Bennett v. Bennett
| Decision Date | 07 June 1905 |
| Citation | 81 P. 632,15 Okla. 286,1905 OK 27 |
| Parties | BENNETT v. BENNETT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In this territory, in an action for divorce, the district court has power to punish a contempt of court in refusing to pay alimony awarded by it by striking the defendant's answer from the record, or refusing to permit him to plead further in a case in which the defendant has voluntarily absented himself from the territory for the purpose of avoiding contempt proceedings for failure to pay such alimony; and punishment for contempt cannot be otherwise inflicted.
In an action for divorce on the ground of cruelty, and where it is alleged in the petition that property has been fraudulently conveyed to a third person for the purpose of defeating the collection of any alimony that may be awarded, and where the defendant in the divorce proceedings and the party to whom the conveyance was made by said defendant are both served with summons, the grantee in such fraudulent conveyance is not a proper party to the divorce proceedings; and it is not error to refuse to permit such defendant to be heard on the question of a divorce where the defendant in the divorce proceedings is in default; but the defense of such grantee only extends to the question of alimony and the validity of such conveyance.
Where a husband, with notice that a divorce proceeding is about to be commenced against him, or with notice of such facts as would reasonably apprise him of this fact, conveys his property to an infant son, the off-spring of a marriage with a former wife, and the purpose is apparent that such conveyance is made to defeat a decree for alimony, held, that the burden of proof was upon the grantee to show a valuable consideration, or that such conveyance would not tend to defeat any alimony that might be granted in such divorce proceedings; and the burden of proof in such case is not upon the plaintiff in the divorce proceeding to show insolvency of the grantor.
Error from District Court, Lincoln County; before Justice Jno. H Burford.
Action by Sarah Grace Bennett against A. W. Bennett and Harry M Bennett. Judgment for plaintiff, and Harry M. Bennett, by Charles B. Wilson, his guardian ad litem, brings error. Affirmed.
This was an action begun by the defendant in error, Sarah Grace Bennett, on the 21st day of May, 1903, in the district court of Lincoln county, Okl. T., for divorce and alimony, against A. W. Bennett. On the 21st day of July, 1903, Sarah Grace Bennett filed an amended petition in said cause, in which she made Harry M. Bennett, a son of A. W. Bennett by a former marriage, a minor 11 years of age, a party defendant. In the amended petition it is alleged that defendant A. W. Bennett was guilty of extreme cruelty towards the complainant. It is further alleged that on the 20th day of May, 1903, the said A. W. Bennett conveyed by warranty deed certain real estate in Chandler, and other real estate in Lincoln county, to the said Harry M. Bennett, for the purpose of defrauding the complainant out of any rights which she might have in said real estate by reason of the marriage relations and to defeat any claim for alimony. A copy of the deed to Harry M. Bennett by A. W. Bennett was attached to the amended petition, and marked "Exhibit A," and by the prayer of said petition the complainant asks for a divorce from the said A W. Bennett; that the homestead, consisting of lots 19 and 20 in block 28 in Bennett's Addition to the city of Chandler, Lincoln county, Okl. T., be decreed to her for permanent alimony, and for such other alimony as the court might give; that the deed from A. W. Bennett to his son Harry M. Bennett, be declared void as to the complainant in that case, and that her judgment for alimony be declared a lien on said premises. After the filing of the original petition on the 21st day of May, 1903, summons was issued and on the 21st day of May, 1903, the sheriff of Lincoln county made his return on said summons, showing that he served the said A. W. Bennett by leaving a copy of said summons at the last usual place of residence of said A. W Bennett in Lincoln county, Okl. T., that on the said 21st day of May, 1903, Victor S. Decker attempted to serve on the said A. W. Bennett a notice that the defendant in error would, on the 23d day of May, 1903, present an application to the Honorable Jno. H. Burford, judge of the district court, at chambers, at Stillwater, Payne county, Okl. T., for an order allowing temporary alimony and attorney's fees for the use of the defendant in error pending divorce proceedings, and that said A. W. Bennett refused to receive said notice; that on the 23d day of May, 1903, said order was presented to said Jno. H. Burford, judge, at Stillwater, Okl. T., in chambers, and that on said 23d day of May, 1903, the judge of the district court of Lincoln county, at chambers, in Stillwater, Okl. T., ordered the said A. W. Bennett to pay into the office of the clerk of the district court of Lincoln county, Okl., $1,000 for temporary alimony for defendant in error and $100 for her attorneys' fees, which said order to pay alimony was served on the said A. W. Bennett by the sheriff of Lincoln county, Okl. T., on the 18th day of February, 1904. On the 12th day of June, 1903, the said A. W. Bennett appeared specially by his attorneys to question the jurisdiction of the court, and to move to set aside the return of the sheriff of the summons in the case. During the pendency of said motion, at the September, 1903, term of the district court in Lincoln county, the sheriff of said Lincoln county, Okl. T., amended his return on said summons by drawing a line through the word "last." On the 21st day of July, 1903, the defendant in error filed her amended petition in said cause, and at that time she filed her petition and affidavit for the notice by publication for said A. W. Bennett, and the plaintiff in error, Harry M. Bennett, a minor, by A. W. Bennett, his guardian and father, as nonresidents of the territory of Oklahoma. On the 19th day of September, 1903, the court appointed Chas. B. Wilson guardian ad litem for said Harry M. Bennett, a minor, and on the 30th day of September, 1903, said guardian ad litem filed his answer to the amended petition for said minor. On the 17th day of February, 1904, summons was issued on the amended petition, and was served on the said A. W. Bennett in Lincoln county, Okl. T., by the sheriff of said county, and on the 12th day of March, 1904, the answer day, the attorneys for said A. W. Bennett appeared specially, and moved the court to set aside the service of summons in said cause, which motion was overruled by the court on the 6th day of April, 1904. Thereupon the said A. W. Bennett offered then and there to file his answer to the amended petition of defendant in error, which said offer of said A. W. Bennett to file answer in said cause was by the court refused for the reason that the said defendant was at that time in contempt of the court by reason of his failure and refusal to comply with the order of the court heretofore made to pay to the plaintiff in this case the sum of $1,000 as temporary alimony and $100 for attorney's fees in the case; but the court made the further order that the defendant should be permitted to file said answer within five days on condition that he purge himself of contempt by complying with said order within that time, to which order of the court the defendant A. W. Bennett excepted at the time. On the 11th day of April, Geo. A. Spink, of the firm of Spink & Spink, attorneys for the defendants, in open court made a motion that the time allowed A. W. Bennett to comply with the order of the court in regard to alimony pendente lite and attorney's fees, and also to plead, be extended to the 13th day of April, 1904, which motion was granted by the court, and said time extended to and including the 13th day of April, 1904, which order appears at page 87 of the case-made. On the 29th day of April, the same being one of the judicial days of the April term, 1904, of the district court in and for Lincoln county, the issues having been joined, this cause came on for trial. The plaintiff appeared in person and by her attorneys, and the defendant Harry M. Bennett, a minor, appeared by his guardian ad litem, Chas. B. Wilson; the guardian ad litem for the said minor defendant being at the time informed by the court that he would be permitted to cross-examine the witnesses, object to the testimony, and to have a hearing on the question of alimony, but that on the question of divorce he would not be permitted to be heard. After hearing evidence and being advised in the premises, the court finds that the defendant A. W. Bennett was duly and legally served personally with summons in said action, as shown by the return of the sheriff of Lincoln county; and the court further finds that the defendant A. W. Bennett has failed and refused to comply with an order made by the court on the 23d day of May, 1903, wherein the defendant was ordered and adjudged to pay to the plaintiff within 10 days from date $1,000 as and for temporary alimony and suit money, and the sum of $100 as and for an attorney's fee. The court further finds that the said order was served on the defendant A. W. Bennett by the sheriff of Lincoln county, Okl. T. The court further finds that the defendant Harry M. Bennett, a minor, on and after the filing of plaintiff's amended petition herein, has been duly and legally served by publication by the plaintiff, and that said action is one of the cases in which service by publication is authorized by law. The court further finds that a guardian ad litem has been duly and legally appointed for said minor defendant. And the court further...
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