Hardcastle v. Hardcastle , 131 Kan. 627 ( 1930 )

The opinion of the court was delivered by

Jochems, J.:

The appellants have filed a motion for rehearing and to modify the judgment in this action. In the judgment rendered in the original divorce action it was decreed that—

“. . . the defendant pay to the plaintiff as permanent alimony the sum of fifty dollars a month on the first of each and every month, unless the plaintiff should remarry, at which time said alimony shall cease, and that he shall pay to the plaintiff the further sum of $100 per month on the first day of each and every month, for the support, maintenance and education of said children. . . .”

That portion of the judgment in which defendant was required to pay the plaintiff the sum of fifty dollars per month unless she remarried is void. (See Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409; Conway v. Conway, 130 Kan. 848, 288 Pac. 566.) This court has ample authority to modify the judgment as to the portion which is void under the provisions of R. S. 60-3009.

Upon consideration of the motion filed by appellants the court has concluded to modify the judgment in this action by ordering that the void portion of the judgment, the total due for the allowance of |50 a month 'to plaintiff as permanent alimony, shall be deducted from the amount adjudged by the trial court to be “a first and prior lien against the interest of the defendant Edward D. Hardcastle in the real estate involved in this action.”

It is so ordered.