Howell v. Howell
| Decision Date | 09 June 1914 |
| Docket Number | Case Number: 3713 |
| Citation | 141 P. 412,1914 OK 258,42 Okla. 286 |
| Parties | HOWELL v. HOWELL. |
| Court | Oklahoma Supreme Court |
¶0 1. DIVORCE--Time for Appeal--Application of Limitation. That part of section 4971, Rev. Laws 1910, requiring that a party desiring to appeal from a judgment of the district court granting a divorce must, within ten days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, and requiring, further, that the proceeding in error be commenced within four months from the date of the decree appealed from and not thereafter, applies only where it is sought to appeal from a judgment granting a divorce, and not where the appeal is prosecuted from an order awarding alimony or making a division of property in divorce proceedings.
2. HUSBAND AND WIFE--Separation Agreement--Validity--Rescission. A separation agreement procured by fraud or duress or voidable upon other equitable grounds is subject to rescission and cancellation in equity, the same as any other contract. Where the agreement is executed directly between husband and wife, it is also subject to the rules which control the contracts of persons occupying confidential relations, and is not binding upon the wife, unless it is just and equitable in view of all the circumstances existing at the time when it was executed.
3. SAME--Evidence. In a suit for divorce and division of property acquired through the joint efforts of the parties, when the husband sets up a prior written contract of settlement entered into between himself and wife, as a defense against any further division of the property, he must be able to show, not only that it was entered into fairly and without misrepresentation, overreaching, or fraud, but also that its provisions are equitable and just under all the circumstances.
4. SAME. A contract between husband and wife, made in contemplation of a future separation of the parties, is void as against public policy.
5. SAME--Agreement Dividing Property--Validity. The contract in suit was made for the purpose of reuniting the husband and wife, and to re-establish the marital relation, which had been interrupted, and is in no way repugnant to good morals nor opposed to public policy.
6. TRIAL--General Finding--Construction--Husband and Wife--Division of Property. The contract in suit was upheld by the court in a general order and decree. This implies a holding that it was equitable and just. We are unable to say, in the light of all the circumstances and the situation of the parties, that the court erred.
Error from District Court, Stephens County; J. T. Johnson, Judge.
Action by Minnie H. Howell against William T. Howell. Decree was entered granting divorce but upholding prior settlement of property rights, and plaintiff brings error. Affirmed.
Johnson & McGill and J. M. Sandlin, for plaintiff in error
Womack & Brown and Stuart, Cruce & Gilbert, for defendant in error
¶1 This suit was brought by Minnie H. Howell against Wm. T. Howell to procure a divorce, a cancellation of a written property settlement, alimony, and for attorney's fees and costs. At a trial thereof she was granted a decree of divorce, but a settlement of property rights theretofore made between the parties was upheld. From this latter portion of the decree the plaintiff below has appealed, and urges for a reversal of the case: First, because the contract is illegal and void for the reason that it was made in contemplation of a future separation; second, because under the evidence the contract of settlement made by the parties is inequitable.
¶2 The facts, briefly stated, are that the defendant in the year 1895, who was then a widower, with a little daughter six years old, lived in the town of Duncan, was a practicing physician, and owned and was operating a drug store. He also owned the possessory right of the greater part of the property in the settlement involved herein, which at that time was of small value, but which with the development of the town and surrounding country has grown to be of considerable value. In January of 1895 the defendant married the plaintiff at Gainesville, Tex., and brought her to his home at Duncan, where they lived together until 1908, at which time the plaintiff left the defendant and went to the town of Chickasha with the avowed intention and purpose of bringing an action for divorce and for a division of the property. To this end she employed Judge J. T. Dickerson, who, in the settlement which followed, represented her interests. The defendant, through his attorney and friends, got into communication with her and learned of her purpose to sue for divorce, and they later met and effected a reconciliation, and at the same time entered into a written agreement by which a division of the property was made between the parties. This being accomplished, the marital relation was resumed and they lived together until about June, 1911, when this suit was filed by Mrs. Howell.
¶3 We are met at the threshold of this case with a preliminary question affecting the jurisdiction of this court to entertain the appeal, in that the appeal was not taken within four months, nor was the notice of appeal given as required by section 4971, Rev. Laws 1910. However, this question has been settled by this court since this point was made in the briefs. In the case of Lewis v. Lewis, 39 Okla. 407, 135 P. 397, it was ruled that the order of the court relating to the question of a division of the property is separable from the decree granting the divorce, and, where the appeal and assignments of error go solely to that portion of the judgment, that the appeal may be taken under the general provisions of law relating thereto. The Lewis case was followed later in that of Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288, in which case section 1 of the syllabus, is as follows:
"That part of section 4971, Rev. Laws 1910, requiring that a party desiring to appeal from a judgment of the district court granting a divorce must, within ten days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, and requiring, further, that the proceeding in error be commenced within four months from the date of the decree appealed from, and not thereafter, applies only where it is sought to appeal from a judgment...
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Allred v. Allred
...section 782, C. O. S. 1921. Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288; Lewis v. Lewis, 39 Okla. 407, 135 P. 397; Howell v. Howell, 42 Okla. 286, 141 P. 412; Moody v. Moody, 120 Okla. 128, 250 P. 916; Tobin v. Tobin, 89 Okla. 12, 213 P. 884; Davis v. Davis, 61 Okla. 275, 161 P. 190;......
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Reynolds v. Reynolds
... ... Laws 1910), is jurisdictional. In Lewis v. Lewis, 39 Okla. 407, 135 P. 397, Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288, and Howell v. Howell, 42 Okla. 286, 141 P. 412, this court held that such notice was required only where it is sought to appeal from a judgment granting a ... ...
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Morton v. Fuller
...and just under all the circumstances. (30 C. J. 1061; 13 R. C. L. 1367; Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288; Howell v. Howell, 42 Okla. 286, 141 P. 412; Coons v. Coons, 128 Okla. 172, 261 P. Cheuvront v. Cheuvront, 54 W.Va. 171, 46 S.E. 233; Garver v. Miller, 16 Ohio St. 527;......
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Jupe v. Jupe, Case Number: 32339
...if the appeal was properly perfected under the general provisions of the law relating to appeals. This case was followed in Howell v. Howell, 42 Okla. 286, 141 P. 412, and Allred v. Allred, supra. ¶7 In Linkugel v. Linkugel, 74 Okla. 298, 183 P. 55, the appeal was from a decree awarding a d......