plaintiff was awarded as her separate property:

1. 1968 Oldsmobile station wagon.

2. The division of cash made by the parties of which plaintiff retained about $9,000.

3. The residence in Wichita valued at $60,000.

4. 138,911 shares of stock in Raymond Oil Company, Inc.

5. All other property in the marital estate not awarded to defendant.

The defendant was awarded as his separate property:

1. 1959 Ford Thunderbird

2. The division of cash made by the parties, of which defendant retained about $2,000.

3. The household furniture at residence in Wichita or $4,000 cash-option in defendant.

4. Personal property formerly owned by defendant's parents.

5. Judgment against plaintiff for $30,000, payable in one year, to be a lien on residence property and corporate stock.

The judgment also declared each party to be liable for fifty percent or $3,010.99 of the amount due and owing the Raymond Oil Company, Inc. The plaintiff's share of the marital estate, which had a fixed value, totaled $202,000, against defendant's share of $36,000. The trial court did not award alimony, but continued a previous award for child support of $50.00 per week.

The plaintiff claims the trial court erred in making a division of property without hearing evidence. It appears the parties had been before the trial court on three prior occasions and this, together with facts disclosed by the detailed opening statements introduced by opposing counsel, stimulated an effort...