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IN RE MARRIAGE OF SOMMERS
May 25, 1990.
In the Matter of the Marriage of DONALD EUGENE SOMMERS, Appellant, and TEPIN SOMMERS, Appellee.
The opinion of the court was delivered by
This is a divorce action in which the petitioner husband
appeals from the division of property, award of maintenance, and
allowance of attorney fees made by the trial court. The Court of
Appeals affirmed the trial court in an unpublished opinion
pursuant to Supreme Court Rule 7.042 (1989 Kan. Ct. R. Annot.
35), said opinion being filed on November 22, 1989.
We granted review to determine the issue of whether it was
proper for the trial court to admit evidence of fault and to
consider fault in the division of property and awards of
maintenance and attorney fees where the divorce was sought and
granted on the ground of incompatibility (K.S.A. 60-1601[a]).
The parties, Donald and Tepin, were married on May 16, 1970. On
March 15, 1971, and on September 14, 1972, respectively, the
parties' two children were born. The trial court granted a
divorce on the ground of incompatibility on February 13, 1989.
The balance of the issues were taken under advisement. On March
16, 1989, the trial court entered its memorandum opinion which
provided, inter alia:
1. joint custody of the children with Tepin to be the
2. child support to be paid by Donald in the amount
of $411 per month per child;
3. Tepin to be awarded 45 percent of Donald's
retirement benefits with the U.S. Postal Service;
4. Tepin to be awarded the family residence subject
to the indebtedness thereon;
5. Tepin to be awarded maintenance of $500 per month
for 100 months;
6. Donald to pay the marital indebtedness other than
that on the residence and, the motor vehicles of
Tepin and their son, Alan, and to Montgomery Ward;
7. Donald to pay $1,000 on Tepin's attorney fees.
Over Donald's objection, evidence was admitted that he was
having an extramarital affair with a named individual. In its
March 16 memorandum opinion, the trial court stated, in part:
"The Court specifically finds that the primary
cause of the destruction of the marriage was the
Petitioner's involvement with [name deleted], which
the Court finds relevant to the issue of maintenance.
The Court finds that the Petitioner entered into this
relationship, irrespective of any fault on part of
the Respondent. The Court further finds that an award
of maintenance should be made to the Petitioner not
only because of this factor, but because of the
totality of all the factors in this case, including,
but not limited to: the length of marriage (19
years); the past, present, and future income
producing ability of the parties, which the evidence
clearly indicates is favorable to the Petitioner; the
division of the property and division of debts
awarded to the Respondent; and the need to adequately
provide for the children.
. . . .
"In determining this division of property, the
Court has taken into account the ages of the parties,
the duration of the marriage, the property owned by
the parties, their present and future earning
capacities, the time, source and manner of
acquisition of property, family ties and obligations,
the allowance of maintenance or lack thereof,
dissipation of assets, and such other factors this
Court considered necessary all as required by K.S.A.
1988 Supp. 60-1610(b)(1).
"Kansas law, of course, does not require equal
split of all property acquired during marriage but
rather gives the Court discretion to consider all the
property to arrive at a just and reasonable division.
. . . .
". . . Most importantly, and first and foremost, is
that the Respondent, in this case, has been married
to the Petitioner for many years, was a good and
responsible housewife, and contributed to the
accumulation of the marital property. The Petitioner
in this case now decides, after having taken up with
another woman, specifically [name deleted], that he
no longer desires to live with, support, and be a
good husband to the Respondent in this case.
"While this Court recognizes that this is a
no-fault divorce case, nonetheless, there is still
some room in this cases for fault, the fault lies
with the Petitioner and that matter can appropriately
be taken into account by the Court in making an
equitable division of property and the Court has done
K.S.A. 60-1601(a) provides:
"The district court shall grant a decree of divorce
or separate maintenance for any of the following
grounds: (1) Incompatibility; (2) failure to perform
a material marital duty or obligation; or (3)
incompatibility by reason of mental illness or mental
incapacity of one or both spouses."
K.S.A. 1989 Supp. 60-1610(b)(1) provides in pertinent part:
"In making the division of property the court shall
consider the age of the parties; the duration of the
marriage; the property owned by the parties;
their present and future earning capacities; the
time, source and manner of acquisition of property;
family ties and obligations; the allowance of
maintenance or lack thereof; dissipation of assets;
and such other factors as the court considers
necessary to make a just and reasonable division of
property." (Emphasis supplied.)
Donald contends that the trial court's admission of evidence of
fault (his alleged marital infidelity) and the consideration
thereof in determining the financial aspects of the dissolution
of the marriage was improper and contrary to the concept of
incompatibility as a no-fault ground for divorce. It should be
noted that Donald has consistently denied the existence of the
alleged marital infidelity. Tepin contends that such evidence was
properly considered as it falls within the purview of the
non-specified "such other factors" phrase of K.S.A. 1989 Supp.
Maxwell, In the Best Interests of the Divided Family: An
Analysis of the 1982 Amendments to the Kansas Divorce Code, 22
Washburn L.J. 177 (1983), contains an excellent discussion of the
1982 amendments to the Kansas Divorce Code. In her analysis of
the amendments to K.S.A. 60-1601(a), Professor Maxwell states:
"As previously mentioned, incompatibility is now
listed first because the drafters believe
incompatibility is the cause of most divorces and
thus the preferred ground. The second ground, failure
to perform a material marital duty or obligation, is
the only ground for divorce or separate maintenance
that assigns fault. This ground is not intended as a
new ground, but rather summarizes previous fault
grounds for divorce adultery, extreme cruelty,
habitual drunkenness, gross neglect of duty, and
conviction of a felony that results in imprisonment
subsequent to the marriage.
"The language of the new fault ground was a
compromise position between FLAC [Family Law Advisory
Committee] members who wanted to eliminate fault
completely and members who believed fault still
served a useful function in divorce litigation. The
members who favored fault believed there were
situations, such as cases of severe physical abuse,
that warranted a finding of fault. There was also
concern that eliminating fault entirely as a ground
for divorce might be too drastic a change, and
unacceptable to the public.
"The opponents of fault divorce believed spouses
who used fault grounds were rarely persons who truly
had been innocent of contributing to the failure of
the marriage. They said fault was used most often by
vindictive spouses seeking to publicly humiliate or
punish their partners. If incompatibility was the
only ground for divorce, less animosity would result
because the pleadings could not be used by spouses to
accuse the other of extreme cruelty, habitual
drunkenness or other fault behavior. Opponents of
fault divorce also contended incompatibility would
not restrict the parties
from presenting evidence of fault-type behavior
because it would be relevant in proving
incompatibility. The judge would continue to be
apprised of the same evidence as in a fault divorce,
but the court's task would be to determine whether
the parties were incompatible, rather than which
spouse should be blamed for the marital failure.
"FLAC resolved the differences of opinion in
several ways. First, incompatibility was listed as
the preferred ground for divorce, recognizing that
truly fault-based divorces, with an innocent and a
guilty spouse, were rare. Second, the language of the
new fault ground, `failure to perform a material
marital duty or obligation,' left out references to
specific behavior. Thus, pleadings and findings of
the court could be relatively innocuous, reducing
vindictive motives and acrimony. Finally, by
retaining one general fault ground, the law preserves
for courts> the power to find a spouse responsible for
the marital breakdown if the facts strongly indicate
"The FLAC members also discussed whether `failure
to perform a material marital duty or obligation'
should be specifically defined. The decision was made
to use the phrase as a summary of the old fault
grounds." 22 Washburn L.J. at 182-83.
In the case before us, much evidentiary time was spent in
seeking to prove the alleged infidelity. The "other woman" was
called as a witness. Tepin proved to the court's satisfaction
that her claims of marital infidelity were true. The trial court
specifically stated it considered marital infidelity on the part
of Donald in resolving the financial matters. The clear inference
is that the trial court penalized Donald for his fault in making
its findings relative to the financial aspects involved in the
dissolution of the marriage. But for his fault, the resolution of
the financial aspects would, presumably, have been more favorable
to Donald. Was this error? We believe so.
The Maxwell article previously referred to traces the
amendments to K.S.A. 60-1610 as follows:
"The new section on the division of property does
very little to change the status of the law. The main
addition to the statute is the incorporation of
factors the court is required to consider in dividing
the property. The factors include:
`the age of the parties; duration of the marriage;
the property owned by the parties; their present
and future earning capacities; the time, source and
manner of acquisition of the property; family ties
and obligations; the allowance of maintenance ...
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