Phillips v. Phillips

• Decision Date: 09 November 1976
• Docket Number: No. 48260,48260
• Citation: 556 P.2d 607,1976 OK 165
• Parties: Dorothy Mae PHILLIPS, Appellee, v. Jean L. PHILLIPS, Appellant.
• Court: Oklahoma Supreme Court

Page 607

556 P.2d 607

Dorothy Mae PHILLIPS, Appellee, v. Jean L. PHILLIPS, Appellant.

No. 48260.

Supreme Court of Oklahoma.

Nov. 9, 1976.

CERTIORARI TO THE COURT OF APPEALS, DIVISION NO. 2.

Appeal from the District Court of Oklahoma County; Honorable Floyd L. Martin, Trial Judge. A divorce action. The husband appealed judgment as to division of property and assessment of attorney's fees. The Court of Appeals, Division No. 2 affirmed but modified the judgment as to both issues. Appellee wife filed her petition for certiorari.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS WITHDRAWN; DECISION OF THE TRIAL COURT AFFIRMED WITHOUT MODIFICATION.

James W. Bill Berry, Howard K. Berry, Jr., Berry, Nesbitt & Berry, Oklahoma City, for appellee.

John M. Sheehan, McClelland, Collins, Sheehan, Bailey & Bailey, Jerry L. Mash, Oklahoma City, for appellant.

LAVENDER, Justice:

Dorothy Mae Phillips (wife) brought suit for divorce against Jean L. Phillips (husband) September 5, 1972. Some twenty-eight months later the matter was heard on its merits January 10 and 17, 1975. Trial judge announced his judgment on conclusion of the second hearing. That judgment granted wife a divorce for the fault of the husband. It also made division of their property. Thereafter a hearing was held and determination made as to attorney's fee. The trial court required husband to pay $13,500 of a $20,000 attorney fee of the wife's. The husband appealed as to the division of property and payment of attorney's fees.

The marriage had been of some 38 years duration. He was a capable and well-trained business man. He had been president of a bank. At time of the divorce, he was approximately 63 years old, and was in fair health. She had been employed in the earlier years of the marriage for about fifteen years. This ended in 1955. She was approximately 58 years old when the divorce was granted. He was judicially found at fault.

The Court of Appeals opinion took as a basis for division of the property a 'Statement of Assets' prepared by the wife's CPA and introduced by her into evidence, as Exhibit #15. That statement set forth values as to items of property. If values were in conflict under the evidence, the average was used. It showed assets of nearly $550,000. Included was a one-fifth interest in 169 acres inherited by the husband with a value in the exhibit of $82,250. The opinion concluded that item was included in the trial judge's stated effort to evenly divide the property. Its inclusion was found in error under Palmer v. Palmer, Okl., 465 P.2d 156 (1969). It removed that value from consideration in the division. The opinion sought to equalize the value by modifying the trial court's judgment in removing from the wife's award of property noted as 'Fifth Street Property-Yukon' with a value in the exhibit of $35,000 and a reduction of cash to her in a savings account of $8,293.11. This resulted in a total adjustment or reduction of the property award to the wife of $43,293.11.

In seeking certiorari, the wife's principal arguments concern themselves with demonstrating the basic exhibit of assets used in the Court of Appeals opinion did not include assets liquidated by the husband during the twenty-eight months from the time the divorce action was filed and the trial court's judgment. Nor had the liquidations been strictly accounted for by the husband.

In response, the husband argued the principal transactions were included in a cash flow exhibit (No. 16) as to the husband and introduced into evidence by the wife as prepared by her CPA. No effort or explanation is made as to the effect the cash flow exhibit has on the items and values included in the statement of assets (Exhibit No. 15).

If the journal entry of judgment is considered alone, it could support the Court of Appeals conclusion the trial court sought to include in the division of property the separate inherited property of the husband. We conclude otherwise by the 'rendered' judgment as pronounced by the trial court at the end of the second hearing. ¹ A judgment is 'rendered' when pronounced by the court. Taliferro v. Batis, 123 Okl. 59, 252 P. 845 (1927). This is the same judgment, rendered through the trial court's pronouncement, relied upon by the Court of Appeals opinion for divisional equality.

The judgment rendered January 17, 1975, shows the trial court did not use or base his judgment of values exclusively on the exhibit used by the Court of Appeals. He did not follow the values of any particular witness. He made division in an equitable way and almost evenly in values as determined by him under the evidence. Because of considerable commingling of cash, including expenditures from joint accounts and private funds, there could be no exact accounting. He adopted adjustments in the division of property to compensate for that lack of exact accounting.

The judgment gave the wife the homestead property (less acreage requested by the husband), an office building in Yukon, the Brown note, an automobile and the bank accounts in her name. The defendant was 'awarded All of the other property of the parties including the joint checking account' at a bank.

We hold...