Smith v. Smith
| Decision Date | 27 June 1980 |
| Docket Number | No. 50974,50974 |
| Citation | 612 P.2d 1257,5 Kan.App.2d 117 |
| Parties | Harold SMITH, Appellee, v. Betty Jo SMITH, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. When a party knows that a response to a request for discovery though correct when made is no longer true, the failure to supplement that response may be a knowing concealment.
2. Each party in a divorce action is entitled to an equitable portion of all property owned by the parties, whether owned by either spouse in his or her own right before or after the marriage, or acquired by their joint efforts.
3. The record in a divorce proceeding is reviewed and it is held: (1) evidence that the plaintiff was negotiating a lease purchase agreement and the sale of personal property was material to the division of property; (2) the failure of the plaintiff to carry out his duty to supplement a discovery response, rather than a lack of diligence by defendant, prohibited the earlier production of this evidence; (3) the trial court erred in failing to grant defendant a new trial on the grounds of newly discovered evidence; and (4) the trial court abused its discretion by arbitrarily limiting the defendant's award to the increase in value of the marital property during the marriage.
Michael J. Friesen, Garden City, for appellant.
Lelyn J. Braun, of Braun & Nyswonger, Garden City, for appellee.
Before SPENCER, P. J., and ABBOTT and PARKS, JJ.
This is an appeal by the defendant wife in a divorce action contesting the trial court's division of property.
Betty and Harold Smith are both in their early fifties and were married for six years. Prior to this marriage, Betty was employed as a secretary and held property valued at $7,000. Harold brought assets with a net value of over $100,000 into the marriage. The estimated value of the property owned by the Smiths at the time of their divorce varied from $208,600 to $423,941 (based on plaintiff Harold Smith's exhibits) to more than $500,000 (defendant Betty Smith's estimation).
At the conclusion of the first hearing, the trial court awarded Betty $105,177.80, which represented one-half of the assets owned by the Smiths. Harold moved for a new trial alleging that the court did not take into consideration the extensive liabilities incurred against the assets. At the second trial, the court substantially altered its prior judgment by awarding defendant $7,000 for the items she brought into the marriage, $16,350 for her share of the net increase in assets during the marriage and alimony of $9,600, payable at $200 a month.
Betty then moved for a new trial on the grounds of newly discovered evidence. The trial court denied the motion and reinstated the judgment of the second hearing. Betty now appeals.
Defendant first contends that the trial court erred in denying her motion for a new trial. The motion was premised on K.S.A. 60-259(a ) Fifth which provides that a new trial may be granted, "For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial." Affidavits and testimony were presented which indicated that defendant learned on January 11, 1979 (some nine days after the hearing), that Harold had sold an interest in his company, Calf Feeders, Inc., for $250,000. Because this property was valued at $47,800 in plaintiff's exhibits, defendant maintained that evidence of the transaction was material.
Plaintiff responded and the trial court held that the evidence, though material, could have been discovered through the exercise of reasonable diligence because prior to the first trial, plaintiff's answer to an interrogatory put defendant on notice that Calf Feeders, Inc., was listed for sale with a real estate agent at an asking price of $250,000.
Plaintiff further argues that he had no duty to voluntarily supplement his answer to the interrogatory with information concerning the impending sale or lease of the plaintiff's interest in the property. We disagree.
K.S.A. 60-226 provides:
"(B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment."
Here, the evidence reveals that plaintiff hired Mr. Christofferson on November 1, 1978, and began negotiations then for the lease and purchase of the feed lot. Actual transition of the management of the feed lot took place January 1, 1979, the day before the second...
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