Bruce v. Bruce

• Court: Oklahoma Supreme Court
• Writing for the Court: CULLISON, J.
• Citation: Bruce v. Bruce, 285 P. 30, 141 Okla. 160, 1930 OK 38 (Okla. 1930)
• Decision Date: 21 January 1930
• Docket Number: Case Number: 20507
• Parties: BRUCE v. BRUCE.

1930 OK 38

285 P. 30

141 Okla. 160

BRUCE v. BRUCE.

Case Number: 20507

Supreme Court of Oklahoma

Decided: January 21, 1930

Syllabus

¶0 1. Divorce--Sufficiency of Evidence to Sustain Decree on Ground of Cruelty.

Where, in an action for divorce on the ground of cruelty, the evidence is conflicting as to the facts and the fault, but there is sufficient evidence to sustain the decree of the trial court, the same will not be disturbed on appeal.

2. Same--Division of Property--Rights in Wife's Separate Estate Where Divorce Granted for Her Fault.

A divorce obtained by a man for the fault of his wife will relinquish his right to any interest in her separate property; subject to the qualification imposed by the last subdivision of section 508, C. O. S. 1921, providing that "the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife's separate estate as may be proper."

3. Same--Division of "Jointly Acquired Property."

"Jointly acquired property," within the meaning of Rev. Laws 1910, section 4969 (Comp. Stat. 1921, sec. 508), is that accumulated by the joint industry of the husband and wife during the marriage; and, if a divorce is granted to either, an equitable division thereof should be made. ( Tobin v. Tobin, 89 Okla. 12, 213 P. 884).

4. Same--Court's Findings not Sustained and Division of Property Held Inequitable.

Record examined, and held: The trial court's findings as to what constituted the "separate property" and the "jointly acquired property" of the parties to this appeal are clearly against the weight of the evidence, and the division of such property based on the trial court's findings is inequitable, unjust, and the same is hereby reversed, with directions to enter judgment in accordance with the views herein expressed.

5. Divorce--Decree as to Custody of Children Always Subject to Modification.

A divorce decree, as far as the custody of children is concerned, is always subject to modification. Culwell v. Franks, 3 Ind. Ter. 548, 64 S.W. 532.

6. Same--Order for Custody or Maintenance of Children "Final" Only in Sense That It is Appealable.

An order of the trial court with respect to the custody or maintenance of minor children is never final in the sense that it is unchangeable; such an order is generally held to be final in the sense that it is appealable, and, this notwithstanding the right of the lower court to retain control over the case for support of the children.

7. Same--Father's Obligation to Contribute to Children's Support not Canceled by Obtaining Divorce for Fault of Mother.

Where it appears the necessities of the children require the father's contribution to their relief, his obligation is not canceled by the fact that the divorce was granted to him because of the fault of the mother.

8. Same -- Considerations Controlling in Awarding Custody of Minor Child.

A court in awarding the custody of a minor child must be guided primarily by what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare. In deciding what is for the best interest of the child in respect to its temporal, mental, and moral welfare, a court should well consider the influences and protection afforded by a parental affection, if such be manifest.

9. Same--Award of Custody of Children to Father not Sustained.

Record examined, and held: The trial court erred in awarding the custody of the minor children to plaintiff, the father. The evidence clearly establishes that the interests of said children, in respect to their temporal, mental, and moral welfare, are to be best protected by awarding their custody to defendant, the mother.

Error from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by J. J. Bruce against Ida B. Bruce. Judgment for plaintiff granting him an absolute divorce and awarding him the custody of the minor children and adjudicating the property rights of the respective parties. Affirmed in part and reversed in part.

Charles A. Chandler, Eliot D. Turnage, and W. H. Twine, for plaintiff in error.

J. Bernard Smith, for defendant in error.

CULLISON, J.

¶1 This case comes to this court on appeal from a judgment of the district court of Muskoge county, Okla., granting the plaintiff in error, J. J. Bruce, an absolute divorce, from defendant in error, Ida B. Bruce, and awarding the custody of the minor children of said parties to said J. J. Bruce, and adjudicating the property rights of the respective parties.

¶2 The parties herein will be referred to as in the trial court; J. J. Bruce, plaintiff, and Ida B. Bruce, defendant.

¶3 The record shows that there were born to plaintiff and defendant three living children, as follows: Robert Bruce, 18 years of age; Edward J. Bruce, 16 years of age; and James L. Bruce, 14 years of age.

¶4 Plaintiff in his petition alleges his wife, the defendant herein, is a common gossip, a disturber of the peace of the neighborhood in which she lives; neglects her household duties; untidy housekeeper; will not cook his meals; that she quarrels at, nags, and harasses him; that her conduct is detrimental to his business and his health; and that it is impossible for him and his wife to live together.

¶5 Plaintiff further alleges that his wife is cruel to him; that she accuses him of having improper relations with other women; that she has jeopardized his life.

¶6 Plaintiff in his own behalf says he has been patient, meek, and kindly disposed toward his wife; all of which defendant denies.

¶7 Wishing to preserve the dignity of this honorable court, we limit comment.

¶8 The petition, prima facie, states sufficient facts, if true, to warrant the court granting a divorce.

¶9 Defendant says that plaintiff's evidence is insufficient, and does not support the judgment of the trial court granting plaintiff a divorce.

¶10 The testimony is conflicting, much of it incompetent, nearly all of it repeated from two to five times, composing nearly 100 pages of typewritten matter, all of which we have read and reread.

¶11 After a very careful study of the entire record in the case, we are unwilling to say that plaintiff has failed to establish or prove the allegations of his petition.

¶12 In the case of Stovall v. Stovall, 29 Okla. 125, 116 P. 791, this court held:

"Where, in an action for divorce on the ground of cruelty, the evidence is conflicting as to the facts and the fault, but there is sufficient evidence to sustain the decree of the trial court, the same will not be disturbed on appeal."

¶13 We are not unmindful that the trial judge was, or should have been, conversant with all the facts and circumstances developed and surrounding the divorce proceedings; he had the witnesses before him and was in a much better position to pass on their credibility than is this court. For these reasons, we cannot say or hold that the trial court erred in granting plaintiff a divorce. In view of our law which permits the court to grant a divorce to either of the parties to the action, the judgment of the court granting plaintiff a divorce from the defendant will be sustained.

¶14 Property Settlement.

The record shows that on February 23, 1929, the court rendered judgment granting plaintiff a divorce and on February 28, the court rendered a supplemental judgment adjudicating the property rights and decreed the care and custody of the children to the plaintiff.

The court in his findings of fact enumates and describes all of the property of plaintiff and defendant, consisting of many pieces of town and farm property, and concludes his findings of facts with the following statement:

"And that said property was acquired by the industry and out of the earnings of the plaintiff as an attorney at law."

With the above statement we cannot agree; neither is it borne out by the evidence.

¶15 Time and space will not permit this court to discuss in detail the property rights of these litigants. We think the evidence of plaintiff and defendant and of the witnesses sworn to testify clearly shows that all the property owned by plaintiff and defendant, except two pieces which we will notice hereafter, is the joint accumulation of both parties since their marriage. The evidence does show that at the time of the marriage the plaintiff had no business or property of any kind. The evidence does show that the defendant was reared, educated, and married in the state of Georgia; that her people are wealthy and highly respected. The evidence further shows that when plaintiff and defendant were married, defendant's father bought all the furniture and household goods with which these parties began housekeeping; and the home was well furnished. The evidence shows that plaintiff had title to or interest in a one-half acre tract of land in Georgia of but little or no value; that he borrowed $ 200 from his mother-in-law and deeded her the land as security for the loan. Plaintiff in his testimony (C.-M. 219) said he sold the land, the one-half acre, for $ 60 and that the $ 200 was never paid. The evidence further shows that at the time of defendant's marriage she was teaching school; that she continued to teach for some time after marriage; that she turned all of her wages over to the plaintiff at the close of each month. The record clearly shows that at the time of the marriage, plaintiff had no property or business; that the money or property received from defendant's people and what she earned by teaching school enabled them to come to Oklahoma. The record shows that soon after plaintiff and defendant moved to Oklahoma, defendant's people purchased and deeded to the defendant a piece of property in Muskogee, Okla., which property is known and referred to as the "24th St. property" and described by the court as: "South 1/2 of lots 1 and 2 and all of lots 4, 5 and 6 in block 1, Love's addition to the city of Muskogee, Okla.". Defendant testifies that the 24th street property was deeded to her by her people to enable...