Clark v. Clark

696 P.2d 1386, 236 Kan. 703, 1985 Kan. LEXIS 299
CourtSupreme Court of Kansas
DecidedMarch 2, 1985
Docket56,010
StatusPublished
Cited by7 cases

This text of 696 P.2d 1386 (Clark v. Clark) 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
Clark v. Clark, 696 P.2d 1386, 236 Kan. 703, 1985 Kan. LEXIS 299 (kan 1985).

Opinions

The opinion of the court was delivered by

Miller, J.:

This is a divorce case. The respondent wife, Jean Clark, appeals from the trial court’s order and judgment dividing the property and refusing to award alimony. The Court of Appeals, in an unpublished opinion, approved the division of property but reversed and remanded with directions to award alimony to the wife in an amount to be determined by the trial court. We granted review.

We first turn to the factual background. The parties were married on August 19, 1974. Divorce was granted on May 13, 1983, so the marriage existed for a little less than nine years. Two children were born of the marriage, Robert, now nine years of age, and Lora, now almost six. Throughout the marriage, except for short periods of time surrounding the birth of the children, Jean has worked as a waitress. Her earnings are approximately $200 per month. When the children are not in school, she pays about half of her earnings for babysitters. Prior to 1981, Arnold worked in the construction business and also worked as a truck driver, hauling milk for his father. In 1981, the parties bought a milk route for $17,500, borrowing all of the money from a local bank. The balance on that indebtedness at the time of trial was $8,228. They also bought two trucks with which to haul milk, a 1978 International and a 1981 GMC. At the time of trial, they owed $89,050 on the trucks. The International has some 296,000 [704]*704miles on it, the GMC about 84,000. The parties owned their home, valued at $13,700, on which there is a mortgage of $7,000. They also owned several other motor vehicles: an AMC Eagle, valued at from $7,500 to $8,500; motorcycles and a Jeep valued at a total of $1,325; and a Pontiac TransAm valued at $6,300. While the case was pending, Arnold purchased a Chevrolet Blazer, worth about $1,000 more than the $13,214 mortgage against it. The parties had household goods and furniture valued at $1,000, and life insurance policies and mutual funds with a value of $1,277. Arnold also had tools which are valued at $500. The most valuable asset of the parties is the milk route. Arnold testified that he bought it for $17,500, that he has added several new milk producers, and that in his opinion the route is now worth $25,000. An economist retained by Jean testified that in his opinion the value of the route, depending on the rate of capitalization, is somewhere between $73,365 and $96,485, over and above the physical assets of the business.

The trial court found the value of the milk route to be $25,000. The Court of Appeals accepted that valuation, as do we. When the trial court has made findings of fact, the first function of this court is to determine whether the findings are supported by substantial, competent evidence. In making that determination, we consider the evidence favorable to the successful party. If there is substantial evidence to support the findings, it is of no consequence that there may have been contrary evidence adduced which, if believed, would have supported a different finding. Waggener v. Seever Systems, Inc., 233 Kan. 517, 525, 664 P.2d 813 (1983). Here there was substantial, competent evidence to support the trial court’s finding as to value of the route.

The trial court awarded the route to the husband, but required him to pay to the wife about half of the value, or $12,600, payable in monthly installments of $350 each for a period of 36 months. The trial court’s division of property can best be demonstrated by the following table:

Awarded to Jean Clark:

Item Value

The home $ 13,700

AMC Eagle automobile 7,500

Furniture 1,000

[705]*7051/2 value of route 12,600

TOTAL $ 34,800 $ 34,800

Less: Mortgage on home 7,000

Net Value $ 27,800

Awarded to Arnold Clark:

Insurance & Mutual Funds $ 1,277

Milk trucks 78,700

Blazer 14,214

Pontiac Trans Am 6,300

Tools 500

Motorcycles & Jeep 1,325

Milk Route 25,000

TOTAL $127,316 $127,316

Less: Loan on Route $ 8,228

Loan on Trucks 89,050

Loan on Blazer 13,214

Outstanding bill for truck repair 4,000

Judgment to wife for half interest in route 12,600

TOTAL $127,092 $127,092

Net Value $ 224

The trial court also required Arnold to pay $750 towards Jean’s attorney fees, $750 towards Jean’s expert witness fees, child support of $400 per month, and the court costs. Additionally, Arnold is required to provide medical and hospital insurance for the children.

The evidence indicates and the trial court found that the parties had adjusted gross income, for income tax purposes, of about $46,000 in 1982, less overdue taxes of $12,000, leaving only $34,000; and that Arnold will have adjusted gross income for 1983 of $34,000 or $35,000. The decrease was attributable to Arnold’s decision to hire a driver to do part of the driving during 1983. We think it is important to note that these figures are for adjusted gross income, not net income. From adjusted gross income, Arnold must make monthly loan payments of almost $1,000; he must pay state and federal income taxes, estimated at [706]*706$16,000 for 1983; he must make payments into court for the benefit of Jean and the children of $750 per month or $9,000 annually; he must pay the other outstanding obligations, including attorney and expert witness fees, costs, and the $4,000 repair bill on the trucks; and he must pay his own living expenses. The trial court found that the husband could not apply much more than the $750 which is assessed against him. Considering the division of property, with the larger share going to the wife, and considering the indebtedness falling upon the husband, the trial court refused to award alimony.

In reversing the trial court, the Court of Appeals said:

“(T)he additional $350 in monthly payments she was awarded for her half of the business will have to be consumed by [the wife] to meet the ordinary needs of her children and herself. ... By contrast, although the tangible property received by the petitioner has little net worth, he was awarded the milk route which can produce a gross income of at least $35,000 per year.
“The trial court’s order reflects its goal of dividing the marital property equally. It has been acknowledged that this goal is defeated if a division of property forces a party receiving tangible assets of a business to liquidate the business in order to make the cash settlement payments to the other party. Reich v. Reich, 235 Kan. 339, 342-43, 680 P.2d 545 (1984); Bohl I [Bohl v. Bohl, 232 Kan. 557, 565, 657 P.2d 1106 (1983)]. However, it is equally true that the party receiving the cash payments should not be placed in the position of having to spend those payments in order to survive. Almquist v. Almquist, 214 Kan. 788, 793-94, 522 P.2d 383 (1974). Although the district court’s order reflects appropriate concern for the former problem, it did not take into consideration the latter.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peterson v. Ferrell
349 P.3d 1269 (Supreme Court of Kansas, 2015)
In Re Tax Appeal of Colorado Interstate Gas Co.
79 P.3d 770 (Supreme Court of Kansas, 2003)
In Re the Marriage of Sommers
792 P.2d 1005 (Supreme Court of Kansas, 1990)
In Re the Marriage of Harrison
769 P.2d 678 (Court of Appeals of Kansas, 1989)
In Re the Marriage of Powell
766 P.2d 827 (Court of Appeals of Kansas, 1988)
Clark v. Clark
696 P.2d 1386 (Supreme Court of Kansas, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
696 P.2d 1386, 236 Kan. 703, 1985 Kan. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-kan-1985.