Branson v. Branson
| Decision Date | 17 February 1942 |
| Docket Number | 29590. |
| Citation | 123 P.2d 643,190 Okla. 347,1942 OK 77 |
| Parties | BRANSON v. BRANSON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 24, 1942.
Syllabus by the Court.
1. A wife, whose husband has abandoned her without just cause, may maintain a suit for separate maintenance and alimony though the abandonment has not been continuous for a period sufficient to constitute a cause for divorce.
2. Proof examined and held to support the view that defendant left his wife with intent to abandon her and that he was guilty of "gross neglect of duty".
3. It is a well established principle of pleading that there need be no direct allegation of a fact if the same otherwise sufficiently appears, or of a fact which is necessarily implied from other averments in the petition.
4. In applying the equitable maxim "he who comes into equity must come with clean hands" the wrong which may be invoked to defeat the suit must have an immediate and necessary relation to the equity which the complainant seeks to enforce against the defendant or it must in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication. If the wrong is shown to be merely collateral to the complainant's cause of action, it does not constitute matter of defense.
5. Equity need not, upon consideration of the "clean hands" maxim, refuse to deal with the obligation of a marriage contract because the marriage resulted from a courtship conducted partially during a former marriage of one of the spouses.
6. There is no fixed standard or formula by which the amount of alimony is determined in a suit for alimony with or without divorce, however the courts do frequently enumerate some of the factors that should enter into consideration of the question and, without referring exclusively to either one of the spouses, have included in such enumerations the financial circumstances of the parties; reference in some instances to their incomes and necessities; the contributions of each to the accumulated property; their probable future prospects their sex, age. health; their station in life; their children, if any; the duration of the marriage and the wife's, as well as the husband's, capacity or lack of capacity to earn.
7. When it appears that the trial court has abused its discretion in fixing the amount of alimony, in a suit for alimony without divorce, this court may reduce the amount of the allowance.
Appeal from District Court, Oklahoma County; John B. Wilson, Judge.
Action by Madeline Branson against Fred P. Branson for separate maintenance and alimony without divorce. Judgment for plaintiff, and defendant appeals.
Modified and affirmed as modified.
Edwards & Robinson, of Oklahoma City, and Fred P. Branson, of Muskogee, for himself, for plaintiff in error.
Hal C Thurman, Harold C. Thurman, and Joseph G. Rucks, all of Oklahoma City, for defendant in error.
This is an action for separate maintenance and alimony without divorce. It is presented on appeal from a judgment of the District Court of Oklahoma County entered on the 31st day of July, 1939, finding that Fred P. Branson, the husband of Madeline Branson, and defendant in the trial court, had abandoned her, and ordering and directing him to pay her the sum of $250 per month so long as they should remain husband and wife.
As in many other appeals in cases of this type, the record reflects that the estrangement of the parties has provoked or been attended by considerable adverse feeling. Both of the parties have exhibited a tendency to delve into and expose the intricate details of their former association and each is disposed to attribute the unfortunate features of their present position to the alleged formerly dominant influence of the other. A particularized account of the various transactions between the parties and the motives which prompted their respective actions and attitudes would become tedious reading to those investigating this opinion for legal guidance. Such an account will therefore be avoided. However, reference to the salient facts reflected by the voluminous record now before us is essential to the determination of this appeal.
The defendant is a lawyer. He is 61 years of age and has had a very active life. He has attained a degree of prominence professionally and politically. He has also engaged in business, principally by dealing in properties connected with the production or potential production of oil. His efforts have from time to time been rewarded by financial success. He has also sustained losses. There has consequently been some fluctuation in his financial worth.
In 1904 he was married to Eula Jeans. In 1922 he was elected to state office. In 1923 he moved from Muskogee to Oklahoma City and there entered the duties of his office. He and his wife, Eula Jeans Branson, established their home at the Skirvin Hotel in Oklahoma City, although the defendant retained his legal residence at Muskogee.
Soon after his arrival in Oklahoma City the defendant, then 42 years old, employed the plaintiff, an unmarried woman, thirty years old, to do stenographic and secretarial work in his office. This arrangement continued until 1929. During this period of time an emotional attachment developed between the plaintiff and defendant which resulted in a dissolution of the marriage relation between the defendant and Eula Jeans Branson by decree of divorce granted by the District Court of Muskogee County on January 30, 1930. Under the statutes of this state remarriage of the parties to a divorce action, except to each other, is forbidden for a period of six months subsequent to the granting of the decree. 674, O.S.1931, 12 Okl.St.Ann. § 1280. On February 24, 1930, the parties to this action procured a license to marry in the state of New York and a marriage ceremony was there performed by a Justice of the Peace. One month later another ceremony was performed in New Orleans, Louisiana, by an official of the church to which the plaintiff belonged, this to satisfy the religious beliefs of the plaintiff who, with the active aid and assistance of the defendant, had previously secured her church's approval of the contemplated marriage.
Thereafter the parties returned to Oklahoma City where they subsequently openly conducted themselves toward each other as man and wife until differences developed which resulted in their separation.
Incidentally, in this connection the defendant, in the trial of the case in the court below, denied the existence of the marital relation between himself and the plaintiff and advanced the theory that the marriages, or attempted marriages, between the parties to this action were void because of the statutory inhibition above mentioned.
Regardless of its initial infirmities, such a marriage may ripen into a valid common law marriage. Mantz v. Gill, 147 Okl. 199, 296 P. 441, and cases therein cited. In this case the trial court held the parties had succeeded in creating a valid marriage and the soundness of that determination is not questioned on this appeal.
The parties separated in the spring of 1936. The trial court concluded that the defendant's acts and attitude in connection with the separation amounted to desertion without cause. After the separation the defendant continued to support the plaintiff by paying her monthly from $175 to $225 until March of 1939 when he formally advised her that he would no longer do so. This advice was communicated by letter dated at Hot Springs, Arkansas, on March 14, 1939, which contained the following pertinent excerpt: ***"
Subsequently he did send a check which reached plaintiff on March 30th. The plaintiff says that this check was sent as a subterfuge to lull the plaintiff into a feeling of security so that she would not institute this action and obtain service of summons while the defendant was in this state on a trip which it was necessary for him to make about that time. In this connection, plaintiff points out that payment of the check was subsequently stopped. This action for separate maintenance and alimony without divorce was promptly instituted. The petition was filed on April 1, 1939. Thereafter, issues were joined. The cause was tried in July, 1939. Special findings of fact and conclusions of law were, upon request, made by the trial court and the judgment heretofore referred to was entered.
Additional facts essential to a proper treatment of the questions preserved for review will be interpolated in our discussion of the legal principles applicable to the case.
The defendant appearing before this court as plaintiff in error challenges the sufficiency of plaintiff's pleading and proof. He presents his case under three "points" which he urges collectively. His points are stated by him as follows:
The defendant calls our attention to section 678, O.S.1931, 12 Okl.St.Ann. § 1284, by which the legislature has made specific statutory provision for the maintenance of a suit for alimony without a divorce "for any of the causes for which a divorce may be granted". The defendant takes the position that the...
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