Harden v. Harden

Decision Date09 June 1942
Docket Number30375.
CourtOklahoma Supreme Court

Rehearing Denied Oct. 6, 1942.

Second Petition for Rehearing Denied Sept. 14, 1943.

Syllabus by the Court.

1. Where a judgment or decree bears interest under statute or by the terms of the decree, the question whether interest is suspended pending appeal is largely determined by the character of the case and the result of the appeal.

2. Cases involving divorce and alimony are in a class apart from those wherein judgments for money only are sought. In such cases many things are to be taken into consideration in fixing the amount of alimony which cannot be considered in an ordinary action for the recovery of money only.

3. In an action by a wife for divorce, division of property or alimony, divorce was granted the wife and division of property was denied and alimony in a definite sum was allowed, and a trust was ordered created and a trustee was designated to collect and hold the money for the wife, and the decree provided for payment of a part of the sum so awarded, at once, and the balance in annual installments with the provision that any part thereof not paid when due under the decree should bear interest at the statutory rate of six per cent, and the husband appealed contending that the wife was entitled to no alimony, and the wife appealed contending that she was entitled to equal division of property and, if that be denied, she was entitled to a greater amount in money, and also appealed from that part of the decree which created a trust, and upon appeal the decree of the trial court was in all things affirmed, except that part which created a trust, which was vacated, held: That the fact that both parties appealed did not deprive the wife of the right to collect interest on that part of the money judgment which became overdue pending the appeal.

Appeal from District Court, Pontotoc County; Lucius Babcock, Judge.

Action by Andrew J. Harden against Elizabeth Harden to enjoin enforcement of the execution on a judgment, and for a decree declaring the judgment to have been fully satisfied and paid. From a judgment and decree in favor of the plaintiff, the defendant appeals. The cause is revived in the name of Andrew J. Harden, Jr., executor of the estate of Andrew J. Harden deceased.

Judgment and decree reversed, with directions to enter judgment for defendant.

WELCH C.J., and CORN, V. C.J., dissenting.

N. E McNeill, of Tulsa, and Crump & Carver, of Wewoka, for plaintiff in error.

Busby Harrell & Trice, of Ada, for defendant in error.

RILEY Justice.

This appeal involves the right of plaintiff in error, defendant below, to collect interest on a judgment for alimony pending appeal to this court from a decree granting her a divorce and awarding her alimony.

In 1935 Elizabeth Harden brought suit against Andrew J. Harden for a divorce, division of property and alimony. She contended that all or nearly all the real property then standing in the name of Andrew J. Harden, her husband, was property jointly acquired during coverture, and sought an equal division thereof in settlement of her property rights.

In the decree she was granted a divorce but was denied a division of the property in kind. Certain real property located in the City of Ada and certain oil stocks were set aside to her. The other real estate standing in the name of the defendant, Andrew J. Harden, together with money due for oil and gas produced therefrom then in the possession of the pipe line companies, approximately $190,000, was decreed to defendant, Andrew J. Harden. Andrew J. Harden was further ordered to pay to Mrs. Harden, as alimony, the sum of $300,000 less $6,000 theretofore paid as alimony, suit money and attorneys' fees.

The decree was entered in the District Court of Pontotoc County on July 1, 1936, and provided that the $294,000 should be paid as follows: $94,000 forthwith, $100,000 July 1, 1937 and $100,000 July 1, 1938, and that said amounts or any part thereof, if not paid within the time specified, to draw interest at the legal rate per annum from the due date, until paid. The decree then provided that The First National Bank & Trust Company of Tulsa, Oklahoma, be designated and appointed as trustee for plaintiff, Elizabeth Harden, to collect and receive said sums of money and hold same in trust for the use and benefit of plaintiff, and directed how said money should be paid out. Both parties were dissatisfied with the decree, and each filed a motion for new trial. The motions were both overruled. Andrew J. Harden appealed and perfected his appeal October 14, 1936. Elizabeth Harden perfected her separate appeal October 30, 1936.

The appeals were consolidated. On final hearing in this court, the decree was in all things affirmed except that part thereof decreeing a trust of the alimony award, which was vacated. Harden v. Harden, 182 Okl. 364, 77 P.2d 721.

Mandate issued from this court on April 5, 1938.

April 15, 1938 motion to spread the mandate of record in the District Court of Pontotoc County came on for hearing at which time defendant Andrew J. Harden appeared and filed a motion or request that the court render judgment under the mandate to the effect that defendant be adjudged to pay the $194,000 then due under the original decree, with interest only from April 15, 1938, and the remaining $100,000 July 1, 1938, with interest from that date. This motion was based upon the theory that by reason of Elizabeth Harden's having appealed from the decision of the trial court and having obtained a modification of the decree, she was not entitled to collect interest on that part of the judgment which became overdue pending the appeal. The motion was denied and defendant gave notice of appeal, but no appeal was taken.

Thereupon, the mandate was spread of record, affirming the original decree as modified by the Supreme Court.

On April 21, 1938, Andrew J. Harden paid Mrs. Harden the sum of $194,000 under a stipulation that said payment was without prejudice of the rights of Mrs. Harden to claim payment of interest on said sum to said date. The $100,000 due July 1, 1938, was paid on said date and there is no controversy thereover.

September 15, 1938, Mrs. Harden, claiming that there was then due her, as interest on the $194,000 from the dates it became due under the original decree until paid, in the sum of $15,029, caused execution to be issued.

Thereupon, Andrew J. Harden commenced this action to enjoin enforcement of the execution and for a decree declaring the judgment to have been fully satisfied and paid.

Issues were joined and trial had resulting in a judgment and decree denying Mrs. Harden's right to recover interest, cancelling the judgment as having been fully paid and satisfied, and enjoining further attempt to collect the interest claimed, and defendant appeals.

Plaintiff, Andrew J. Harden, having died, the cause was revived in the name of Andrew J. Harden, Jr., executor of the estate of Andrew J. Harden, deceased.

There are many assignments of error going to the findings of fact by the trial court, but the principal and substantially the only questions presented go to the conclusions of law based upon the findings. There is but little controversy over the facts.

Plaintiff in error presents several propositions, which we think unnecessary to discuss. They may be, for the most part, considered as included in the sixth and last proposition, viz: "The judgment of the trial court is contrary to law when applied to the undisputed facts."

The only question involved is whether Elizabeth Harden, by appealing in the divorce proceedings, forfeited her right to collect interest on the alimony award, pending the appeal, where the decree, as to the amount of alimony, was in all things affirmed.

The question of the suspension of interest pending appeal is one largely determined by the character of the case and the result of the appeal. 33 C.J. 247.

By the clear provisions of the decree of divorce awarding alimony, the decree itself fixed the time when the payment of the alimony should be made.

As between the plaintiff and defendant that decree and provisions were in all things affirmed. The only modification of the decree, as rendered by the trial court, was as to whom the payment should be made. The decree of the trial court was that the money should be paid to the trust company as above stated. The decree of this court was that it should be paid to plaintiff. With that part of the decree fixing the person to whom payment should be made, defendant Andrew J. Harden was not concerned. The modification of the decree in that respect did not in any way increase or decrease the liability of the defendant.

It is suggested that where both parties appeal from a judgment interest will not be allowed on the judgment, pending appeal, because both parties are responsible for delay in the payment thereof. This seems to be the rule where money judgments only are involved and there is no contract calling for interest. 33 C.J. 247.

But it is subject to the rule stated above, that the question of suspension of interest pending appeal is largely determined by the character of the case and the result of the appeal....

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