Aronson v. Aronson

• Decision Date: 21 April 1970
• Docket Number: No. 43354,43354
• Citation: 1970 OK 74,468 P.2d 493
• Parties: Willard ARONSON, Plaintiff in Error, v. Joanne R. ARONSON, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 493

468 P.2d 493

Willard ARONSON, Plaintiff in Error, v. Joanne R. ARONSON, Defendant in Error.

No. 43354.

Supreme Court of Oklahoma.

April 21, 1970.

Appeal from the District Court of Oklahoma County; Carmon C. Harris, judge.

Action by wife for support without divorce, in which husband cross-petitioned for divorce. After judgment granting divorce on husband's cross-petition, and effecting a property division, and awarding alimony, child support, etc., but reserving judgment on the issue of plaintiff's attorney's fees, plaintiff, during the next term of court was granted vacation of said judgment (over the objection of defendant and cross-petitioner that the court had lost jurisdiction to vacate) and the provisions of said previous judgment were incorporated in a new judgment, which additionally included an award to plaintiff for her attorney's fees in the sum of $7,000.00. Defendant and cross-petitioner appealed and plaintiff filed a counter-appeal. Modified and affirmed.

Berry & Weiss, by Charles N. Berry, Jr., Oklahoma City, for plaintiff in error.

Halley, Spradling, Stagner & Alpern, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

The parties to this appeal appear here in reverse order to their appearances in the trial court, and will be referred to by their designations in that court of 'plaintiff' and 'defendant'. The issues presented arose in an action in which their marriage was dissolved by divorce.

Plaintiff and defendant were married in Philadelphia in 1953, while defendant was a student in the University of Pennsylvania's Medical School, and plaintiff was a student at Temple University. After defendant had obtained his M.D. degree and plaintiff had obtained a B.S. degree in elementary education, and defendant had completed a period of military service during which plaintiff gave birth to their oldest son, now about 13 years of age, and a daughter, now about 10 years old, the family returned to Philadelphia, where defendant completed his residency. In 1960, the family moved to Eau Claire, Wisconsin, where defendant was employed as a pathologist, at a salary of $40,000.00 per year. During 1961, the couple's third and last child, another son, was born; and, in 1964, they built a suburban home there at a cost of about $45,000.00.

Defendant had a medical secretary we will refer to as 'Mrs. S'; and, in January, 1965, he left his family and moved into an apartment in Eau Claire. The next month he filed suit for divorce there, but did not testify, and the suit was dismissed.

Thereafter, plaintiff sued for, and obtained, separate maintenance and support from defendant by decree of the same Wisconsin court. When the decree was entered, plaintiff and her children had moved back to the Philadelphia area, but, by the decree's provisions, she was given possession of the above mentioned Eau Claire home, with the responsibility of maintaining it and making its mortgage payments out of the $900.00 per month support money defendant was ordered to pay. The decree also required defendant to set aside $150.00 per month for the children's future college educations, required him to pay certain special attorneys' fees, gave him child visitation privileges, and contained other provisions not particularly pertinent here.

In September, 1967, defendant moved to Oklahoma City, where he is employed by a hospital, as a pathologist, at an annual salary of $60,000.00. The same Fall, Mrs. S moved here and is employed as a secretary in an Oklahoma City 'medical complex'.

Thereafter, in February, 1968, plaintiff instituted the present action in Oklahoma County, alleging, among other things, that she and defendant had been separated several years by reason of 'a state of incompatibility', entitling her to a decree of alimony without divorce, and that defendant should be ordered to pay her, on the basis of his present income, a reasonable sum, which she alleged to be not less than $30,000.00 per annum, 'in order to support' their children and herself in the manner warranted by his present income.

Plaintiff further alleged that she was without funds to adequately compensate her counsel and pay the cost of prosecuting her case; and she prayed the court to make provision for the payment of these expenses.

Thereafter, defendant filed an answer and cross-petition, consisting of a qualified, general denial, and allegations that plaintiff's conduct caused the parties' incompatibility and separation. Defendant further alleged that he had complied meticulously with the Wisconsin court's above described separate maintenance and support judgment; and he prayed for a divorce from plaintiff.

Thereafter, plaintiff filed a Reply and Answer to defendant's Answer and Cross-petition, consisting of a qualified, general denial, and allegations to the effect that the parties' incompatibility had resulted from defendant's carrying on a 'romantic liaison' with Mrs. S, who was and is his secretary and laboratory assistant. Plaintiff further alleged, among other things in substance, that, because of this, defendant 'should be precluded' from relying upon the parties' alleged incompatibility as a ground for divorce.

After the filing of other pleadings, and further court proceedings, unnecessary to mention, the case was heard on its merits November 27, 1968. At the beginning of this trial, it was stipulated that 'the issue of attorneys fees is reserved for a later hearing following the determination of this matter on its merits.'

At the close of the evidence on that day, the court rendered judgment granting defendant a divorce on his cross-petition, and giving him certain specified rights to visit his children. The judgment also directed defendant to pay plaintiff the sum of $200.00 per month for the support of each of their children, and to pay the necessary expenses of the children's orthodontic treatment and to maintain the Blue Cross policy, then in effect, covering them. By way of property division, the decree gave each of the parties the automobiles, furniture, and jewelry then in their respective possessions, except a piano, which it ordered defendant to ship to plaintiff, as her separate property. The decree also gave plaintiff, as her separate property, 10 shares of Northern Pacific Railway stock and 12 shares of National Presto Industries, Inc., stock. It gave defendant, as his separate property, 156.742 shares of Investors Diversified Service and also the parties' aforementioned Eau Claire residence. As another part of its property division, the decree granted plaintiff a judgment of $14,000.00, payable on or before December 1, 1969, without interest before maturity; and it established said judgment as a lien on the Eau Claire residence and ordered defendant to give plaintiff a mortgage on said property to secure its satisfaction.

As alimony, the decree awarded plaintiff the sum of $60,500.00, payable in 121 monthly installments of $500.00 each, beginning December 1, 1968. It contained other provisions, unnecessary to mention, except one, which read:

'(19) The Court continues for further hearing, upon agreement of the parties, the claim of the attorneys for the Plaintiff for an order that the Defendant pay attorney's fees and the amount thereof.'

Thereafter, both parties filed motions for new trial, which were overruled on December 20, 1968.

Thereafter, the court conducted a hearing on January 6, 1969, for the declared purpose of 'hearing evidence and considering the fixing of attorney's fee for Plaintiff's counsel * * *'.

At the beginning of the hearing, defense counsel orally moved 'that plaintiff's application' for such fee be dismissed, but the court overruled this motion and heard evidence as to what amount should be fixed as plaintiff's attorney's fee. At the close of said hearing, the court entered an order and/or judgment awarding plaintiff's attorneys an attorney's fee of $7,000.00, in addition to the $750.00 previously paid said attorneys by defendant, and allowing defendant six months, from said date, within which to pay it. Thereupon, defendant interposed a motion for a new trial, which was overruled at the same hearing.

Thereafter, on January 15, 1969, plaintiff filed a motion, which, in substance, asked the court to vacate both of its above described judgments of November 27, 1968, and January 6, 1969, respectively, on the ground that they were voidable, and irregular, because all of the issues in the action had not been determined in one single judgment. A week later, defendant filed a response to said motion, in which he cited the case of Friedman v. Friedman, 132 Okl 45, 269 P. 257, and alleged, among other things in substance, that the things and matters, referred to in plaintiff's motion to vacate, did not constitute 'irregularity in obtaining judgment' under the terms of Title 12, O.S.1961, § 1031, subdiv. 3, authorizing district courts to vacate their own judgments, and further alleging that, under said statute, the court had no power to vacate its own judgments on that ground, pursuant to a motion filed after the term at which they were rendered.

Thereafter, on January 23, 1969, the court heard both plaintiff's above described motion to vacate, and defendant's replies thereto, and, at the conclusion of said hearing, sustained plaintiff's motion, and set aside both of its previous judgments of November 27, 1968, and January 6, 1969, respectively. At the same hearing, the court thereupon incorporated, in a new judgment of that date, all of the findings of fact and conclusions of law contained in those two previous judgments, as well as all of those judgments' other provisions, dissolving the parties' marriage on defendant's cross-petition, granting plaintiff child support, decreeing a property division, awarding attorney's fees for plaintiff's counsel, etc.

After the overruling of a motion for new trial, filed by defendant, the latter lodged the present appeal, and plaintiff followed...