Tschauner v. Tschauner
| Citation | 206 Okla. 586,245 P.2d 448 |
| Decision Date | 10 June 1952 |
| Docket Number | No. 34703,34703 |
| Parties | , 1952 OK 230 TSCHAUNER v. TSCHAUNER. |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
1. The granting or denying of permanent alimony rests within the sound judicial discretion of the trial court.
2. Where a divorce is granted to wife on account of the misconduct of the husband, the court is required by sec. 1278, Title 12 O.S.1951, to make a just, fair and equitable division of property jointly acquired during their marriage. The court is not required to divide such property equally between the parties, but is given a wide latitude in determining what portion of the jointly-acquired property shall be given to each party.
3. An action for divorce, alimony and division of property is one of equitable cognizance, and the judgment of the trial court will not be disturbed on appeal unless found to be clearly contrary to the weight of the evidence.
G. Raymond Bassman, Jack E. Gordon, Claremore, Wesley E. Disney, Joe B. Houston, Gerald B. Klein, James P. Melone, Tulsa, for plaintiff in error.
H. Tom Kight, Jr., Ralph B. Brainard, Claremore, for defendant in error.
This is an appeal by Olive Tschauner from a judgment of the District Court of Rogers County entered December 28, 1949. She had sued Ralph L. Tschauner for divorce, property division, permanent alimony, attorneys' fees, and costs. She was granted a decree of divorce and for property division, but was denied permanent alimony. The decree of divorce is not at issue here, but she complains of the property division and because the court denied her permanent alimony.
The parties were married in 1928, at which time the plaintiff had a young daughter and $225 in cash. The defendant had cash and personal property amounting to $13,000 or $14,000 and shortly before they were married, out of that sum, he paid $6,600 for a drug store in Claremore, which he continued to own during their married life. It is not clear just what became of the balance of the property owned by defendant before marriage. It apparently had become intermingled with jointly-acquired property and was not definitely identified at the time of the divorce.
The defendant appears to have devoted most of his time to the operation of the drug store and the improvement of a large home which the parties bought for about $3,000 in 1932. The plaintiff also assisted in operating the drug store, and for most of the time that she worked there she was paid a weekly salary. She made a small profit from the operation of two small hotels, and spent her income in caring for her daughter and improving the home.
Plaintiff complained that the defendant often drank excessively and compelled her to take over the operation of the drug store while he was incapacitated. He claimed that his drinking was only occasional. They separated for a short time in 1942, but were reconciled and continued to live together until December, 1948, when the plaintiff went to California and then to Las Vegas, Nevada, where her sister lived, and remained there until the following April. Defendant remained at the drug store, except for some short trips to see relatives in Nebraska.
The only issues presented by this appeal are whether the court erred in refusing the granting of permanent alimony to the plaintiff, and whether the property settlement is just, fair, and equitable under all the facts and circumstances before this court.
In addition to the home and drug store, the defendant had acquired a half interest in a 630-acre farm, and some additional land in the City of Claremore. He spent a considerable sum in improving the home and drug store. They had acquired some life insurance policies, beauty parlor equipment, and two automobiles. The testimony as to the value of their various properties varies widely. For example, the plaintiff's evidence placed the value of the drug store at from $19,000 to $20,000, while the defendant's evidence fixed it at from $8,500 to $11,000.
Neither party attempted to place any value on the defendant's separate interest in the drug store, or to prove what part of the drug store, if any, was jointly acquired.
Plaintiff's testimony as to the value of the home ranged from $7,000 to $7,500, while that of the defendant valued the home at from $18,000 to $25,000. Plaintiff's testimony as to the value of the furniture and fixtures in the home ran from $725 to $1,500, while defendant's evidence placed a value of from $1,500 to $3,979 on the furniture and home equipment, not including a baby-grand piano which cost $600.
The plaintiff's evidence places a total valuation on all property owned by the parties at from $61,188.91 to $63,486.91, while defendant's evidence fixes a total valuation of from $62,936.91 to $75,515.91.
Under the testimony produced by plaintiff, the property awarded to her was valued at from $14,786 to $16,084, and the value of that awarded to defendant at from $46,802.91 to $47,402.91.
Under the testimony produced by defendant, the property awarded to the plaintiff was worth from $27,084 to $37,163, and that awarded to the defendant from $35,852.91 to $38,352.91.
Where the evidence as to the value of the various properties differs so widely, it is difficult to say with any degree of certainty what value should be placed upon the property awarded to each party by the decree.
The plaintiff is 52 years of age and the defendant is 50 years of age, and he appears to have had considerable experience and skill in managing a drug store. Plaintiff was a nurse prior to their marriage. The plaintiff worked and helped to build up the jointly-acquired property, and no fault is found in her as a wife.
The plaintiff complains that the defendant and his witnesses placed an exorbitant value upon such property as the home and its fixtures because it was already in her name and she was expected to be awarded that property. As to the drug store, it is claimed by the plaintiff that the defendant placed too low a valuation thereon in the belief that it would be awarded to him.
The drug store business prospered, and from 1944 to 1948 the net profit from the drug store for each of these years amounted to from more than $6,000 to more than $11,000 per year, or an average annual profit of $8,056.97.
Very little profit, if any, was made from the farm owned by the defendant and his brother.
The value of the...
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