Turman v. Turman
| Decision Date | 12 March 1968 |
| Docket Number | No. 41814,41814 |
| Citation | 438 P.2d 488,1968 OK 33 |
| Parties | Carolyn TURMAN, Plaintiff in Error, v. Arnold TURMAN, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Where, as a part of a decree divorcing a wife from her husband, she is awarded alimony, and he is ordered to pay her attorney's fee in a certain amount, his obligation to pay the fee is not a 'debt' dischargeable in bankruptcy under § 2 of the Federal Bankruptcy Act, as amended July 12, 1960 (74 Stat. 409; 11 U.S.C.A. § 35).
Appeal from the District Court of Oklahoma County; A. P. Van Meter, Judge.
Proceedings in a divorce action to cite defendant for contempt on account of his failure to comply with that part of a divorce decree ordering him to pay the fee prescribed therein for plaintiff's attorney. After the court sustained defendant's plea to the effect that said obligation was rendered unenforceable by his discharge in bankruptcy proceedings, plaintiff appealed. Reversed and remanded with directions.
Bay, Hamilton & Renegar, Oklahoma City, for plaintiff in error.
Shapard & Shapard, Oklahoma City, for defendant in error.
The question presented in this case is whether or not a discharge in bankruptcy releases the bankrupt from the obligation of paying the attorney's fee he was ordered to pay an attorney for representing his former wife in a divorce action she instituted, and in which she obtained a decree of divorce from him, as well as custody of the couple's minor children, and support for them, and was awarded part of the couple's property, 'as and for property settlement, in lieu of alimony * * *'. The divorce decree was rendered in June, 1965, directing defendant in error, hereinafter referred to as 'defendant', to pay the one-hundred and fifty dollar attorney's fee on July 1st of that year. After more than two months had elapsed without the fee being paid, defendant was cited in September, 1965, to appear before the divorce and trial court, and show cause why he should not be punished for contempt. In his answer to the citation, defendant alleged that he had taken bankruptcy in a certain cited proceeding in the United States District Court, and that said attorney's fee was listed in the bankrupt claim filed therein. He prayed the trial court to dismiss the contempt citation.
Upon a hearing of the matter, said court's judgment was in his favor, after a finding that a contempt citation should be denied against him, because the fee was a proper item for discharge, and had been discharged, in the bankruptcy proceeding.
For reversal, it is urged that said judgment was error, because, under Oklahoma Statutes, there is no material difference, in respect to the present question, between such an attorney's fee, and the divorced wife's alimony, as to which latter the Federal Bankrupt Statute, 32 Stat. 798, as amended by subsequent Acts, including the Act of Congress of July 12, 1960, 74 Stat. 409 (11 U.S.C.A. § 35) provided:
'(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, * * * except such as (1) are due as a tax
'(2) are (sic) liabilities * * * for alimony due or to become due, or for maintenance or support of wife or child, * * *.'
It is conceded that the question of whether an obligation for such an attorney fee is dischargeable in bankruptcy is one of first impression in this jurisdiction. In support of her position, plaintiff in error, hereinafter referred to as 'plaintiff', cites cases from other jurisdictions, in which, she says, such obligations are no different in character than they are under the Oklahoma Statute, Tit. 12 O.S.1961, § 1276, by whose authority they are fixed by court order. Said statute reads as follows:
'ORDERS CONCERNING PROPERTY, CHILDREN, SUPPORT AND EXPENSES.--After a petition has been filed in an action for divorce and alimony, or for alimony alone, the court, or a judge thereof in vacation, may make and enforce by attachment such order to restrain the disposition of the property of the parties or of either of them, and for the use, management and control thereof, or for the control of the children and support of the wife or husband during the pendency of the action, as may be right and proper; and May also make such order relative to the expenses of the suit as will insure an efficient preparation of the case; and on granting a divorce in favor of the wife or...
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