Thompson v. Thompson

• Decision Date: 28 January 1950
• Docket Number: No. 37686,37686
• Parties: THOMPSON v. THOMPSON.
• Court: Kansas Supreme Court

Page 641

213 P.2d 641

168 Kan. 450

THOMPSON v. THOMPSON.

No. 37686.

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court.

1. A husband filed an action for divorce and defendant wife in a cross petition asked for separate maintenance; during the trial she stated on the witness stand she wished a divorce, held it was proper for the court to give her judgment for a divorce for the fault of the husband where the facts warranted it.

2. In an action such as that described in the first paragraph of this syllabus, the court has wide discretion in decreeing a property settlement between the parties and unless it appears this discretion was abused the judgment will not be disturbed on appeal.

3. In an action such as that described in the first paragraph of this syllabus, the court has a broad discretion as to whether it will allow attorney fees.

4. In an action such as that described in the first paragraph of this syllabus, the record is examined and it is held that there was substantial evidence that the property settlement decreed by the trial court was just and equitable.

J. D. Conderman, of Iola, argued the cause and was on the briefs for the appellant.

Kenneth H. Foust, of Iola, argued the cause and John O. Foust, of Iola, was with him on the briefs for the appellee.

The opinion of the court was delivered by

SMITH, Justice.

This was an action for divorce filed by the husband. The divorce was granted the defendant on her cross petition. As a part of that judgment property rights were adjudged. The defendant has appealed from that portion of the judgment settling the property rights.

The petition alleged that the parties owned approximately $15,000 in stocks and bonds, which they had accumulated through their joint efforts, and that it was in the possession of the defendant and was being managed by her. It referred to five pieces of real property, one being what is known as the Gas City property, at an alleged value of $5,000; one house and lot at a value of $2,500; another house and lot of the value of $1,000; one house and lot at the value of $1,500; and two vacant lots at the value of $1,000; that plaintiff and defendant had been separated and living apart for five years and defendant had been guilty of abandonment and gross neglect of duty for more than a year.

The prayer was for a divorce and the determination of property rights and other relief.

The defendant admitted ownership of stocks and household furniture but denied that they were worth $5,000; admitted ownership of the real estate but denied the values placed on it by the plaintiff; alleged the property was acquired by her from moneys earned by her or inherited by her; and denied it was acquired by the joint efforts of the parties. All other allegations were denied.

For a cross petition she alleged they owned certain stocks, an automobile and set out the same parcels of real estate that had been referred to in the plaintiff's petition and alleged that this property had been acquired by money earned or inherited by her; that the plaintiff had been guilty of extreme cruelty and gross neglect of duty and abandonment for more than a year; alleged that she was physically ill and unable to work; that her medical expenses had been high; that she received no support from plaintiff for more than a year and had no money to hire counsel. Her prayer was that the divorce asked for by plaintiff be denied and that she be granted separate maintenance from the plaintiff and for reasonable attorney fees.

The court found the issues in favor of the defendant and against the plaintiff and that the plaintiff had been guilty of gross neglect of duty and abandonment for more than a year and that judgment should be rendered granting defendant a divorce from the plaintiff. It should be stated here parenthetically that while the defendant was on the stand she testified that she wanted a divorce rather than separate maintenance.

As to the property, the trial court set aside to defendant the Gas City property and all household goods belonging to the litigants. The court also gave her all stocks, bonds and securities owned by them, also the Ford car. There had been some evidence about money defendant had inherited from her father's estate. The court found this was included in the property decreed to the defendant. The court gave the other four pieces of real estate to the plaintiff as his sole and separate property, also his clothing and personal effects. The plaintiff was ordered to pay the costs of the action.

The defendant's prayer for attorney fees was denied and the defendant was divorced from her husband.

The defendant filed a motion for a new trial on nine grounds. It will not be necessary to set them out here except that the ninth ground was error in failing to allow attorney fees to defendant's attorney. This motion was overruled--hence this appeal.

The defendant argues here the question involved is whether she was entitled to an allowance of alimony and whether she was entitled to an allowance of attorney fees and was the judgment decreeing the property rights inconsistent with the law and facts and inequitable.

Defendant refers to G.S.1947 Supp. 60-1511. That section provides, in part, as follows:

'When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden or former name if she so desires, and also to all...