Hubbard v. Hubbard

• Citation: 603 P.2d 747,1979 OK 154
• Decision Date: 13 November 1979
• Docket Number: No. 49660,49660
• Parties: A. Delores HUBBARD, Appellee, v. R. O. HUBBARD, Appellant.
• Court: Supreme Court of Oklahoma

Page 747

603 P.2d 747

A. Delores HUBBARD, Appellee, v. R. O. HUBBARD, Appellant.

No. 49660.

Supreme Court of Oklahoma.

Nov. 13, 1979.

Appeal from the District Court of Oklahoma County; Carmon Harris, trial judge.

This case involves an appeal from the issuance of a decree of divorce by the court below. Appellant attacks the trial court's ruling as to the grounds for divorce, the division of property, awarding of alimony, and granting of continuance on the issue of attorney fees. Finding merit to some of Appellant's propositions, and none to others, we affirm the decision of the trial court in part, reverse it in part, and remand the cause with instructions.

AFFIRMED IN PART, REVERSED IN PART and REMANDED WITH INSTRUCTIONS.

Sandra Johnson and Loyd Benefield, Benefield, Shelton & Tyree, Oklahoma City, for appellee.

Kent F. Frates, Oklahoma City, for appellant.

PER CURIAM:

This case involves an appeal from the actions of a trial court in a divorce proceeding. Appellant, Dr. R. O. Hubbard, has appealed from various findings and orders rendered in a divorce action brought in Oklahoma County by his wife, Delores Hubbard. Appellant husband presents five questions for review by this Court. Appellant contends:

1. The trial court erred in granting plaintiff a divorce on the grounds of extreme cruelty, when all the acts offered in support of this ground had been "condoned."

2. The opinion testimony offered by a supposed "expert witness" as to the Appellant husband's future earning capacity was wrongly admitted into evidence to the prejudice of the defendant.

3. The trial court's division of property and award of alimony in lieu of property was inequitable.

4. Any alimony awarded in the decree should have been alimony for support and maintenance, and as set in the trial court's decree, designating such alimony as alimony in lieu of property division was inequitable and excessive.

5. The trial court erred when overruling defendant's demurrer and motion to dismiss, both addressed to plaintiff's request for attorney fees.

I.

We will address the issues in the order presented. Accordingly, we will first decide whether the trial court erred in granting the divorce on the grounds of extreme cruelty.

Although he denies any acts of cruelty took place, Dr. Hubbard argues that the alleged acts of cruelty upon which Ms. Hubbard relies do not constitute grounds for divorce, as all those alleged acts had been condoned. In Every v. Every, Okl., 293 P.2d 612, 614, 615 (1956), this Court stated:

"Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense On condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. 27 C.J.S., Divorce, § 59, p. 608; and as this court said in McDaniels v. McDaniels, 152 Okl. 258, 4 P.2d 112, 114: 'Condonation is an affirmative defense, and, like other affirmative defenses, must be specially pleaded or insisted upon in the answer as a defense.' " (Emphasis added)

In Estee v. Estee, 34 Okl. 305, 125 P. 455 (1912), this Court held that when, after mistreatment of a wife has been condoned by her, the husband is guilty of similar misconduct, the condoned offense is revived. In so holding, we stated:

"The evidence shows that after the trouble had first arisen between the parties, with reference to the money, that they separated, and that afterwards, upon the solicitation of defendant, plaintiff went back to live with him. This was a condonation of past ill treatment, and, if the defendant had conducted himself properly toward his wife from that time on, she could not have been heard to allege, as a ground for divorce, any of his previous misconduct; but when he again made the insinuations complained of, and was guilty of other misconduct and mistreatment, he revived the condoned offense; and the court did not err in hearing all the testimony as to his mistreatment of her during their married life."

In the case before us, although the testimony was somewhat conflicting, there was evidence in the record demonstrating that Appellant husband, after a reconciliation, had again mistreated his wife. It is clear that the effect of this conduct would have been to revive the past indiscretions, which were condoned. Additionally, the record contains evidence showing that Ms. Hubbard's decision to continue living with her husband, for a short period after the last misconduct occurred, was not based upon her having forgiven her husband's past conduct, but was based upon her intent to aid her husband financially, as her husband had recently been informed that his residency contract was not being renewed. Her decision to remain for a short period thus enabled the parties to save the expense of a second home or apartment. As the record contained evidence of acts that constitute cruelty, and evidence showing that any of the acts of cruelty, which may have been condoned, were revived by continued mistreatment, we cannot say that the trial court erred in granting the divorce on the basis of cruelty.

II.

We next consider whether the trial court erred in admitting certain opinion testimony, which was admitted for the purpose of showing Dr. Hubbard's future income. In an attempt to establish the future income of Dr. Hubbard, the testimony of Dr. Turner Bynum was offered. Dr. Bynum is an Oklahoma City medical doctor who specializes as an internist. In testifying as to the average income of a general practitioner in Oklahoma City, Dr. Bynum relied in part upon information obtained from articles in publications dealing with medical economics. Dr. Hubbard's lawyer objected to such testimony on the basis that Dr. Bynum was not an expert in the field of medical economics. Objection to the testimony was also made on the grounds that the mere regurgitation of data from publications was a violation of the hearsay rule. Dr. Bynum, although not an expert in the field of medical economics was, because of his experience and background, certainly qualified to state his opinion as to the average income of general practitioners in Oklahoma City. He was also qualified to state his knowledge of what income could be expected from emergency room duty. The trial court did not err in admitting his testimony.

III.

We next address Appellant's third and fourth propositions which assert error in the trial court's award to Ms. Hubbard of $100,000 in lieu of property division. Inasmuch as the propositions contain overlapping issues, we will consider them together. Appellant contends that the award is excessive and that any award should have been made for support and maintenance rather than property division as it was based on future earnings.

The trial court stated the following in making the award:

"The Court finds that the plaintiff helped support the defendant and the family by being employed throughout the time the defendant attended pre-medical school and medical school, and has contributed to such support during the defendant's internship and residency training. That the plaintiff has been the stabilizing force through all of defendant's training to be a doctor, and has contributed materially to his medical education.

"The court further finds that during the more than twelve years that plaintiff worked and helped defendant obtain his medical degree and train to be a doctor, she could look forward to the time when she would enjoy the prestige and position, as well as the financial comfort, of a doctor's wife. That the granting of a divorce, through no fault of plaintiff, prevents her from reaping those rewards. She is relegated to her pre-marital status, except for the acquiring of an insubstantial amount of property, not recompensed for the years she has helped the defendant to attain his professional standing.

"The court further finds that the defendant is now on the threshold of a successful professional life, an able-bodied man, and has a present income of some $20,000.00 annually. That as a medical doctor his reasonable anticipated income will be $30,000.00 to $60,000.00 per year.

"The court finds that the plaintiff has a vested interest in the defendant's medical profession, which is deemed to be a valuable property right. The only means of awarding her that property right is by alimony in lieu of division of property. * * *

"The court further finds that the defendant is reasonably expected to earn $500,000.00 over the first twelve years of his beginning practice of medicine, with a net income of not less than $250,000.00. That the plaintiff is entitled to forty percent (40%) thereof as alimony in lieu of division of property. That plaintiff is therefore entitled to judgment as permanent alimony in lieu of a division of property in the amount of $100,000.00 payable as set out herein below."

Appellant complains that the trial court's award improperly considered his future earnings as jointly acquired property. He contends that his future earnings and his medical license are not "property" which can be divided upon divorce.

Appellant relies on the recent Colorado Supreme Court decision of In re Marriage of Graham, 574 P.2d 75 (1978), where, by a sharply divided vote (4-3), that Court held an educational degree was not "property" capable of division in marriage dissolution proceedings. In Graham the wife had worked and contributed 70% Of the family income while her husband attended school and acquired an MBA degree. The divorce occurred after Mr. Graham's graduation but before he had begun his professional career and the parties had not accumulated any marital property, as that term is traditionally used. Testimony before the trial court showed that the degree had increased Mr. Graham's earning capacity by more than $80,000.00. The trial court determined that Mr. Graham's education was jointly-owned marital property in which Mrs. Graham had a property interest and awarded her the sum of $33,134.00.

Reversing that judgment, the...