concurring and dissenting: I concur in the result reached by the majority. I dissent from syllabus paragraphs two and three and from the associated portions of the opinion.
Under the facts of the instant case the alleged ground for the divorce was “incompatibility.” K.S.A. 60-1601(a)(l). “Failure to perform a material marital duty or obligation,” the only remaining “fault” ground, is not an issue in this case. K.S.A. 60-1601(a)(2). I agree that fault should not have been considered.
My disagreement with the majority arises from the following observations in the opinion:
“We conclude that in domestic relations actions it was the legislative intent that in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault.”
and:
“Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be *661some rare and unusual situation where a party’s conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.” (Emphasis added.)
The majority reaches beyond the factual perimeters of the case at bar.
When an allegation of fault (failure to perform a material marital duty or obligation) is involved in the case, the trial court should have broader discretion in resolving the parties’ financial affairs than that extended by the majority.
K.S.A. 60-1601(a)(2) permits fault to be an issue as a divorce ground. Commentators have stated that the current failure to perform a material marital duty or obligation is the substitute for the former fault grounds of extreme cruelty and gross neglect of duty, adultery, habitual drunkenness and conviction of a felony that results in imprisonment subsequent to marriage. See, Elrod, Kansas Family Law Handbook 10-7 (1983); Maxwell, In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177, 182 (1983).
K.S.A. 1989 Supp. 60-1610(b)(1) sets out the factors the trial court is required to consider in dividing property. The factors codify our prior case law. “Fault,” which was specifically stated as a factor in our cases, Parish v. Parish, 220 Kan. 131, 134, 551 P.2d 792 (1976), was not listed in the statute.
The action of the legislature in 1982, effective January 1, 1983, represented a major emphasis directed toward familial and socioeconomic considerations rather than fault or punitive considerations. See Nugent, Some Thoughts and Approaches to the Flew Divorce Code, 6 J.K.T.L.A. 21 (No. 4) (1983).
K.S.A. 1989 Supp. 60-1610(b)(1)(C) does include, however, a general provision granting the trial court discretion to consider “such other factors as the court considers necessary to make a just and reasonable division of property.” It is this residue of discretion that allows the trial court to consider the issue of fault in a K.S.A. 60-1601(a)(2) “failure to perform a material marital duty or obligation” case.
In a post-January 1, 1983, divorce case, we acknowledged with approval the eight items the trial court should consider in determining a just and reasonable division of property. Clark v. *662Clark, 236 Kan. 703, 707, 696 P.2d 1386 (1985) (included, as item [7], was “the question of fault when determined”). The Clark divorce was granted May 13, 1983.
I agree with the majority that the absence of fault from the marriage termination scene would have a salutary effect on domestic relations actions; however, I do not believe that the legislature intended to reduce the scope of trial court discretion in a K.S.A. 60-1601(a)(2) fault case as narrowly as does the majority.
If in a future case, a petition or counter-petition alleges “failure to perform a material marital duty or obligation” pursuant to K.S.A. 60-1601(a)(2), the impact, if any, of fault on the division of property should be left to the trial court’s discretion.
The legislative choice of not specifically listing fault in K.S.A. 1989 Supp. 60-1610 indicates the legislature’s intent to reduce its importance in property division. Nevertheless, I would not be as restrictive as the majority. The fault limitation decision the majority makes in this case should be made, if it is to be made, by the legislature.
Miller, C.J., and Lockett, J., join in the foregoing concurring and dissenting opinion.