Merritt v. Merritt
Decision Date | 14 November 1978 |
Docket Number | No. 4938,4938 |
Parties | Timothy Joseph MERRITT, Appellant (Defendant below), v. Amy Jo MERRITT, Appellee (Plaintiff below). |
Court | Wyoming Supreme Court |
E. James Burke of Hanes & Gage, P. C., Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.
D. N. Sherard, Wheatland, signed the brief and appeared in oral argument on behalf of the appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
This appeal is from a decree by which a divorce was granted to the plaintiff-appellee dissolving her marriage to defendant-appellant. The trial court also awarded custody of a minor child to plaintiff and divided property of the marital estate. On appeal, defendant claims that the trial judge erred in awarding a mobile home to the plaintiff in trust for the benefit of the minor child placed in custody of the plaintiff. Defendant further alleges error in the failure of the trial judge to distribute the two acres of land upon which the mobile home was situated.
We will affirm the district court and dismiss the appeal to the extent defendant asserts rights of a third person not a party to the action.
The complaint for divorce, child custody and support, amongst the usual allegations, included a claim that the parties owned or acquired a double-wide mobile home contributed by Roy Merritt, father of the defendant, to be used by the parties as their home.
" * * * that the modular home was placed upon land contributed by W. J. Brown, the Plaintiff's father; that the said Roy Merritt transferred the title to the modular home to the said W. J. Brown with the understanding that Plaintiff and Defendant would reside in the home with their son, Daniel Lee Merritt, expected to be born; that the fathers agreed that if the marriage survived for a period of ten years, W. J. Brown agreed to convey the tract of land and the title to the home to Plaintiff and Defendant; that the fathers furthermore agreed that if the marriage did not survive for a period of ten years, W. J. Brown would convey title to the modular home and the tract of land to the Plaintiff so that she could maintain the same as a home for the child of the parties; and that the title to the modular home is unencumbered;"
Plaintiff's complaint prayed that she be awarded the double-wide modular home. No mention of the two acres of land on which the modular home was situated was contained in the prayer. Defendant's answer to the complaint denied the allegations with respect to the mobile home.
The only real issue before us concerns the mobile home. At the trial, W. J. Brown testified that in mid-1975 Roy Merritt came to the Brown residence and handed him notarized titles to the mobile home. No transferee's name there appeared.
At one point in the cross-examination, the defendant's attorney placed the testimony in his own words:
The title documents (since it was a double unit, there was a separate title for each half) to the mobile home were introduced into evidence. There was no objection by defendant.
The testimony of Roy Merritt was received in the form of stipulated testimony:
"It is stipulated to between the plaintiff and defendant's counsel that if Mr. Roy Merritt were here to testify, he would testify that shortly after the marriage of the parties, Roy Merritt, father of the defendant, contributed a double wide modular home for the use of the plaintiff and defendant as their home, that the modular home was placed upon land contributed by W. J. Brown, the plaintiff's father; that the said Roy Merritt delivered title to the modular home to the said W. J. Brown with the understanding that the plaintiff and defendant would reside in the home with their son Daniel Lee Merritt, expected to be born; that the fathers agreed that if the marriage survived for a period of 10 years, W. J. Brown agreed to convey the tract of land and the title to the home to the plaintiff and defendant; that the fathers furthermore agreed that if the marriage did not survive for a period of 10 years for reason of the defendant's leaving the plaintiff, W. J. Brown would convey title to the modular home to the plaintiff so that she could maintain the same as a home for the child of the parties, and that title of the modular home as a home for the child of the parties; and that's then the end of the stipulation."
After the stipulation was entered into the record, W. J. Brown was recalled as a rebuttal witness to testify:
The trial court awarded the mobile home to the plaintiff as trustee for her son to use, or rental for income for his support or, if sold, interest on proceeds for support. In so doing, the trial judge stated that this was contrary to his normal procedure of looking to the source of marital property in making a division. He felt a deviation from his normal procedure was warranted by this situation where provision had to be made for the support of the child. It was evident to him that the defendant was unable to make child support payments in an adequate amount. Under such a distribution, it is apparent that defendant receives the benefit of the award of the mobile home to plaintiff, to the extent that it was applied by the trial judge to defendant's obligation to support his child. The district judge also provided that defendant pay $50 per month child support. In awarding child support payments, the judge stated
No objection was made to the trial court's division of the marital estate, and defendant proposed no alternative distribution. Defendant's attorney did inquire about the trust the court had created.
At the outset, we note that from the pleadings and from the course of proceeding it is clear that both the defendant and plaintiff invoked the jurisdiction of the district court to determine a division of the marital estate. Plaintiff's evidence tended to show that the mobile home should be awarded to her. Defendant's evidence, showing that the mobile home came to the marriage through the generosity of defendant's father, suggested that the mobile home should be awarded to him. When a party to a divorce suit invokes the action of the trial court in the determination of property rights, by submitting the matter in the pleadings and proof, such party cannot complain on appeal that the court had no authority to determine those rights. Spahn v. Spahn, 1945, 70 Cal.App.2d 791, 162 P.2d 53, 55; Beauchamp v. Beauchamp, 1936, 185 Wash. 598, 55 P.2d 1055; 27 B C.J.S. Divorce § 299(7), p. 338.
Both of the parties held the mobile home out as an asset of the marital estate....
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Broadhead v. Broadhead, 86-110
...property in divorce cases, we rely on the learned discretion of the trial court. Paul v. Paul, supra, 616 P.2d 707; Merritt v. Merritt, Wyo., 586 P.2d 550 (1978). " ' "Inasmuch as a trial court's judgment cannot be disturbed except on clear grounds, we have seldom interfered with the action......
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Burak v. Burak
...subject to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt , 586 P.2d 550, 554 (Wyo. 1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of......
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Harrington's Estate, Matter of, 5606
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Davis v. Davis
...subject to a property settlement may intervene or be joined, we were not addressing the rights of a judgment creditor. Merritt v. Merritt, 586 P.2d 550, 554 (Wyo.1978). Some states, notably those with community property laws, permit creditors to intervene in divorce actions as a matter of c......