Treece v. Treece

• Decision Date: 09 September 1969
• Docket Number: No. 42574,42574
• Citation: 458 P.2d 633
• Parties: Arlene H. TREECE, Plaintiff in Error, v. Glenn TREECE, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 633

458 P.2d 633

Arlene H. TREECE, Plaintiff in Error, v. Glenn TREECE, Defendant in Error.

No. 42574.

Supreme Court of Oklahoma.

Sept. 9, 1969.

Syllabus by the Court

Where, in a divorce proceeding, the home of the parties was set apart to the wife and the husband was directed to pay the mortgage payments thereon as they became due, such an obligation is one substantially for the 'maintenance or support' of the former wife, under 11 U.S.C. Section 35(a)(2), and is not released by the subsequent discharge of the former husband in bankruptcy.

Appeal from District Court of Canadian County; Jack R. Parr, Trial Judge.

Proceeding on citation for contempt of court for failure to comply with an order in a divorce action by which plaintiff was directed to pay mortgage indebtedness on former home of parties set apart to wife in the decree. Trial court found that the obligation had been released by the subsequent discharge of husband in bankruptcy. Defendant appealed.

Judgment reversed and cause remanded to trial court for further proceedings.

Shores & Babb, Oklahoma City, for plaintiff in error.

Randle L. Graham, Oklahoma City, for defendant in error.

LAVENDER, Justice:

This appeal is an outgrowth of a judgment rendered on the 8th day of September, 1961, in an action by the plaintiff in error herein for separate maintenance, child support, and a division of property, in which the trial court, in addition to authorizing this plaintiff in error, as plaintiff in that case, to live separate and apart from the defendant in error herein, who was the defendant in that case, and requiring the defendant in that case to make certain monthly payments to the plaintiff in that case for the support of her and two minor children of the parties, made the following provisions with respect to the home of the parties:

'It is therefore considered, ordered, adjudged and decreed by the Court, that the plaintiff be, and hereby is, entitled * * * to the home of the parties, more particularly described as follows, to wit: The South 85 feet of Lots 19, 20, 21 and 22, Block 4, Town of Okarche, Canadian County, Oklahoma, free, clear and discharged of and from any claims of the defendant.

'It is further considered, ordered, adjudged and decreed by the Court, * * * the defendant be and he hereby is required to pay the monthly payments due on the * * * note secured by a mortgage on the real estate above described * * *.'

On February 12, 1962, the defendant in error herein, as plaintiff, commenced a separate action in the same court, praying for a divorce from the plaintiff in error herein and that the court provide for the custody of the minor children of the parties (which he consented and agreed be awarded to the defendant) and for the support of said minor children. The plaintiff in error, as defendant in that case, filed an answer and cross-petition in which she pleaded, among other things, the order and decree entered in the above-mentioned case (No. 18,781 in the District Court of Canadian County, Oklahoma) and that, with respect to the property rights of the parties, said order and decree is binding on the parties, and prayed 'that upon a hearing hereof she be divorced from the plaintiff; that the care and custody of the minor children of the parties be awarded to and confided in the defendant; that the court make and enter its order providing for the plaintiff to pay to this defendant a reasonable amount each month for the support and maintenance of said children, and that the court confirm, ratify and approve the settlement of the property rights of the parties made and entered by this Court in cause No. 18781, heretofore referred to; and that the defendant have all other and further relief to which she may be entitled, including the costs of this action and a reasonable attorney fee.'

The parties hereto will be referred to, hereinafter, by their designations in the divorce case.

On October 12, 1962, the trial court rendered judgment in the divorce case and, in its journal entry thereof, found (among other things) that, with respect to the settlement of the property rights of the parties, the order and judgment of September 8, 1961, in the separate maintenance action, is res adjudicata and is binding on the court in the divorce action with respect to the property owned by the parties at the time of the rendition of said judgment, and that the only property acquired by the parties since the rendition of that judgment is an automobile acquired by the plaintiff, which should be set over to the plaintiff free and clear of any claims of the defendant. Except with respect to the automobile, just mentioned, an attorney fee for the defendant's attorney, and the usual provision concerning remarriage of the parties, the judgment portions of the journal entry provide that:

'It is therefore considered, ordered, adjudged and decreed by the court that the defendant be and she hereby is divorced from the plaintiff; that the exclusive care and custody of the minor children of the parties, Larry Treece and Kathy Treece, be and the same hereby is awarded to and confided in the defendant, subject to the right of the plaintiff to visit said minor children at reasonable times and places; that the plaintiff be and he is hereby ordered and directed to pay to the defendant for the support and maintenance of said minor children the sum of $75.00 per month, the first such payment to be due and payable on or before the 20th day of October, 1962, and thereafter on the 20th day of each succeeding month until the further order of this court.

'It is further considered, ordered, adjudged and decreed by the court that in conformity with the decree of this court heretofore made and entered in the separate maintenance action hereinbefore referred to, there is hereby set over and assigned unto the defendant herein, the household furniture, the 1960 Ford automobile and the home of the parties more particularly described as follows, to wit: The South 85 feet of Lots 19, 20, 21 and 22, Block 4, Town of Okarche, Canadian County, Oklahoma, free, clear and discharged of and from any claims of the plaintiff herein; and that pursuant to said decree above referred to the plaintiff shall pay the mortgage indebtedness now existing on said above described real estate in the amount of $60.00 per month, such payments to be made as they become due, and to hold the defendant harmless on account thereof.'

The questions presented herein arose at a hearing on a citation issued to the plaintiff, on application of the defendant, to appear and show cause why he should not be punished for contempt of court for failure to comply with the order of October 12, 1962, requiring him to make the monthly payments on the mortgage indebtedness as they became due. The plaintiff asserted that, on April 1, 1963, he had been discharged, in a bankruptcy proceeding in the federal court, from the payment of all debts listed in his petition in bankruptcy (filed on February 6, 1963), which included the mortgage indebtedness in question, under 11 U.S.C. § 35, which provided insofar as pertinent herein:

'A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such...