Wood v. Wood, 71,001

• Decision Date: 05 June 1990
• Docket Number: No. 1,No. 71,001,71,001,1
• Citation: 1990 OK CIV APP 49,793 P.2d 1372
• Parties: 1990 OK CIV APP 49 Jerry N. WOOD, Appellant, v. Rose Mary WOOD, Appellee. . Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1372

793 P.2d 1372

1990 OK CIV APP 49

Jerry N. WOOD, Appellant, v. Rose Mary WOOD, Appellee.

No. 71,001.

Released for Publication by Order of

the Court of Appeals of Oklahoma,

Division No 1.

Court of Appeals of Oklahoma, Division No. 1 June 5, 1990.

George W. Owens, and Robyn Owens, Tulsa, for appellant.

Sam P. Daniel, Jr., Tulsa, for appellee.

MEMORANDUM OPINION

HUNTER, Vice-Chief Judge:

The parties, who are in their early 50's, were granted a divorce in March, 1988, after 27 years of marriage and had three adult children, living away from home, who were ages 23, 24 and 25 at the time of the divorce.

Appellant and Appellee were high school sweethearts who both attended college and married shortly after Appellee's graduation in 1961. Appellant began a career in business, while Appellee became a mother of their three children and took care of the home. In addition to her duties as a housewife and mother, Appellee also took care of several elderly members of Appellant's family during this time.

The parties provided all three children with education in private schools from preschool through college. In 1978, Appellant became a financial consultant with Shearson Lehman Brothers in Tulsa. With Appellee at home raising the children and actively participating in all school-related activities, Appellant's success as a financial consultant with Shearson Lehman Brothers grew year after year, permitting him to take Appellee and the rest of the family on numerous exotic vacations. Appellant also presented Appellee with gifts of jewelry and fur coats. Appellant was so successful in his business endeavors that he was ranked within the top ten percent (10%) moneymakers in the Shearson Lehman Brothers organization, one of the largest financial services firms in the world.

During this time, the parties became actively involved in the Tulsa social community, and developed prominent and financially successful friends and colleagues. Appellee joined the work force only for a short period of time, working part time in the library at her children's private school. Instead of continuing her education, Appellee chose instead to direct her life to the raising and nurturing of her husband and children.

In 1982, Appellant became romantically involved with another woman and the parties were periodically separated. Upon one reconciliation, Appellant gave Appellee a three-carat diamond ring which he had inherited. At trial, Appellant disputed the gift of the ring and contended it was his personal property which he merely allowed Appellee to wear. Meanwhile, Appellant continued his extra-marital affair. In September, 1986, Appellant filed a petition for divorce on the grounds of incompatibility. Appellee answered and counterclaimed for divorce on the grounds of adultery. An arduous and hotly contested litigation ensued between the parties.

Upon trial of the matter, the trial court awarded Appellant a divorce on the grounds of incompatibility and Appellee a divorce on the grounds of adultery. The parties were each awarded their separate property as set forth in the respective schedules submitted to the court. During the course of this lengthy financially successful union, the parties accumulated substantial personal property in the marital estate. The trial court determined the value of each item where possible, and divided it in kind. Appellant does not challenge the trial court's division of such property, but assesses a greater valuation to the property than does Appellee by using insurance replacement value rather than fair market value. Since Appellant does not specifically challenge the trial court's particular division thereof, we will not set forth with great specificity the details of that division. Appellee was awarded the bulk of the parties' wedding gifts as well as the disputed diamond ring, while Appellant was awarded the personal property that he specifically requested with the exception of the ring.

Appellant was awarded the parties' residence in a historic section of Tulsa valued at approximately $290,000, with an outstanding mortgage of approximately $256,000. Each party was awarded their respective automobiles. Appellant was awarded 500 shares of bank stock, four Shearson Lehman accounts, two life insurance policies, two club memberships, 1986 tax refunds, cemetery plot, computer, original painting, his deferred compensation plan and 60% of his retirement and pension benefits, equaling approximately $112,492,92.

Appellee was awarded $75,000 property division alimony, which figure was arrived at after consideration of Appellant's diminution of two of the parties' bank accounts at the time he filed his petition for divorce and upon discovery of a secret bank account in which Appellant concealed substantial funds used partly to finance loans to his paramour, totalling approximately $13,000. The total award of property to Appellee, including the property division alimony, equalled approximately $99,464.73, according to Appellee's calculations. Appellant assesses Appellee's property division award at $176,841.99, in addition to the $75,000 lump sum award. In addition, Appellee was awarded 40% of Appellant's retirement and pension, limited to the benefits as of July 2, 1988 (the date of vestment) pursuant to a qualified domestic relations order of August 11, 1988. Appellee was also awarded support alimony totalling $507,000 over fifteen (15) years in the following increments: $3,750 per month for 36 months, $3,000 per month for 84 months and $2,000 per month for 60 months. Appellant was ordered to carry Appellee as beneficiary in his declining term life insurance policy with Shearson Lehman to the extent of Appellee's unpaid support alimony in order to protect Appellee's award should Appellant predecease her. Appellee was also awarded approximately 76% of her attorney fees and costs. Appellant was ordered to pay Appellee's income tax liability on the temporary support alimony she received during the pendency of the divorce, as well as the remaining debts of the marriage. According to Appellee's calculations, she received approximately 45% of the marital estate and 40% of Appellant's retirement and pension benefits from the 27-year union.

On appeal, Appellant initially challenges the support alimony and property division alimony awards and the award of 40% of his retirement benefits as excessive and an abuse of the trial court's discretion. Appellant contends Appellee failed to prove a need sufficient to justify such alimony awards and that the $75,000 lump sum award should be credited toward the support alimony award. He further contends that the support alimony award of $507,000 over fifteen (15) years should be reduced to $2,512 per month (the amount Appellee received as temporary support during the pendency of the divorce) for three to five years.

A divorce is an action of equitable cognizance and the trial court is vested with wide discretion in dividing property and awarding alimony. Kiddie v. Kiddie, 563 P.2d 139 (Okl.1977). This court will not disturb the trial court's decision regarding property division or alimony absent some abuse of discretion or a finding that the decision is clearly against the weight of the evidence. Teel v. Teel, 766 P.2d 994 (Okl.1988). The net marital estate need not be equally divided, but must only be equitably divided to comply with 12 O.S. Supp.1985, § 1278. Silverstein v. Silverstein, 748 P.2d 1004 (Okl.App.1987). In addition, a wife is entitled to a fair and equitable division of property acquired during the marriage. Isenhower v. Isenhower, 666 P.2d 238 (Okl.App.1983). The burden of showing that the trial court abused its discretion in adjusting the rights to separate or jointly acquired property is upon the party complaining. Martin v. Martin, 206 Okl. 35, 240 P.2d 1057 (1952).

In determining what constitutes an equitable division of jointly acquired property, the paramount consideration involves a determination of the extent of each party's rights in the property, and their efforts as contributing factors to acquisition of the property. Wilhelm v. Wilhelm, 678 P.2d 727 (Okl.App.1983). The question of need affords no criterion in such determination and personal conduct is material only to the extent that it reflects the existence or nonexistence of the endeavor which contributed to the creation of the marital estate. Moyers v. Moyers, 372 P.2d 844 (Okl.1962).

The trial court's property division left Appellee with approximately 45% of the marital estate and 40%...