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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Berry v. Berry, 215 Kan. 47

This case addresses the following issue:

What constitutes incompatibility in a divorce action?

This case explored the issue of what constitutes ‘incompatibility’ in a divorce action. In exploring this issue, the court concluded that incompatibility exists when the parties are in such deep conflict that it is impossible for them to continue a normal marital relationship.

Appellant (Lavada) and appellee (Floyd) were married with 10 children. Lavada filed a petition for separate maintenance, alleging Floyd was “guilty of extreme cruelty and gross neglect of duty”. Lavada testified that she did not believe in divorce, but Floyd filed a petition for divorce based on the incompatibility ground. At trial, evidence was presented that accused Floyd of a number of things including physical abuse and substance abuse. Evidence was also presented against Lavada that suggested she always argued and was a bad housekeeper. However, the trial court concluded that the evidence was in favor of Floyd and granted the divorce decree, precluding Lavada from a grant of separate maintenance.

Lavada argued that evidence presented was in favor of her request for separate maintenance and that evidence of poor housekeeping does not constitute incompatibility. Lavada presented evidence of physical abuse and even had one of their daughters testify to the physical and substance abuse of the child’s father. The trial court found that both parties proved their case, while Lavada believed that Floyd did not prove his case for a divorce. The trail court concluded that incompatibility is broadly defined as basically not being able to coexist together in peace. The trial court granted divorce in favor of Floyd. Lavada also contended the custody arrangement granted by the trial court that resulted in Floyd having custody of the four youngest children. Lavada appealed.

This court concluded that all of the evidence pointed towards incompatibility. The trial court had an opportunity to hear both sides of the story and used its discretion to come to a fair conclusion. The evidence suggested that the spouses could no longer live together in peace, and a divorce could not have been granted to Lavada since she only petitioned for separate maintenance. Therefore, Lavada’s request for separate maintenance was precluded.

Regarding the custody arrangement, the court concluded that there was not an abuse of discretion by the trial court when determining custody. The trial court is in the best position to determine the interests of the children.

In sum, because incompatibility is so broadly defined, the spouses simply need to be incompatible for this ground to be valid. Not being able to live together in peace is sufficient.

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