Peters v. Peters

• Decision Date: 22 July 1975
• Docket Number: No. 47480,47480
• Citation: Peters v. Peters, 539 P.2d 26, 1975 OK 114 (Okla. 1975)
• Parties: David P. PETERS, Appellee, v. Geneva Joan PETERS, a/k/a Joan M. Peters, Appellant.
• Court: Oklahoma Supreme Court

Page 26

539 P.2d 26

David P. PETERS, Appellee, v. Geneva Joan PETERS, a/k/a Joan M. Peters, Appellant.

No. 47480.

Supreme Court of Oklahoma.

July 22, 1975.

Sam Caldwell, Muskogee, for appellee.

Kay Wilson, Jr., Muskogee, for appellant.

DOOLIN, Justice.

In the trial court, plaintiff husband sued defendant wife for divorce. Both parties were granted a divorce on the grounds of incompatibility.

Defendant wife was awarded custody of the parties' four minor children and $40.00 per month per child as child support. There was no award of alimony. The division of property was as follows: the husband was awarded his Pontiac automobile, motorcycle and power tools; the wife was awarded the household furnishings, her Chevrolet automobile, a camper trailer and the homestead subject to the existing mortgage. The decree provided that 'if said property is sold, plaintiff (husband) is to receive $3,625.00 which represents his equity in said home. This shall create a lien against said property in favor of the plaintiff.' The husband was ordered to pay all attorneys' fees.

The wife appeals from that part of the decree awarding child support, and creating a lien on the home in favor of her husband. She also contends that the court erred in failing to grant her alimony.

Appellant claims it is error to award real estate to one party burdened with an equity in favor of the other. She cites Blount v. Blount, 425 P.2d 474 (Okl.1967) which holds that a division of jointly acquired real property in estates less than a fee simple to either or both constitutes error in view of statutory requirement of 12 O.S.1961 § 1278 ¹ that such property shall be divided in kind or all set apart to one with proper compensation to the other.

The Court in that case as well as appellant here relies on Lawson v. Lawson, 295 P.2d 769 (Okl.1956). Lawson while advocating the rule stated in Blount goes further, holding 'If one party thereby was awarded property in excess of what the trial court thought he or she was equitably entitled to, A lien could be established thereon securing the payment of such sum as the court thought necessary to adjust the equities.' (emphasis added)

This is exactly what the trial court did in the instant case. There was no division of the title. The title did not remain jointly in both parties as it did in Blount and Lawson. The husband was given a lien that reflected his equity in the property at the time of the divorce which would become due and payable only at such time as the wife should choose to sell the home. The husband was given no right to dominate the actions of the wife in relation to the sale or use of the property.

Appellant also argues that $40.00 per month per child for a total of $160.00 per month is inadequate support and that the trial court erred in failing to award alimony to her. In Dowdell v. Dowdell, 463 P.2d 948 (Okl.1970) cited by appellant for the proposition that alimony should have been awarded, the wife was granted the divorce against her husband, a physician, because of his association with another woman. The wife had worked to support the...