DURLAND v. DURLAND

DURLAND v. DURLAND
1976 OK 102
552 P.2d 1148
Decided: 07/27/1976
Supreme Court of Oklahoma

JEANNE MARIE DURLAND, APPELLANT,
v.
JACK R. DURLAND, JR., APPELLEE.

Petition for review from the District Court, Oklahoma County, Harold C. Theus, J.,

Certiorari to the Court of Appeals Division # 2.

¶0 On appeal from a judgment of the District Court in Oklahoma County, Oklahoma, Honorable Harold C. Theus, Judge. Appellant appeals on the grounds of improper division of jointly acquired property, insufficient award of alimony and failure of the decree to require appellee to pay all indebtedness of the parties. CERTIORARI GRANTED FOR THE LIMITED PURPOSE OF INCREASING AWARD OF ALIMONY AND AWARDING ATTORNEY FEES. DECISION OF TRIAL COURT AND COURT OF APPEALS AFFIRMED, PERTAINING TO PROPERTY SETTLEMENT AND PAYMENT OF DEBTS OF PARTIES.

James A. Kirk, Linn, Helms, Kirk & Burkett, Oklahoma City, for appellant.

Andrew M. Coats, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellee.

HODGES, Vice Chief Justice.

¶1 This is a petition for certiorari from the Court of Appeals Division # 2. We are granting certiorari for the limited purposes of increasing the alimony judgment and awarding attorney fees to appellant for successfully prosecuting the appeal. The judgment of the trial court and the Court of Appeals is otherwise affirmed.

¶2 The appellant, Jeanne Marie Durland, contends the trial court abused its discretion in its award of an alimony judgment in the amount of $36,000.00. We agree.

¶3 The parties had been married nineteen years. The wife has only minimal income [552 P.2d 1149] from her partial ownership in a second hand clothing store. She is not trained for any particular employment outside the home. In addition, one of the children of the parties is a diabetic and requires special care and attention by appellant.

¶4 The facts reveal the husband's income from his law practice over the past few years was:

1970

$28,472.90

1971

36,189.27

1972

45,996.00

1973

54,653.00

1974 (Jan. - July)

45,698.33

¶5 There is no fixed percentage or rule available by which to determine the amount of alimony to be awarded in the granting of divorce. The propriety of the award depends on the facts and circumstances of the particular case but it must be reasonable.

¶6 We feel, based upon a consideration of the appropriate factors involved, including the parties' station in life; the length of the marriage; and the lack of educational preparation of the wife; the alimony judgment should be increased from $36,000.00 to $48,100.00, payable in installments at the rate of $650.00 per month until appellee has paid appellant seventy-four equal installments. The obligation of the appellee to pay future installments of alimony will automatically terminate on death or remarriage of appellant pursuant to 12 O.S. 1971 § 1289 .

¶7 The appellant requests attorney fees and costs of printing briefs. Appellant argues she was required to appeal the trial court's judgment in order to obtain just and equitable orders relating to property settlement, alimony, and payment of debts. The appeal from the divorce decree of necessity required legal research and the preparation of a brief for presentation. The appellant is granted an additional $500.00 for attorney fees and costs.

¶8 CERTIORARI GRANTED FOR THE LIMITED PURPOSE OF INCREASING AMOUNT OF ALIMONY JUDGMENT AND AWARDING ADDITIONAL ATTORNEY FEES FOR PROSECUTION OF APPEAL. JUDGMENT OF TRIAL COURT AND COURT OF APPEALS OTHERWISE AFFIRMED.

¶9 WILLIAMS, C.J., and DAVISON, IRWIN, LAVENDER, BARNES and SIMMS, JJ., concur.

¶10 DOOLIN, J., dissents.

Footnotes:

1 Whiteker v. Whiteker, 332 P.2d 953 (Okl. 1959); Johnston v. Johnston, 440 P.2d 694 (Okl. 1968).

2 Herndon v. Herndon, 503 P.2d 545 (Okl. 1972); Kirkland v. Kirkland, 488 P.2d 1222, 1227 (Okl. 1971); Seelig v. Seelig, 460 P.2d 433 (Okl. 1969); Murphy v. Murphy, 276 P.2d 920 (Okl. 1954).

3 Dowdell v. Dowdell, 463 P.2d 948, 953 (Okl. 1970); Lavender v. Lavender, 435 P.2d 583 (Okl. 1967); 12 O.S. 1971 § 1276 .