Wiles v. Wiles

• Decision Date: 08 March 1969
• Docket Number: No. 45239,45239
• Citation: 202 Kan. 613,452 P.2d 271
• Parties: Constance K. WILES, Appellee and Cross-Appellant, v. Richard E. WILES, Appellant and Cross-Appellee.
• Court: Kansas Supreme Court

Page 271

452 P.2d 271

202 Kan. 613

Constance K. WILES, Appellee and Cross-Appellant, v. Richard E. WILES, Appellant and Cross-Appellee.

No. 45239.

Supreme Court of Kansas.

March 8, 1969.

Syllabus by the Court

In a proceeding which involved the interpretation and construction of a settlement agreement incorporated in a decree of divorce, the record is examined and, as more fully explained in the opinion, it is held: The district court did not err (1) in ordering the defendant husband to deliver household goods and furnishings to the plaintiff wife, except as to two items which did not belong to either of the parties, and (2) in ordering both parties to execute a trust agreement as a means of carrying out the provisions of the settlement agreement which provided that child support payments be secured by the assignment of life insurance policies on the defendant's life; but the district court erred (3) in refusing to allow defendant credit for money advanced to plaintiff for moving expenses, and (4) in ordering defendant to assign to plaintiff 816 shares of American Tobacco Company stock.

Robert P. Anderson, Olathe, argued the cause, and John H. Johntz, Jr., Olathe, and John H. Foard, Kansas City, Mo., with him on briefs for appellant and cross-appellee.

Patti Karger, Newport Beach, Cal., argued the cause, and John W. Breyfogle, Jr., and Hugh Kreamer, Olathe, with her on brief for appellee and cross-appellant.

O'CONNOR, Justice.

This appeal involves a settlement agreement entered into by the plaintiff, Constance K. Wiles, and the defendant, Richard E. Wiles, on May 27, 1966, relating to alimony, division of property, and child support. The agreement was approved by the district court and incorporated in a decree of divorce rendered on the same date.

Subsequently, a dispute developed between the parties concerning certain provisions of the agreement. On January 23, 1967, plaintiff filed a motion requesting the district court to construe portions of the agreement and order defendant to comply with the terms thereof. Following a hearing on the motion, the court entered an order on June 30, 1967, with respect to (1) household goods to be delivered to plaintiff, (2) dividend money to be paid to plaintiff, (3) shares of American Tobacco Company stock to be delivered to plaintiff, and (4) assignment of life insurance policies on defendant's life to secure child support payments. Defendant has appealed from that part of the order with regard to the first three items, and plaintiff has cross-appealed from the portion pertaining to the fourth.

The case was here previously on an appeal by defendant from an award of attorneys' fees for plaintiff's attorneys (Wiles v. Wiles, 200 Kan. 574, 438 P.2d 81). That opinion contains many of the salient facts concerning the financial status of the parties. They were people of substantial means. Their combined assets totaled approximately $1,600,000, of which plaintiff's separate property amounted to about $200,000. In addition, defendant owned life insurance having a face value of $150,000 and a cash value in excess of $76,000. On defendant's fortieth birthday-July 29, 1966-he came into possession of stocks valued at over $900,000 previously held for his benefit in a trust established by his grandfather.

The settlement agreement generally provided that plaintiff, in addition to her separate property, was to receive stock valued at $550,000, a sum not to exceed $75,000 in cash to be used in the purchase of a home, and most of the household goods and furnishings in the home previously occupied by the parties. Plaintiff was to have custody of the four minor children, and defendant agreed to pay child support for each child in the amount of $2,500 per year, said payments to be secured by defendant assigning to plaintiff certain life insurance policies on his life.

With this background we now turn to the points raised by each of the parties in relation to the specific provisions of the settlement agreement which are in controversy.

Defendant first complains of the district court's order relating to household goods and furnishings to be delivered to plaintiff. We find that under the settlement agreement defendant was to receive the home in Mission Hills as his sole and separate property, and plaintiff was to have all of the household goods and furnishings except certain listed articles which were to be retained by defendant. Plaintiff was given the privilege of selling at the home any of the household items set over to her, and was to remove at her expense any remaining items when she moved from the premises.

Shortly after the divorce plaintiff went to California, and pursuant to an oral understanding between the parties, defendant shipped to her approximately 282 items from the home. Plaintiff in her motion alleged defendant failed to deliver to her certain items to which she was entitled under the terms of the agreement At the hearing on the motion defendant admitted many of the articles had not been shipped for various reasons which, to him, were justifiable. The district court, however, found plaintiff was entitled to those items she claimed, and ordered defendant to send them to her at her expense. Defendant has appealed from that part of the district court's order, contending he has substantially complied with the terms of the agreement. The items in dispute are too numerous to discuss in detail. We have, however, reviewed the record and the arguments advanced, and conclude that the district court properly found plaintiff was entitled to all items of household goods and furnishings claimed by her except a chaise lounge and two iron beds which did not belong to either of the parties. To that extent the order must be modified.

Defendant next assigns as error the lower court's order regarding dividend money to be paid to plaintiff. The settlement agreement called for delivery by defendant to plaintiff of certain corporate stocks within ninety days after May 27, 1966, and further provided, in part:

'* * * The Plaintiff shall be entitled to receive all dividends of every kind and nature whatsoever declared after this date on the stocks assigned and delivered to her by Defendant pursuant to this agreement and any such dividends received by Defendant prior to such assignment shall be paid by him to Plaintiff at the time of delivery of said stocks.'

Another portion of the agreement stated:

'* * * Plaintiff has agreed to accept the transfer of securities hereinbefore referred to together with dividends thereon in lieu of further support payments or alimony. However, the Defendant agrees to advance to Plaintiff the sum of $1,000.00 per month commencing with June 1 of this year until delivery of the securities to which Plaintiff is entitled pursuant to paragraph 6 of this agreement together with dividends thereon is made. The Defendant shall be reimbursed for such advancements by retaining an amount equal thereto from the dividends due Plaintiff.'

The parties agreed the total amount of dividends due plaintiff under the terms of the agreement was $5,882.11, and defendant had paid plaintiff four monthly payments totaling $4,000. This left a difference of $1,882.11 in dividend money owing to plaintiff.

As previously indicated, under the terms of the agreement plaintiff was given the privilege of selling at the home household goods and furnishings set over to her, and any items remaining were to be moved at her expense. The day after the agreement was signed the parties reached an oral understanding to deviate from this provision of the written agreement. The substitute arrangement is best described by plaintiff's own testimony. Plaintiff had planned to have a garage sale at the home to obtain money for moving her furniture to California. A garage sale did not meet with defendant's approval. Plaintiff expressed her willingness to forego the sale and leave her furniture in the home for defendant and the children to use until she was ready for it, if defendant would pay for the crating and shipping thereof to California. Defendant agreed and gave plaintiff a check for $3,000 as a down payment on the moving expense.

In early November 1966 the parties were before the district court on some type of hearing, the nature of which is not clear from the record. There was testimony at that hearing concerning the substitute oral agreement, and the court ordered defendant to ship the furniture to plaintiff in California at his expense, which he subsequently did. The result was that the $3,000 was never used by plaintiff to pay any part of the shipping costs. The matter of the oral agreement and its precise terms was again aired at the hearing of plaintiff's present motion. Both parties testified substantially the same regarding the terms of the agreement as above outlined. Defendant's contention that he was entitled to claim the $3,000 paid plaintiff as a setoff against the $1,882.11 balance of dividend money due her was rejected by the district court. We believe the court erred in this respect. All of the testimony at both the November hearing and the hearing on plaintiff's present motion was to the effect the $3,000 was a down payment on the shipping expense. Despite this testimony the district court apparently determined the money was paid to plaintiff solely as consideration for her agreeing to forego a garage sale at the home and leave the furniture for the remainder of the summer. This conclusion is contrary to the evidence. Plaintiff now argues the district court's determination of the matter at the earlier hearing in November was res judicata and the subject cannot now be raised in the present appeal. We do not agree. It would appear that the November proceeding was merely an interim hearing regarding delivery of the furniture and did not encompass an accounting of funds due either of the parties.

The next point urged by defendant relates to the number of shares of American...