Bishop v. Bishop

Decision Date18 April 1944
Docket Number31380.
PartiesBISHOP v. BISHOP.
CourtOklahoma Supreme Court

Rehearing Denied May 9, 1944.

Syllabus by the Court.

1. The allowance of permanent alimony is a matter of sound judicial discretion to be exercised in accordance with well established principles and upon a view of all the circumstances of each particular case.

2. Under the provisions of 12 O.S.1941, sec. 1278, only property which has been jointly acquired by the parties during coverture is to be equitably divided.

3. On granting a divorce to either the husband or wife, the court is required by section 672, O.S.1931, 12 Okl.St.Ann. sec 1278, to make a just, fair and equitable division of the properties acquired by the parties jointly during their marriage. In doing so the court is not required to divide the property equally between the parties, but is given a wide latitude in determining just what part of the jointly accumulated properties shall be given to each of the parties. Burtrum v. Burtrum, 184 Okl. 61, 84 P.2d 598.

4. In this jurisdiction permanent alimony must be awarded either in specific property or in a definite sum of money and the insertion in the decree of a clause to the effect that the alimony awarded shall continue only during the time the wife remains unmarried is not authorized.

Appeal from District Court, Tulsa County; James T. Shipman, Judge.

Action by William Wallace Bishop against Aice Mary Bishop for an absolute divorce, wherein defendant filed a cross-petition. Defendant was granted a divorce and awarded alimony and division of property. From the judgment insofar as it pertains to alimony and property division, defendant appeals.

Modified and affirmed.

RILEY and ARNOLD, JJ., dissenting.

H. L Smith, of Tulsa, for plaintiff in error.

Frank Hickman, of Tulsa, for defendant in error.

PER CURIAM.

On September 1, 1942, William Wallace Bishop, hereinafter referred to as plaintiff, instituted an action against Alice Mary Bishop, hereinafter referred to as defendant, for an absolute divorce. The plaintiff in his petition alleged, in substance, that he and defendant had intermarried in the year 1930, and that of said union one child had been born approximately twelve months prior to the filing of his petition; that defendant had been guilty of extreme cruelty the details of which would be furnished in a bill of particulars and proof offered and that by reason of the tender age of the child its custody and care should be confided to the defendant and that plaintiff was ready to make such provision for its care as the court should direct. Plaintiff also alleged that he was in possession of considerable property at the time of his marriage with the defendant but only a portion thereof remained and that this should be decreed to plaintiff as his separate property and that plaintiff stood ready to pay any reasonable amount of alimony that might be awarded to the defendant. The defendant denied that there existed any ground for a divorce on the part of the plaintiff and sought a decree of separate maintenance. Subsequently on suggestion of the court that a divorce would be proper the defendant amended her cross petition so as to ask for such relief. The court thereupon granted defendant an absolute divorce, gave the defendant the custody of the minor child of the parties, decreed that the plaintiff should pay $40 per month for the maintenance of said child, gave the defendant a Buick automobile and the furniture and household goods in the home, decreed all of the other property of the plaintiff to be his separate property and awarded the defendant the sum of $1,000 for her attorney and alimony in the sum of $18,000. The alimony was made payable at the rate of $160 per month with the proviso that should defendant remarry anyone other than the plaintiff all installments of alimony thereafter accruing should be cancelled and plaintiff relieved of any further liability. The defendant appeals only from the alimony and division of property provisions of the judgment.

The defendant contends, in substance, that she should have been awarded $48,000 as alimony and that as part of the division of the property she should have received the residence and further complains that the provision in the decree relative to cancellation of the accruing installments of alimony in the event of her remarriage to anyone other than plaintiff was unauthorized and should be held void as being in restraint of marriage.

The contentions so advanced require a brief resume of the facts involved. The record shows that plaintiff and defendant were 47 and 23 years of age respectively at the time of their marriage and that each of said parties had been previously married and divorced. The record further shows that plaintiff had no children by his former wife and that defendant had one child by her former husband. The record further shows that plaintiff possessed considerable property at the time of his marriage to the defendant which consisted of a tract of land in Tulsa on which the parties subsequently had their home and stock in Bishop's Restaurants in Tulsa and Oklahoma City and that plaintiff had a good income from the properties owned by him and that the defendant had no property and no income. The evidence further shows that the plaintiff took the child of defendant into his home and treated her as if she were his own child but that he never adopted her and that this child had become of age prior to the institution of the present action. The record further shows that the only property acquired during coverture was household goods and furniture, a Buick and Ford automobile and a ten acre tract on the outskirts of Tulsa which plaintiff had bought and equipped as a chicken farm and on which he had placed defendant's father and mother. The record further shows that plaintiff was contributing to the support of his step-mother and an invalid sister. The record further shows that the property of plaintiff at the time of the trial of this action consisted of the home place, which was a duplex, in one side of which the parties had been living, and a small cottage in the rear which the plaintiff had erected and in which he had lived about a year prior to the institution of this action and a ten acre tract on which plaintiff had located defendant's father and mother and two-thirds of the stock in the Tulsa restaurant and one-third of the stock in the Oklahoma City restaurant which were being operated as Bishop's Restaurants and from which plaintiff drew salaries approximating $350 per month and from which he also drew bonuses and dividends in varying amounts at irregular intervals. The value of the properties owned by plaintiff at the time of the trial was not made definitely to appear. It appears, however, that plaintiff had a very substantial income therefrom.

Under the facts, substantially as above narrated, the defendant contends that the amount of alimony awarded should be based upon the income of the plaintiff rather than the value of the property owned by him and that so considered it should have been the sum of...

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