Tobin v. Tobin

• Court: Oklahoma Supreme Court
• Writing for the Court: BRANSON, J.
• Citation: Tobin v. Tobin, 89 Okla. 12, 213 P. 884, 1923 OK 164 (Okla. 1923)
• Decision Date: 13 March 1923
• Docket Number: 13835.
• Parties: TOBIN v. TOBIN.

213 P. 884

89 Okla. 12, 1923 OK 164

TOBIN v. TOBIN.

No. 13835.

Supreme Court of Oklahoma

March 13, 1923

Syllabus by the Court.

"Jointly acquired property," within the meaning of section 4969, Rev. Laws 1910, is that accumulated by the joint industry of the husband and wife during the marriage, and, if a divorce is granted to either, an equitable division thereof should be made.

Section 4969, Rev. Laws 1910, is separable into three divisions; the first of such divisions controls where the decree is granted the wife on account of the fault of the husband, and is "When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband's real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments as the court may deem just and equitable."

The second controls as to the jointly acquired property, and is applicable when the decree is granted either the husband or the wife, and reads: "As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof."

The third subdivision is applicable where the decree is granted the husband on account of the fault of the wife, and is "In case of a finding by the court, that such divorce should be granted on account of the fault or aggression of the wife, the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife's separate estate as may be proper."

A court of equity, on granting a divorce to either the husband or wife, is required by subdivision 2, as herein divided, of section 4969, Rev. Laws 1910, to make a just, fair, and equitable division of the properties acquired by the parties jointly during their marriage. In doing so, the court is not required to divide the property equally between the parties, but is given a wide latitude in determining just what part of the jointly accumulated properties shall be given to each of the parties.

Subdivision 1 of section 4969, Rev. Laws 1910, authorizes the court, on granting a divorce to the wife on account of the fault of the husband, to allow her alimony. An allowance made by the court for the maintenance of the wife, whether pending her suit for divorce, or after the divorce decree is entered in her favor, out of the separate property of the husband, is "alimony," whether it reaches the wife in the form of money, or in the form of property, carved out of the property estate of the offending husband.

In disposing of the jointly acquired properties of the parties during marriage, the court can take into consideration that part of the property, if any, already received by one through voluntary conveyance of the other, and where it appears that the party complaining has received from the other jointly acquired property of such an amount, as, if set aside by order in the divorce decree, would be a fair, just, and equitable division of the accumulated properties, this court will presume that the trial court, in entering judgment, took that into consideration, and, though there is nothing in the decree making a specific division of the remaining jointly acquired property, it will be presumed that subdivision 2 herein set out was followed by the court, and the properties already received by the complainant was considered the equitable share of such party.

In granting a divorce, where the custody of minor children is involved, it is the duty of the trial court in the final decree to make such provision for them as will best meet their needs, not only of maintenance, but of educational, social, and religious opportunities. When it appears that this duty, under all circumstances, has been done to their best advantage, this court will not reverse the decree as to them, though it may seem harsh; but it may subsequently be modified, if the conduct and situation of the parent warrants it.

Appeal from District Court, Oklahoma County; George W. Clark, Judge.

Action by Will J. Tobin against Mary C. Tobin. Judgment for plaintiff, and defendant appeals. Affirmed.

In granting a divorce, where the custody of minor children is involved, it is the duty of the trial court in the final decree to make such provision for them as will best meet their needs, not only of maintenance, but of educational, social, and religious opportunities, and such disposition will not be reversed by the Supreme Court as to them, though it may seem harsh, but it may be subsequently modified if the conduct and situation of the parent warrants it.

Harris, Spielman & Harris and George Giddings, all of Oklahoma City, for plaintiff in error.

Selby & Callihan, of Oklahoma City, for defendant in error.

BRANSON J.

The plaintiff in error in this court was the defendant, and the defendant in error in this court was the plaintiff, in the district court, and they will be referred to herein as they appeared in the court below.

The plaintiff, Will J. Tobin, sued his wife, the defendant, Mary C. Tobin, for an absolute decree of divorce, and custody of their three minor children, John Tobin, age 15, Sylvan Tobin, age 12, and Redempta Tobin, age 5, and setting aside to him the home described as lot 2, block 1, Winan's second addition to the city of Oklahoma City, and certain items of personal property described in the petition. Plaintiff pleaded that he was entitled to a divorce on the ground of extreme cruelty and gross neglect of duty, specifying the acts constituting the same.

The defendant in her answer denied plaintiff's allegations, and by way of cross-petition alleged that the plaintiff had been guilty of extreme cruelty towards her, and on that ground asked that she be given a decree of divorce, and that the property described in plaintiff's petition be set apart to herself.

On the trial of the cause, the plaintiff and the defendant each produced a large number of witnesses. The testimony given by them covers more than 300 pages of the record. The court entered a decree, which is very lengthy, but the important and controlling parts thereof are these:

"The court further finds that the defendant, for a period of two years prior to the filing of this petition, has repeatedly threatened the life of the plaintiff, and has on occasions without just cause procured his arrest, and that she has during said period of time threatened repeatedly to destroy his business and his earning capacity and bring him to financial ruin. That she has repeatedly cursed and applied insulting language towards the plaintiff in the presence of the children of said parties, and in public, and has during said period of time induced the children of the said marriage to dislike the plaintiff herein, and has on repeated occasions threatened the plaintiff with divorce proceedings, and has from time to time demanded from the plaintiff all of the money realized from the conduct of his business, and has denied to the plaintiff access to their home, and has refused during said period of time to prepare the meals for plaintiff in their said home, and has refused to permit the servants paid by the plaintiff therein so to do; has denied the plaintiff conjugal devotion and affection; has been cold and indifferent to the plaintiff, and when in sickness has refused to administer to his wants, and during such times has cursed the plaintiff in public; has on many occasions during said period of time declared to the public that the plaintiff was a crook, that he spent his money on women of questionable character; and has accused the plaintiff on many occasions of domestic infidelity; has on many occasions made threats against the customers of the plaintiff in his business, and by her public remarks and utterances driven the customers of the plaintiff away from his business, all to such an extent that the plaintiff's business has decreased in volume until the same is now scarcely self-sustaining, driving the plaintiff into a financial condition where his assets and business have been dissipated and wasted and to a condition where the entire property of the plaintiff is scarcely enough to pay his indebtedness. That by reason thereof (plaintiff) was greatly humiliated among his friends, acquaintances, patrons and customers, and has become greatly worried and sick, and for a considerable time before and since the filing of the petition confined to the hospitals and under the care of doctors and physicians, and thereupon wholly destroying the peace of mind of the plaintiff to such an extent as to render a further continuation of the marriage relation unbearable, and that the plaintiff is without fault in the premises."

The court then decrees:

First, "that the plaintiff be divorced from the defendant," and Second, "that the plaintiff be, and is hereby awarded said described real estate, * * * in his own absolute and exclusive right and title, free from any and all right and claim of

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