Stegmeir v. Stegmeir

• Decision Date: 06 May 1944
• Docket Number: 36101.
• Citation: 148 P.2d 755,158 Kan. 511
• Parties: STEGMEIR v. STEGMEIR.
• Court: Kansas Supreme Court

148 P.2d 755

158 Kan. 511

STEGMEIR v. STEGMEIR.

No. 36101.

Supreme Court of Kansas

May 6, 1944

Rehearing Denied May 25, 1944.

Syllabus by the Court.

Alleged error in striking of defendant's answer and cross petition from the files presented nothing for review where defendant acquiesced in the court's ruling by filing amended answer and bill of particulars.

In action for divorce, trial court properly ordered stricken whatever pleading filed by either party did not conform to the intent and purpose of statute requiring pleading to allege the facts as nearly as possible in language of statute and without detailed statement of facts. Gen. St.1935 60-1519.

Where plaintiff's petition and bill of particulars sufficiently stated cause of action for divorce on grounds of extreme cruelty, the court did not err in overruling defendant's objection to the introduction of evidence on plaintiff's bill of particulars. Gen.St.1935, 60-1519.

In divorce action, exclusion of certain exhibits which were copies of entries from certain bank records offered as tending to prove that lands purchased by the parties were purchased with funds belonging to the wife, was not error where the exhibits did not shed any light on the issue and were not complete, although they did go far enough to contradict wife's claim that she purchased one of the pieces of property. Gen.St.1935, 60-1501.

In husband's action for divorce, evidence supported findings on issue of extreme cruelty on part of wife and supported findings as to ownership of property and the division thereof. Gen.St. 1935, 60-1501.

In division of accumulated property of spouses being divorced trial court has a wide discretion which will not be disturbed unless its judgment is manifestly or demonstrably shown by the record to be palpably unjust. Gen.St.1935, 16-1501.

"Extreme cruelty" as basis for divorce does not necessarily imply physical violence, but any unjustifiable conduct of either spouse which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as to seriously impair the bodily health of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes "extreme cruelty". Gen.St.1935, 60-1501.

Evidence supported finding that wife's conduct toward husband constituted extreme cruelty justifying granting of divorce to husband. Gen.St.1935, 60-1501.

Corrections of clerical inadvertencies in findings of fact and conclusions of law in a divorce judgment by a nunc pro tunc older after expiration of the term and while appeal was pending, was proper where such corrections did not alter the judgment. Gen.St.1935, 60-1501.

1. In an appeal from a judgment granting a husband a divorce from his wife, an order striking defendant's original answer and cross petition from the files for non-conformity with the pertinent provision of the civil code, (G.S.1935, 60-1519) presents nothing for appellate review when defendant acquiesced in the order by filing an amended answer and bill of particulars.

2. Under the statute of 1935, chapter 219, section 1, G.S.1935 60-1519, which directs that the pleadings in divorce actions shall allege the facts relied on as nearly as possible in the language of the statute and without detailed statements of fact, the trial court should order stricken from the files whatever pleadings do not conform therewith.

3. Plaintiff's amended petition and bill of particulars sufficiently stated a cause of action against defendant.

4. Error assigned on exclusion of certain exhibits which were copies of incomplete banks records of deposit accounts of plaintiff and defendant considered and not sustained.

5. Error based on certain special findings of fact considered and not sustained; and the trial court's conclusions of law based thereon were proper.

6. "Extreme cruelty" as a statutory ground for divorce does not necessarily imply physical violence. Any unjustifiable and long practiced course of conduct by one spouse towards the other which tends to humiliate and degrade the latter, and thus destroys the legitimate ends and objects of matrimony, constitutes "extreme cruelty" and will supply a cause of action for a divorce,--following Carpenter v. Carpenter, 30 Kan. 712, 2 P. 122, 46 Am.Rep. 108.

7. Defendant's objections to a nunc pro tunc order making correction of clerical errors in the trial court's conclusions of law considered and not sustained.

Appeal from District Court, Labette County; Larue E. Goodrich, Judge.

Action by Fred S. Stegmeir against Olive E. S. Stegmeir for divorce on grounds of extreme cruelty. From a judgment granting plaintiff a divorce and providing for a property settlement, defendant appeals.

George Francis Burton and C. E. Pile, both of Parsons, for appellant.

A. L. Foster, of Parsons, for appellee.

DAWSON Chief Justice.

This is an appeal from a judgment wherein the plaintiff husband was granted a divorce from his defendant wife. She was given the custody of their 16-year-old son. Each was given the equivalent of the value of the property they had brought into their marital union, and their joint accumulation of additional property was equally divided between them; but the portion thus allotted to the husband was set over to the wife for the support and maintenance of their son.

The defendant wife appeals, with a lengthy specification of errors, to an understanding of which some matters in evidence gleaned from the record may be helpful.

It appears that on October 19, 1921, Fred S. Stegmeir of Angola, Labette county, a bachelor, 43 years of age, and Olive E. Stuart, a spinster, 36 years of age, also of Labette county, were married. At that time he had about $6,500 and some town lots in the city of Parsons. She had about $275 and a half interest in a quarter-section farm she inherited from her father. Her mother owned the other half of the farm. The farm was equipped except in work horses. The couple took up their abode with the wife's mother. Stegmeir bought three horses, and thereafter he and his wife operated the farm. The wife's mother died in February, 1923, by which event the wife became the owner of the entire farm.

From the inception of the marriage until it ran completely aground some twenty years later the wife handled the finances of the family. She banked the proceeds of crop sales in her own name and drew all checks thereon. Just how all or most of Stegmier's original funds became merged in the bank account kept in Mrs. Stegmeir's name, or were otherwise disposed of, is not clear, owing in part, perhaps, to a fire which destroyed some of the bank's records. Stegmeir sold some of his Parsons city property for $500 in cash.

As time went on, plaintiff and defendant purchased a quarter-section of land adjoining them on the south. Some years later they acquired another quarter-section a few miles north of their farm residence.

On March 26, 1943, Stegmeir filed this action for a divorce, charging the defendant with extreme cruelty. He also prayed for division of property rights.

Defendant filed an answer and cross petition. Both petition and answer and cross petition were subjected to motions to strike for nonconformity with G.S.1935, 60-1519. Both motions were sustained and both parties amended their pleadings and supplied bills of particulars, and upon these the trial proceeded. The evidence took a wide range. The trial court made extended findings of fact and gave judgment for plaintiff as summarized above.

The first error urged relates to the striking of defendant's original answer and cross petition from the files. But that point is of no consequence since defendant acquiesced in the court's ruling by filing an amended answer and bill of particulars. Sanford v. Weeks, 39 Kan. 649, 18 P. 823; Winfrey v. Clapp, 86 Kan. 887, 122 P. 1055; Hamill v. Hamill, 134 Kan. 715, 717, 8 P.2d 311. However, the propriety of the trial court's ruling is worthy of note, for the reason that it concerns the construction of G.S.1935, 60-1519, which is a new statute drafted and sponsored by the Judicial Council, and which has not hitherto required the attention of this court. The statute reads: "That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (R.S. 60-1501), and without detailed statement of facts. If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished in the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court."

Commenting on the enactment of this statute, the Judicial Council Bulletin, Part 1, Ninth Annual Report, April 1935, at page 5 says: "Early in our work we recognized the advisability in an action for divorce or for alimony that a statute should require the cause of action to be stated in the language of the statute only. We mentioned this in our 1928 report, page 14, and a draft of the bill was set out in our 1929 report, page 23. It has been presented to each regular session of the legislature since that time. On two occasions it passed the house of representatives but...