Tice v. Tice

Tice v. Tice
1983 OK 108
672 P.2d 1168
Case Number: 57996
Decided: 11/22/1983
Supreme Court of Oklahoma

EVALYN TICE, APPELLEE,
v.
CHARLES W. TICE, APPELLANT.

Appeal from the District Court of Carter County; Woodrow George, Judge.

¶0 Appellant-husband appeals the award of $41,900 to the appellee-wife as lost alimony under a previous divorce decree.

James O. Braly, Durant, for appellee.

Mordy, Clark & Hester, Inc. by James A. Clark, Ardmore, for appellant.

HODGES, Justice.

[672 P.2d 1169]

¶1 The question presented is whether a person, who induces another to marry by the oral promise to reimburse any lost alimony in the event of a subsequent divorce, is liable to pay alimony awarded under a previous divorce decree.

¶2 Evalyn (appellee-wife) and Charles Tice (appellant-husband) were married in Las Vegas, Nevada on December 31, 1979. Previously, Evalyn had received an alimony award from her first husband in the amount of $72,000.00. The divorce decree provided that the alimony would terminate upon her death or remarriage. At the time of her marriage to Charles, there was $44,500.00 remaining to be paid. On July 18, 1980, Evalyn filed a divorce petition, [672 P.2d 1170] alleging that Charles had orally agreed to indemnify her for the alimony which she would lose as a result of their marriage; and, that this promise was made as an inducement for the marriage. The trial court severed the two causes of action. A divorce was granted, and the action based on the indemnification agreement was set for jury trial which was waived by Evalyn. The trial judge made factual findings that: as an inducement to marriage Charles promised to indemnify Evalyn; in reliance upon this promise Evalyn promised to marry him; and that Charles did not intend to fulfill his promise.

¶3 The facts were disputed. According to Evalyn, numerous proposals of marriage were made to her before she accepted. Confronted with the forfeiture of her right to the alimony payments from her former husband, she told Charles the latter part of October, 1979, that she "couldn't afford to give up" her alimony. Charles assured her that he could make her a "good living" and that she would not need the alimony. Evalyn responded that if the marriage did not work out, she could not live on her salary as a secretary. Evalyn testified that Charles told her son that he bought a Mark V to match Evalyn's coloring, and that he would give it to her if she married him. She told Charles the certainty of forfeiting the right to alimony was the only reason she would not accept his proposal. Charles told her he would put $45,000.00 in escrow, the amount which she would have received had she not remarried. Evalyn testified that this was the only reason she married Charles.

¶4 Charles denied that he had ever promised to indemnify Evalyn for any loss resulting from the marriage. His testimony was that: both parties had been previously married; Evalyn told him of her right to alimony as a result of the termination of her prior marriage; he disclosed his financial obligations and indebtedness to her; Evalyn knew his economic condition would not warrant the payment of $45,000.00; and the first time Evalyn ever mentioned indemnity of the lost alimony was when she first threatened divorce. The court ordered Charles to pay $41,900.00 to Evalyn to compensate her for the alimony which was terminated when she married him.

¶5 It is argued on appeal that the evidence presented was insufficient to warrant judgment for Evalyn; the alleged antenuptial agreement was not reduced to writing nor fraudulently induced, and that even if a contract existed it was a contract of guaranty which must be in writing.

I

¶6 The dispositive issues are whether Charles fraudulently induced Evalyn to marry him, and if the promise must be in writing. The statute of frauds requires that an agreement made upon consideration of marriage, other than mutual promises to marry, must be in writing to be enforceable.

¶7 Under the facts of this case, because the agreement is not in writing, Evalyn may only recover if Charles fraudulently induced her to marry him by promising to compensate her for her losses.

¶8 Fraud is never presumed, but must be proven by clear and convincing evidence.

¶9 AFFIRMED.

¶10 BARNES, C.J., and IRWIN, HARGRAVE, OPALA and WILSON, JJ., concur.

¶11 SIMMS, V.C.J., and LAVENDER and DOOLIN, JJ., dissent.

Footnotes:

1 Title 15 O.S. 1981 § 136 provides in pertinent part:

"The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent:

* * * * * *

"3. An agreement upon consideration of marriage, other than a mutual promise to marry." See also Byers v. Byers, 618 P.2d 930, 933 (Okl. 1980); Stanley v. Madison, 11 Okl. 288, 66 P. 280 (1901).

2 Sellers v. Sellers, 428 P.2d 230, 240 (Okl. 1967); Scrivner v. Scrivner, 207 Okl. 225, 248 P.2d 1045, 1046 (1952); Whitney v. Whitney, 194 Okl. 361, 151 P.2d 583 (1944); In Re Cantrell's Estate, 154 Kan. 545, 119 P.2d 483 (1942); Mashunkashey v. Mashunkashey, 189 Okl. 60, 113 P.2d 190 (1941).

3 See Title 43 O.S. 1981 § 1 ; Williams v. Williams, 543 P.2d 1401, 1403 (Okl. 1976); Beach v. Beach, 160 Iowa 346, 141 N.W. 921-22 (1913).

4 Okla. Natural Gas Co. v. Pack, 186 Okl. 330, 97 P.2d 768, 770 (1940).

5 Beach v. Beach, note 3, supra.

6 Miller v. Long, 210 P.2d 147, 150 (Okl. 1949).

7 State ex rel. Southwestern Bell Telephone Co. v. Brown, 519 P.2d 491, 495 (Okl. 1974).

8 Allen v. Pendarvis, 60 Okl. 216, 159 P. 1117 (1916).

9 Jones v. Spencer, 197 Okl. 608, 173 P.2d 745, 747 (1946).

10 Scrivner v. Scrivner, note 2, supra.

11 Operators Royalty & Producing Co. v. Greene, 173 Okl. 388, 49 P.2d 499, 502 (1935).

12 Fisher v. Bashwitz, 152 Okl. 231, 5 P.2d 356, 358 (1931).