Goff v. Goff

• Citation: 396 P.2d 513
• Decision Date: 27 October 1964
• Docket Number: No. 40607,40607
• Parties: Alma Louise GOFF, Plaintiff in Error, v. Hayward Robert GOFF, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 513

396 P.2d 513

1964 OK 232

Alma Louise GOFF, Plaintiff in Error, v. Hayward Robert GOFF, Defendant in Error.

No. 40607.

Supreme Court of Oklahoma.

Oct. 27, 1964.

Syllabus by the Court

1. While a party to an action should have reasonable opportunity to attend its trial, she cannot deliberately, with notice, and without valid reason therefor, absent herself from the trial and later obtain reversal of the judgment rendered in her absence, solely because of her absence and because her counsel, who did attend, objected generally to the court proceeding at that time.

2. Where, in a divorce action, the court sustained defendant's motion to continue the further trial thereof, by an order setting further trial on a certain day in the future, in which order the court found that a competency hearing, involving defendant, was pending in the County Court and that she should submit herself there for examination '* * * or in the alternative that * * *' the divorce action '* * * should be brought to conclusion * * *' on said future date; and, on the latter date, said defendant failed to appear except by her counsel, who then objected to going to trial, but, as far as the record shows did not specify any ground for such objection and made no motion for a further continuance; Held: Under the circumstances shown by the record, the court neither abused its discretion nor committed reversible error in overruling defense counsel's objection and forthwith proceeding to finish the trial and enter a decree favorable to plaintiff.

Appeal from the District Court of Tulsa County; Leslie Webb, Judge.

Action by husband, as plaintiff, for divorce, property division, and child custody. After first day of trial, when defendant testified, and, after other continuances granted her, the court continued the case to a certain day for final disposition, and on that day finished the trial and entered a decree for plaintiff, in defendant's absence. After the overruling of her motion for a new trial, defendant appealed. Affirmed.

Brown & Garrison, Tulsa, for plaintiff in error.

Landrith, McGee & Dowd, Tulsa, for defendant in error.

BLACKBIRD, Chief Justice.

After the parties to this action had agreed to attempt a reconciliation and had dismissed a previous divorce action in September, 1960, and had resumed living together as husband and wife in their rural home near the Tulsa-Osage County boundary, plaintiff in error, hereinafter referred to as defendant, left Oklahoma in May, 1961, and returned to her former home city of Columbia, Missouri, where the couple had married in 1946.

Thereafter, in June, 1961, defendant in error, hereinafter referred to as plaintiff, instituted the present action for divorce, an equitable property settlement, and custody of the couple's only child, a son, then 13 years old.

In the answer and cross-petition she thereafter filed in the case, the defendant also prayed for a divorce, and, among other things, for an equitable property settlement, and custody of the son.

At a hearing held August 18, 1961, on defendant's motion for alimony pendente lite, at the close of which she was awarded custody of the son until the first of the next month (at which time the boy was to be turned over to plaintiff), and one-half of a joint income tax refund the parties had received in the amount of $424.00, the court also directed that if the case was not ready for trial on its merits the following October 1st, plaintiff would then be required to start paying defendant the sum of $135.00 per month.

On November 19, 1961, the day the case was subsequently scheduled for trial on its merits, defendant did not appear and the court granted plaintiff a default divorce decree. The next day, this decree was set aside on application of defendant's counsel, and the case was again set for trial thirty days later.

After the second trial started December 19, 1961, much of the evidence introduced concerned financial assets the couple had accumulated during their marriage, and how, according to plaintiff's evidence, they had been liquidated, and disposed of, during the year ending August 31, 1961 (which included the approximate 9-month period they lived together after the above-mentioned 1960 reconciliation agreement, and extended approximately three months past the filing of the present action).

The major part of these accumulations were represented by the couple's home. Shortly after the reconciliation agreement, or in, or near the early part of September, 1960, the home was sold to plaintiff's brother, and his wife Mr. and Mrs. Edmond Goff, upon defendant's insistance that, on account of the couple's son, they needed to live in a less remote area, where he could have the companionship of other children his age. After the sale of the home was closed for a total consideration of $7,650.00, plaintiff and defendant continued to live in it at a rental of $65.00 per month, during and after the period that the purchasers were arranging for the money to pay its sale price in cash, and until defendant departed for Missouri, as aforesaid.

According to plaintiff's testimony and a written statement compiled by a firm of certified public accountants he introduced in evidence, $7,285.00 of the home's sale proceeds was delivered to defendant in cash during the one-year period from August 31, 1960, to August 31, 1961. Plaintiff introduced three writings contemplated to help show that $557.00 of this cash was delivered to defendant in three payments occurring on September 2nd, 6th and 8th, respectively, in 1960. These payments became one of the principal subjects of controversy at the trial, and are prominently mentioned in this appeal. The writings evidencing them are in a form similar to that commonly referred to as customer's drafts, or checks, on which, among others, there are blank spaces to be filled by the name of the bank on which they are to be drawn. According to plaintiff's testimony, defendant would not accept checks for these payments. Consequently he kept the checks as receipts from her for cash delivered to her in the amounts and on the dates shown thereon, after they had been endorsed and had cleared the bank on which they were drawn. He further testified that in order that she would not be apprised of the identity of the out-of-state bank he was using as the depository of these funds, the space provided on the draft, or check, forms for the bank's name was left blank until after defendant had endorsed them in exchange for the amounts of money specified thereon. Thereafter, the name of a Joplin, Missouri, bank was written in that blank space on the checks, and they were presented to said bank after Edmond Goff's endorsement was added to defendant's. Plaintiff's evidence was that the amounts of $4,100.00, $270.00, and $1200.00, respectively, for which the three checks appear on their faces to have been drawn, were the amounts of cash he actually handed to defendant when she endorsed them. She denied this, and testified that the amounts of cash she actually received from plaintiff at those times were: $100.00, $70.00, and $200.00, respectively. By her attorney's belabored and repetitious cross-examination of plaintiff, defendant's...