Howard v. Howard
| Decision Date | 30 September 1958 |
| Docket Number | No. 38051,38051 |
| Citation | 331 P.2d 946 |
| Parties | Claude Edward HOWARD, Plaintiff in Error, v. Martha Marie HOWARD and W. C. Adams, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where a divorce is granted to a wife because of the fault of the husband, and the wife is granted the custody of their minor children and the father is ordered to pay support money for their minor children, the father is not entitled to have such order cancelled or the amount thereof reduced on the ground that the wife and mother of minors has married a second husband who has admitted the minors to his home and consented to have them live as if they were his own.
2. The second husband is not a proper party defendant in a supplemental proceeding in a divorce action between his wife and her former husband after the divorce decree in the original action has become final and contempt proceedings against the first husband are pending.
3. An application for attorneys' fee to the wife in defense of a motion to modify a prior decree in a divorce action, relative to the support of minor children, is addressed to the sound discretion of the trial court and its ruling in this respect will not be disturbed on appeal in the absence of a showing of an abuse of discretion.
Appeal from District Court of Oklahoma County; W. R. Wallace, Jr., Judge.
After the original judgment Claude Edward Howard, a defendant in a divorce action by Martha Marie Howard, now Adams, filed a motion to make W. C. Adams, Martha Marie Howard's second husband, an additional party defendant and to modify the decree of divorce as to payment for child support. He also demurred to the application of the plaintiff for a citation of the defendant for failure to comply with the decree of divorce. From the order of the court sustaining the demurrer of W. C. Adams to the application to make him a party defendant and the order overruling the demurrer of defendant to plaintiffs' application for a citation the defendant appeals. Judgment affirmed.
Sid White, Oklahoma City, for plaintiff in error.
Francis G. Morgan, Oklahoma City, Edward H. Ferrish, Midwest City, for defendants in error.
June 10, 1955, the plaintiff, Martha Marie Howard, sued her husband, Claude Edward Howard for divorce in the District Court of Oklahoma County on the ground of incompatibility. She prayed for the custody of their two minor children, costs, attorney fees, temporary and permanent child support alimony and an equitable division of property. We shall refer to the parties as plaintiff and defendant as they appeared in the trial court.
Defendant filed an answer admitting his marriage to plaintiff and the fact that they had two children, 7 and 10 years of of age, but denied the other allegations of the petition.
August 11, 1955, plaintiff was granted a divorce, the custody of the children and defendant was ordered to pay $40 each week for child support. She was also awarded their home, furniture and fixtures and a 1950 Ford car. A debt due the parties was awarded to each in the sum of $1,500. Defendant was ordered to pay $50 as additional attorneys' fee for plaintiff in addition to the $100 previously allowed.
Defendant filed a motion for a new trial, and motion to modify the order in regard to child support, which the court granted by order of December 20, 1955. This required the defendant to pay $50 each two weeks, and also required full payment of the amount for child support in which he was in arrears. No appeal was taken from said order of December 20, 1955, and said order became final except as to the court's continuing jurisdiction to modify as to custody and child support.
June 7, 1957, defendant filed a motion to make W. C. Adams a party defendant and to modify the decree of divorce as to child support, alleging that on May 31, 1957, the plaintiff married W. C. Adams, who took the two minor children into his home as members of his family, thus assuming all duties and obligations of a natural parent and became bound to support them. Defendant prayed that he be relieved of child support payments, or that such payments should be greatly reduced.
The court made W. C. Adams a party defendant at once and required him to answer the motion of defendant to modify the child support order.
June 12, 1957, plaintiff filed an application that she be allowed temporary attorneys' fees because defendant had reopened the case by filing a motion to modify the divorce decree by reducing the amount of child support. The court ordered defendant to pay plaintiff's attorneys $150 within five days thereafter. This was modified on June 28, 1957, and the court ordered defendant to pay $100 attorneys' fees and court costs within twenty days.
August 2, 1957, plaintiff requested the court to issue a citation for contempt of court for defendant's failure to comply with the court's orders as to payment of attorneys' fees. The citation was issued.
Defendant filed a demurrer to plaintiff's application for citation for contempt which was overruled and from which order he gave notice of appeal.
W. C. Adams filed a demurr...
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