McElreath v. McElreath, 37612

• Decision Date: 08 October 1957
• Docket Number: No. 37612,37612
• Citation: 317 P.2d 225
• Parties: James Dorsey McELREATH, Plaintiff in Error, v. Evelyn Ann McELREATH, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 225

317 P.2d 225

1957 OK 234

James Dorsey McELREATH, Plaintiff in Error, v. Evelyn Ann McELREATH, Defendant in Error.

No. 37612.

Supreme Court of Oklahoma.

Oct. 8, 1957.

Rehearing Denied Nov. 6, 1957.

Syllabus by the Court.

1. The question of domicile in an action for divorce is one of fact, to be determined from the evidence in the case. The controlling fact to be considered is that of intention and to determine this fact the trial court, and this court on appeal, may take into consideration all the movements, transactions, and attending circumstances of the party or parties involved in the question.

2. An action for divorce is one of equitable cognizance, and if the finding of the trial court as to the residence of the plaintiff in such action is not clearly against the weight of the evidence, the same will not be disturbed on appeal.

3. Where divorce is granted wife by reason of fault of husband, judgment awarding wife alimony out of separate property of husband is authorized by 12 O.S.1951 § 1278.

4. In determining the amount of reasonable attorney's fee that should be allowed a wife in a contested divorce action, the ability of the husband to pay and the means and property of the parties are factors to be considered, and where the allowance made by the trial court is reasonably supported by the evidence, and is reasonable under the circumstances, it will not be disturbed on appeal.

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

Action for divorce, alimony, custody of children and child support in which judgment was rendered for plaintiff and defendant has appealed.

Wesley Whittlesey, Sapulpa, for plaintiff in error.

Gable, Gotwals & Hays, Tulsa, for defendant in error.

WILLIAMS, Justice.

This action was brought by Evelyn Ann McElreath, hereinafter referred to as plaintiff, against James Dorsey McElreath, hereinafter referred to as defendant, for divorce, custody of children, child support and alimony. Judgment was rendered for plaintiff, and defendant has appealed. As his first proposition of error, defendant contends that the District Court of Tulsa County is without jurisdiction to enter any decree in this matter for the asserted reasons that plaintiff was not a resident of Tulsa County, defendant was not a resident of Tulsa County, and plaintiff is not mentally capable of prosecuting this action. This action was instituted by the filing of plaintiff's petition on May 26, 1956, apparently at 10:30 o'clock a. m. on said date. Thereafter defendant filed a special appearance and plea to the jurisdiction of the court alleging that neither plaintiff nor defendant were residing in Tulsa County on the date the action was filed and further alleging that the Superior Court of Creek County had jurisdiction of the cause, the parties, the property and the children, and that such court had exercised its jurisdiction prior to the filing of the instant action. A hearing was held on June 21, 1954, on the question of jurisdiction, at which time considerable evidence was introduced by both parties, As a result of such hearing, the trial court found that on May 26, 1954, and for more than one year prior thereto, the plaintiff was an actual resident of Tulsa County, Oklahoma; that on May 26, 1954, and for some time prior thereto, defendant was an actual resident of Tulsa County, Oklahoma; that the instant action was filed in the District Court of Tulsa County, at 10:36 o'clock a. m. on May 26, 1954; that on the same date an action for divorce was filed by the defendant herein in the Superior Court of Creek County, Oklahoma; that the evidence was inconclusive as to the exact time of the filing of the case in Creek County, Oklahoma, and that the court therefore was unable to determine which case was actually filed first in point of time on said date. The court concluded that the question of the time of the filing of the respective cases was moot in view of the finding that defendant was a bona fide resident of Tulsa County at the time he filed his action in Creek County, and that in view of the findings as to the residence of the parties, the plea to the jurisdiction of the court should be denied, and an order was entered accordingly.

Defendant asserts that the finding of the court below on the question of residence is not binding on this court. The rule is, of course, that an action for divorce is one of equitable cognizance, and the question of domicile in such action is one of fact, to be determined from the evidence in the case. The controlling fact to be considered is that of intention and to determine this fact the trial court, and this court on appeal, may take into consideration all the movements, transactions, and attending circumstances of the party or parties involved in the question. When the trial court's finding on such question is attacked on appeal, this court will consider all the evidence and weight it, to ascertain whether or not the finding is against the clear weight thereof, and, if such finding is clearly against its weight, then render or cause to be rendered such judgment as the trial court should have rendered, but, if such finding is not clearly against the weight of the evidence, then the same will be affirmed. Pope v. Pope, 116 Okl. 188, 243 P. 962.

Defendant's principal argument seems to be that plaintiff was not physically present in Tulsa County, or the State of Oklahoma, for several months prior to the filing of this action. The evidence reveals that in March, 1952, the parties, together with their two children, moved from Austin, Texas, to Tulsa, Oklahoma, where they purchased a home, and thereafter resided. In October of 1953, while residing at such Tulsa home, plaintiff became emotionally upset, and apparently feeling the need of assistance, attempted to contact her husband, the defendant, as his office, but was advised that he was out of the state. Plaintiff then took one of the two cars belonging to the parties, a key to the home, and her daughter, and drove to the home of her parents in Ft. Worth, Texas, apparently to visit with such parents and secure the aid or assistance which she felt she needed. Plaintiff took none of her personal possessions with her, and their is no evidence whatsoever that she had any intention of moving out of her home or abandoning the same, or of separating herself from her husband. After arriving at the home of her parents in Ft. Worth, plaintiff was placed in a hospital in Dallas, Texas, under the care of a physician, where she remained until December 31, 1953. While plaintiff was so hospitalized, defendant apparently came to Ft. Worth and got the automobile, the house key and the daughter of the parties, and returned them to the home of the parties in Tulsa, Oklahoma.

Plaintiff was released from the hospital as cured, on December 31, 1953. When defendant was advised that plaintiff would be released from the hospital at such time, he announced that he would be too busy to pick her up, and requested plaintiff's father to pick up the plaintiff at the hospital and take her to plaintiff's father's home. Plaintiff's father and mother did pick up the plaintiff upon her release from the hospital and took her to their home in Ft. Worth, where she remained until this action was instituted. Plaintiff testified that it was always her intention and desire to return to her home in Tulsa, and that she had merely stayed with her parents at their home in Ft. Worth, as a temporary matter and because the defendant had instructed her to, and had instructed her not to return to the home in Tulsa. In this connection it is noticed that one of the items of immediate relief sought by plaintiff in this action was to be allowed to return to her home in Tulsa, and to be restored to the possession thereof. It should also be noted that the greater part of plaintiff's clothing and personal belongings remained in the home in Tulsa at all times material here up until the day this action was instituted, and were at no time removed by the plaintiff or by any one upon her instructions. The household goods of the parties likewise remained in the home at Tulsa at all times material herein, as did the children of the...