Williams v. Williams

• Decision Date: 25 April 1967
• Docket Number: No. 41522,41522
• Citation: 1967 OK 97,428 P.2d 218
• Parties: Wayne WILLIAMS, Plaintiff in Error, v. Noxie WILLIAMS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 218

428 P.2d 218

1967 OK 97

Wayne WILLIAMS, Plaintiff in Error, v. Noxie WILLIAMS, Defendant in Error.

No. 41522.

Supreme Court of Oklahoma.

April 25, 1967.

Syllabus by the Court

1. In a wife's action for divorce, custody of children and division of property it was reversible error for the trial court to set apart to the children a part of real and personal property.

2. Under the provisions of 12 O.S.1961, § 1278, only property which has been jointly acquired by the parties during coverture is to be equitably divided.

3. When in a matrimonial suit of equitable cognizance the record appears insufficient or incomplete to enable the Supreme Court to render a judgment on all issues, the cause will be remanded with directions.

Appeal from the District Court of Texas County; C. R. Board, Judge.

Action for divorce, child custody and property settlement. The Trial Court entered judgment for plaintiff and defendant appeals from that portion of decree settling property rights. Reversed and remanded with directions.

Ogden, Ogden & Williams, By Charles R. Ogden, Guymon, for plaintiff in error.

Tryon, Sweet & Hensley, By L. E. Tryon, Guymon, for defendant in error.

BERRY, Justice.

This is an appeal from a judgment rendered in an action for divorce and property settlement. The issues to be determined involve the propriety of the trial court's judgment as respects both the jointly acquired property of the marital community, and separate property of the defendant husband.

Plaintiff, Noxie Williams, married defendant (Wayne Williams) in 1940 when the parties respectively were 15 and 17 years old. Neither brought appreciable assets to the marriage, which was begun on the farm of defendant's father, which was turned over to defendant the year following. Four children were born of this marriage, two of whom were minors at the time of trial. The youngest son suffers a speech impediment and requires special private schooling at considerable expense. During the marriage the parties accumulated sizeable holdings by joint industry.

In December 1961, plaintiff sued for divorce upon the grounds of extreme cruelty and gross neglect, and asked custody of the children and for property settlement. Plaintiff also sought and obtained a restraining order, restraining defendant from molesting plaintiff, going upon the homestead, or interfering with plaintiff's possession and conduct of extensive farming operations. Defendant's motion to dissolve such restraining order still was pending when defendant filed answer to the petition October 30, 1963.

The answer admitted the allegations relating to the marriage and the children of the marriage, and further alleged the parties should be divorced by reason of having become incompatible. Defendant further alleged certain of the properties had come to him by gift and inheritance from his parents, and should be set over to him as separate property; that considerable property had been acquired by their joint efforts, and by the use of and income from the inherited properties, and prayed an equitable division of this joint property.

The case was tried (March 23, 1964) and on July 30, 1964, plaintiff was granted a divorce and custody of the minor children. In attempting an equitable property settlement the trial court's minutes, upon which the judgment appealed from was entered, reflect an item by item settlement of the parties' affairs. The extended itemization of the various properties precludes complete recitation of the court's judgment. However, this is an equity case wherein we examine the entire record and weigh the evidence to determine whether the judgment rendered is clearly against the weight thereof. If the trial court's judgment is clearly against the weight of the evidence, or contrary to applicable law, this Court may reverse the judgment, or render, or cause to be rendered, such judgment or decree which the trial court should have rendered. Smith v. Owens, Okl., 397 P.2d 673. Although having examined the record, attention is directed only to those portions which provide the basis for the argument concerning the asserted inequity inhering in the court's division of the property.

Three questions are raised concerning the correctness of the settlement decree. Two of such questions require determination before consideration can be given to defendant's contention that the trial court failed to effect a fair and equitable division of property acquired by joint industry during coverture.

The first question concerns that portion of the judgment which required that title to the improved homestead, together with other described land, should be deeded to the parties' children as tenants in common, subject to a life estate in the plaintiff. The homestead (NE4, Section 14, Township 4, Range 10) originally belonged to defendant's parents, and came to defendant both by inheritance and gift as separate property. When the parties married there was an old dwelling on the property. Beginning in 1945 the parties began erecting improvements costing approximately $21,000.00 thereon, consisting of a residence ($7,000.00), large quonset type building ($12,000.00) and airplane hangar ($2,000.00). Aside from personal labor, the evidence was that plaintiff contributed a $2,800.00 inheritance toward the total expense of such improvements. The remainder of the real property attempted to be vested in the children was jointly acquired property.

We are not concerned here with a trial court's right to decree a lien against realty to enforce a decree for alimony or child support payments. See 51 A.L.R.2d 663, et seq. The sole question is whether a trial court has authority to vest title to property in children of the parties to a divorce action when attempting equitable division of property. The precise question does not appear to have been presented heretofore in this jurisdiction.

The general rule is that in a divorce proceeding a trial court is without authority to decree any part of the father's property to his children. 24 Am.Jur.2d § 837. Undoubtedly in recognition of this rule, we have had occasion to declare that, in a divorce action, there is no statutory authority for a trial court to require a husband to build up an estate to be paid to a child after he attains majority. Kunc v. Kunc, 186 Okl. 297, 97 P.2d 771.

In Greco v. Foster, Okl., 268 P.2d 215, we held that the trial court in a divorce action could not adjudicate the interest of a wife's cotenant in realty owned by the wife and her father as tenants in common, absent privity of interest, unless the wife's father was made a party defendant. This result was based upon our statutes which require that any person whose interest in property is to be adjudicated must be brought into court under requirements of 12 O.S.1961, § 236. Upon such authority it is clear the children who had reached majority necessarily would have to be brought into court in order to adjudicate what rights, if any, they might have in the parents' property. As concerns any presumed rights of the minor children in the property, a decree rendered without a petition of intervention by a guardian, next friend, or guardian ad litem, would be of no effect. 12 O.S.1961, §§ 226, 228, 229, 1278; Champion v. Champion, 203 Okl. 105, 218 P.2d 354. Assuming that necessity might require adjudication of a child's rights to property involved in settlement of a divorce action, no judgment could be rendered unless the child was made a party to the action under the statutes, supra.

We are of the opinion, however, that the trial court lacked authority under our statute, 12 O.S.1961, § 1278, governing settlement of property rights in divorce actions, to decree any part of the estate to the children. This section of our civil code was adopted from the state of Kansas. In Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779, it was held that in a divorce proceeding wherein the wife sought divorce, alimony and child custody, the trial court rightfully could award real property as alimony and for child support. But, the decree involved also purported to vest title to certain property in the children. The Kansas court pointed out that the children were not parties to the action and it was error to attempt to vest title in them, since '* * * No one is an heir to the living.'

The case of Emery v. Emery, 104 Kan. 679, 180 P. 451, involved a quiet title action brought by a divorced husband and father against the former wife and two minor children. In the divorce action the trial court had attempted to vest title to the real property in the children, subject to a life...