Tager v. Tager

Decision Date13 May 1967
Docket NumberNo. 44724,44724
Citation427 P.2d 484,199 Kan. 26
PartiesA. Henry TAGER, Appellant, v. Sylvia E. TAGER, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

The record in an action for divorce is examined and, under the facts and circumstances as more fully set forth in the opinion, it is held: The trial court did not err in approving a separation and settlement agreement, as amended by agreement of the parties and as interpreted and construed by the court, and in entering judgment accordingly.

Marion W. Chipman, Olathe, argued the cause, and Eugene T. Hackler, John Anderson, Jr., Wilson E. Speer, and Joseph N. Vader, Olathe, were with him on the briefs for appellant.

W. C. Jones, Olathe, argued the cause, and Howard E. Payne, Robert P. Anderson, Keith Martin, and H. Thomas Payne, Olathe, and Joseph S. Levy and Bernard D. Craig, Kansas City, Mo., were with him on the briefs for appellee.

KAUL, Justice.

This is a divorce action. Plaintiff-husband has appealed from the judgment as it pertains to a separation and settlement agreement and from adverse rulings of the trial court on several post trial motions. Judgment was entered for defendant-wife on her cross-petition on December 23, 1965. The plaintiff was represented by counsel at the trial but offered no evidence. No complaint is made with respect to the divorce and child custody being granted to the defendant.

The parties were married November 30, 1958, and are the parents of two minor children; namely, David Charles Tager, born April 29, 1960, and Michele Renee Tager, born April 25, 1963. Prior to the divorce the parties resided in Shawnee Mission, Johnson County, Kansas. Plaintiff is an attorney, practicing in Kansas City, Missouri, and has earned large sums of money from the practice of his profession and business investments.

In the spring of 1965, differences arose between the parties and resulted in a separation and settlement agreement entered into on May 18, 1965. The agreement was a comprehensive settlement of the affairs of the parties. It provided for repayment by plaintiff in installments of a $10,000.00 loan made by defendant to plaintiff, and for a division of both personal and real property. Provision was made for custody of the children with defendant and visitation privileges of the plaintiff. Support for each child was provided for in the amount of $200 per month and also provision was made for medical and educational expense. The child support, medical and educational benefits were to terminate on the death of the husband, a child attaining the age of 22 years, or the marriage or death of a child. Support and maintenance for the wife was fixed at $3,000.00 per year in monthly installments of $250, to terminate upon the death of the husband or the remarriage or death of the wife. Plaintiff further agreed to continue in force a $50,000.00 life insurance policy on his life and payable to his wife in the event of his death. It was further provided that in the event he failed to maintain the full amount of such insurance then the full amount or such amount as not maintained should constitute a claim against the husband's estate. On remarriage or prior death of the wife, provision was made that the husband should have all rights in the policy. Further provision was made to continue in force insurance on the life of the husband for the benefit of each child in the amount of $50,000.00, or until each child attained the age of 25 years. The three life insurance policies mentioned were to be established by converting into separate policies a $150,000.00 life insurance policy which plaintiff had in force at the time of the agreement.

The agreement contained numerous other provisions and a supplemental letter of plaintiff, none of which are in serious controversy and therefore need not be recited.

On June 23, 1965, plaintiff filed a petition for divorce. On June 24, 1965, defendant filed an answer to plaintiff's petition and a cross-petition for divorce. In her cross-petition defendant asked for a divorce, permanent alimony, and custody of, and support for, the minor children. Defendant referred to the separation and settlement agreement in her cross-petition and asked, that in the event the evidence confirms that no misrepresentations or concealment of income or assets was made to her, that the court approve and merge said agreement in any decree granted in accordance with the laws of the State of Kansas.

According to the record nothing further took place until December 17, 1965, when defendant, through her attorney, filed an affidavit and accusation in contempt. As a result a citation was issued directing plaintiff to appear before the court on December 21, 1965, to show cause why he should not be punished for contempt. Apparently the court had previously ordered plaintiff to submit a statement of assets and liabilities to the court and to pay attorneys' fees, as ordered by the court. These orders are not set out in the record.

The contempt matter came before the court on December 22, 1965, but the court stated that it had received a telegram from plaintiff stating that due to illness he would be unable to be at the scheduled hearing. The court held the matter of the contempt citation in abeyance until the time set for trial on December 23, 1965. The court specifically ordered and directed plaintiff to be present at that time.

On December 23, 1965, the case was called for trial by the court. The plaintiff was not present in person but was represented by counsel. The defendant in her testimony identified the agreement and it was admitted in evidence. She further testified:

'I understand from the conferences that we have had today, that my husband has agreed to settle this matter with me and I have agreed to settle it with him upon the basis of the agreement with certain changes.'

The defendant offered in evidence certain exhibits consisting of plaintiff's income tax returns for the years 1958, 1959, 1960 and 1961. She also offered in evidence a record of plaintiff's bank deposits for the year 1965, up to September 9, 1965. In this connection the court made oral findings that plaintiff's income tex return for 1958 showed taxable income as $33,761.01, and that the return had been corrected by the Internal Revenue Service to show taxable income as $63,932.18. That the plaintiff's income tax return for 1959 showed his taxable income as $58,256.49, and that it had been corrected by the Internal Revenue Service to show his taxable income as $95,400.46. That plaintiff's 1960 income tax return showed his taxable income as $24,871.52, and has been corrected by the Internal Revenue Service to show his taxable income as $140,353.91. That plaintiff's income tax return for 1961 showed his taxable income as $53,139.51, and that the return had been corrected by the Internal Revenue Service to show his taxable income as $70,649.30.

A calculation, based on the court's findings in this regard, discloses that plaintiff's income for the years mentioned amounted to over $200,000.00 more than the income shown by plaintiff on his income tax returns.

The court approved the agreement with certain exceptions and changes. The most controversial change was an increase in the payments of support to defendant. In this connection the following appears in the journal entry:

'* * * the Plaintiff is ordered and directed to pay support to the Defendant in the sum of $600.00 per month and such additional sums as may be necessary to satisfy any income tax liability on the basic payment of $600.00 for support, which additional sum is to be paid by the Plaintiff to the Defendant on or before the 1st day of January, the first day of April, the first day of July and the first day of October of each year hereafter until the further order of the Court, except, however, that the Plaintiff shall be required to pay to the Defendant for the first six months only the sum of $200.00 per month, plus such additional sums as may be necessary to satisfy income tax liabilities hereinbefore mentioned; that the provision for support is contingent upon the death of the Defendant and/or the remarriage of the Defendant or the death of the Plaintiff as amending Paragraph 11 of said agreement by express agreement of the parties; * * *' (Emphasis supplied.)

The substance of this change was an increase in monthly...

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4 cases
  • Sweeney's Estate, In re, 46631
    • United States
    • Kansas Supreme Court
    • 19 Julio 1972
    ...209 Kan. 86, 495 P.2d 994; Baird v. Baird, 209 Kan. 604, 498 P.2d 83; Cramer v. Wohlgemuth, 195 Kan. 622, 408 P.2d 644; Tager v. Tager, 199 Kan. 26, 427 P.2d 484; Tyler v. Tyler, 203 Kan. 565, 572, 455 P.2d 538, and Dodd v. Dodd, 210 Kan. 50, 499 P.2d 518, this day The subsection changed th......
  • Marriage of Kirk, Matter of
    • United States
    • Kansas Court of Appeals
    • 20 Junio 1997
    ...Michael also argues that the Supreme Court affirmed the district court's approval of a separation agreement in Tager v. Tager, 199 Kan. 26, 427 P.2d 484 (1967), even though the district court in that case did not have detailed evidence of the petitioner's financial worth and earnings. Contr......
  • Cook v. Cook, 52535
    • United States
    • Kansas Court of Appeals
    • 14 Enero 1982
    ...not need detailed evidence of the parties' financial worth when dividing their property according to their agreement, Tager v. Tager, 199 Kan. 26, 32, 427 P.2d 484 (1967), mere agreement by the parties does not vitiate the court's duty to scrutinize the settlement agreement, and if the agre......
  • Baird v. Baird, 46386
    • United States
    • Kansas Supreme Court
    • 10 Junio 1972
    ...modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.' In Tager v. Tager, 199 Kan. 26, 427 P.2d 484, it was said that under 60-1610(d) a settlement agreement providing for the payment of alimony was not subject to subsequent modifica......

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