McCrory v. McCrory

216 Kan. 359 (1975) 533 P.2d 278

GERTRUDE McCRORY, Appellant,
v.
PAUL McCRORY, Appellee.

No. 47,487

Supreme Court of Kansas.

Opinion filed March 1, 1975.

Arthur N. Turner, of Branine, Ice, Turner & Ice, of Newton, argued the cause and was on the brief for appellant.

Arnold C. Nye, of Nye, and Nye, of Newton, argued the cause and was on the brief for appellee.

MEMORANDUM OPINION

Per Curiam:

The district court granted a divorce to both parties on the ground of incompatibility. The property was divided equally between the parties. Included in this division of property were several shares of United Income Fund Securities, of substantial value, which were either gifts to the wife by or inherited from her parents. No alimony was awarded.

On appeal to this court, the appellant wife contends the district court abused its discretion in the division of the property by giving the husband one-half of her separately acquired and owned property.

We have carefully examined the record and we do not find the division of the property was so unreasonable as to amount to an abuse of discretion when all circumstances are considered, including the duration of the marriage for forty-four years, the physical condition of the parties, respective earning capacities, and their sources of income.

There was evidence to support a finding of fault on the part of the appellee husband from excessive use of intoxicating liquor. The appellant urges the decision of the district court in giving the husband one-half of her separate property is plainly unreasonable if this element of fault is considered. However, the testimony as to the extent of her husband's drinking habits was disputed and no finding as to fault was made. This court will not retry the issue of fault on appeal as a basis for setting aside the district court's division of property as arbitrary or capricious. (McClaren v. McClaren, 214 Kan. 217, 519 P.2d 720.)

The judgment is affirmed.