Thornbrugh v. Thornbrugh

• Court: Kansas Supreme Court
• Writing for the Court: THIELE
• Citation: Thornbrugh v. Thornbrugh, 259 P.2d 219, 175 Kan. 56 (Kan. 1953)
• Decision Date: 06 July 1953
• Docket Number: No. 38994,38994
• Parties: THORNBRUGH v. THORNBRUGH.

Page 219

259 P.2d 219

175 Kan. 56

THORNBRUGH v. THORNBRUGH.

No. 38994.

Supreme Court of Kansas.

July 6, 1953.

Rehearing Denied July 29, 1953.

Syllabus by the Court.

The record examined in an action wherein the trial court granted a divorce to the defendant husband and awarded the custody of the minor children to him. The plaintiff wife's contentions of error considered, and held, that the trial court did not err for the asserted reasons:

1. The defendant's testimony was not sufficiently corroborated.

2. The evidence did not sustain the finding that plaintiff was not a fit and proper person to have the custody of the minor children.

3. The award of the property was improper.

4. The court should have allowed plaintiff other and further attorney's fees and expense moneys.

5. Plaintiff's motion for a new trial should have been sustained.

Pat Warnick, of Wichita, and Walter F. McGinnis, of El Dorado, argued the cause, and Henry E. Martz and Alan Phares, both of Wichita, were with them on the briefs for appellant.

Robert W. Souders, of Wichita, argued the cause, and Clyde E. Souders and Otto R. Souders, both of Wichita, were with him on the briefs for appellee.

THIELE, Justice.

Winnifred Thornbrugh appeals from a judgment rendered in an action for divorce in which she was plaintiff.

In her petition filed May 2, 1952, plaintiff alleged the necessary jurisdictional facts and that she and the defendant were married June 24, 1943; that two children of the age of five and three, when the petition was filed, were born to them; that on May 29, 1950, she and the defendant were divorced; that thereafter on September 7, 1951, they were remarried; that she was a fit and proper person to have the care and custody of the minor children and the same should be awarded to her; that defendant had been guilty of extreme cruelty and gross neglect of duty toward her; that the parties had accumulated some household furniture (later shown by the evidence to consist of a gas stove, bedroom suite and a small refrigerator) and a 1941 automobile; that she should be awarded the household furniture, which was encumbered and that defendant should retire the encumbrance; and she prayed for a divorce and other relief.

The defendant filed an answer consisting of a general denial and a cross-petition stating facts quite like those in the petition, and alleging that defendant was a fit and proper person to have the care, custody and control of the children and that plaintiff was an unfit person to have such care, custody and control; that plaintiff had been guilty of extreme cruelty and gross neglect of duty toward defendant, and that he should be awarded possession of the household furniture, which was encumbered; and he prayed for a divorce and other relief.

A trial was had, at the conclusion of which the trial court found that defendant was entitled to a divorce from plaintiff; that he was entitled to the household furniture and automobile; that plaintiff was an unfit person to have the care, custody and control of the children and that defendant was a fit and proper person to have such care, custody and control, and it entered judgment accordingly. In due time the plaintiff gave notice of intention to and did appeal to this court, specifying error in the matters later discussed.

We first notice appellant's contention that the trial court erred in granting the divorce to appellee and in refusing to grant it to her. Her argument is that the testimony of appellee was not sufficiently corroborated by other testimony. She directs our attention to and quotes from Frye v. Frye, 134 Kan. 3, 4 P.2d 415; Walton v. Walton, 166 Kan. 391, 202 P.2d 197; and Tuley v. Tuley, 168 Kan. 106, 211 P.2d 95, in each of which it is held that a divorce cannot be granted upon the uncorroborated testimony of one of the parties. Such is the command of the statute. See G.S.1949, 60-1509. No purpose can possibly be served by detailing the evidence as to the appellant's defaults and neglects, insofar as her marital duties were concerned. While it is true that appellant denied any shortcomings on her part and introduced evidence of other witnesses to bear her out, the appellee's evidence to the contrary, and that of other witnesses in support, warranted the trial court's finding that appellant was at fault. It cannot be said that appellee's evidence was insufficient because of lack of corroboration.

Appellant argues that the trial court erred in finding she was not a fit and proper person to have the care, custody and control of the children and in awarding such care, custody and control to the appellee. In her brief, appellant admits that appellee produced some rather damaging evidence as to her fitness, all of which she denied. We have no disposition to and shall not set forth any details of the evidence produced by the appellee tending to show the moral and other possible unfitness of the appellant to have the care, custody and control of her children. There was such evidence and the trial court believed and relied on it in its judgment. Appellant however directs our attention to four cases which she believes support her contention that even though she may be somewhat at fault, in view of the ages of the children she should have been awarded care, custody and control of them. Without reviewing the facts therein stated, reference being made to the opinions therefor, we note that in Brandon v. Brandon, 14 Kan. 342, and Harmon v. Harmon, 111 Kan. 786, 208 P. 647, at the trial of a divorce action where the wife was found to be at fault, the trial court gave custody to the wife and we affirmed. In Janney v. Janney, 159 Kan. 230, 154 P.2d 131, and Hedding v. Inman, 172 Kan. 567, 241 P.2d 479, the appeals arose from orders made subsequent to divorce and in which a change of custody was sought. In neither of the last two cases was there any finding that either parent was unfit. What was said in the above cases, concerning the fact that children of tender years need a mother's care, was in support of the trial court's judgment and not to upset it. In Dodd v. Dodd, 171 Kan. 46, 229 P.2d 761, it appears that a husband was given a divorce from his wife for her...