Roberts v. Roberts, 39032

• Decision Date: 20 December 1960
• Docket Number: No. 39032,39032
• Citation: 357 P.2d 980,1960 OK 261
• Parties: Edna Ruth ROBERTS, Plaintiff in Error, v. Vernon Stanford ROBERTS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 980

357 P.2d 980

1960 OK 261

Edna Ruth ROBERTS, Plaintiff in Error, v. Vernon Stanford ROBERTS, Defendant in Error.

No. 39032.

Supreme Court of Oklahoma.

Dec. 20, 1960.

Syllabus by the Court.

1. When the division of the jointly acquired property made by the trial court in a divorce action is against the weight of the evidence and inequitable its judgment will be modified on appeal.

2. Errors not assigned in the petition in error will not be considered on appeal.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Action for divorce, custody and maintenance of minor children, and division of property. From a judgment granting both parties a divorce and awarding plaintiff custody and maintenance of children, plaintiff appeals as to division of property. Modified, and as modified, affirmed.

Elmore A. Page, Tulsa, for plaintiff in error.

Ungerman, Grabel, Ungerman, Leiter & Unruh, Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, for defendant in error.

WILLIAMS, Vice Chief Justice.

Edna Ruth Roberts, in July, 1959, filed an action against Vernon Stanford Roberts for divorce and custody of their three minor children, and as grounds therefor alleged incompatibility on the part of defendant. Defendant filed a cross-petition for divorce and custody of the children. Continued reference to the parties will be as they appeared below.

The testimony supported the allegations of incompatibility on the part of each of the parties. They had been married twenty years; there was a difference of ten years in their respective ages. They had not lived as husband and wife for some six years. Except for the home and their children, they had few interests in common.

Defendant's testimony indicated the following as to his financial position. His present salary was $1,386 per month; his 'take-home pay' $973. He had over $30,000 in the Provident Fund with his employer. He adds to this fund 10% of his salary each month and is employer does likewise. He may not withdraw this unless he leaves his present employer or retires. In addition, his employer maintains a separate retirement program for all employees, including defendant. After this suit was filed, defendant sold certain shares of stock he had for $2,053. The proceeds of this sale he used to pay bills incurred by the family. He pays approximately $70 per month for insurance. Defendant did not directly place a value on the household furniture when asked its value, but did say he had kept it insured for $6,000.

The parties paid $26,500 for their present house. There is a $12,000 mortgage against it. Defendant had 500 shares of radium stock he valued at $330, but later, in referring to it, he said '* * * it has gone up to three dollars, I believe. I believe I bought it a little cheaper.' His testimony was not controverted except that defendant's counsel in question to defendant inferred the furniture was worth about $1,200, and that the parties have been unable to sell the house at the above figure.

The trial court granted each party a divorce on the grounds of incompatibility.

Plaintiff was awarded custody of the children except from June 15th to August 15th of each year. No appeal has been taken from the action of the trial court as to the granting of a divorce to the parties.

Plaintiff was awarded child support money in the amount of $100 per month per child until each child should respectively reach age of majority. She was awarded, by way of property settlement, a 1956 automobile and the household furniture. The judgment further provided that the present home of the parties should be sold. The net proceeds were to be used to buy a house free and clear of all encumbrances and kept free of debt, title thereto to be held in the name of plaintiff and the children. Defendant was ordered to maintain his present insurance policies for the use and benefit of the children and to pay plaintiff's attorney a fee of $650.

Defendant was awarded a 1952 automobile, the bank account ($600) and all monies in the Provident Fund (more than $30,000).

Plaintiff contends: 'The judgment of the Honorable Trial Court in the division of the jointly acquired property, between the parties hereto, is clearly against the weight of the evidence, and is inequitable, unjust and unwarranted.'

Defendant's first contention is: 'The clear weight of the evidence fully supports the judgment of the trial court in the division of jointly acquired property among the parties hereto; therefore, the judgment of the trial court must be sustained.'

The value of the automobile awarded plaintiff was approximately offset by the automobile and bank account awarded defendant.

The other assets that plaintiff and defendant have accumulated during their marriage and their approximate value, according to the record, are: house, net value $14,500; furniture, from $1200 to $6000; radium stock from $330 to $1,500; and Provident Fund, more than $30,000. These total from some $46,300 to $52,000 and more.

Of this $46,300 to $52,000, plaintiff was awarded the household furniture ($1200 to $6000) and a 1/4th interest in a house to be purchased at a cost of approximately $14,500, assuming the present home will sell for that amount, above the mortgage. The interest awarded to her in these would total only from $5033 to $9833. And such furniture and home (and automobile, for that matter) will be used by the children as well as by the plaintiff.

The defendant's 'take-home pay', less payments of child support and insurance is approximately $700 per month. In addition, he is accumulating about $277 per month in the Provident Fund.

The plaintiff has never worked outside the home. It would be difficult for her to work out and look after the minor daughters. They need her at home in order that they may receive proper care.

By statute 12 O.S.1951 § 1278, it is provided that

'When a divorce shall be granted by reason of the fault or aggression of...