Sango v. Sango
Decision Date | 23 December 1924 |
Docket Number | Case Number: 15006 |
Citation | 1924 OK 1156,105 Okla. 166,232 P. 49 |
Parties | SANGO v. SANGO. |
Court | Oklahoma Supreme Court |
¶0 1. Divorce--Division of Property--Trusts--Homestead Conveyed by Husband to Wife Regarded as Jointly Acquired Properly. A conveyance by the husband to the wife of real estate, owned by the husband and occupied, by the family as a homestead, under circumstances which negative any abuse of marital confidence by the wife, and at a time when the husband was guilty of a breach of marital duty to the wife, will not given rise to a trust estate for the benefit of the husband by operation of law or otherwise where there is no evidence of an intention to create an express trust within the purview of subdivisions I and 2 of section $ 462, Compiled Laws 1921; but where husband and wife. for some time after the execution of said conveyance, continued to live together and occupy said real estate, exercising joint control thereof, the real estate will be regarded as the jointly acquired property of husband and wife to be disposed of by the court as such, upon the dissolution of the marriage, through the fault and aggression of the husband.
2. Divorce -- Alimony -- Appeal -- Disposition of Cause.
On an appeal from an allowance of permanent alimony, where all facts necessary to enable the court to enter a decree are contained in the record, this court may set aside the decree appealed from and enter such decree as the trial court should have entered.
3. Same--Reasonable Allowance -- Division of Property.
The amount of an award of alimony to a wife must be reasonable, having due regard to the value of the real and personal estate at the time of the divorce, and where the property has been acquired during marriage by the joint efforts of husband and wife, the court may either set aside a part of said property to the wife in kind or it may set all of the property aside to the husband and require him to pay in money to the wife such sum as may be just and proper in order to bring about an equitable division thereof.
Bruce & Brewer and R. Emmett Stewart, for plaintiff in error.
Disney & Wheeler, for defendant in error.
¶1 The plaintiff in error in this court was the plaintiff, and the defendant in error was the defendant in the court below, and they will be referred to herein as they appeared in the trial court. The plaintiff, Dora Sango, sued her husband, Edward Sango, for an obsolute divorce, for the custody of their two minor children, Edward Sango, Jr., and Thelma Sango, age nine and six years, respectively, for alimony in the sum of $ 20 per month for the support and education of the children, the sum of $ 50 attorney's fees, and expenses of prosecuting her action, charging the defendant with nonsupport and gross neglect, of duty. The defendant in his answer denied the allegations of the plaintiff and by way of cross-petition alleged that the plaintiff had deserted him without excusable or justifiable cause, and on that ground asked that he be given a divorce by reason of the fault of the plaintiff and that a quitclaim deed which he had previously executed to the plaintiff, covering the northeast quarter of the northeast quarter of section 30, township,15 north, range 18 east, be canceled, set aside, and held for naught; that the plaintiff be adjudged to be a holder of the title to said land in trust for the defendant and that he be restored to the possession of said land and the absolute title thereto quieted in him. A reply, in the nature of a general denial, was filed by the plaintiff to the answer and cross-petition of the defendant, and the cause came on for trial on the 31st day of May, 1923, upon the issues thus joined. During the progress of the trial, and after the defendant had dismissed his cross-petition, in so far as any claim to a divorce was asserted by him against the plaintiff, the plaintiff obtained leave to file an amended petition, which amended petition was thereafter and on the first day of June, 1923, filed and the further hearing of the cause postponed until August 20, 1923. In the amended petition, plaintiff asserted as an additional ground for divorce, extreme cruelty, inflicted by the defendant in that at various times prior to the date of her separation from the defendant in March, 1921, the defendant had cursed and struck the plaintiff and on two occasions had transmitted to plaintiff a venereal disease, to her bodily pain and humiliation. Issues having been joined on the amended petition of the plaintiff by the filing of a denial of the new matter set forth in the amended petition, the trial was resumed on August 20, 1923. but no evidence was introduced by the defendant to controvert the evidence of extreme cruelty introduced by the plaintiff in support of her amended petition. The court entered a decree granting plaintiff a divorce by reason of the extreme cruelty and gross neglect of duty of the defendant as claimed in plaintiff's petition, committing the custody of the two minor children to the plaintiff, holding that a certain quitclaim deed to the real estate hereinbefore described, executed by the defendant to the plaintiff on the 7th day of January, 1918, was a deed of trust and did not constitute a conveyance of said property to the plaintiff, quieting the title thereto in the defendant, free of any claim on the part of the plaintiff except that it should be subject to a lien in favor of the plaintiff for a judgment of $ 500 on account of money previously expended by the plaintiff on said land and for the support and maintenance of said children, $ 200 attorney's fee, and $ 50 per month for the maintenance and support of said minor children during minority from September 21, 1923. Motion for a new trial was filed and overruled, exceptions allowed, and the plaintiff appeals.
¶2 We do not think the trial court necessarily committed reversible error in canceling the quitclaim deed and reinvesting the defendant with the title to the real estate embraced therein, though the court may have predicated its judgment in that regard upon the erroneous finding that the deed in its inception was a deed of trust. The error, in our view of the case, committed by the trial court and which operated to the substantial prejudice of the plaintiff, was in refusing to allow plaintiff...
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