Tuley v. Tuley

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL
• Citation: Tuley v. Tuley, 211 P.2d 95, 168 Kan. 106 (Kan. 1949)
• Decision Date: 12 November 1949
• Docket Number: No. 37642,37642
• Parties: TULEY v. TULEY.

Page 95

211 P.2d 95

168 Kan. 106

TULEY v. TULEY.

No. 37642.

Supreme Court of Kansas.

Nov. 12, 1949.

Syllabus by the Court.

1. Corroborating testimony must pertain to the statutory grounds upon which a divorce may be obtained and mere corroboration of indignities and abuses which do not justify a divorce is insufficient to support a decree.

2. Corroborating testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of the facts will not be disturbed on appeal.

3. The record in an action for divorce examined, considered and held: (a) Plaintiff's evidence was sufficient to establish extreme cruelty on the part of the defendant; (b) prejudicial error was not committed by the exclusion of evidence; and (c) the record does not support the contention the decision was the result of bias and prejudice of the trial judge.

Ralph H. Noah, of Beloit, argued the cause and was on the briefs for the appellant.

N. J. Ward, of Belleville, argued the cause and was on the briefs for the appellee.

WEDELL, Justice.

The principal question presented for review is whether the trial court erred in granting plaintiff, the husband, a divorce.

A review of the record discloses that although appellant attacks the orders overruling her demurrer to plaintiff's evidence and various motions the principal issue presented in all the rulings is whether the evidence justified the granting of a divorce on the ground of either gross neglect of duty or extreme cruelty. The court granted a divorce on both grounds.

Appellant requested that appellee be required to file a bill of particulars. He did so. We shall not set it out. In our opinion allegations contained therein are precisely such as the legislature intended should not be made a part of the public records unless that be actually necessary when it enacted G.S.1935, 60-1519. The purpose of this statute received the consideration of this court in Stegmeir v. Stegmeir, 158 Kan. 511, 148 P.2d 755, 757. We there quoted with approval a comment on the statute made by the judicial council in April, 1935. Among other things that comment concerning the statute contained the following pertinent statement: 'Its purpose is to avoid having scandalous matter relating to a party to the action appear upon the permanent record or in the files of the court, unless that should be actually necessary.' (Our italics.)

The fact these allegations should not be made a part of the public records does not, however, mean this court should not have them for its information in the event of an appeal. The statute expressly provides the bill of particulars shall be made a part of the abstract when the question sought to be reviewed relates to such allegations.

The bill of particulars is before us. It would seem to us the true legislative intent and purpose of the statute would be materially impaired, if not destroyed, if this court should on review set forth in its permanent public reports the allegations contained in the bill of particulars and the evidence pertaining thereto 'unless that should be actually necessary.' In this case we do not think it is necessary. These were young people. Appellee's parents are not living. He was reared by two aunts. Appellant was a country school teacher nineteen years of age at the time the action was tried. Appellant's parents are good people. The families had been on friendly terms. Both parties to this action have some admirable qualities. There is no reason to believe they may not each succeed in a new marital venture if such an undertaking is not made additionally difficult by scandalous matters unnecessarily spread on the public records.

Appellant directs attention to the fact the parties were married May 9, 1948, appellant left appellee on or about June 1 and this action was commenced June 12, 1948. Her counsel insists that since complete abandonment of appellee for one year would be necessary to constitute grounds for divorce on the ground of abandonment a divorce cannot be awarded for gross neglect of duty during the short period previously designated. Assuming this would always be true it is not the only ground on which a divorce was sought.

Studious examination and consideration of this record has led us to conclude we cannot say the record is without any substantial evidence to support the decree on the ground of extreme cruelty. Appellant admits any unjustified and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127; Carpenter v. Carpenter, 165 Kan. 42, 46, 193 P.2d 196. It is insisted, however, that in the instant case there was no long practiced course of such conduct. In addition to the foregoing statement from the Hayn and Carpenter cases should be added the following also contained in the Hayn case: 'Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty.' 162 Kan. at page 193, 175 P.2d at page 130.

In the present case there was not only circumstantial but direct evidence which the trial court could and did believe that appellant's acts deeply wounded appellee's feelings, worried him greatly and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. On the other hand the trial court found, and there is evidence to support the finding, that appellee was not guilty of the wrongful conduct claimed by a...