Moyers v. Moyers

• Decision Date: 12 June 1962
• Docket Number: No. 39633,39633
• Citation: 372 P.2d 844,1962 OK 146
• Parties: John Henry MOYERS, Plaintiff in Error, v. Marie J. MOYERS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 844

372 P.2d 844

1962 OK 146

John Henry MOYERS, Plaintiff in Error, v. Marie J. MOYERS, Defendant in Error.

No. 39633.

Supreme Court of Oklahoma.

June 12, 1962.

Syllabus by the Court

1. Regardless of which spouse is granted the divorce, the provisions of 12 O.S.1961 § 1278 remain operative with equal force and effect, and the trial court is required by their terms to effect a fair and equitable division of property acquired during the coverture by the joint industry of husband and wife.

2. A business establishment, owned by wife at the time of the marriage, constitutes her separate property, however, the enhancement in the value of such business, when effected not through natural appreciation or ordinary course of events occurring during the coverture, but by the expenditure of joint efforts, skill or funds of both spouses working together, is to be treated as joint accumulation of the marriage.

3. When in a matrimonial suit of equitable cognizance the record appears insufficient or incomplete to enable the Supreme Court to render a judgment on all issues, the cause will be remanded with directions.

Appeal from the District Court of Garfield County; F. B. H. Spellman, Judge.

Action by wife for a divorce. Trial court found the parties incompatible, granted wife a divorce, and set apart to her nearly all of the assets as her separate property. Husband appeals from the judgment effecting disposition of the property. Reversed and remanded with directions.

Page Belcher, Jr. of Belcher, Belcher & Collins, Enid, for plaintiff in error.

Douglas McKeever, of McKeever, Glasser, McKeever & Conrad, Enid, for defendant in error.

PER CURIAM.

In this appeal, brought by the husband, we are called upon to pass on the correctness of the lower court's judgment awarding to the wife as her 'separate property' nearly all of the disclosed assets. The decree is not challenged insofar as it dissolves the marriage and grants a divorce to the wife on the grounds that the 'parties are incompatible.' The primary point at issue is whether there was error in determining all the major accumulations to be the separate property of the wife.

This action was instituted by the wife. When the cause was tried early in 1961, the husband was nearly 76 years of age, totally blind in the right eye and partially sightless in his left eye. He was suffering from arthritis and some renal disease. The wife was 68 years of age and free from any disclosed body infirmities. The parties were married in 1940. No children were born of their union. Both parties had been married before; the husband has three children by a former wife.

The monthly income of the parties consists of the husband's social security benefits in the sum of $69.00 and rentals of approximately $150.00. The property in litigation includes: (a) a home with three apartment units which was variously appraised at $12,000.00 to $16,000.00; (b) furniture and furnishings of an undisclosed value; (c) a promissory note owing by a third party with an unpaid balance of $3,300.00; (d) 1952 Ford automobile of an undisclosed value.

The trial court found that the real property, the furniture and furnishings located therein, and the promissory note constituted separate property of the wife because all of these assets were acquired with separate funds 'owned by plaintiff (wife) prior to her marriage to said defendant (husband).' The husband was awarded the '1952 Ford Crestline sedan, together with his tools used in his trade as an electrician.'

The record discloses that at the time of the marriage in 1940 the wife owned and operated a business, known as Prince Electric Company. Acquired by her in 1918, the business engaged in retail marketing of electrical supplies, as well as in electrical contracting. Prior to 1940 the husband was an employee of the wife's company, and after the marriage they operated the business jointly until 1945, when the husband's son, Maynard Moyers, purchased one-half interest in the company for $5,000.00. In 1946 Maynard sold his interest back to the parties, and in the same year one L. D. Smith acquired one-half interest in the business for a like sum. L. D. Smith then resold his interest to the parties in 1948 for approximately $7000.00. The husband managed the business almost by himself until Mervin Olvey purchased the entire company in 1952 for $15,000.00 of which $5,000.00 was paid in cash, and the balance was evidenced by a note to both parties. Some time later the original note was cancelled, and, at the wife's insistence, a new note was made by Olvey which was payable only to the wife. The husband apparently consented to this change.

Although the wife denied that the husband did in fact make, in 1940, a capital contribution of some $2,700.00 to her electrical business, the evidence stands undisputed that: (a) the husband comanaged the company with the wife from 1940 to 1946; (b) he had joint responsibility for the management of the business when Maynard Moyers and L. D. Smith were coowners thereof; and (c) he actively managed and operated the company from 1948-1952 almost without her participation in the business. The record is also undisputed that at the time of their marriage Prince Electric Company had but a small inventory and was indebted to the bank for at least $700.00. It also owed personal property taxes from 1930 to 1940, which liability amounted to a substantial sum of money. All these obligations became satisfied after the...