Smith v. Smith
| Decision Date | 06 February 1946 |
| Docket Number | 36497. |
| Citation | 161 Kan. 1,165 P.2d 593 |
| Parties | SMITH v. SMITH. |
| Court | Kansas Supreme Court |
Appeal from District Court, Labette County; Larue E. Goodrich Judge.
Appeal from District Court, Labette County; Larue E. Goodrich Judge.
Action for divorce by Juanita Mae Smith against Walter Lee Vernon Smith. From an order granting plaintiff's motion for temporary support, defendant appeals.
Syllabus by the Court.
1. In an action by the wife for divorce, where plaintiff moves for temporary support, the court should examine the petition to see if it states facts sufficient, if proved, to justify the granting of a divorce.
2. Common-law marriages are recognized in this state, even though the circumstances are such as to authorize the prosecution of the parties under G.S.1935, 23-118.
3. The fact that the parties entered into a common-law marriage does not prevent one of them from later maintaining an action for divorce if facts exist which are recognized by our statutes (G.S.1943 Supp. 60-1501) as grounds for divorce.
C. E Pile, of Parsons, for appellant.
John B Markham, of Parsons, for appellee.
This was an action for divorce upon the grounds of gross neglect of duty, extreme cruelty and abandonment for more than one year. The petition, filed April 30, 1945, among other things alleged that the parties were married November 4, 1936; that they were divorced May 22, 1939, in which action plaintiff was given the custody of their child born as a result of the marriage, then fifteen months old; that thereafter and in 1940 the parties commenced to live together again as husband and wife without procuring a marriage license or having a marriage ceremony performed; that both plaintiff and defendant held themselves out to the world as husband and wife and lived together in the same home; that defendant's insurance papers were made out showing plaintiff as defendant's wife in the years 1941 and 1942, and that defendant, who was employed by a railroad company, procured an annual pass over the railroad showing plaintiff as his wife; that while they were so living together as husband and wife another child was born to them February 23, 1941, and that plaintiff and defendant are husband and wife by virtue of a common-law marriage.
Defendant did not attack this petition by motion or demurrer but filed an answer in which he alleged that at the time of the divorce in 1939 he was ordered by the court to pay plaintiff $15 per month for the support of their child, which order he has continued to obey. He alleged that plaintiff's petition does not state facts sufficient to constitute a common-law marriage; that it further shows on its face that plaintiff's pretended cause of action is without equity in that it shows plaintiff and defendant are equally at fault in that they violated G.S.1935, 23-118, for which reason plaintiff is not entitled to any relief; and specifically denied that subsequent to May 22, 1939, the parties had any agreement 'to live permanently together as husband and wife'; and further denied that since that date the parties and 'lived and cohabited together continuously as husband and wife.'
Thereafter plaintiff filed a motion for temporary support. Upon the hearing of the motion defendant objected to the introduction of evidence upon the ground that plaintiff's petition stated no facts constituting a cause of action, which objection was by the court overruled. After hearing the evidence the court found that plaintiff's motion for temporary support should be sustained and that defendant should pay to the clerk of the court $50 per month for plaintiff's use for the support and maintenance of the minor children of the parties.
The appeal is from the order of the court overruling defendant's objection to the introduction of any evidence and from the order allowing plaintiff $50 per month for the support of their children. No complaint is made of the amount of the allowance for temporary support if plaintiff is entitled to anything.
Appellant's argument, although made under several subdivisio...
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