Every v. Every, 36663

• Decision Date: 10 January 1956
• Docket Number: No. 36663,36663
• Citation: 293 P.2d 612
• Parties: Mildred O. EVERY, Plaintiff in Error, v. John D. EVERY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 612

293 P.2d 612

1956 OK 6

Mildred O. EVERY, Plaintiff in Error, v. John D. EVERY, Defendant in Error.

No. 36663.

Supreme Court of Oklahoma.

Jan. 10, 1956.

Rehearing Denied Feb. 21, 1956.

Syllabus by the Court.

1. Condonation of grounds for divorce is accomplished when parties live together as husband and wife after divorce petition filed, but such condonation where breached by a subsequent act of cruelty by plaintiff, does not deprive the trial court of jurisdiction to hear defendant's answer and cross-petition subsequently filed and grant divorce thereon.

2. An order and judgment of the trial court, sustaining a motion for a new trial, vacating the judgment, and dismissing said cause, will be reversed where the record shows that the action taken was based solely upon an error in respect to a pure, simple, and unmixed question of law.

Appeal from the District Court of Pittsburg County; W. A. Lackey, Judge.

Action by John D. Every against Mildred O. Every for a divorce and property settlement. Judgment for defendant, and from orders sustaining motion for new trial, vacating said judgment and dismissing cause, the defendant appeals. Reversed with directions.

Brown, Brown & Brown, McAlester, for plaintiff in error.

Hill & Godfrey, Oklahoma City, for defendant in error.

PER CURIAM.

This action presents error from the District Court of Pittsburg County. John D. Every, defendant in error, plaintiff below, filed petition in that court praying a divorce from his wife, Mildred O. Every, plaintiff in error, defendant below, on the grounds of incompatibility. The parties will be referred to as they appeared in the trial court.

The parties were married in 1946, both plaintiff and defendant having been married before. The defendant has two children by her prior marriage, a daughter twelve years of age and a son seventeen. They seemed to have had more or less domestic unhappiness for some years past, most of which has occurred over the children of defendant and through financial difficulties.

On February 23, 1954, plaintiff filed petition and on that same day an ex parte restraining order against the defendant was issued. On February 24, 1954, defendant filed a response to plaintiff's application for the restraining order and in said response made application for temporary alimony, suit money, and custody and control of their automobile, which was allowed and an order made thereon after hearing had on March 1, 1954. On April 22, 1954, defendant filed application for contempt citation for plaintiff's failure to comply with the court's order and hearing was had thereon on April 24, 1954, at which plaintiff appeared and promised to bring court's order to date. On May 14, 1954, a reconciliation was effected between the parties at the instance of the plaintiff, and their former marital relations were resumed. The petition however, was not dismissed and remained pending and undisposed of.

On the evening of May 16, 1954, trouble was again had between the parties and plaintiff left their home. Afterwards, on May 27, 1954, defendant filed an answer and cross-petition, where she admitted the allegations of plaintiff's petition insofar as incompatibility existed, but alleged that such was brought about by fault of plaintiff and through no fault of her own; that if she had been at fault the same had been condoned by plaintiff by resumption of their marital status. In her cross-petition she alleged extreme cruelty on the part of plaintiff and therein set forth that the reconciliation effected as between her and the plaintiff was brought about by fraudulent promises of plaintiff; praying that she be awarded a decree of divorce from plaintiff, and that the property owned by them be awarded to her. A large amount of testimony was taken, most of which related to property of the parties. At the close of the testimony upon request of both plaintiff and defendant findings of fact and conclusions of law were made by the court, upon which judgment was rendered awarding the household goods, automobile, and farm as encumbered, to defendant, and awarding plaintiff his accumulated retirement rights from civil service employment. After the court announced said findings of fact and conclusions of law, plaintiff made oral motion to dismiss for the reason that said court did not have jurisdiction of the matter in view of the parties having resumed their marital status, contending that the attempted reconciliation of the parties was in effect a dismissal of the petition of plaintiff and, therefore, a bar to the granting of the divorce. The record reveals that this motion was not acted upon by the court until and after judgment was filed and motion for new trial sustained.

On June 14, 1954, judgment was entered awarding defendant a divorce and making distribution of the property as above set forth. On June 15, 1954, plaintiff filed a motion for new trial and hearing was had thereon on August 16, 1954, at which the court sustained the motion and further acted upon plaintiff's motion to dismiss which was offered at the close of the court's statement of findings of fact and conclusions of law, and dismissed both the petition of plaintiff and answer and cross-petition of defendant. The court's written order was signed and filed on August 18, 1954. Thereafter, on August 19, 1954, the court entered its order, (signed and filed on August 26, 1954), striking from the files his written order signed on August 18, 1954, and separate orders sustaining the motion for new trial and dismissing said cause were...