Hamm v. Hamm

The opinion of the court was delivered by BURCH, J.:

This appeal presents in new form an old question relating to the power of the district court over the homestead of parties to a decree of divorce when awarding alimony.

The plaintiff was granted a divorce from his wife, the defendant. The abstract states that the title to their homestead was in the plaintiff. The homestead was awarded to the defendant, subject, however, to a lien in favor of the plaintiff for $700. The lien not having been discharged within the time limited, an order was issued for the sale of the property. The appeal is from this order, the contention being that the court had no power to disturb the defendant’s homestead rights, existing before the divorce and continuing afterward, because of the terms of the homestead provision of the constitution. (Art. 15, § 9.)

The substance of the defendant’s contention was presented to this court in the case of Brandon v. Brandon, 14 Kan. 342 . In that case the wife was granted a divorce and was awarded the homestead, the title to which was in the husband. He *361 claimed the court had no power to make an adjudication of property rights which would compel him to surrender his homestead. The contention was declared to be unsound and is unsound for reasons stated in the opinion. The principle involved, which is that in awarding alimony and in adjudicating property rights in a divorce case the district court may deal with the homestead as with other property, was approved and applied in the case of Blankenship v. Blankenship, 19 Kan. 159 . In that case the husband, having title to the homestead, was granted a divorce. Alimony awarded the wife was made a lien on the homestead. The homestead was sold to satisfy the lien and the sale was confirmed.

It is said that under no circumstances could the husband be awarded alimony and that the only discussion in the books relates to awards to the wife for alimony and not to awards to husbands. This is a play on words. The husband was not awarded alimony and was not awarded anything else in the sense in which alimony to a wife is awarded. The court evidently thought the defendant should have the homestead, but that the entire homestead property was too much for her. So the award of the entire homestead was in effect reduced in value by the sum of $700 to be paid to the husband and to be a charge against the property in his favor.

The judgment of the district court is affirmed.