Hauser v. Hauser

• Decision Date: 16 September 1969
• Docket Number: No. 42657,42657
• Parties: Earnest K. HAUSER, Plaintiff in Error, v. Nona Lee HAUSER, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 436

460 P.2d 436

Earnest K. HAUSER, Plaintiff in Error, v. Nona Lee HAUSER, Defendant in Error.

No. 42657.

Supreme Court of Oklahoma.

Sept. 16, 1969.

J. Warren Jackman, of Northcutt, Northcutt & Jackman, Ponca City, for plaintiff in error.

Thomas M. Smith, Roy E. Grantham, Ponca City, for defendant in error.

BERRY, Vice Chief Justice:

August 10, 1966, Earnest K. Hauser filed suit for divorce upon grounds defendant's activities and practices had created a state of incompatibility. The petition alleged marriage of the parties June 14, 1946, birth of two children, one then a minor, execution of a property settlement contract, and fitness of plaintiff in whose custody the children wished to remain. Plaintiff asked for divorce, confirmation of the contract settling property rights, and order fixing custody of the children.

Defendant answered admitting allegations as to marital community and existence of a state of incompatibility, but denied this resulted from fault on her part. Execution of the settlement contract was admitted, but defendant denied same was fairly and voluntarily entered into, or the division made fairly or equitably distributed the parties' property.

The cross-petition alleged use of threatening and abusive language against defendant in private and public, coupled with plaintiff's private and public conduct, humiliated defendant and constituted extreme cruelty, and incompatibility which had existed since January 1, 1965, and had destroyed the legitimate aims of matrimony. Defendant itemized extensive real and personal property, allegedly acquired by joint endeavor, valued at $165,000.00, subject to $30,000.00 indebtedness. The unfair and inequitable property division established by the contract, having been induced by plaintiff's misleading statements and fraudulent acts, should be vacated. Further, the daughter was of age, but best interests of the minor son required his custody be granted defendant. Because in ill health, destitute of means, and living apart from plaintiff, sum of $200.00 per month should be allowed during pendency of action. Defendant asked absolute divorce, custody of the minor child, equitable property division, temporary living expenses and permanent order for child support, temporary attorney fee of $1,000.00 with balance of fee upon conclusion of the action, and cancellation of the settlement contract. August 24, 1966, the trial court granted a temporary order for support and payment of $1,000.00 attorney's fee.

February 3, 1967, the daughter, joined by the minor son who appeared by next friend, asked leave to intervene in the divorce action, to establish their joint claim to equitable ownership of 80 acres which defendant alleged to be jointly held property. This application was granted and appropriate order of intervention entered. Their intervention petition alleged over many years the parents had appropriated approximately $4,000.00 in cash and services from intervenors, had retained proceeds from sale of livestock owned by intervenors, had employed intervenors in farm labor at a reduced rate of pay, and had withdrawn cash from intervenors' bank account for benefit and use of plaintiff and defendant. The moneys and services received, coupled with desire to insure education for intervenors, were part consideration for gift, and agreement to convey the 80 acres tract then held in trust by the parents. Intervenors prayed adjudication of their equitable ownership, revocation of trust theretofore created by their parents, and conveyance of legal title to intervenors, or to suitable trustees other than the parents. Plaintiff acknowledged intervenors' claim this tract was held in trust, disclaimed and released any claim and asked the court to grant the relief sought. Defendant denied all matters alleged by intervenors except their status as natural children.

The reply generally denied allegations of defendant's answer. In answer to the cross-petition plaintiff denied his alleged misconduct, and charged defendant with irresponsibility, neglect of family and household duties, harassment, and conduct creating disharmony and incompatibility. Plaintiff denied all real property was jointly acquired, 196.5 acres having been purchased with separate funds and held in his own name and in partnership with his father. Remainder of the real estate was jointly acquired, although 80 acres claimed by intervenors had been purchased with their earnings and was held in trust until their majority. Prior to marriage plaintiff operated under a partnership with his father, and had livestock, equipment, etc. valued at $13,264.00 in his own name, these assets having been utilized by the parties in acquisition of property involved herein. Prior to filing this action defendant left the family and demanded a divorce. Plaintiff agreed to this demand and entered into a fair and equitable settlement contract, considered upon basis of his separately acquired property and extent of these parties' financial obligations. Plaintiff asked divorce, equitable property division with due regard for previously acquired property, property belonging to intervenors and the parties' indebtedness. Plaintiff also asked permanent custody of the children.

For reply to plaintiff's answer to the cross-petition defendant denied all matters other than existing incompatibility, reiterated her former prayer for alimony judgment, same to be a lien upon plaintiff's property, and reasserted prayer for all relief sought in the cross-petition.

The issues involved in the divorce action were tried in three installments. The evidence was severely conflicting. No purpose would be served by reviewing in detail evidence supporting charges and countercharges of misconduct and laxity in family affairs offered by each party respecting various aspects of family discord. Plaintiff's claims of provocation were supported in many respects by testimony of members of the immediate family (children). However, there was condemnatory evidence sufficiently censurable to support granting of divorce to defendant upon grounds alleged in the cross-petition. Thus matters relating to the divorce decree do not require further mention.

Neither the adult daughter nor the minor son, who intervened by his next friend, appealed from that portion of the decree which denied their claim to 80 acres assertedly held in trust for intervenors. Absent appeal we do not reach consideration either of the trial court's finding no trust was established, or whether the described tract properly was included in calculation of the total assets subjected to property division.

The real property was subjected to independent appraisal by agreement of the parties. Total valuation of $83,100.00 was placed upon real property and improvements, undeveloped oil royalty, and a dwelling in Ponca City. Included in the appraisal was plaintiff's undivided 1/6th interest in 203 acres of land valued at $50,000.00, which was subject to a life estate in plaintiff's mother. At the trial plaintiff offered expert testimony fixing $25,856.50 as value of cattle, farm equipment and machinery. This valuation was uncontroverted, other than defendant's testimony certain items had been omitted. These included a 1962 automobile in defendant's possession, another 1962 automobile driven by and considered as being the children's auto; stock in a farm co-operative, but not subject to disposition except upon owner's death or cessation of farming operations; miscellaneous equipment (garden tractor, lawn mowers, horse trailer, hayloader and welding machine). Other than the co-operative stock there was no testimony as to value of such items, although plaintiff asserts this property was evaluated and included as miscellaneous equipment in appraisal of personal property.

Plaintiff also held approximately 800 acres under agricultural grazing and farming leases, including 160 acres belonging to his mother. However, at time of trial approximately half this acreage had been surrendered, or was not being re-leased because of increased rentals. Evidence of income from all farming operations, including the leased lands, was introduced. The accountants' statements and copies of plaintiff's income tax returns for years 1961--1966 inclusive, showed average yearly...