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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 The Court of Appeals affirmed the trial court in an unpublished opinion pursuant to Supreme Court Rule 7.042 (1989 Kan.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][1]).

  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 custodial parent;
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; and
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:

[246 Kan. 654]


"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 so."
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;

[246 Kan. 655]

      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. 60-1610(b)(1).

  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

[246 Kan. 656]

      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 blameworthy behavior.
"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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