Sweeney's Estate, In re, 46631

• Decision Date: 19 July 1972
• Docket Number: No. 46631,46631
• Parties: In the Matter of the ESTATE of John E. SWEENEY, Deceased. Virginia J. SWEENEY, Appellant and Cross-Appellee, v. MERCHANTS NATIONAL BANK OF TOPEKA, Kansas, Executor and Testamentary Trustee of the Estate of John E. Sweeney, Deceased, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 56

500 P.2d 56

210 Kan. 216

In the Matter of the ESTATE of John E. SWEENEY, Deceased.

Virginia J. SWEENEY, Appellant and Cross-Appellee, v. MERCHANTS NATIONAL BANK OF TOPEKA, Kansas, Executor and Testamentary Trustee of the Estate of John E.

Sweeney, Deceased, Appellee and Cross-Appellant.

No. 46631.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

1. The general rule is that periodic payments of alimony to a divorced wife terminate upon the former husband's death in the absence of a provision in the settlement agreement, or in the decree, which expressly so states, or contains language which makes the intent unmistakably clear that such payments are to continue after his death.

2. Parties to a divorce action have the right to contract in a separation agreement that alimony payments to the wife shall continue after the former husband's death, and where such agreement is approved by the court and incorporated in the decree, it may be enforceable against the husband's estate.

3. A parent, particularly the father, has a continuing obligation to support his minor children, irrespective of any decree of divorce to that effect.

4. At common law, a father's duty to support his children ends with his death.

5. Parties to a divorce action who enter into a separation agreement which is confirmed by the district court and incorporated into the decree, may expressly provide in the agreement for the support, maintenance, and education of their minor children, and that upon the death of the father child support payments may continue and be enforceable against his estate during the children's minority.

6. In the absence of language in a separation agreement which has been confirmed by the district court and incorporated in the decree of divorce pursuant to K.S.A.1971 Supp. 60-1610(d), that an obligation on the part of the father to make periodic payments for the support, maintenance, and education of the minor children of the parties was to survive the death of the father and be paid from his estate, a decree awarding child support which merely recites that the obligation was to continue 'until each of said children shall have attained his majority or until the further order of the court,' does not bind the father's estate for payments accruing after his death.

7. The record in a probate proceeding by a divorced wife to enforce claims against her former husband's estate for future monthly payments of alimony and child support accruing after his death, based upon their separation agreement, which was confirmed by the district court and incorporated in the divorce decree pursuant to K.S.A.1971 Supp. 60-1610(d), is examined, and it is held: The separation agreement did not expressly state or contain language which clearly and unmistakably evidence the intent that obligations for alimony and child support were to survive the death of the husband so as to bind his estate, and such claims were not valid and enforceable.

Robert Ochs, of Fisher & Benfer, Topeka, argued the cause, and Charles S. Fisher, Jr., Topeka, was with him on the brief, for appellant and cross-appellee.

Eugene W. Hiatt, of Hiatt & Spurgeon, Chartered, Topeka, argued the cause, and Leland M. Spurgeon and Kenneth F. Crockett, Topeka, were with him on the brief, for appellee and cross-appellant.

FATZER, Chief Justice:

This appeal arises out of a claim for alimony and child support against a decedent's estate. The facts are not in dispute.

Following several years of marriage and the birth of five children, Virginia J. Sweeney sued John E. Sweeney for separate maintenance. Before the matter was heard, and on October 11, 1966, Virginia and John entered into what was characterized as a 'stipulation' in which they stated they had been unable to reconcile their differences and believed that a permanent separation must ensue.

The stipulation is too extensive to be presented here in full. It is sufficient to say that Virginia agreed to amend her separate maintenance petition to the extent necessary to seek a divorce from John. The stipulation provided for (a) the division of all the real and personal property of the parties; (b) the custody, support and education of their minor children, and (c) the future support of Virginia, denominated as alimony.

On the same day, October 11, 1966, the district court permitted the petition for separate maintenance to be amended; granted a divorce to Virginia; found the terms of the stipulation to be fair, just and equitable, approved the same, and ordered the stipulation be incorporated into the decree.

The stipulation contained 18 paragraphs which were written in full in the district court's decree of divorce as separate findings of the court, and were likewise written in full in separate paragraphs in the judgment portion of the decree. In the interest of brevity and to avoid repetition of quoting from the stipulation and the judgment portion of the decree, the various pertinent paragraphs of the stipulation, as well as the separate findings of the court incorporating such paragraphs into the decree, are quoted as follows:

'And now the court, having heard the testimony of plaintiff and her witness, and after hearing the statements of counsel, examining the files herein, and being well and fully advised in the premises, finds:

'3. The court further finds that plaintiff should be awarded, as and for her property settlement with defendant, free and clear from all right, title, interest, lien, claim or encumbrance of defendant, the following described real and personal property:

'a. $3500.00 cash

'b. The 1962 Buick station wagon

'c. The household goods and furnishings, including drapes, rugs, pictures and books located in the dwelling house where plaintiff resides at 812 Gage Blvd., Topeka, Kansas, except certain items of furniture and personal effects which the parties have agreed should be awarded to defendant, said articles being more particularly described in findings No. 13 and No. 14 following

'd. The real estate commonly known as 812 Gage Blvd., Topeka, Kansas, more particularly described as follows: (description.)

'6. The court further finds that plaintiff should be awarded for her future support and maintenance, to be denominated as alimony, the sum of $650.00 per month, payable by defendant to plaintiff through the Clerk of the above entitled District Court, commencing $650.00 on January 1, 1967, and $650.00 on the first day of each succeeding month until plaintiff's remarriage or death, in either of which event said support payments shall cease and terminate.

'7. The court further finds that defendant should pay plaintiff through the Clerk of the above entitled District Court for the support, maintenance and education of the minor children of the parties the sum of $100.00 per month per child, commencing January 1, 1967 and continuing on the first day of each succeeding month until each of said children shall have attained his majority or until the further order of the court.

'10. The court further finds that until January 1, 1967, or the effective date of the divorce decree, whichever is sooner, defendant should continue to pay plaintiff the sum of $650.00 per month, as well as the monthly mortgage installment on plaintiff's home, payable to the American Savings Association of Topeka; that defendant should also bring any delinquent payments to date in order that plaintiff will receive the said home commonly known as 812 Gage Boulevard, Topeka, Kansas, as of the effective date of the said decree, with no payments in arrears as of the said effective date; that the award to plaintiff of the said real estate should include all account balances reserved for the payment of ad valorem taxes, hazard insurance and mortgage insurance.

'12. The court further finds that defendant should keep in effect his Prudential Life Insurance policy No. 31199270, the proceeds of which are to be used, in case of defendant's death, for the payment of the unpaid balance on the present mortgage loan on said real estate, and will make all necessary changes.

'13. The court further finds that defendant should be awarded all his corporate stock in the Medical Building Company, Inc., his partnership interest in the Topeka Medical Center, together with his proportionate share of the reserves and accounts receivable in connection with said medical center, and should be awarded his life insurance policies, subject to the provision for the payment of the mortgage balance in the event of his death, as referred to in paragraph 12 above, all of said interests to be awarded him free and clear of any right, title, interest, lien, claim or encumbrance of plaintiff.'

The journal entry was filed of record as of January 11, 1967. Virginia was awarded the care, custody and control of the minor children. On March 5, 1970, when the proceedings out of which this appeal arises were commenced, there were three minor children in the home-Craig, born April 7, 1951; Michael, born December 18, 1954, and Mary Catherine, born December 2, 1961.

Virginia has not remarried; she was 50 years of age on December 2, 1969, and is in good health.

Sometime after the divorce, and on a date not disclosed by the record, John married Martha Maynard Sweeney, his surviving spouse, hereafter referred to as Martha.

On July 23, 1969, John executed his Last Will and Testament in which he directed his executor to pay all his debts, including funeral expenses and all federal and state inheritance taxes; he bequeathed all of his household goods, wearing apparel, and his automobile to Martha. He devised the residue and remainder of his estate to the Merchants National Bank of Topeka, hereafter referred to as the bank, the executor, or the trustee, in trust for Martha's benefit during her lifetime, then to his children. The bank was named executor of John's estate, and was also named Testamentary Trustee in his will.

No other instrument or document setting...