Harden v. Harden
| Decision Date | 25 January 1938 |
| Docket Number | 27562,27522. |
| Citation | 77 P.2d 721,182 Okla. 364,1938 OK 54 |
| Parties | HARDEN v. HARDEN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 8, 1938.
Application for Leave to File Second Petition for Rehearing Denied April 5, 1938.
Syllabus by the Court.
1. In a wife's action for divorce, where alimony and division of property is sought, if there is no jointly acquired property she is not entitled to a division of property as a matter of right, and whether alimony is to be awarded her in money or in specific property rests in the sound discretion of the court.
2. The land allotted to a citizen of one of the Five Civilized Tribes as his distributive share of the lands of the tribe to which he belongs does not constitute jointly acquired property of the said allottee and his wife within the meaning of the divorce and alimony statutes, although his citizenship in said tribe may have been the direct result of their marriage.
3. In a divorce proceeding the homestead, to which title is in the husband, need not necessarily be dealt with separately, but may be treated as any other of the husband's separate estate, and especially so when adequate alimony award is made to the wife either in money or other specific property.
4. When the wife is granted a divorce on account of the fault or aggression of the husband, an award of alimony in money which is reasonable in view of the status of the parties and their respective property holdings, will not be disturbed on appeal at the complaint of either party. In considering the reasonableness of the amount of alimony awarded, it is proper, among other things, to consider the divorced wife's loss of probable inheritance rights as applied to the property and estate then owned by the husband, whose fault or aggression has made necessary the termination of the marriage relation by divorce, and the wife's right to alimony is not limited as to amount merely to the requirements of her necessary maintenance.
5. Record examined, and held, the judgment appealed from is not against the clear weight of the evidence as to decree of divorce and alimony, but that trial court erred in decreeing a trust of the alimony awarded the wife in cash.
Appeal from District Court, Pontotoc County; Lucius Babcock, Judge.
Action by Elizabeth Harden against Andrew J. Harden for divorce alimony, and division of property. Judgment for plaintiff and both parties appeal.
Affirmed, with modifications.
N. E. McNeill, of Tulsa, and Wimbish, & Wimbish, of Ada, for Elizabeth Harden.
W. W. Pryor, of Wewoka, and C. F. Green, of Ada, for Andrew J. Harden.
The trial court granted plaintiff a divorce on account of fault of the defendant, and decreed plaintiff alimony in the sum of $300,000. Both parties appealed. They will be referred to herein as they appeared in the trial court.
The plaintiff contends that the trial court erred in refusing to decree her a division of property, contending that there was property jointly acquired which under section 672, O.S.1931, 12 Okl.St.Ann. § 1278, should have been divided between the parties.
The parties were married about the year 1880, and lived together for many years on a portion of the land now belonging to defendant. Several children were born of the union, all now past majority. Plaintiff abandoned the defendant in 1914, moved away from the homestead, and has ever since lived separate and apart from him.
This abandonment, however, according to the evidence and the judgment of the trial court, was justified on account of the fault of the defendant. The property here involved consists of land recently highly valuable by discovery of oil, together with moneys already received by defendant for oil, or moneys held for him as payment for oil runs. Most of the land involved came to defendant by allotment as an intermarried citizen of the Chickasaw Nation. Eighty acres of the land was purchased by defendant some time after the plaintiff had moved away from the home; the plaintiff joining with defendant in executing a mortgage on this eighty acres as security for a portion of the purchase price thereof.
Plaintiff contends that because she was of Indian blood the defendant's allotment was jointly acquired within the meaning of the statute, and that the eighty-acre tract was jointly acquired by reason of the circumstances of the purchase thereof. We are of the view, however, that the defendant's allotment came to him by reason of his being treated as a member of the Chickasaw Tribe of Indians, and was the direct result of his citizenship in the tribe. While the marriage may have been the means through which defendant attained to citizenship, the plaintiff had no part in the defendant's acquisition of the allotment within the meaning of the statute. An Indian allotment is not acquired by industry or effort of the allottee, but by reason of his acceptance and registration and enrollment as a member of the tribe. Albert v. Albert, 120 Okl. 172, 251 P. 476. And as to the purchase of the eighty acres by the defendant after plaintiff had moved away, there is no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties. The plaintiff likewise had an allotment of land, and after she moved away from the defendant in 1914 she handled her affairs and her property separately, and the defendant handled his affairs and his property separately. The parties never lived together after defendant acquired this eighty acres. It was merely necessary, by reason of the marital status, that both husband and wife sign the mortgage securing the balance of the purchase price of the eighty acres (perhaps it was demanded so by the mortgagee), and the mere fact that plaintiff joined in the execution of the mortgage would not make the purchase a joint acquisition. We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute.
The plaintiff in an effort to obtain a division of the land has raised the question of the homestead character of the land or some portion thereof. We find no controlling force in this contention. In a divorce proceeding the homestead may be treated as any other property, and might be set aside to the wife or left with the husband. If the title is in the husband and no disposition is made thereof, it remains the property of the husband, Goldsborough v. Hewitt, 23 Okl. 66, 99 P. 907, 138 Am.St.Rep. 795, and if the court deals fairly with the wife by an alimony decree of money or property, taking into consideration the value of the homestead and other property, then the wife has no just grounds for complaint based merely on the contention that the homestead was not divided between the parties or decreed to her.
Under the circumstances here the plaintiff had no fixed right to a division of the property or any part thereof. There was no jointly acquired property. There was ample competent evidence justifying the conclusion of the trial court that the plaintiff was entitled to a divorce by reason of the fault or aggression of the husband, and she was entitled to alimony either in specific property or in money in a reasonable amount.
The trial court found that plaintiff should have alimony in the sum of $300,000. $6,000 had already been paid, and the trial court required that $94,000 additional be paid forthwith and $100,000 be paid on July 1, 1937, and the remaining $100,000 be paid July 1, 1938. The court was provided with ample statutory authorities to render such a decree. The question remaining is of its reasonableness under the circumstances.
The plaintiff contends that a larger award should have been made, while the defendant contends that the amount awarded is unreasonable and excessive. The aggregate value of the defendant's estate at the time of the trial was slightly in excess of $1,000,000, while at that time the value of any property owned by the plaintiff was practically nothing. It satisfactorily appears from the record that the separation of the parties was the result of defendant's improper treatment of plaintiff extending over a long period of time, and that the plaintiff was without any serious fault, and the trial court so found. Numerous facts and circumstances are to be considered by this court in passing upon the reasonableness of an alimony award. Those considerations have been mentioned in numerous prior decisions, including our opinions in Dresser v. Dresser, 164 Okl. 94, 22 P.2d 1012, and Tobin v. Tobin, 89 Okl. 12, 213 P. 884.
It is not necessary that all such considerations be here restated. We do state, however, that it is proper, among other things, to include a fair consideration of the divorced wife's loss of the right of inheritance. 19 C.J. 257; see Wheeler v. Wheeler, 167 Okl. 598, 32 P.2d 305; Dresser v. Dresser, supra, and Wiggin v. Buzzell, 58 N.H. 329.
In states where the wife has the right of dower, the court in passing upon the reasonableness of an alimony award takes into consideration the loss of such dower rights by divorce. Wesley v. Wesley, 181 Ky. 135, 204 S.W. 165; DeMauriac v. DeMauriac, 243 Mich. 385, 220 N.W. 786.
In our state rights of dower are abolished, but the wife has a contingent right of inheritance, and rights even against alienation by will, in which she is fully protected by statute. And where the divorce is necessary by reason of the fault of the husband, it is but natural justice that in fixing an award of alimony all of these rights of the wife as applied to the property presently owned should be taken into consideration.
We do not mean to say that that amount of alimony...
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