Frankovich v. Frankovich

• Decision Date: 07 October 1969
• Docket Number: No. 42755,42755
• Citation: 1969 OK 151,459 P.2d 583
• Parties: Kay Sharon FRANKOVICH, Plaintiff in Error, v. Franky V. FRANKOVICH, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 583

459 P.2d 583

Kay Sharon FRANKOVICH, Plaintiff in Error, v. Franky V. FRANKOVICH, Defendant in Error.

No. 42755.

Supreme Court of Oklahoma.

Oct. 7, 1969.

Miskovsky, Sullivan, Embry, Turner & Gregg, Oklahoma City, for plaintiff in error.

Lewis M. Watson, Ada, for defendant-cross petitioner in error.

LAVENDER, Justice:

This appeal began as an action for divorce by husband brought in the District Court of Pontotoc County, Oklahoma. The trial court granted the divorce to the husband and that portion of the judgment is not under attack here. The trial court also adjudged plaintiff to be the father of a female child born to defendant during the marriage; awarded custody of that child to defendant, and ordered plaintiff to make monthly payments for its support and maintenance. The trial court also awarded custody of a male child born of the marriage to its paternal grandparents. After the overruling of their respective motions for new trial, both parties have appealed here--the defendant, from the judgment placing the custody of the male child with its paternal grandparents, and the plaintiff, from the judgment concerning the paternity and orders for the support of the female child. The parties will be referred to by their respective trial court designations.

It is one of the defendant-wife's contentions that, although, at the time of the commencement of the action, both of the parties had been actual residents, in good faith, of the State of Oklahoma for many years, neither of them was a resident of Pontotoc County at the time of the filing of the plaintiff's petition and, therefore, the trial court was without jurisdiction to grant any relief. We shall consider that contention first.

The parties were married on July 24, 1965, at Konawa in Seminole County, Oklahoma, about a year after the plaintiff had entered the army. At the time he entered the army, the plaintiff was living with his parents near Asher in Pontotoc County, Oklahoma, and, quite clearly, considered that to be his 'home' at the time of the marriage, while the defendant was living with her parents, in Seminole County, and, quite clearly, considered that to be her 'home' at the time of the marriage. At least until late November or early December of 1965, the plaintiff would stay with the defendant at the home of her parents or at the home of his parents whenever he was in the vicinity on leave or on a week-end pass. In late November or early December of 1965, the defendant rented and moved into an apartment in Konawa, without the prior knowledge of the plaintiff, and, from then until he was sent to Germany by the army in March of 1966, the plaintiff spent a number of weekends and a 30-day leave with the defendant at this apartment in Konawa. On June 25th or 26th, 1966, the defendant moved to Oklahoma City and, on June 28, 1966, moved into an apartment in Midwest City, Oklahoma, and about four weeks later, moved into a house in Midwest City. The plaintiff returned to the states on leave on July 17, 1966, and the parties spent five days--July 26 through July 30--together, with two of those days being spent at Turner Falls and the other three days at her parents' home or at his parents' home, and separated on July 31, 1966. The plaintiff's petition for divorce was filed on August 4, 1966, and, at that time, his military records, including his then-current leave orders, still showed his 'Home of Record' as 'Route Two, Byars, Oklahoma,' which was his mailing address, in Pontotoc County, when he entered the army.

In short, plaintiff contends that he was a resident of Pontotoc County at the time he entered the army and had not changed his residence, and that, therefore, the action was properly brought in that county.

In Bixby v. Bixby (1961), Okl., 361 P.2d 1075, this court held, in the first paragraph of its syllabus, that:

'The phrase 'actual resident' and the word 'resident' as used in Title 12 O.S.1951 § 1272, as amended (in 1957), contemplate an actual residence with substantially the same attributes as are intended when the word 'domicile' is used;' and, in the body of the opinion said, among other things:

"The question of domicile in an action for divorce is one of fact, to be determined from the evidence in the case. The controlling fact to be considered is the fact of intention and to determine this fact the trial court, and this court on appeal, may take into consideration all the movements, transactions, and attending circumstances of the party or parties involved in the question;"

referring to Pope v. Pope, 116 Okl. 188, 243 P. 962. See also Greer v. Greer, 194 Okl. 181, 148 P.2d 156.

Assuming (without deciding) that 12 O.S.1961, § 1272, as amended in 1965, allows a divorce action to be filed only in the county of which the plaintiff is then a resident or in the county of which the defendant is then a resident, and applying the principles of law set forth in Bixby v. Bixby, supra, the trial court's finding that, at the commencement of the action, the plaintiff was, and for more than six months prior thereto had been, an actual resident, in good faith, of the State of Oklahoma, and, at the commencement of the action, was, and for more than thirty days prior thereto had been, an actual resident, in good faith, of Pontotoc County, and that the trial court had jurisdiction of the cause of action and of the parties thereto, is not clearly against the weight of the evidence. Consequently, that finding will not be disturbed by this court on appeal (Clark v. Clark (1961), Okl., 361 P.2d 207; McElreath v. McElreath (1957), Okl., 317 P.2d 225).

Shortly after filing his petition for a divorce, the plaintiff filed an application for an order awarding to the plaintiff or to the plaintiff's mother the temporary custody of a male child that had been born to the parties on February 20, 1966. After notice and hearing on August 17, 1966, at which both parties, their attorneys, and their parents were present, the trial court found that the defendant is not a fit and proper person to retain the custody of said minor child; that plaintiff should not be awarded the actual physical custody of said child by reason of the fact that he is in military service and the additional basic psychological fact that an infant child should have the care and attention of a female custodian; that the best interests and the welfare of said child would best be served by placing said child with the paternal grandparents (who consented thereto); and ordered that the temporary custody of said minor child be placed with its paternal grandparents, with directions to them to accord the child's mother and maternal grandparents reasonable visitations with the child in the home of the custodians at such times as would not interfere with the health and welfare of the child.

Thereafter, the defendant filed an answer and cross-petition in which she alleged, among other things, that she was pregnant by the plaintiff and the child was expected to be born in April of 1967, and that she was without income or means to pay the necessary medical and hospital expenses in connection with the birth of said child, or for her maintenance and support and the maintenance and support of the children of the parties, and prayed that she be granted a divorce from the plaintiff, an equitable share of the property acquired by the parties during their marriage, alimony in money, the care, custody and control of the male child mentioned above and of the other child when born, and that the plaintiff be required to provide for the support and maintenence of said children and for expenses in connection with the birth of the expected child, and to pay the defendant's attorney fees and costs, accrued and accruing.

The plaintiff's reply and answer to the cross-petition expressly denied paternity of the defendant's expected child, and alleged that, by reason of the defendant's conduct, as alleged in his reply and answer, she was not entitled to any of the relief prayed for in her cross-petition. The defendant denied the allegations concerning her conduct.

On January 4, 1967, the defendant filed a motion alleging the conclusion that, since the making of the order of August 17, 1966, the conditions and circumstances surrounding the parties had materially changed to such extent that the best interest of the male child would be served by awarding his custody to the defendant, and praying that such order be modified so as to confide his care, custody and control in his mother, the defendant. After a hearing thereon, the trial court overruled that motion but did modify the order of August 17, 1966, so as to allow the defendant the right of visitation with the child, away from the home of its paternal grandparents, for specified periods of time on each weekend.

The plaintiff had returned to his military station in Germany shortly after the hearing of August 17, 1966, and was in military service in Vietnam when the case was tried on the merits on June 6, 1967. In the meantime, on March 18, 1967, the defendant had been delivered of a female child. At the trial, the record of the proceedings had on August 17, 1966, including a deposition by the plaintiff and the depositions of other witnesses upon behalf of the plaintiff, which had been taken a few days after the commencement of the action and had been received in evidence at the hearing of August 17, 1966, were received in evidence. At the close of the trial, the trial court took the cause under advisement and continued it until August 16, 1967, for the rendition of judgment. Judgment was rendered on that date.

In addition to finding that, at the commencement of the action, the plaintiff was, and for more than six months prior thereto had been, an actual resident, in good faith, of the State of Oklahoma and, at the commencement of the action, the plaintiff was, and for more than thirty days prior thereto had been, an actual resident, in good faith, of ...