Greenwood v. Greenwood

SYLLABUS BY THE COURT. Divorce — Decree Final as to Parties — Court Retains Care of Minors — Valid Contract. Twelvé years after the rendition of the original decree in an action for divorce the minor children of the plaintiff and the defendant filed a motion seeking a modification of the decree so as to provide for their custody and education. Held, following Miles v. Miles, 65 Kan. 676, that the court had jurisdiction to entertain the motion and to make such orders as were necessary to protect the interests of the children. But this was the extent of its jurisdiction over the parties and the subject matter of the original action, and it had no power to cancel or set aside a contract between the parties respecting lands set apart to one of them so far as such contract in no respect interfered with the rights of the children.

Appeal from Riley district court. STATEMENT. This is an appeal by Ashford W. Greenwood from an order made by the district court of Riley county setting aside a contract for the sale of land entered into between Annie M. Greenwood and himself. The original judgment and decree in this case was rendered on the 2d day of December, 1897, a little more than twelve years prior to the filing of the motion upon which the order complained of was made. The original decree of divorce awarded to Annie M. Greenwood the custody of the two minor children, Grace Greenwood and Helen Greenwood, and further decreed that the plaintiff “shall have, and there is hereby set apart to her as her separate estate, as and for her alimony in said action” a tract of land situate in the county of Wabaunsee, containing seventy-six acres, more or less, to be held by her “in trust for Grace and Helen Greenwood until the said Helen Greenwood shall attain her majority, and at the expiration of said time or upon the death of both of said children before said time the title to said property shall vest in the said Annie M. Greenwood absolutely and in fee.” Other real estate was set apart to the defendant in fee simple, and the decree provided that each should enjoy and possess the real estate so set apart free and clear from any claim of the other “except the judgment for alimony rendered herein.” It appears that on February 13, 1909, Annie M. Greenwood and Ashford W. Greenwood entered into a contract which provided “that, whereas'the party of the first part is the owner in her own right and as trustee for Grace Greenwood and Helen Greenwood of the land” (describing it), “which interest of the said party of the "first part will ripen into a full and complete title when the said Helen Greenwood shall attain her majority, which will be October 17, 1913, and whereas the said party of the first part is desirous of selling and disposing of said real estate upon a contract and conveying the full and perfect title when she becomes the absolute owner thereof, now therefore in consideration of the sum of six thousand eight hundred and forty dollars ($6840) the said party of the first part hereby agrees to sell and convey by good and sufficient warranty deed to the party of the second part the” land. The contract further provided that $1000 of the consideration was to be paid to Grace and Helen Greenwood on or before March 1, 1914, in equal shares, with interest at five per cent per annum payable annually, or in case of the death of either, to the survivor, - and in case of the death of both said sum should be payable to Annie M. Greenwood. One thousand five hundred dollars was to be paid to Annie M. Greenwood March 1, 1909, and she was to receive the remainder of the consideration in annual payments with interest. There was no express provision in the contract as to when the deed from Mrs. Greenwood should be delivered, but there was a provision that the grantee should have full and complete possession of the premises upon the delivery of the contract. On the 28th day ,of December, 1907, Grace Greenwood and Helen Greenwood by their next friend, John E. Hessin, filed their motion in the original action, reciting the decree of divorce, the provision therein for their benefit, that the plaintiff and the defendant had entered into a contract for the sale of the premises and that by reason thereof the applicants had been deprived of the support provided in the decree, that the funds therein provided for their support had been diverted from the use ordered and decreed by the court, that the sale was in violation of the authority of the court; and asking that the contract of sale be set aside, that the applicants be restored to their rights under the original decree, and that the decree be so amended that no sale or disposition of the property should be made until the further order of the court. On notice being served on Ashford W. Greenwood he entered his special appearance to the motion and challenged the jurisdiction of the court on the grounds: 1. That the moving parties are not now and never have been parties to the suit. 2. That jurisdiction of the defendant cannot be acquired by notice and motion. 3. That the court has no jurisdiction to change or modify the original decree of divorce. 4. That both the moving parties as well as the plaintiff and the defendant reside in Shawnee county, the real estate in question being situate in Wabaunsee county, and that therefore the district court of Riley county has no jurisdiction of the parties or the property. On the hearing of the motion the court overruled the objections to the jurisdiction and heard the evidence of the applicants, which consisted of the introduction of the record in the original proceedings in divorce and the contract between the plaintiff and the defendant for the sale of the land. Judgment was rendered in favor of the applicants, canceling and setting aside the contract, and the original decree was so modified that no sale or conveyance of the premises in question should be made by Annie M. Greenwo'od for herself or as trustee until the applicants arrive at the age of majority.