Spencer v. Spencer

• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: BRIGHTMIRE
• Citation: Spencer v. Spencer, 567 P.2d 112 (Okla. Civ. App. 1977)
• Decision Date: 24 May 1977
• Docket Number: No. 2,No. 49292,49292,2
• Parties: Kenneth Ray SPENCER, Appellant, v. Gaila Sue SPENCER, Appellee

Page 112

567 P.2d 112

Kenneth Ray SPENCER, Appellant, v. Gaila Sue SPENCER, Appellee.

No. 49292.

Court of Appeals of Oklahoma, Division No. 2.

May 24, 1977 Released for Publication by Order of Court of Appeals June 16, 1977.

Appeal from the District Court of Cleveland County; Alma B. Wilson, Trial Judge.

Divorce action in which father and mother were granted split custody of two minor children. From decree awarding mother child support and alimony in lieu of property, father appeals.

AFFIRMED AS MODIFIED.

Karl R. Gray, Gray & Gray, Oklahoma City, for appellant.

Don Frankenberg, Lindsay, for appellee.

BRIGHTMIRE, Presiding Judge.

In November 1975 Kenneth Spencer filed this lawsuit seeking dissolution of an 11-year marriage to Gaila Sue Spencer and concomitant relief with regard to jointly acquired property and custodial provisions for the couple's 10- and 7-year-old boys. Gaila Sue by cross-petition asked for a divorce, custody of the children, a "fair share" of the accumulated property, child support money, alimony, and attorney fees.

Three days before Christmas 1975 the case was tried and a divorce granted, but a decision on other matters was postponed until December 30. On the latter date, the trial judge ordered that: (1) custody of the children be vested in their father "during the week" for 10 months and in their mother three weekends a month during this period and two summer months and in the father three weekends a month during this time; (2) the father pay $125 a month to the mother for support of the children during the 10 months he has custody and $300 per month during the two months the mother has custody; (3) the father be awarded a partially built house, a 1973 pickup truck, and all the debts (totaling about $6,100); and (4) the mother be granted $7,500 "alimony in lieu of property" payable $200 per month.

The father appeals assailing the decree in two particulars: (1) the child support award because it requires him to pay the mother $125 a month during the 10 months general custody is confided in him and because the amount set for the two summer months is too high; and (2) the "alimony in lieu of property" award.

I

Spearheading his frontal assault on the child support award is the father's cogent argument that it must inure directly to the benefit of the children and may not be a thinly wrought facade for parent support in this case alimony for the mother. Evidently the trial judge sought to lay a foundation for the $125 monthly award by referring to the mother's weekend visitation rights as custodial thereby authorizing the payment for six days of "custody."

While the so-called "split custody" device is commonly employed in this state to allow a couple's children to be under the control of one parent during school sessions and the other during the "summer months," ¹ we think it impractical, if not impossible, to attempt a division of legal custody on a daily, weekend or even a weekly basis. The term "custody" is one of art and carries various definitional nuances to accommodate a variety of contexts. In the area of domestic relations it has acquired a generally understood, though unarticulated, meaning with reference to care and control of children. Even in this restricted area the courts have found themselves struggling with efforts to devise a comprehensive definition. For instance, it has been said that "(c)ustody embraces the sum of parental rights with respect to the rearing of a child, including its care. It includes the right to the child's services and earnings . . . and the right to direct his activities and make decisions regarding his care and control, education, health, and religion." ² Burge v. City & County of San Francisco, 41 Cal.2d 608, 262 P.2d 6 (1953). And it is distinguishable from the right of visitation usually granted the noncustodial parent in that visitation privileges do not carry with them the earlier mentioned rights inherent in the child custodial status. McFadden v. McFadden, 206 Or. 253, 292 P.2d 795 (1956). Periods of visitation up to 60 days' duration granted to a noncustodial parent have been held not to diminish the custodial parent's rights or disturb the permanency of their domicile established by their legal custodian. Allen v. Allen, 200 Or. 678, 268 P.2d 358 (1954). ³

It is in this general sense, we think, that the word custody was used in the relevant statutes on the subject 10 O.S.1975 Supp. §§ 4, 5, 21; 12 O.S.1974 Supp. § 1277; 12 O.S.1975 Supp. §§ 1277.1, 1278; and 12 O.S.1976 Supp. § 1277.2. The result is that the trial court vested legal custody in the father and granted the mother right of visitation during three weekends monthly and two summer months. There is no basis in the record for requiring the father to pay the mother $125 a month during the 10 months she is entitled to weekend visitation privileges. During the summer, however, the mother is entitled to money for support of the children if she takes advantage of her right to visit and care for them full time for two months.

We hold, therefore, that ordering the father to pay Gaila Sue Spencer money for the support of the couple's two children during the months they are living with their father was error.

II

Appellant's next complaint that the $300 a month awarded the mother for the two summer months the children are to live with her is excessive is not shown to have merit. He "admits that the (mother) is entitled to child support during those two summer months" but contends the amount set "is against the clear weight of the evidence." This conclusion is all appellant offers on the subject and thus, by implication at least, he seems satisfied with leaving it up to the court to search the record in an effort to figure out what reasons might underly the conclusion. This we decline to do.

III

Finally, appellant assails the award of "alimony in lieu of a division" of property in the amount of $7,500 because it exceeds one-half of the net value of the jointly acquired estate which he estimates to be $11,000.

Our attention is called to the general criteria for achieving an equitable division of joint property restated in Bouma v. Bouma, Okl., 439 P.2d 198 (1968); and applied in Hill v. Hill, 197 Okl. 697, 174 P.2d 232 (1946) and Tobin v. Tobin, 89 Okl. 12, 213 P. 884 (1923). The court, according to Tobin, "not only has a right, but should take into consideration the efforts of the respective parties during their married lives." For example, continued the court, "(i)f . . . the accumulations have been due to her economy, industry, frugality, and sturdy virtues . . . (while) the husband has not been frugal . . . industrious . . . sagacious, but, on the contrary, has spent much of his money in riotous living, in gambling, drinking, or associations truant to his marriage vows, it would not be equitable" to award the husband half the property. In Hill an award of half the property to each party was upheld because there was "no evidence of the absence of economy, industry or frugality on the part of either . . . ." Later in reviewing these beacon buoys of equity anchored in the murky waters of nuptial property division Bouma made these general observations: (1) need affords no criterion; and (2) "the extent of each party's rights in the property" depends on "their respective conduct and efforts as the contributing factors" in the creation and acquisition of the entire marital estate.

The evidence made material by these principles is that the father is a hard working, industrious man not only holding down a full-time job during the day, but ordinarily working around the house at other times either tending a good size garden, building a new house, or performing other...