Carr v. Carr

Supreme Court of Kansas

Carr v. Carr

512 P.2d 357, 212 Kan. 638, 1973 Kan. LEXIS 563

CourtSupreme Court of Kansas

DecidedJuly 14, 1973

DocketNo. 46,901

StatusPublished

This text of 512 P.2d 357 (Carr v. Carr) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carr v. Carr, 512 P.2d 357, 212 Kan. 638, 1973 Kan. LEXIS 563 (kan 1973).

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Opinion

The opinion of the court was delivered by

Foth, C.:

This is a divorce action in which the chief controversy below concerned the custody of the parties’ two minor children. The trial court awarded custody to the husband, and the wife appealed.

During the trial the husband offered as evidence (1) a report on the parties’ marital situation which had been compiled by a juvenile officer under order of the court, and (2) a tape recording of a conversation between the husband and one of the children. Both items were excluded, presumably because they were hearsay. The husband cross-appealed from the rulings which excluded his evidence.

After the case was docketed here the wife voluntarily dismissed her appeal. The husband nevertheless seeks to maintain his cross-appeal to review the two evidentiary rulings.

The rulings are, of course, not “final orders,” appealable as of right under K. S.A. 60-2102 (a) (4), nor are they appealable orders undér any other statutory provision except that relating to crossrappeals, IÍ. S. A. 60-2103 (h). Since the main appeal has been dismissed the cross-appeal cannot stand. Pease v. Snyder, 166 Kan. 451, 453, 201 P. 2d 661. And compare Syl. ¶ 6 of Rusch v. Phillips Petroleum Co., 163 Kan. 11, 180 P. 2d 270, with Syl. ¶ 8 of the same case.

The husband suggests that we should pass on the admissibility of the evidence because its exclusion would otherwise become “the [639]*639law of the case,” thus hampering him in any future custody hearings. We note, that in such hearings the only issue would be a change of circumstances since the time of the divorce. (Irwin v. Irwin, 211 Kan. 1, 505 P. 2d 634, and cases cited therein.) This evidence, relating to events prior to the divorce, would be in admissible in any event. The issue of admissibility at the trial is therefore moot.

For the foregoing reasons the cross-appeal is dismissed.

APPROVED BY THE COURT.

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The opinion of the court was delivered by

Foth, C.:

This is a divorce action in which the chief controversy below concerned the custody of the parties’ two minor children. The trial court awarded custody to the husband, and the wife appealed.

During the trial the husband offered as evidence (1) a report on the parties’ marital situation which had been compiled by a juvenile officer under order of the court, and (2) a tape recording of a conversation between the husband and one of the children. Both items were excluded, presumably because they were hearsay. The husband cross-appealed from the rulings which excluded his evidence.

After the case was docketed here the wife voluntarily dismissed her appeal. The husband nevertheless seeks to maintain his cross-appeal to review the two evidentiary rulings.

The rulings are, of course, not “final orders,” appealable as of right under K. S.A. 60-2102 (a) (4), nor are they appealable orders undér any other statutory provision except that relating to crossrappeals, IÍ. S. A. 60-2103 (h). Since the main appeal has been dismissed the cross-appeal cannot stand. Pease v. Snyder, 166 Kan. 451, 453, 201 P. 2d 661. And compare Syl. ¶ 6 of Rusch v. Phillips Petroleum Co., 163 Kan. 11, 180 P. 2d 270, with Syl. ¶ 8 of the same case.

The husband suggests that we should pass on the admissibility of the evidence because its exclusion would otherwise become “the [639]*639law of the case,” thus hampering him in any future custody hearings. We note, that in such hearings the only issue would be a change of circumstances since the time of the divorce. (Irwin v. Irwin, 211 Kan. 1, 505 P. 2d 634, and cases cited therein.) This evidence, relating to events prior to the divorce, would be in admissible in any event. The issue of admissibility at the trial is therefore moot.

For the foregoing reasons the cross-appeal is dismissed.

APPROVED BY THE COURT.

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Bluebook (online)

512 P.2d 357, 212 Kan. 638, 1973 Kan. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-carr-kan-1973.

Opinion

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