Montgomery v. Montgomery
| Decision Date | 28 February 1914 |
| Docket Number | Case Number: 3576 |
| Citation | 139 P. 288,41 Okla. 581,1914 OK 95 |
| Parties | MONTGOMERY v. MONTGOMERY. |
| Court | Oklahoma Supreme Court |
¶0 1. DIVORCE--Time for Appeal--Division of Property. That part of section 4971, Rev. Laws 1910, requiring that a party desiring to appeal from a judgment of the district court granting a divorce must within ten days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, and requiring, further, that the proceeding in error be commenced within four months from the date of the decree appealed from, and not thereafter, applies only where it is sought to appeal from a judgment granting a divorce, and not where the appeal is prosecuted from an order awarding alimony or making a division of property in divorce proceedings.
2. HUSBAND AND WIFE--Separation Agreement--Rescission and Cancellation. A separation agreement procured by fraud or duress, or voidable upon other equitable grounds, is subject to rescission and cancellation in equity, the same as any other contract. Where the agreement is executed directly between husband and wife, it is also subject to the rules which control the contracts of persons occupying confidential relations, and is not binding upon the wife, unless it is just and equitable in view of all the circumstances existing at the time when it was executed.
3. SAME-- Division of Property--Prior Contract of Settlement--Burden of Proof. In a suit for divorce and a division of property acquired through the joint efforts of the parties, when the husband sets up a prior written contract of settlement, entered into between himself and wife, as a defense against any further division of the property, he must be able to show, not only that it was entered into fairly and without misrepresentation, overreaching, or fraud, but also that its provisions are equitable and just under all the circumstances.
4. SAME--Sufficiency of Evidence. The evidence justified the court in annulling the contract of settlement entered into between the parties.
Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge.
Suit by Dora B. Montgomery against W. G. Montgomery for divorce, custody of minor child, and division of property. Judgment for plaintiff, and defendant brings error. Affirmed.
S. P. Freeling and J. H. Woods, for plaintiff in error
Blakeney & Maxey, for defendant in error
¶1 The defendant in error, Dora B. Montgomery, as plaintiff below, filed this suit against her husband, W. G. Montgomery, in the district court of Pottawatomie county May 8, 1909. The suit is for divorce, the custody of a minor child, and for division of the property, which, it is alleged, was accumulated through the joint efforts of the plaintiff and the defendant.
¶2 The defendant denied the allegations of the petition, and also set up a contract for separation and division of the property theretofore made, and by a cross-bill asked for a divorce from the plaintiff. The plaintiff, in her reply, admitted that a written contract had been made, under the terms of which the defendant had set apart to her certain items of property, but alleged that same ought not to be allowed to stand, for the reason that she had been fraudulently induced to sign the same, had been overreached in the matter, had been intimidated and forced into signing the same, and that the contract was inequitable and unjust, and ought to be set aside, and a fair division of the property made in pursuance of the prayer made in her original petition.
¶3 The cause was tried in the superior court, and August 9, 1911, a decision was rendered in favor of the plaintiff, granting her a divorce, setting aside the former settlement as inequitable and unjust, granting plaintiff the custody of the minor child, finding that the property was the joint accumulation of the parties, and decreeing a certain division of the property involved.
¶4 On August 10, 1911, the defendant filed a motion for a new trial and to vacate and set aside the findings and judgments theretofore rendered, etc. This was overruled by the court on August 26, 1911, and the defendant was allowed time in which to make and serve a case-made, which was later done, and this appeal was filed in this court February 5, 1912. The record fails to show the filing of any notice in the office of the clerk of the court in which the judgment was rendered of the intention of the party to appeal; nor was the proceeding in error commenced in this court within four months from the date of the decree appealed from, as required by section 4971, Rev. Laws 1910. To have reviewed any question affecting the portion of the decree granting the divorce, the filing of the written notice of an intention to appeal with the clerk of the court in which the decree is rendered and within ten days thereafter is a mandatory prerequisite and is jurisdictional. La Due v. La Due, 23 Okla. 323, 100 P. 513; Orcutt v. Orcutt, 25 Okla. 855, 108 P. 373.
¶5 But it has been held in the case of Lewis v. Lewis, 39 Okla. 407, 135 P. 397, that the order of the court relating to the question of a division of the property is separable from the decree granting the divorce, and, where the appeal and assignments of error go solely to that portion of the judgment, that the appeal may be taken under the general provisions of law relating thereto. The Lewis case, supra, followed the Kansas case of Kremer v. Kremer, 76 Kan. 134, 90 P. 998, 91 P. 45, which rested on a very similar statute. The syllabus in the Lewis case is:
"That part of section 4971, Rev. Laws 1910, requiring that a party desiring to appeal from a judgment of the district court granting a divorce must, within ten days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, and requiring, further, that the proceeding in error' be commenced within four months from the date of the decree appealed from, and not thereafter, applies only where it is sought to appeal from a judgment granting a divorce, and not where the appeal is prosecuted from an order awarding alimony or making a division of property in divorce proceedings."
¶6 The point argued and urged here goes to the action of the court in vacating and...
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Brasier v. Brasier
...settlement in defense of a divorce action has the burden of showing the contract was fairly entered into and was just; Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288; and, where a property settlement between husband and wife is apparently unfair on its face equity raises a presumption o......
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...appellate jurisdiction as to division of property jointly acquired would be controlled by section 782, C. O. S. 1921. Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288; Lewis v. Lewis, 39 Okla. 407, 135 P. 397; Howell v. Howell, 42 Okla. 286, 141 P. 412; Moody v. Moody, 120 Okla. 128, 250 ......
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... ... Stat. 1921 (sec. 4971, Rev. Laws 1910), is jurisdictional. In Lewis v. Lewis, 39 Okla. 407, 135 P. 397, Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288, and Howell v. Howell, 42 Okla. 286, 141 P. 412, this court held that such notice was required only where it ... ...
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