Jones v. Jones

• Decision Date: 21 February 1956
• Docket Number: No. 36765,36765
• Citation: 59 A.L.R.2d 651,294 P.2d 304
• Parties: , 1956 OK 60 Blair JONES, Plaintiff in Error, v. Bernadean JONES, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 304

294 P.2d 304

59 A.L.R.2d 651, 1956 OK 60

Blair JONES, Plaintiff in Error, v. Bernadean JONES, Defendant in Error.

No. 36765.

Supreme Court of Oklahoma.

Feb. 21, 1956.

Syllabus by the Court.

1. In awarding the custody of a minor child of divorced parents, the welfare of the child is the paramount question for the court to consider.

2. The modification of a decree for the care and custody of a child of divorced parents must be based on some change in circumstances occurring since rendition of the decree or on some fact unknown at the time of the decree.

3. Under the provisions of 12 O.S.1951, § 1277, and within its sound legal discretion, the trial court has implied authority to decree a lien upon all or any specific part of the property, of the parent liable therefor, as is necessary to secure the payment of the award.

4. Record examined herein and held: that trial court did not abuse its discretion in decreeing a lien upon interest in realty theretofore inherited by defendant.

Appeal from the District Court of Tillman County; Welden Ferris, judge.

Appeal by defendant, Blair Jones, from an order made upon his application to modify provisions as to child care, custody and support in the decree of divorce granted his wife, Bernadean Jones, the plaintiff. Affirmed.

Roe & Roe, Frederick, Melton, McElroy & Vaughn, Chickasha, for plaintiff in error.

Chamberlin & Slagle, Frederick, for defendant in error.

DAVISON, Justice.

This appeal was perfected, by Blair Jones, the defendant in a divorce action wherein his wife, Bernadean Jones, was plaintiff, from an order of the court made upon his application to modify the original order as to care, custody and support of their three children. The parties will be referred to as they appeared in the trial court.

At the time of the divorce decree granted on June 29, 1953, the children were of the following ages: Milton Dean Jones, a son, age 10; Mary Ann Jones, a daughter, age 7; and John Clifton Jones, a son, age 5. The decree made provisions for their care, custody and support, as follows:

'It Is Further Ordered, Adjudged and Decreed By the Court That the Care, control and custody of the minor children above named, be and the same is hereby awarded to the plaintiff, with the right and privilege on the part of the defendant to have the custody of the above named Milton Dean Jones and John Clifton Jones during the months of July and August of each year, and the right and privilege of the defendant to see and visit said minor children during the remaining months of the year while in the custody of the plaintiff, so long as he complies with the order of this court for the support of said minor children, and the right and privilege of the plaintiff to see and visit said Milton Dean Jones and John Clifton Jones at reasonable times and places while in the custody of the defendant during the months of July and August of each year.

'It Is Further Ordered, Adjudged and Decreed By the Court that the defendant pay to the plaintiff, or to the Clerk of this Court, for the support of their minor children above named, the sum of $100.00 per month, except that if the defendant has the custody of the two minor children above named, during the months of July and August of each year, the child support payment shall be in the amount of $25.00 per month during said two months of July and August, and that the child support payment for the month of September, 1953, shall be in the sum and amount of $50.00, and in the sum of $100.00 per month thereafter during all of the months of the year, except during the months of July and August of each year when such child support payment shall be $25.00 if the defendant has the care and custody of the said Milton Dean Jones and John Clifton Jones during said two months.

'* * * That the child support payments as above set forth shall be and constitute a lien upon the undivided one-sixth ( 1/6th) interest of the defendant in and to the Northeast Quarter (NE 1/4) of Section Four (4), Township Four South (4 S), Range Sixteen (16) WIM., Tillman County, Oklahoma, as security for such payments to be made according to this decree.

'It Is Furthered Ordered, Adjudged and Decreed By the Court that in addition to the child support payments above set forth, the defendant shall pay to the plaintiff, from time to time, as the same may be and become necessary, any and all necessary expenses of school supplies for said minor children, clothing for said minor children, and any and all necessary medical, drug and surgical expenses for said minor children.'

On July 15, 1954, defendant filed a motion seeking modification of all of that part of the divorce decree above quoted both as to custody and support and on November 1, 1954, the same was modified to the extent of eliminating that part thereof which is italicized as above shown. In all other respects the motion to modify was denied. This appeal is from that order.

During the time intervening between the entries of the two orders there was a substantial compliance with all the provisions of the divorce decree by both parties. The record does not disclose any material change in condition of the parties since the divorce. This court has always adhered to the rule quoted in the case of Jackson v. Jackson, 200 Okl. 333, 193 P.2d 561, 562, to the effect that,

"* * * A decree fixing the custody of a child is, however, final on the conditions then existing and should not be changed afterward unless on altered conditions since the decree or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child."

From the testimony of the defendant at the trial, it is apparent that his chief complaint was with reference to the allowance made for clothing and school expense for the children over and above the monthly payments of $100. The objected to provision was stricken by the trial court in the latter order.

In the case of Bashore v. Thurman, 152 Okl. 1, 3 P.2d 712, 79 A.L.R. 249, relied upon by defendant, this court was concerned with an award for child support which had been made a lien upon all property then owned or thereafter acquired by the defendant. The cited case was one in partition of a tract of land in which the defendant owned an undivided interest. It was held that unmatured installments of the award did not constitute a lien on the property. From a reading of that opinion and the case of Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007, which was cited as authority, it is apparent that in both cases the courts were considering the statutes applicable to judgments, generally. They both held that the docketing of the decree for child support did not create a lien upon the property of the...