Smith v. Smith

Decision Date11 June 1960
Docket NumberNo. 41714,41714
Citation352 P.2d 1036,186 Kan. 728
PartiesAntoinette W. SMITH, Appellant, v. Samuel D. SMITH, Appellee.
CourtKansas Supreme Court

Syllabus by the Court.

1. A divorce decree provided for the payment of alimony in installments, secured by a lien on real estate, with an acceleration clause providing that on default in the payment of any monthly installment the entire balance should become due entitling the appellant to foreclose the lien on the real estate securing the alimony payments. The appellee delayed making payment on several installments and the appellant filed a motion to foreclose the lien upon the real property seeking to take advantage of the acceleration clause. The trial court overruled the motion and it is held: Upon the facts and circumstances fully set forth in the opinion, the trial court did not err, the appellant having waived any right to insist upon the full maturity under the acceleration clause.

2. A judgment of the trial court imports a general finding in favor of the prevailing party which determines every controverted question of fact in support of which evidence has been introduced, and raises the presumption that all facts necessary to sustain and support the judgment have been found.

3. Where in a divorce decree alimony is made payable in installments with an acceleration clause, as indicated in Syllabus 1, the prior consent and agreement of the party entitled to alimony to a delay in the payment of alimony installments, together with the subsequent acceptance of the delayed installments and an advance installment not yet due, constitutes a waiver of any right to insist upon full maturity under the acceleration clause and to enforce the lien securing the alimony payments by foreclosure.

E. Edward Johnson, Topeka, argued the cause, and L. M. Ascough, John A. Bausch and John D. O'Brien, Topeka, were with him on the brief, for appellant.

Charles S. Fisher, Jr., Topeka, argued the cause, and T. M. Lillard, O. B. Eidson, Philip H. Lewis, James W. Porter and E. Gene McKinney, Topeka, were with him on the brief, for appellee.


This is an appeal from an order of the trial court denying the appellant's motion in a divorce action to foreclose a lien upon real property which was established by the divorce decree to secure the payment of alimony. The decree granting a divorce on October 24, 1957, awarded alimony in the total sum of $13,068, payable in installments of $108 per month. The provision in the divorce decree relied upon is an acceleration clause which provides that on default in the payment of any monthly installment 'the entire balance shall become due and draw interest at the rate of 6% per annum and plaintiff shall be entitled to foreclose' the lien on the real estate securing the alimony payments.

The appellee, defendant-husband in the divorce action, made the alimony payments regularly until the month of September, 1958, when by reason of illness and hospitalization he earned practically no money for several months. As a result of this illness he paid only $50 on the September, 1958, installment of alimony, paid in full the October installment, and failed to pay when due in 1958 the November and December installments.

On December 13, 1958, the appellant was paid $382 as alimony. The parties stipulated this money was received and applied as follows: '$58.00 for September of 1958, $108.00 November 1958 alimony payment, $108.00 December alimony payment and $108.00 for January.'

It is to be noted the $382 paid on the 13th day of December included $108 as an advance payment for the January, 1959, installment.

On December 5, 1958, the appellant, prior to the $382 payment of alimony, filed her motion in the district court to have the entire unpaid balance of alimony declared due under the acceleration clause and to foreclose the lien on the appellee's real estate. The trial court on June 19, 1959, after hearing the motion and the testimony presented by the parties, overruled the motion stating:

'Plaintiff hasn't lost any money. She still has the protection of the lien. The defendant has made all the payments. The fact he didn't make them right on the date is explained by the evidence, which is unrefuted, of the physical incapacity and inability to pay on account of physical incapacity. I really can't see that anybody has been hurt. I think the lien established by the decree in favor of plaintiff is still good. She still has the protection and she has had all of her money. The motion to foreclose the lien is overruled.'

The record indicates the appellee remarried subsequent to the divorce. He and his present wife, Betty, reside in the City of Lawrence, Kansas. The appellant resides in the City of Topeka. The appellant testified concerning the alimony payments that when the appellee and Betty picked up the children in Topeka the 1st of September Betty said they would not be able to pay all of the alimony. The appellant then testified:

'Q. Did you agree? Did you say it would be all right? A. I said half would be all right that month with the understanding they would catch it up.

* * *

* * *

'Q. You agreed that the half of the September payment would be all right? That it could be delayed? A. That's right.

'Q. That's the same $58.00 you received later? A. Yes, sir.'

The appellee testified that as a result of an accident which occurred approximately August 14, 1958, he was hospitalized for a period of two weeks following which he had to stay in bed for another two weeks. He worked again from the latter part of September until the 22nd day of October but did not work from then until the 1st of January.

Betty testified that she had a conversation in October, 1958, with the appellant on the front walk of her home in Lawrence. She testified:

'Q. Tell the Court what was said. A. I said, 'We are not going to be able to make the November payment. We have made the October payment. We will make the child support because I know this cannot be denied but we are not in position to make the alimony.' She said, 'Fine, don't worry about it.' I said, 'Well, are you sure you can manage? Is this satisfactory?' She said, 'It's perfectly all right. Don't worry.' She walked towards the car and I walked back to the house.

'Q. When you say 'she', who are you talking about? A. Ann Smith.

'Q. Is that the same payment you are talking about that was made on December 12th, 1958? A. That's right.

'Q. That was approximately six weeks later, was it? A. Yes.'

We are not concerned with the conflicting testimony of the appellant regarding the above statements.

The trial court made no specific findings, and the judgment of the trial court overruling the appellant's motion imports a general finding in favor of the appellee. A general finding made by the trial court determines every controverted question of fact in support of which evidence has been introduced and raised the presumption that all facts necessary to sustain and support the judgment have been found. Dryden v. Rogers, 181 Kan. 154, 309 P.2d 409; Watkins v. Layton, 182 Kan. 702, 324 P.2d 130; Boese v. Crane, 182 Kan. 777, 324 P.2d 188; In re Estate of Julian, 184 Kan. 94, 334 P.2d 432; and Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P.2d 931. Under these circumstances and based upon the testimony in the record as heretofore related, it may be inferred that the trial court found the appellant gave her prior consent and agreed to a delay in the payment of alimony installments.

The only qestion presented is whether upon the foregoing circumstances the appellant is entitled to foreclose the lien.

The appellant takes the position that '(1) the trial judge in denying plaintiff the right to foreclose her lien was, in effect, modifying his previous judgment and he was not authorized to do this since the term in which the original judgment was entered had expired; and, (2) that upon default of the monthly installments, the entire balance of the alimony judgment became due and was a final judgment.'

The legal propositions upon which the appellant relies are (1) that a judgment cannot be set aside, modified or changed after the term at which it is rendered, except as provided in the civil code (Heston v. Finley, 118 Kan. 717, 236 P. 841; Drury v. Drury, 141 Kan. 511, 41 P.2d 1032; and Keys v. Smallwood, 152 Kan. 115, 102 P.2d 1001); (2) that a judgment of divorce settles all the property rights and obligations of the parties to each other after the divorce is granted notwithstanding the circumstances of the parties may have changed (Noonan v. Noonan, 127 Kan. 287, 273 P. 409; Mayfield v. Gray, 138 Kan. 156, 23 P.2d 498; Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750; and Breidenthal v. Breidenthal, 182 Kan. 23, 29, 318 P.2d 981); (3) that after the term has expired the judgment is not only binding upon the parties but upon the trial court as well (Riley v. Riederer, 144 Kan. 422, 61 P.2d 106; Hoffman v. Hoffman, 156 Kan. 647, 135 P.2d 887; and Hinshaw v. Hinshaw, 166 Kan. 481, 203 P.2d 201); and (4) that installments for the payment of alimony, when due and unpaid, become final judgments and may be collected in the same manner as other judgments (Haynes v. Haynes, 168 Kan. 219, 212 P.2d 312; Bassett v. Waters, 103 Kan. 853, 176 P. 663; Stoner v. Stoner, 134 Kan. 356, 5 P.2d 847; and Bourman v. Bourman, 155 Kan. 602, 127 P.2d 464).

Unless the appellant prevails on the basic premise that a default in the payment of any alimony installment due accelerates the maturity of all payments on the balance remaining unpaid, and that such acceleration is beyond the control of the parties, the propositions of law upon which she relies have no application.

In Stoner v. Stoner, supra, a division of property was made and a portion made payable in installments which were made a lien upon real property. The court held: 'It was competent for the court in the divorce decree to fix the times of payment of...

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    ...language is the functional equivalent of the express anti-waiver clause in Freel. In response, CTP primarily cites Smith v. Smith, 186 Kan. 728, 735, 352 P.2d 1036 (1960) in support of the general rule that acceleration rights can be waived by conduct of the lender. It contends that Foundat......
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