Davis v. Davis

• Decision Date: 21 November 1916
• Docket Number: 7317.
• Citation: 161 P. 190,61 Okla. 275,1916 OK 634
• Parties: DAVIS v. DAVIS.
• Court: Oklahoma Supreme Court

161 P. 190

61 Okla. 275, 1916 OK 634

DAVIS v. DAVIS.

No. 7317.

Supreme Court of Oklahoma

November 21, 1916

Syllabus by the Court.

"Alimony" is defined to be an allowance which a husband or a former husband may be forced to pay to his wife or former wife living legally separate from him, for her maintenance.

If the wife choose to live separate and apart from the husband there being no reasonable cause for her abandonment of her husband, he cannot legally be required to contribute to her maintenance, nor can alimony in any form be granted her.

Where in an action by a wife against her husband to obtain a divorce and alimony, the court finds that the wife is not entitled to a divorce or alimony and both are refused, the court is authorized under section 4966, Rev. Laws 1910, to make such order as may be proper for the equitable division of the property then owned by them, taking into consideration the time and manner of its acquisition.

Commissioners' Opinion, Division No. 4. Error from District Court, Marshall County; Jesse M. Hatchett, Judge.

Action by Mittie Davis against W. Lee Davis. From the judgment, both parties bring error. Modified and affirmed.

McPherren & Cochran, of Durant, and F. E. Kennamer, of Madill, for plaintiff in error.

Hatchett & Ferguson, of Durant, for defendant in error.

MATHEWS C.

The parties will be designated as in the trial court. This is a divorce action by the plaintiff based upon the allegations of extreme cruelty, gross neglect of duty, and other matters, and concluding with a prayer for divorce, custody of the children, and division of the property.

The case was tried to the court, who made the following findings:

"(1) That the allegation in plaintiff's petition to the effect that the defendant was guilty of cruel treatment toward plaintiff is not established by the evidence.

(2) That the allegation of the petition of the plaintiff to the effect that the defendant was addicted to the use of drugs of any kind is not established by the evidence.

(3) That the allegation of the amendment to the petition of the plaintiff that the defendant was guilty of adultery is not established by the evidence.

(4) That the plaintiff left the home of the plaintiff and defendant without sufficient cause.

(5) That the defendant provided well for his family, and after the separation and up to the trial at the last term of this court the defendant voluntarily paid to the plaintiff for the support of herself and children the sum of $30 per month, and has thereafter paid said sum upon the order of the court.

(6) That the defendant at the trial expressed himself as willing to receive the plaintiff back to their home, and it is the opinion of this court that they ought to still be living together.

The court found further that the plaintiff is not entitled to the decree of divorce upon the proof in this case, and that the plaintiff is entitled as to alimony the sum of $600, to be paid in six months from this date, and the undivided one-half interest of the plaintiff, W. Lee Davis, in [description of land omitted], subject to a mortgage debt thereon in the sum of $900, with interest, which the plaintiff, Mittie Davis, is to assume and pay. Defendant excepts to the finding as to alimony.

That the plaintiff is entitled to the custody of the three children, Bernice, Earl, and _____ Davis, and the sum of $30 per month, to be paid by the defendant, W. Lee Davis, on the 1st of each month, to the plaintiff, Mittie Davis, for the support of the said children. Defendant excepts."

The judgment was in accord with the findings, and the defendant brings his appeal from said judgment, and the plaintiff her cross-appeal from that part of the judgment denying her a divorce. In regard to the cross-appeal of plaintiff we deem it unnecessary to review the evidence in this opinion, but we have carefully read the entire record, and fully indorse the conclusion of the trial court that plaintiff was not entitled to a decree of divorce. The trial court had the opportunity of observing the conduct and demeanor of the parties while upon the witness stand, and hearing them and their witnesses testify, and was in a much better position to weigh the evidence than we are, and his conclusion must control here when the evidence clearly does not preponderate against it.

It is defendant's contention that the trial court, having found that the allegations of the petition were not proven, erred: (1) In awarding the plaintiff alimony while the plaintiff wrongfully lived apart from the defendant; and (2) in awarding the care, custody, and control of the children to plaintiff.

The proposition whether or not the trial court has the authority in a divorce action to refuse a decree of divorce and to grant one of the complaining parties a distribution of the property or the care and custody of the children born to the marriage seems never to have been passed on by this court, and as far as we have been able to discover is here for the first time as an original proposition.

It is evident that the judgment of the trial court is not founded upon section 4969, Rev. Laws 1910, because this section relates to the procedure when the divorce is granted. It is equally evident that it was not based upon section 4975, as this section has to do with actions brought for alimony without praying for a divorce. The judgment therefore cannot be sustained unless section 4966 authorizes it, which is as follows:

"4966. When the parties appear to be in equal wrong the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance, and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties."

We find no fault with defendant's assertion that a wife voluntarily living apart from her husband cannot compel him to support her or exact alimony of him unless such separation is caused by the misconduct of the husband. We agree that it is the duty of the wife to live with the husband at the place and in the home selected by him, which he has the sole right, within reasonable limitations, to choose, and if without good cause she departs therefrom, she forfeits her legal claim to support from him while residing elsewhere than with him. The technical term for support for the wife while living separate and apart from her husband is alimony--temporary alimony before the divorce is granted and permanent alimony after the decree.

In the case of Poloke v. Poloke, 37 Okl. 70, 130 P. 535,

Ann. Cas. 1915B, 793, alimony is defined as follows:

" 'Alimony' is an allowance which the husband pays, by order of the court, to his wife for her maintenance while living separate from him, where no suit is brought for divorce, or during the pendency of a divorce suit, or after the divorce is granted."

This allowance termed "alimony" may be made in a bulk sum in property or money, or in money payments to be made at certain definite periods.

Defendant has cited the following cases in support of his contention that the court erred in decreeing certain property and the care and custody of the children to plaintiff after denying her a divorce: Bensen v. Bensen, 20 Cal.App. 462, 129 P. 596; Volkmar v. Volkmar, 147 Cal. 175, 81 P. 413; McMullin v. McMullin, 123 Cal. 653, 56 P. 554; Peyre v. Peyre, 79 Cal. 336, 21 P. 838; Hagle v. Hagle, 74 Cal. 608, 16 P. 518; Johnston v. Johnston, 54 Kan. 726, 39 P. 725; Latham v. Latham, 30 Grat. (Va.) 307; Griffin v. Griffin, 8 B. Mon. (Ky.) 121; Woolfolk v. Woolfolk, 96 Ky. 657, 29 S.W. 742; Springer v. Springer (Ky.) 54 S.W. 710; Davis v. Davis, 75 N.Y. 221.

An examination of all of the above-cited cases show that they had to do with alimony and separate maintenance, and simply hold that, if the wife choose to live separate and apart from the husband, there being no reasonable cause for her abandonment of her husband, he cannot be required to contribute to her maintenance, nor can alimony in any form be granted her. Section 4975 specifically provides that alimony without a divorce may be obtained only for the same causes for which a divorce may be allowed. Birdzell v. Birdzell, 33 Kan. 433, 6 P. 561, 52 Am. Rep. 539.

In the judgment in the case at bar the tract of land and money decreed plaintiff was specified as "alimony," but it is plainly apparent that this is a misnomer; for the judgment is in fact nothing but an attempt to divide the property of plaintiff and defendant and an effort to provide for the payment of a certain sum each month for the...