Spaulding v. Spaulding, 48126

Decision Date05 March 1977
Docket NumberNo. 48126,48126
Citation221 Kan. 574,561 P.2d 420
PartiesTamara SPAULDING, Appellee, v. John S. SPAULDING, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. A party who seeks and obtains from a trial court its approval of a separation agreement and the incorporation thereof in a decree of divorce and thereafter accepts the benefits of the decree cannot avoid its disadvantages by a motion to modify except as to those matters over which the court has continuing jurisdiction.

2. In an appeal from an order of the trial court denying a motion to modify an award of alimony, the record is examined and, under the facts and circumstances set forth in the opinion, it is hled: The trial court did not err in summarily denying the motion.

Robert V. Wells, Kansas City, argued the cause and was on the brief for appellant.

Joseph S. Davis, Jr., Breyfogle, Gardner, Martin, Davis & Kreamer, Olathe, argued the cause and was on the brief for appellee.

KAUL, Justice:

Appellant, John S. Spaulding, M. D., appeals from an order of the trial court denying a motion to reduce alimony payments which had been agreed upon by him and his former wife, Tamara Spaulding, the appellee herein.

On October 17, 1972, appellee was granted a divorce from appellant. The parties had been married seventeen years and had an eight-year-old son. The decree of divorce disclosed that appellee appeared in person and by her attorney and that the appellant appeared by Keith K. Couch, one of his attorneys. Appellee was granted custody of the son, Andy J. Spaulding, subject to liberal rights of visitation by appellant. Appellant was directed to pay child support in the amount of $200.00 per month until the child reached twenty-one years of age or is 'sooner emancipated and self-suppoorting or until further order of the court.' Appellant is a medical doctor and, at all times involved in this litigation, he was employed as an associate professor at the University of Kansas Medical School. At the time of the divorce, appellant's salary was approximately $26,000.00.

Concerning the separation agreement of the parties the decree reads:

'5. That the parties have entered into a separation agreement which is filed herein and which the court finds to be valid, just and equitable and should be incorporated in this decree and made a part hereof by reference. The court grants leave of the parties to withdraw the same for filing with the Clerk of the District Court.' (Emphasis supplied.)

The settlement agreement by its terms was declared to be contractual in nature and provided in detail for a division of the property owned by the parties at the time of the divorce. Paragraph five with which this appeal is concerned reads as follows:

'5. That John S. Spaulding shall pay to Tamara Spaulding the sum of $950.00 per month as future support denominated as alimony until the death of remarriage of the said Tamara Spaulding, and upon either event the obligation to pay alimony shall terminate absolutely. In addition to the aforesaid payments, John S. Spaulding shall pay Tamara S. Spaulding one-third of all increases or increments of salary which he shall receive as an employee of the State of Kansas or the University of Kansas Medical Center as 'cost of living' increases as additional alimony. Merit increases shall be exempt from such additional payments.'

Paragraph six of the agreement provides for adjustment of the monthly alimony payments to reflect any increases or decreases in the cost of living, if appellant discontinued his employment with the State of Kansas at the University of Kansas Medical Center at any time in the future. Except for the cost of living adjustments, referred to in paragraphs five and six, there was no provision for modification or change of alimony prescribed by the agreement.

Appellant complied with the alimony provisions of the settlement agreement for more than two years until the motion in question was filed on May 9, 1975. Appellant asked that alimony payments be reduced or in the alternative to set aside the agreement as null and void or to relieve appellant from the terms of the portion of the agreement relating to alimony.

At the hearing on the motion, the appellee argued that, as a matter of law, appellant was not entitled to the relief sought and asked for summary judgment in her favor. After hearing appellant's offer of proof and arguments of counsel, the trial court sustained appellee's motion for summary judgment and this appeal followed.

In his motion appellant attacked the settlement agreement on eleven grounds. His offer of proof, however, centered on only two of the alleged grounds-(1) that the agreement was not voluntarily or knowingly entered into and (2) appellant entered into said agreement under duress. As to number one, in his offer of proof, appellant announced his testimony would be that he was never advised by his Missouri counsel as to the effect of a separation agreement and that it was his understanding that at all times alimony could be negotiated downward. As to number two, appellant informed the trial court that he had two expert witnesses (psychiatrists) who were prepared to offer testimony that at the time the settlement was being negotiated, '. . . Dr. Spaulding (appellant) was being motivated solely by the fear of disastrous consequences of the wife and of the child, and was incapable of acting in his best interests.' Appellant's testimony would be that appellee had a history of mental problems; that there were three or four suicide attempts; and that with this in mind, appellant gave into the agreement through exhaustion and 'fearing for the disastrous consequences.'

The record of the hearing reflects that the trial judge referred back to the divorce proceedings over which he had presided. The court recalled it had '. . . made a finding of fact that the property settlement agreement was fair, just and equitable, . . .' The court observed that:

'. . . The defendant at the time of his Answer was represented by the Morrison & Hecker firm of Kansas City, Missouri, in the person of Mr. Patzman, and further by Keith Couch of the Johnson County Bar. . . .'

The court relied on K.S.A. 60-1610 (Amended L.1976, Ch. 256, Sec. 1) in ruling on the motion. The court commented:

'Within the offer of proof, there is no way the...

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14 cases
  • Marriage of Jones, Matter of
    • United States
    • Kansas Court of Appeals
    • August 9, 1996
    ...not settled under any agreement and therefore the court has continuing jurisdiction to modify it. William cites to Spaulding v. Spaulding, 221 Kan. 574, 561 P.2d 420 (1977), for the proposition that a court may modify matters over which it has continuing jurisdiction. In that case, Dr. Spau......
  • Marriage of Patterson, Matter of
    • United States
    • Kansas Court of Appeals
    • June 21, 1996
    ...a motion to modify except as to those matters over which the court has continuing jurisdiction.' " (Emphasis added.) (Quoting Spaulding v. Spaulding, 221 Kan. 574, Syl. p 1, 561 P.2d 420 [1977] Bair and Spaulding considered issues surrounding the modification of alimony payments, not child ......
  • Ellett v. Ellett
    • United States
    • Virginia Court of Appeals
    • March 13, 2001
    ...court held these allegations constituted intrinsic fraud, and were insufficient to void a final decree); Spaulding v. Spaulding, 221 Kan. 574, 561 P.2d 420 (1977) (where husband alleged he entered separation agreement involuntarily and under duress, court found this did not establish the so......
  • In re Marriage of Lozada
    • United States
    • Kansas Court of Appeals
    • July 21, 2023
    ... ... carefully scrutinized.'") (quoting Spaulding v ... Spaulding , 221 Kan. 574, 577, 561 P.2d 420 [1977]) ...          Like ... ...
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