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1926 OK 912
250 P. 916
120 Okla. 128
Case Number: 17040
Decided: 11/16/1926
Supreme Court of Oklahoma



¶0 Divorce--Division of Property -- Erroneous Decree to Husband of Interest in Wife's Separate Property.
In a divorce action, where decree is denied to both parties and no question of alimony is involved, the court has authority to make an equitable division of the property of the parties by virtue of the provisions of Comp. Stat. 1921, section 505, but this authority of equitable division of the property of the parties does not authorize the court to decree to the husband an interest in the separate property of the wife, owned by her prior to the marriage, nor to decree to the husband an interest in the income and profits from such separate property of the wife, the husband being an able-bodied man and suffering from no infirmity. (Comp. Stat. 1921, sections 6607 and 6608.)

Anglin & Stephenson and Forrest M. Darrough, for plaintiff in error.
W. C. Hall and W. P. Langston, for defendant in error.


¶1 Only one proposition is presented and urged for reversal of the judgment entered by the trial court, and that is the general proposition that the court erred in decreeing that the plaintiff have and recover out of the separate property of the defendant the sum of $ 873. After a careful reading of the entire testimony preserved in the record in this case, and eliminating all immaterial matters, the material facts disclosed are in substance these:

¶2 Defendant was a widow having a son about 16 years old and her father living with her. She owned 195 acres of land which was free of incumbrances, and her personal property consisted of 14 head of cattle, 47 hogs, 3 bales of cotton, and 8 loads of corn, and she owed an indebtedness to a bank of approximately $ 500. The plaintiff was the owner of a horse and saddle, 3 bales of cotton and 15 loads of corn, and had about $ 35 in cash. This was the respective financial situations of these parties at the time of their marriage in July, 1921. They lived together a little less than four years, and at the time of the separation defendant's personal property consisted of one saddle pony, two work horses, two hogs, two cows, and three calves. During their married life she had sold a royalty interest in her land for $ 3,200 and had received $ 360 in oil and gas rentals, and had a balance in the bank at the time of the separation of $ 2,735. It is further disclosed that during their married life defendant permitted plaintiff to handle and dispose of her personal property along with his; that he cultivated her farm; and that she assisted in the field and did her housework. It thus appears that during the period of their married life, in addition to her labor in the field and in the home, the greater part of her personal property and some $ 800 of the money derived from the leases and royalty on her land went to the support of the family, and that during that time the property of the plaintiff, which went for the support of the family, aside from his labor and the products grown on the farm, amounted to considerably less than $ 700. The proof shows that both of these parties were industrious and hard working. Comp. Stat. 1921, section 6607, provides:

"The husband must support himself and his wife out of his property or by his labor. The wife must support the husband, when he has not deserted her, out of her separate property, when he has no separate property and he is unable from infirmity to support himself."

¶3 Section 6608, Id., provides:

"Except as mentioned in the preceding section, neither husband nor wife has any interest in the separate property of the other, but neither can be excluded from the other's dwelling."

¶4 In this court the husband relies to sustain the judgment of the trial court on Comp. Stat. 1921, section 505, which provides:

"When the parties appear to be in equal wrong the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance, and education of the children and for the control and equitable division and disposition of the property of the parties, or either of them, as may be proper, equitable, and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties."

¶5 It is here insisted in behalf of the husband that the clause in the above section reading, "and for the control and equitable division and disposition of the property of the parties, or either of them," means that the husband in this case may be decreed an interest in the separate property of the wife which she owned prior to her marriage, and includes a right to him to share in the profits accruing to her from this separate property. Such a construction of the above language would be in conflict with sections 6607 and 6608, supra, and it is not considered that such conflict was intended by the Legislature. Section 505, supra, has been before this court in previous cases, and has received a construction which is not in consonance with the theory of the husband in the instant case. In the case of Davis v. Davis, 61 Okla. 275, 161 P. 190, several decisions of the Kansas Supreme Court, discussing and applying the corresponding section of the statute of that state, were reviewed. After so reviewing the Kansas decisions this court applied section 505, supra, to the facts in that case in the following language:

"While it is the duty of the wife to reside with the husband and to bear with his shortcomings and endure the same as long as possible, yet no law prescribes that she must do so, and when she chooses to abandon him, if his own conduct does not cause such an abandonment then his legal duty to longer maintain her is ended, but if property has been acquired during their wedded life by their joint effort she has a vested interest in such property which she does not forfeit even though her course cannot be justified, and she is entitled to her proper share of such property. As to what proportionate share should be decreed her it is impossible to lay down any definite rule, but it rests to a large extent in the sound discretion of the court, taking into consideration when and how such property was acquired."

¶6 This language clearly shows that the property which the court has discretion to divide equitably is property acquired by the joint efforts of husband and wife during their marriage, whether the title to such property be vested in them jointly, or in one of them separately. This court again applied section 505 in the case of Jones v. Jones, 63 Okla. 208, 164 P. 463, but its application of this statutory provision was by reason of the facts there presented, which were: