Palmer v. Palmer

• Decision Date: 12 November 1969
• Docket Number: No. 42809,42809
• Citation: 1969 OK 182,465 P.2d 156
• Parties: Yukola PALMER, Plaintiff in Error, v. Gibson L. PALMER, Administrator of the Estate of Gibson Palmer, Deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 156

465 P.2d 156

Yukola PALMER, Plaintiff in Error, v. Gibson L. PALMER, Administrator of the Estate of Gibson Palmer, Deceased, Defendant in Error.

No. 42809.

Supreme Court of Oklahoma.

Nov. 12, 1969.

Rehearing Denied March 3, 1970.

Appeal from the District Court of Pontotoc County; Lee R. West, Judge.

Deaton & Gassaway, Ada, for plaintiff in error.

Bob E. Bennett, Ada, for defendant in error.

BLACKBIRD, Justice.

This appeal arose out of a divorce action instituted by plaintiff in error, hereinafter referred to as 'plaintiff', against Gibson Palmer (who died after the briefs were filed herein, resulting in revivor in the name of the defendant in error), hereinafter referred to by his trial court designation of 'defendant'. The decree plaintiff herein challenges dissolved her marriage to defendant, awarded her custody of the parties' approximately 15-year-old daughter, Katie (the only child born of their marriage), and child support of $100.00 per month, and purported to effect a division of the parties' property, both personal and real. Plaintiff attacks only that part of the decree which awards defendant an interest in certain items or parcels of the property that were acquired during the couple's marriage.

When the parties married in 1949 and established a home at Madill, plaintiff owned a home on East 8th Street in Ada and a Creek County farm her father had given her. After they sold the Dairy Bar business he had established before their marriage, as well as other Madill property they acquired thereafter, and moved from there to Ada in 1954, they acquired a large residence on East 7th Street there, known as the 'Bell property', by trading in on it her Ada residence for an allowance of $6,500.00 and paying an additional amount in cash. After the Bell property had been converted into four apartments, largely through the labor and expenditures of defendant, and the couple had lived in one of the apartments and collected rentals on the other three for more than a year, they sold the property to Ada Missionary Baptist Church for $12,500.00 and used the Church's down payment of $4,000.00 to apply on the $9,500.00 price of an acreage referred to as the 'Pete Morris property', title to which they acquired as joint tenants, with respective rights of survivorship. The only dwelling then situated on the Pete Morris property was referred to as the 'Long Cabin'. Defendant made improvements on it and it has been renting for $50.00 per month.

During the same year, and in 1957, the couple developed other building sites on the Pete Morris tract. One of these on which defendant, assisted by his father, who was also a carpenter, constructed a house referred to as the 'Crown Point Drive' property, was sold at a $3,000.00 profit. Thereafter, the couple constructed two other houses on the Pete Morris tract. Their street addresses became 1005 and 1011 E. Central Boulevard, respectively, and, for several years, they were rented.

In 1958, plaintiff's mother died, and thereafter, in 1959, when her mother's and father's estates were probated, she was distributed therefrom approximately $20,000.00 in cash, and an undivided 1/5th interest in a 385-acre pecan farm her father had placed in a 20-year trust for his heirs. This property was referred to as the 'Pecan Grove Trust'.

With her cash inheritance, plaintiff invested in U.S. Bonds worth $10,000.00. She also contributed $3,922.00 to the purchase of a promissory note referred to as the 'Brown note', together with the real estate mortgage securing it. Defendant contributed $800.00 to this purchase. The rest of plaintiff's cash inheritance was thereafter expended for a Hammond Organ, for furnishings that went into the couple's home, and for items that she was reluctant to ask defendant to buy.

In February, 1963, the parties' aforementioned property at 1005 East Central Boulevard was sold to a Mr. and Mrs. Brunkow, and $10,300.00 of the property's price was paid with a note secured by a mortgage on the property, which note and mortgage plaintiff purchased from defendant by cashing her aforementioned U.S. Bonds. This real estate was apparently later resold to a Mr. Paul Alford for $11,500.00, and the aforementioned note and mortgage, owned by plaintiff, is now the obligation of a Mr. and Mrs. Joy M. Houston. The monthly installments on this note are $65.00 each. Fifteen hundred dollars of the ten thousand dollars plaintiff paid defendant for the aforementioned Brunkow, now Houston, note and mortgage was used to pay the difference between the trade-in allowance of the parties' old family automobile and the price of an air conditioned, used Rambler Sedan that was purchased in 1963, when plaintiff accepted a position obtained through the University of Oklahoma Medical Center. Later, this Rambler was apparently traded in on a 1966 Model Chevrolet for her, but, before its warranty period had expired, it was traded in on her present 1967 Model Chevrolet, which the parties borrowed $1,731.60 to buy. Title to this car was taken in plaintiff's name, and she has fully paid the indebtedness on it out of her earnings in the above mentioned position, which she held until about six weeks after filing this action for divorce in July, 1967.

Before the parties moved out of the apartment house they sold Ada Missionary Baptist Church in 1956, as aforesaid, they set aside a space on the Pete Morris tract for a homestead, large enough for eight lots, and then, on that site, constructed a home, whose street address became: '1038 South Francis'. Defendant not only drew the plans for this home, but expended $14,000.00, not counting the value of his own services, in constructing it. When it was finished, the couple and their daughter moved into it from their apartment in the aforementioned former Bell property.

Finally, in the Fall of 1964, the aforementioned property at 1011 East Central Boulevard was sold to a Mr. and Mrs. Don LaSalle, for $20,000.00. The LaSalles made a down payment of only $500.00 and executed and delivered to plaintiff and defendant their note in the principal sum of $19,500.00, secured by a real estate mortgage on the premises. The monthly payments on this obligation are $115.00 each, and defendant has been receiving them.

At the trial it appeared that other property (besides that already mentioned) which either, or both, of the parties acquired during their marriage, consisted of an unimproved cabin site in Freeport, Texas, purchased by plaintiff for approximately $1,300.00 in 1966, some stock in Atkinson Enterprises, for which she paid $120.00, some U.S. Savings Bonds purchased out of her salary, some cemetery lots plaintiff purchased for $545.00 to provide a burial place for her and Katie, and which she is paying for by installments, and a Chevrolet Pick-up Truck purchased for defendant.

It also appeared at the trial that, about two years previously, plaintiff had ceased depositing funds in the parties' joint bank account, and had opened a separate checking account in Ada's First National Bank & Trust Company. She testified that she had $700.00 or $800.00 in that account. She also testified that she had 'a little over three thousand dollars' in a separate savings account in said Bank. She further testified, in substance, that she had deposited, in this savings account, checks she had received from producing royalty from her separate mineral interests, as well as funds representing payments on the Brunkow-Houston note, that she had transferred from her savings account at Ada's Home Savings & Loan Association.

It further appeared, among other things, that, at the time of the trial, defendant was employed in two occupations, namely, as the operator of a rug cleaning machine for the Rogers' Carpet & Upholstering Cleaners, since April 1, 1967, and as both such an operator, and as a night custodial foreman and watchman for the E. H. Rogers Company at the Robert S. Kerr Research Center since July 1st of that year.

Defendant testified that he had always deposited the payments he had received on the LaSalle note in the parties' joint bank account, but that after plaintiff 'pulled off and quit' this account two years before, and he got his next statement from the bank on said account, he 'was hit for seven hundred dollars'. He further testified that (at the time of the trial) there was only 'nine dollars and forty some odd cents--' in that account, and that he had no other bank account, or bonds, or securities, or other assets of that character.

In the divorce decree herein complained of, the trial court specifically set apart to plaintiff, as her separate property, her aforementioned 1967 Chevrolet automobile, and all of the furnishings in the parties' home at 1038 South Francis, together with all of the mineral interests, and the interest in the Pecan Grove Trust, she inherited from her parents' aforementioned estates, as well as the Houston note and mortgage. The only item of the parties' real and personal property that was set apart to defendant, as his separate property, was the hereinbefore mentioned pick-up truck.

The rest of the parties' property was 'declared to be...