McCain v. McCain

549 P.2d 896, 219 Kan. 780, 1976 Kan. LEXIS 425
CourtSupreme Court of Kansas
DecidedMay 8, 1976
Docket48,005
StatusPublished
Cited by30 cases

This text of 549 P.2d 896 (McCain v. McCain) 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
McCain v. McCain, 549 P.2d 896, 219 Kan. 780, 1976 Kan. LEXIS 425 (kan 1976).

Opinions

The opinion of the court was delivered by

Miller, J.:

This is an appeal by Marshall McCain from a decree of the District Court of Osage County, Kansas, divorcing Lyla and Marshall McCain, and dividing their property.

The parties were married at Michigan Valley, Kansas, on July 9, 1961. Lyla was then 19 years of age and had just graduated from high school. Marshall was 32 years old and was established in a farm operation. He owned an improved 80-acre tract (the home place) plus some livestock and farm machinery. The marriage [781]*781prospered and lasted some 14 years. Two sons, Mark and Todd, were bom in 1962 and 1964, respeotively. The parties acquired a nearby 80 acres which was purchased from Marshall’s aunt at half of its then value, thus Marshall regards half of it as a gift. Marshall acquired by gift or inheritance a one-sixth remainder interest in 160 acres, subject to the life estate of Pearl Stitt, and a one-third remainder interest in another 160 acres subject to the life estate of Alice McCain. Pearl Stitt is an aunt of Marshall. She was 71 years of age at the time of trial. Alice McCain is also Marshall’s aunt. Her age was 68.

Lyla acquired by gift or inheritance a one-third interest in a 127% acre farm in Franklin County, Kansas, and a one-fifteenth interest in another acreage, the latter being in the Pomona lake area and subject to a flowage easement. Lyla also inherited some money and received income from the Franklin County farm, some of which she invested and $12,000 of which was spent to remodel and build an addition to the parties’ residence on the home place. Both parties were industrious and contributed labor to the farm and livestock operation. Later Lyla became a licensed practical nurse and worked at a nursing home for about a year before the parties separated. During the marriage the parties accumulated additional farm machinery, livestock and personal property, and there were growing crops at the time of separation. The proceeds of a sale of livestock and machinery were in escrow at the time of trial, amounting after payment of expenses of sale and indebtedness to the bank, to about $29,000. The 1974 crops were sold for approximately $16,000. Defendant spent about $10,000 of that money for 97 head of cattle which he held at the time of trial.

Plaintiff filed her petition on July 23, 1974, seeking a divorce on the ground of incompatibility, custody of the two boys, child support, division of property and attorneys’ fees. She later amended to add other grounds for divorce. Defendant answered and filed a cross petition by which he sought a divorce on the ground of incompatibility. He also later amended to add additional grounds and to seek custody of the children.

Trial was held on December 11, 1974. Both parties and several witnesses testified, including an expert who gave his opinion as to the value of each tract of real estate. At the conclusion of trial the court granted a divorce to each party on the ground of incompatibility. He awarded custody of the two sons to Lyla until the further order of the court, fixed child support at $200 per month, and granted [782]*782Marshall reasonable visitation. The court made the divorce effective on that date and directed the clerk to make an appropriate entry on the appearance docket. Division of property was taken under advisement.

The trial court announced its further decision on January 6, 1975. It awarded to Lyla the south forty acres of the home place, on which she and the children were living and on which the improvements were situated; the one-third interest in the Franklin County farm and the one-fifteenth interest in the acreage subject to flowage easement; certain investments; the household goods; a 1970 Maverick automobile; and $18,000 from the escrow account. The court awarded to Marshall the north 40 acres of the home place; the 80-acre tract acquired subsequent to the marriage; the one-third and one-sixth remainder interests in the two quarter sections; certain shares of stock; two late model vehicles; a one-half interest in a pontoon boat; 97 head of cattle; the balance of the 1974 crops and crop proceeds; and $11,000 from the escrow account. Plaintiff claims that the value of the assets awarded was $89,929 to her and $91,626 to defendant. Defendant computes it as $89,286 to plaintiff and $89,016 to him. The journal entry was filed January 29, 1975.

Defendant’s motion for a new trial was overruled, and he appeals, listing nine separate grounds of error. These really amount to three claims of error, which are:

(1) that the court erred in granting a divorce on the ground of incompatibility as pertains to appellee, when the evidence failed to support that finding, and clearly supported the additional grounds alleged by appellant, gross neglect of duty and extreme cruelty;
(2) that the court erred in considering appellant’s contingent or future interest in the two quarter sections of land, and in the method utilized in establishing the value placed on these interests by the court; and
(3) that the court abused its discretion in making the division of property decreed.

Before we consider the merits of the first of these, a question of jurisdiction arises. Appellee notes that the divorce was granted on December 11, 1974, and the notice of appeal was not filed until February 25, 1975. The time for filing an appeal runs from the time judgment is entered, whether it be by entry of judgment in the appearance docket at the direction of the court or by the filing of a journal entry. K. S. A. 69-258 and 60-2103; and see Corbin v. Moser, 195 Kan. 252, 403 P. 2d 800, and Van Brunt, Executrix v. Jackson, 212 Kan. 621, 625, 512 P. 2d 517. The divorce was granted and was [783]*783effective between the parties on December 11, 1974. Van Brunt, Executrix v. Jackson, supra. The remaining issues in the case were not resolved and no appealable order was entered thereon until the filing of the journal entry covering all of the issues on January 29, 1975.

K. S. A. 60-2103 (i) provides in applicable part that:

“When an appeal . . . has been timely perfected the fact that some ruling of which the appealing . . . party complains was made more than thirty (30) days before filing of the notice of appeal shall not prevent a review of the ruling.”

K. S. A. 60-2102 (a) (4) also provides that:

“. . . In any appeal . . . from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.”

Our code and our rules envision and are designed to provide but one appeal in most cases, that to come after all issues have been determined on the merits by the trial court. Interlocutory and fractionalized appeals are discouraged, and are the exceptions and not the rule.

We conclude that in a divorce case where the trial court bifurcates its ruling and causes the decree of divorce to be entered on a date different from that upon which it enters final rulings on other issues in the case such as child custody, alimony and division of property, that the entry of whichever order is later fixes the date from which the time for taking an appeal runs, and upon such an appeal all rulings of the trial court can properly be reviewed by this court.

We turn now to the granting of this divorce.

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Cite This Page — Counsel Stack

Bluebook (online)
549 P.2d 896, 219 Kan. 780, 1976 Kan. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccain-v-mccain-kan-1976.