Linson v. Johnson

Owsley, J.,

concurring and dissenting: The sole issue in this case concerns the right of a surviving spouse to inherit from her husband who died after the parties’ property had been divided by a decree of separate maintenance. I concur with the decision of the court on this point.

For some unexplained reason the opinion of the court goes beyond this issue and discusses the nature of ownership of the property awarded to the parties in the decree. The court concludes that while the property is divided among the two parties the party possessing property under the decree cannot sell, mortgage, encumber or otherwise convey that property without the consent of his or her spouse unless the decree so provides. I disagree with this conclusion.

K.S.A. 60-1610(c) provides that the “decree shall divide the real and personal property of the parties ... in a just and reasonable manner. . . .” A division of property between husband and wife in connection with a separate maintenance decree contemplates separate ownership of the divided property. To hold otherwise and require consent of both spouses for sale or mortgage would make the division of property meaningless. The majority opinion would create the following effects:

1. The spouse in possession of the property could not sell without the other’s consent, even though he or she might wish to do so from a business standpoint or the need to sell might exist in order to provide food or shelter.

2. The spouse in possession of the property could not mortgage the property without the other’s consent, even though he or she might want to build upon or improve the property.

3. The potential to inherit would provide a motive for the nonpossessing spouse to withhold consent to a sale. By preventing transfer of property during his or her spouse’s lifetime, a party could be assured of the right to inherit a portion of the property upon the possessing spouse’s death.

4. The property affected by a separate maintenance decree could be tied up for several years, depending upon the age of the parties at the time the decree is entered.

When property is divided in connection with a separate maintenance decree I believe it was the intent of the legislature to permit each of the parties to own the property awarded individually without any interference by the other party. The majority opinion bases its conclusion on the fact a statutory change has been made in 60-1610. The former statute provided property awarded in a separate maintenance decree could be conveyed by one spouse without the consent of the other. The present statute is silent on this subject. While ordinarily a deletion of a phrase in a statute raises a presumption that the legislature intended a change, this court should not blindly adhere to the rule when the result is illogical. The concept that property awarded in a separate maintenance decree gives the party awarded the property the right to use and convey it without interference from his or her spouse is so basically sensible the presumption should not be applied.