Tigert v. Tigert, 50393
| Decision Date | 06 March 1979 |
| Docket Number | No. 50393,No. 1,50393,1 |
| Citation | 595 P.2d 815 |
| Parties | Sam Carl TIGERT, Appellant, v. Sharon Kay TIGERT, Appellee |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Pushmataha County; Neal Merriott, Judge.
AFFIRMED WITH ADDITIONAL ATTORNEY'S FEE.
Gotcher, Gotcher & Gotcher, McAlester, for appellant.
Stamper, Otis & Burrage by Michael Burrage, Antlers, for appellee.
An appeal by Sam Carl Tigert, plaintiff in the action below, from the portions of a divorce decree dividing the parties' property and granting him a divorce from Sharon Kay Tigert, defendant below, on the ground of incompatibility rather than adultery.
The parties were married on April 13, 1968, and have two minor children. It appears from the testimony that their marriage has been a rocky, sometimes violent one, and that on Easter Sunday, April 18, 1976, the plaintiff learned of an adulterous affair by the defendant. The next day the defendant filed an action for divorce, but she dismissed it three days later at the plaintiff's request. On April 24, 1976, she moved back into their mobile home and they attempted a reconciliation.
The reconciliation was short-lived, lasting only until May 7 or 8, 1976, and on May 10 the plaintiff filed a petition for divorce, alleging both incompatibility and adultery as grounds. The defendant answered, asserting that the adultery had been condoned, and cross-petitioned for divorce, alleging incompatibility and extreme cruelty. Trial was held on September 7, 1976, and the trial court granted the divorce, taking under advisement the matters of custody of the children, child support, property settlement, and the ground for divorce. On November 5, 1976, the court entered its decree, which awarded custody of the children and child support to the defendant, divided the property, and granted the divorce to the plaintiff on the ground of incompatibility. The plaintiff has perfected this appeal.
The plaintiff's first proposition is that the trial court erred in awarding the defendant $3000 as her share of the jointly-acquired property. The trial court found the following items to be jointly-acquired property, with equity values as listed:
Mobile home $2,250.00
10 head of steers -0-
1975 Chevrolet pickup 435.35
Gooseneck trailer 1,700.00
Income tax refund 458.00
Insurance proceeds 600.00
---------
$5,443.35
The plaintiff received all of this property, and in addition received a 1972 Chevrolet pickup (the value of which was not given, but on which there was an indebtedness of $434.72), all of the household furniture except for some gifts and the children's furniture, and a color television set. The controversy on this issue is over an alleged $5000 debt owed by the plaintiff to his mother, which the plaintiff contends must be taken into account.
The only reference to this debt in the record is the plaintiff's single statement that he owed a personal debt of $5000 to his mother for some cattle bought in 1973. His mother was a witness at the trial, but she was not asked and did not testify about the debt. The defendant did not dispute the debt, but she also was not asked and did not testify about it. The plaintiff asserts that, taking the undisputed debt into account, it was error for the trial court to award the defendant $3000. The trial court made no finding as to the debt and did not mention it in the decree. That, the defendant argues, was an implied finding that no such indebtedness existed.
In a divorce case a trial court must make an equitable division of property acquired during joint coverture. 12 O.S.Supp 1976, § 1278. This is true regardless of which spouse is granted the divorce. Holeman v. Holeman, Okl., 459 P.2d 611. An equitable division, however, does not require an equal division. E. g., McCoy v. McCoy, Okl., 429 P.2d 999. For two examples we refer to Baker v. Baker, Okl., 546 P.2d 1325, and Seelig v. Seelig, Okl., 460 P.2d 433, in which the wife received far more one-sided awards than could be the case on the facts before us today. In the third paragraph of the syllabus in Reed v. Reed, 456 P.2d 529, 530, the Oklahoma Supreme Court held:
"In making an 'equitable division' of property in a divorce action, the trial court is vested with a wide discretion; and, before this court will reverse an order adjusting property rights in a divorce action, it must clearly appear that the trial court abused its discretion."
We find the award of $3000 to the defendant in this case to be reasonable, whether or not the trial court believed that the debt existed and whether or not the debt is taken into account, and we therefore affirm it.
The plaintiff's second proposition is that the trial court erred in not granting him a divorce on the ground of adultery. The defendant admitted one adulterous relationship, but raised the defense of condonation. The plaintiff seems to argue that the condonation was ineffective, and in any event he argues that the offense of adultery was revived by the defendant's conduct after the reconciliation.
Condonation, or condonement, has been variously defined in Oklahoma cases. In Kostachek v. Kostachek, 40 Okl. 747, 140 P. 1021, 1022, we find this language:
In Panther v. Panther, 147 Okl. 131, 295 P. 219, 221, it is defined in this way:
" 'Condonation, in the law of divorce, means the pardon of an offense, the voluntary overlooking or implied forgiveness of an offense by treating the offender as if it has not been committed.' "
And in Every v. Every, 293 P.2d 612, 614 (per curiam), the Supreme Court used this definition:
"Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness."
Furthermore, " 'Condonation must be free, voluntary, and not induced by duress or fraud,' " Panther v. Panther, 295 P. at 221; it must not have been " 'procured by unconscientious and fraudulent practices,' " Id.; it must not have been " 'obtained by force and violence,' " Kostachek v. Kostachek, 140 P. at 1022; and it must not have been the " 'result of fraud or mistake.' " Id.
From the above authorities we can say that a condonation of a marital offense is a freely given pardon or forgiveness, carrying with it implied conditions that the errant spouse not repeat the offense, that the errant spouse treat the other with "conjugal kindness," and that the errant spouse maintain "good conduct" in the future. In addition, a condonation may be predicated upon an express condition, in which case the expressed condition must be fulfilled. Kostachek v. Kostachek, 140 P. at 1022.
Even without an affirmative pardon or forgiveness, a condonation may be implied in law. When the parties resume cohabitation and sexual intercourse after the condoning spouse learns of the offense, and there are no further offenses, condonation is implied. In Owsley v. Owsley, 121 Okl. 259, 249 P. 692, 693, the Oklahoma Supreme Court stated:
Adultery was also held to have been condoned by cohabitation in Edgell v. Edgell, 120 Okl. 281, 251 P. 43 (per curiam), and Fowler v. Fowler, 119 Okl. 95, 248 P. 629. See also Penn v. Penn, 37 Okl. 650, 133 P. 207 (per curiam) (). In this way acts of incompatibility and cruelty were both held to have been condoned in Every v. Every, Okl., 293 P.2d 612 (per curiam), and false accusations of larceny were held condoned, though later revived, in Estee v. Estee, 34 Okl. 305, 125 P. 455 (per curiam).
In the case before us both parties testified that it was the plaintiff who asked the defendant to dismiss her divorce proceedings and return home. Both parties likewise testified that the plaintiff knew of the defendant's adultery and that they had sexual relations during the reconciliation. The trial court found that the plaintiff condoned the defendant's adultery. We find that the evidence amply supports this finding and that the condonation was effective.
Condonation having been shown, its effect was to bar a divorce for adultery. In Panther v. Panther, 295 P. at 221, the Supreme Court stated:
"(A)s a general rule, the condonation of a marital offense deprives the condoning spouse of the right of thereafter seeking a divorce for the condoned offense."
The exception to this general rule is when the condoned offense is revived, as the plaintiff argues happened in this case.
A condoned marital offense may be revived by a breach of either an express condition or an implied condition. In the case before us the plaintiff asserts that he accepted the defendant back into their home upon express promises by her, which, being breached, revived the adultery. In...
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