Sylvan v. Sylvan

• Decision Date: 10 July 1962
• Docket Number: No. 39258,39258
• Parties: Harriet SYLVAN, Plaintiff in Error, v. David Ralph SYLVAN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 232

373 P.2d 232

1962 OK 171

Harriet SYLVAN, Plaintiff in Error, v. David Ralph SYLVAN, Defendant in Error.

No. 39258.

Supreme Court of Oklahoma.

July 10, 1962.

Syllabus by the Court

1. 'Jointly acquired property', within the meaning of 12 O.S.1951 § 1278, is that accumulated by the joint industry of husband and wife during the marriage.

2. Record examined and Held: Under facts of this case, amounts awarded wife as alimony, attorneys' fees and other expenses incurred in preparing for trial and trying case were inadequate. The trial court is directed to enter judgment increasing said amounts as indicated in this opinion.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Action by wife (plaintiff in error) for divorce, custody of minor child, child support, recovery of specific property, alimony and suit money. Husband (defendant in error), by cross-petition, also sought a divorce. From judgment granting each party a divorce, awarding wife custody of child, child support, alimony, attorneys' fees and portion of expenses incurred in preparing for trial and trying case, wife appeals from judgment as to alimony, attorneys' fees and expenses incurred in preparing for trial and trying case. Reversed with directions.

G. C. Spillers, G. C. Spillers, Jr., Jack R. Givens, Tulsa, for plaintiff in error.

Rosenstein, Mesirow & Fist, Tulsa, for defendant in error.

BERRY, Justice.

The parties who appear here in the same relative position as they appeared in the trial court, will be referred to herein as they appeared in said court.

In her petition, plaintiff alleged that she and defendant were married September 30, 1956; that a daughter was born of the marriage on Oct. 26, 1957; that she and defendant were incompatible. She prayed for a divorce, custody of the minor child, $200.00 per month for support of the child, $75,000.00 as permanent alimony, title to the home of the parties and the furniture therein, temporary alimony, child support and other temporary relief.

In his answer, defendant denied all allegations of the petition excepting those relating to the marriage and birth of the child. By way of cross-petition he sought a divorce on the grounds of incompatibility. In so far as material, plaintiff, in her answer to the cross-petition, denied the allegations made therein.

Following trial of case to the court, the court on April 15, 1960, found and adjudged that the parties were incompatible and that each should therefore be divorced from the other; that plaintiff have the care and custody of the child during the major portion of each year; that plaintiff have $350.00 a month as child support until the child reached the age of six and thereafter $150.00 a month as child support; that plaintiff have as permanent alimony $4,000.00; that the alimony be paid at the rate of $200.00 a month; that she take all wedding gifts and that defendant take all other property; that plaintiff's attorneys receive a total fee of $2,000.00, $500.00 of which had been paid; that plaintiff recover only $1,225.00 of expenses that she incurred in obtaining an audit of defendant's books and an appraisal of his property. From order denying plaintiff's motion for new trial which was directed to all portions of the judgment excepting the granting of a divorce, plaintiff perfected this appeal.

In support of her petition in error, plaintiff contends only that (a) 'the trial court erred in making an inadequate alimony and/or division of jointly-acquired property award to' her; (b) 'erred in awarding merely $1,000.00 as suit money for her accounting and petroleum engineering expenses in the preparation of the case for trial'; (c) 'erred in awarding plaintiff merely $2,000.00 as attorney's fees'. We will consider plaintiff's contentions in the order that same are above stated.

The trial court found in effect that there was no jointly-acquired property. Plaintiff contends that this finding is clearly against the weight of the evidence. As sustaining said contention, plaintiff points to the fact that it was proved that following the marriage, a residence and household furniture were acquired and that certain partnerships in which defendant owned an interest increased their oil and gas holdings. She also points to evidence which she asserts shows that defendant's net yearly earnings exceeded the total annual expenditures made by the parties.

As refuting plaintiff's contention, defendant points to the fact that as of date of marriage his net worth was $71,914.25 and as of date of trial his net worth did not exceed $67,720.02. He also points to evidence which tends to show that the yearly expenditures made by plaintiff and defendant exceeded his yearly net earnings. Defendant asserts that there is competent evidence showing that the property which plaintiff asserts was jointly acquired during the marriage resulted from defendant's investing or expending money on hand as of date of marriage or proceeds from the sale of property owned as of said date. We find that such is the case.

In Tobin v. Tobin, 89 Okl. 12, 213 P. 884, we held that 'jointly acquired property' within the meaning of 12 O.S.1951 § 1278, is that accumulated by the joint industry of the husband and wife during marriage. See also Bruce v. Bruce, 141 Okl. 160, 285 P. 30. The evidence on the issue of 'jointly acquired property' being in substance as above stated, we are of the opinion that the finding of the trial court on said issue is not clearly against the weight of the evidence.

The trial court found that defendant's net earnings during the marriage did not exceed $10,000.00 a year. This finding was apparently based upon Federal income returns that defendant filed during the period of the marriage. Plaintiff asserts that said returns, for reasons hereafter stated, failed to reflect actual net income.

Plaintiff points to the fact that a considerable portion of defendant's gross income was from oil and gas properties and that in computing net income from said properties for Federal income-tax purposes defendant took a depletion allowance of 27.50 per cent. She asserts that said allowance ($2,299.18 in 1956; $4,064.95 in 1957; $4,505.00 in 1958) in fact represented tax-free income and that in computing defendant's actual net income the depletion allowance should have been added to the net income shown on the returns for each year. We are unable to fully agree. Producing minerals are considered as wasting assets for the reason same are used up in capturing income therefrom. For said reason depletion should be considered in computing net income from oil and gas properties. See United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054.

In the instant case no evidence was introduced which tended to show the amount of percentage depletion that should have been considered in computing actual net income from the oil and gas properties in which defendant owned an interest. We are, therefore, not at liberty to say that the amount allowed for Federal income-tax purposes is excessive.

Plaintiff points out that in 1959, defendant 'took a flyer' and expended $7,094.79 in participating in drilling a test well for oil and gas which proved to be dry. In computing net taxable income for Federal income-tax purposes for 1958, defendant deducted the referred-to expenditure. Plaintiff contends that the expenditure should not be considered in computing defendant's net income for said year; or if considered, should be given but little weight...