Hughes v. Hughes

• Decision Date: 09 May 1961
• Docket Number: No. 39154,39154
• Citation: 363 P.2d 155
• Court: Oklahoma Supreme Court
• Parties: Ivor Hayden HUGHES, Jr., Plaintiff in Error, v. Clevagene Murphy HUGHES, Defendant in Error.

Page 155

363 P.2d 155

1961 OK 112

Ivor Hayden HUGHES, Jr., Plaintiff in Error, v. Clevagene Murphy HUGHES, Defendant in Error.

No. 39154.

Supreme Court of Oklahoma.

May 9, 1961.

Rehearing Denied June 27, 1961.

Syllabus by the Court

1. 'Alimony without divorce' must be based on present rather than future needs of the wife and should be fixed in periodical installments payable so long as legal separation continues or until further order of the court.

2. Verified pleadings in a prior matrimonial action, when material in a subsequent suit to establish marital incompatibility, are of evidentiary force and, though not conclusive upon the parties, should be considered by the court.

3. When an examination of the record discloses that husband has established actionable marital incompatibility, the decree of the trial court denying him a divorce will be reversed on appeal as against the clear weight of the evidence.

4. The allowance of permanent alimony and disposition of joint property rest within the sound discretion of the trial court, to be exercised in the light of all surrounding circumstances, and the Supreme Court will not disturb the determinations made on such issues unless they are against the clear weight of the evidence or constitute an abuse of discretion. Whiteker v. Whiteker, Okl., 332 P.2d 953.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Action by husband for a divorce. From judgment denying a divorce and decreeing separate maintenance to the wife with alimony and division of joint property, husband appeals. Reversed in part and remanded with directions.

Campbell & Campbell, by Stanley D. Campbell, Tulsa, for plaintiff in error.

Claud Briggs, Oklahoma City, C. Lawrence Elder, James E. Poe, Tulsa, for defendant in error.

DAVISON, Justice.

Appellant, plaintiff below, complains of errors in the judgment of the trial court denying him a divorce and allowing separate maintenance to his wife. The trial judge effected a division of jointly acquired property, setting apart to the wife her personal paraphernalia, the home, its furnishings and furniture, 300 shares of common stock in the American Telephone & Telegraph Company, and a certain automobile. The value of this property was set at $91,500. The remainder of joint assets, fixed at the total sum of $199,328.75, was awarded to the plaintiff. Granted to the defendant, in addition to her share of the matrimonial property, was a judgment for 'permanent alimony' in the sum of $72,000 payable at the rate of $750 per month for a period of 8 years. The journal entry recites at its conclusion:

'The judgment herein rendered, for an equitable division of the jointly acquired property of plaintiff and defendant, as well as the judgment for permanent alimony, is intended to be and shall be final and conclusive and a bar to any future claim or action by either party, for the recovery of alimony or for any future claim for any interest in the property now or hereinafter owned by either.' (Emphasis added.)

When, on denying a divorce, an order for separate maintenance is granted, the power of the court, so far as the proprietary rights and obligations of the parties are concerned, is governed and limited by the provisions of 12 O.S.Supp.1955 § 1275, which are:

'The parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce, but if a divorce is granted in such circumstances, it shall be granted to both parties. In any such case or where the court grants alimony without a divorce or in any case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.' (Emphasis added.)

The phrase 'alimony without a divorce', as employed in the quoted statute, is not synonymous, and should not be confused with the term 'alimony' (for fault or aggression of a spouse) under the provisions of 12 O.S.1951 § 1278. The latter statute deals with alimony rendered in a judgment of divorce, while the former has reference to a periodical allowance for the wife's maintenance when the matrimonial bond still subsists. See 12 O.S.1951 § 1284. An order for alimony, when incident to a decree of separate maintenance, is continually subject to modification, whereas, in rendering a judgment for alimony in a decree of divorce the court determines the ultimate obligation and fixes the same in an amount which must be definite and certain. Ordinarily, where the bond of matrimony is not severed, the decree for separate maintenance or 'alimony without a divorce' contemplates the present needs and conditions (of the wife) alone; on the other hand in determining the amount of alimony after divorce the court must consider the future support of the wife. Thus, an order for alimony without a divorce is not final but subject to revision and modification as the needs of the wife may change. Lewis v. Lewis, 39 Okl. 407, 135 P. 397; Privett v. Privett, 93 Okl. 171, 220 P. 348; Williams v. Williams, 103 Okl. 194, 229 P. 797; McMullen v. McMullen, 192 Okl. 314, 135 P.2d 482; see also Walker v. Walker, 140 Okl. 1, 282 P. 361; Fox v. Wiley, 199 Okl. 154, 184 P.2d 782; Bohanon v. Bohanon, Okl., 356 P.2d 746.

Under the quoted provisions of 12 O.S.Supp.1955 § 1275, the trial judge was authorized in the present cause to effect an equitable division of the joint property accumulated by the parties. Banta v. Banata, 202 Okl. 86, 210 P.2d 346. However, he lacked jurisdictional power to enter an alimony judgment in a fixed amount so as to preclude its future modification. Privett v. Privett, supra.

It was the duty of the trial court to determine the present needs of the wife, consider the separate income, if any, she would receive from the property set apart to her out of the joint assets, and render an order for a monthly allowance in an amount found reasonably necessary to defray her living expenses, such installments to be paid so long as the marriage subsists or until further order of the court. Lewis v. Lewis, supra; Fox v. Wiley, supra; Walker v. Walker, supra; Branson v. Branson, 190 Okl. 347, 123 P.2d 643. The alimony judgment as rendered in the cause at bar is erroneous and contrary to the statutes. It cannot stand as an incident of a decree for separate maintenance.

As a ground for divorce plaintiff relied on incompatibility. This allegation was negatived in defendant's answer. She prayed that a divorce be disallowed and separate maintenance granted. Neither party charged the other with any marital misconduct. As reflected by the journal entry, plaintiff's petition was denied on the basis of his failure to 'sustain the burden of proof'.

The trial court's action in denying a divorce is asserted as contrary to the clear weight of the evidence. Plaintiff contends, inter alia, there was error in excluding from the evidence certain verified pleadings of the parties which were filed by them in two previous matrimonial actions.

Incompatibility imports more than a mere mental process or an after-thought conceived and nurtured in the psyche of the complaining spouse. While conscious fault is not necessarily a gravamen of incompatibility, its basis must nonetheless be established by proof, objective in its character, of causes to which marital disharmony is attributed. In order to meet his burden of proof plaintiff sought to establish a continous, deep and irremediable...