Wright v. Wright

• Decision Date: 09 September 1952
• Docket Number: No. 35318,35318
• Parties: WRIGHT v. WRIGHT.
• Court: Oklahoma Supreme Court

Page 962

247 P.2d 962

207 Okla. 121

WRIGHT v. WRIGHT.

No. 35318.

Supreme Court of Oklahoma.

Sept. 9, 1952.

Syllabus by the Court.

Where a wife brings an action against her husband for divorce and custody of the minor children of the parties and the court denies the divorce, but awards custody of the minor children to the wife, and a money judgment payable in a substantial sum each month, and specifically retains continuing jurisdiction as to custody and maintenance of the children, it is not necessarily obligatory upon the court to make a separate allowance specifically designated for the support and maintenance of the minor children. The matter rests in the sound discretion of the court and is to be determined from the evidence and circumstances in the case and the situation of the parties and where the court in a supplemental proceeding brought to obtain such allowance enters a judgment denying the application the judgment will not be disturbed on appeal in the absence of a showing of an abuse of discretion or that the judgment is clearly against the weight of the evidence.

Julian B. Fite, Muskogee, for plaintiff in error.

Ernest R. Anthis, Jr., Muskogee, for defendant in error.

WELCH, Justice.

In this case it appears that on May 28, 1948, Mary E. Wright brought an action in the district court of Muskogee County against her husband, Archie K. Wright, for divorce.

She alleged in her petition that there were three daughters born of the marriage, namely, Helen, then ten years of age, Joan, twelve years of age, and Barbara, fourteen years of age. She sought a divorce from her husband; that she be awarded custody of the minor children and for such division of the jointly acquired property between them as might be just and equitable.

On the 11th day of February, 1949, the court entered a decree denying plaintiff's application for divorce, but awarded her custody of the minor children and found that it was impractical to divide the property between the parties and in lieu thereof rendered judgment in favor of plaintiff and against defendant for the sum of $24,000, payable monthly at the rate of $200 per month, payments to continue until the judgment is satisfied in full. The decree further provided that the court retain continuing jurisdiction of the case to make proper orders for the custody, care and maintenance of the minor children of the parties. There is no specified provision in the decree providing for the support of the minor children. No attack is made in any manner on that judgment.

On the 9th day of March, 1951, plaintiff filed in the divorce action a supplemental petition praying that an allowance be made to her for the support of the minor children in such amount as the court may deem reasonable and just. The court after full hearing denied the application. Plaintiff appeals.

It is contended by plaintiff that defendant, being the father of the children, is primarily responsible for their care, maintenance and support, and only when he is unable to support them is the mother required to do so, and the fact that a divorce or separation has been decreed between the parties does not change this rule. This is a correct statement of the law. 10 O.S.1951 § 4; Ross v. Ross, 201 Okl. 174, 203 P.2d 702.

Applying the above principle of law to the present proceeding the trial court had authority to make an allowance to plaintiff for the support and maintenance of the minor children. It was not, however, obligatory upon it to do so.

In 17 Am.Jur., Divorce and Separation, Sec. 698, it is said:

'It is not necessarily obligagory upon the court to make any allowance to the wife for the maintenance of a child, even though its custody was awarded to her. The matter rests in the discretion of the court granting the divorce and is to be determined from the circumstances and the situation of the parties.'

See, also, Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339.

The real issue before us for consideration is as to whether the trial court abused its discretion in...