Williams v. Williams

• Decision Date: 10 April 1976
• Docket Number: No. 47775,47775
• Citation: 548 P.2d 794,219 Kan. 303
• Parties: Mildred WILLIAMS, Appellant, v. Robert W. WILLIAMS, Appellee.
• Court: Kansas Supreme Court

Page 794

548 P.2d 794

219 Kan. 303

Mildred WILLIAMS, Appellant, v. Robert W. WILLIAMS, Appellee.

No. 47775.

Supreme Court of Kansas.

April 10, 1976.

Syllabus by the Court

The record on appeal in a divorce action is examined and, as more fully stated in the opinion, it is held: The district court did not err in (1) granting a divorce on the ground of incompatibility; (2) dividing the parties' property; or (3) awarding alimony.

Stephen G. Dickerson of Carson, Fields, Kugler and Boal, Kansas City, argued the cause, and David W. Carson, Kansas City, was with him on the brief for appellant.

John J. Ziegelmeyer, Kansas City, argued the cause and was on the brief for appellee.

FATZER, Chief Justice:

This was a divorce action in which the plaintiff wife appeals from the order made granting the parties a divorce and awarding alimony and property division.

The parties, Mildred Williams and Robert W. Williams, age 63 and 64 years at the time of trial, were married in May, 1939. Robert is a practicing dentist in Kansas City. Mildred worked to help put him through dental school but has not been otherwise employed during their marriage. The couple was unable to have children of their own and adopted two girls who are now married and self-supporting.

Each of the parties has had poor health. In December, 1969, plaintiff underwent intestinal surgery and thereafter had a near fatal acute systemic necrotizing vasculitis. This condition required two more surgical operations and resulted in two neurological disabilities: One which is controllable by medication and the other a visual defect in her left eye. The defendant suffered a stroke in October, 1971, and a second one a week later. Since then he has had occasional dizzy spells and he takes medication to keep his blood thinned and to keep his tension down.

On January 12, 1972, the plaintiff commenced this action by filing a petition in which she alleged the defendant had left home and that he had been running around with another (named) woman. She sought separate maintenance on the grounds of gross neglect of duty, extreme curelty and incompatibility. The defendant responded with a request for divorce on the ground of incompatibility. Pending final hearing, the defendant was required to pay plaintiff $1,200 per month temporary alimony and support money. The district court eventually heard the matter and on May 23, 1974, granted a divorce on the ground of incompatibility, divided the property and provided for permanent alimony. Plaintiff appeals from the order made.

The appellant first complains there was insufficient evidence of incompatibility offered at trial upon which to ground a divorce. She says appellee was wholly at fault for the marital breakup. We do not agree. Some of the testimony respecting the conduct of the parties was controverted and the interest of no one would be served by chronicling it in this opinion. The appellee admitted forming an attachment to and seeing the other woman in the case several years prior to the time he left home. However, there was evidence of marital difficulties between the two, concealed from public notice, which occurred prior to the involvement with the other woman and which continued up until the appellee left the home. In her separate maintenance petition, appellant alleged incompatibility and there was evidence of long-standing personality differences and resulting conflict. The matter need not be labored. As was said in our first case involving sufficiency of evidence to support incompatibility as a ground for divorce:

'. . . The trial court had both parties before it and heard their stories. It could have required them to seek marriage counseling service available within the locale (K.S.A.1973 Supp. 60-1608) but did not. It seemed satisfied the parties could no longer live together. Their differences appear to have been of long standing and the record indicated a doubly-proven breakdown of a marriage where both parties wanted to live apart.' (Berry v. Berry, 215 Kan. 47, 51, 523 P.2d 342, 346.)

Upon oral argument appellant abandoned her contention the district court erred in granting a divorce when her petition sought only separate maintenance. The point was considered in Berry and no more need be said.

Appellant complains of inadequate property division. According to her figures she was given property totaling $103,108 in value while the appellee got $134,810. (Additionally, each received an automobile.) The appellant received the residence valued at $40,000, household goods and furnishings valued at $1,000, a paid up life insurance policy in the amount of $10,000 and certificates of deposit, savings bonds, savings accounts and mutual fund stock aggregating $52,108. The appellee received his one-fifth interest in a two story professional office building, valued by appellant at $65,000, life insurance policies valued at $22,500, and mutual funds, stocks, bonds, savings accounts and certificates of deposit in the sum of $47,310. (Some of these latter items were keyed into appellee's retirement plan.) As is apparent from the nature of the items involved, dispute could arise only in the valuations placed upon the residence and in appellee's one-fifth interest in his office building. And such a dispute arose. The appellee's testimony placed a higher valuation on the residence awarded the appellant but not enough to be of much significance. Of more consequence, in valuing appellee's office building, the appellant takes the maximum replacement valuation placed by her witness, but does not take into account the existence of a $184,000 mortgage on the property. Accepting appellant's replacement value, it would appear from the evidence appellee's equity interest in...