Annotate this Case

1961 OK 112
363 P.2d 155
Case Number: 39154
Decided: 05/09/1961
Supreme Court of Oklahoma


Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Syllabus by the Court

¶0 1. 'Alimony without divorce' must be based on present rather than future needs of the wife and should be fixed in periodical installments payable so long as legal separation continues or until further order of the court.
2. Verified pleadings in a prior matrimonial action, when material in a subsequent suit to establish marital incompatibility, are of evidentiary force and, though not conclusive upon the parties, should be considered by the court.
3. When an examination of the record discloses that husband has established actionable marital incompatibility, the decree of the trial court denying him a divorce will be reversed on appeal as against the clear weight of the evidence.
4. The allowance of permanent alimony and disposition of joint property rest within the sound discretion of the trial court, to be exercised in the light of all surrounding circumstances, and the Supreme Court will not disturb the determinations made on such issues unless they are against the clear weight of the evidence or constitute an abuse of discretion. Whiteker v. Whiteker, Okl., 332 P.2d 953.

Action by husband for a divorce. From judgment denying a divorce and decreeing separate maintenance to the wife with alimony and division of joint property, husband appeals. Reversed in part and remanded with directions.

Campbell & Campbell, by Stanley D. Campbell, Tulsa, for plaintiff in error.

Claud Briggs, Oklahoma City, C. Lawrence Elder, James E. Poe, Tulsa, for defendant in error.

DAVISON, Justice.

¶1 Appellant, plaintiff below, complains of errors in the judgment of the trial court denying him a divorce and allowing separate maintenance to his wife. The trial judge effected a division of jointly acquired property, setting apart to the wife her personal paraphernalia, the home, its furnishings and furniture, 300 shares of common stock in the American Telephone & Telegraph Company, and a certain automobile. The value of this property was set at $91,500. The remainder of joint assets, fixed at the total sum of $199,328.75, was awarded to the plaintiff. Granted to the defendant, in addition to her share of the matrimonial property, was a judgment for "permanent alimony" in the sum of $72,000 payable at the rate of $750 per month for a period of 8 years. The journal entry recites at its conclusion:

"The judgment herein rendered, for an equitable division of the jointly acquired property of plaintiff and defendant, as well as the judgment for permanent alimony, is intended to be and shall be final and conclusive and a bar to any future claim or action by either party, for the recovery of alimony or for any future claim for any interest in the property now or hereinafter owned by either." (Emphasis added.)

¶2 When, on denying a divorce, an order for separate maintenance is granted, the power of the court, so far as the proprietary rights and obligations of the parties are concerned, is governed and limited by the provisions of

"The parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce, but if a divorce is granted in such circumstances, it shall be granted to both parties. In any such case or where the court grants alimony without a divorce or in any 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 of 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." (Emphasis added.)

¶3 The phrase "alimony without a divorce", as employed in the quoted statute, is not synonymous, and should not be confused with the term "alimony" (for fault or aggression of a spouse) under the provisions of

¶4 Under the quoted provisions of

¶5 It was the duty of the trial court to determine the present needs of the wife, consider the separate income, if any, she would receive from the property set apart to her out of the joint assets, and render an order for a monthly allowance in an amount found reasonably necessary to defray her living expenses, such installments to be paid so long as the marriage subsists or until further order of the court. Lewis v. Lewis, supra; Fox v. Wiley, supra; Walker v. Walker, supra; Branson v. Branson, 190 Okl. 347,

¶6 As a ground for divorce plaintiff relied on incompatibility. This allegation was negatived in defendant's answer. She prayed that a divorce be disallowed and separate maintenance granted. Neither party charged the other with any marital misconduct. As reflected by the journal entry, plaintiff's petition was denied on the basis of his failure to "sustain the burden of proof".

¶7 The trial court's action in denying a divorce is asserted as contrary to the clear weight of the evidence. Plaintiff contends, inter alia, there was error in excluding from the evidence certain verified pleadings of the parties which were filed by them in two previous matrimonial actions.

¶8 Incompatibility imports more than a mere mental process or an after-thought conceived and nurtured in the psyche of the complaining spouse. While conscious fault is not necessarily a gravamen of incompatibility, its basis must nonetheless be established by proof, objective in its character, of causes to which marital disharmony is attributed. In order to meet his burden of proof plaintiff sought to establish a continuous, deep and irremediable discord affecting a rift in the intimate life of the parties. The allegations in the proffered pleadings, which we have carefully examined, do tend to furnish material facts as to past controversies between the parties and shed light upon the reasons for an absence of harmony between them. Above all, the averments strongly militate against the conclusion that plaintiff's complaint of incompatibility is bottomed on a mere subterfuge or after-thought and hence lacks a substantial foundation in facts. See Chappell v. Chappell, Okl.,

¶9 The defendant did not employ recrimination as an affirmative defense to the petition for divorce and the record discloses no evidence of any marital misconduct on the part of the plaintiff. There is no analogy here to the case of Wright v. Wright, Okl.,

¶10 The term "incompatibility" describes a state or quality of relation between given persons or concepts. A litigant in a divorce case cannot establish incompatibility on his part alone. Legally speaking, incompatibility cannot be unilateral, but is always mutual. One spouse may be disillusioned or disappointed in marriage due to some trivial or imaginary difficulties insufficient to destroy a normal and wholesome matrimonial association. In such case there is no actionable incompatibility. Mutual incompatibility, within the terms of the statute, denotes generally a state of irremediable rift or discord produced by a reciprocal conflict of personalities. It is a condition which by its nature must be bilateral. In such instance the law will not undertake to measure the degree in which each spouse may have contributed to the development of incompatibility. Once a marital relation of this character is established as a fact, there exists in contemplation of law a state of actionable incompatibility, even though the effect of the mismatch be wholly unbearable to one and yet appear somewhat less harmful and disturbing to the other spouse. Rakestraw v. Rakestraw, supra.

¶11 A detailed recital of the evidence would serve no useful purpose. The parties have been married for some 28 years. They have no children. With a steady rise to economic success they gradually began drifting apart until, after a period of time, their habits, tastes and interests became so different that there was nothing left in common to share. Resentment, indifference, coolness and distrust were allowed to animate the course of the relation. There was little, if any, concern or solicitude for the emotional needs of each other, and this ultimately destroyed their sense of belonging, stability and security. These antagonistic feelings appear irreversible. Commendable as we find defendant's sincere efforts to preserve the marital bond and effect a reconciliation, we can hardly escape the impression that, when the action was filed, the deterioration of the marriage had reached a point beyond the possibility of rescue. The evidence, so viewed as a totality, clearly demonstrates an irremediable rift and is sufficient in law to establish the factum of actionable incompatibility.

¶12 The comments made by the trial judge at the close of the proceedings manifestly show that he did consider the evidence sufficient to show incompatibility, and believed that a decree of separate maintenance would leave both parties in a most unsatisfactory legal relation. The record, considered as a whole, impels our conclusion that plaintiff's petition was denied because the trial court felt reluctant to grant a divorce over the objection of the wife who elected to stand on the prayer for legal separation and expressed her unwillingness to amend the pleading to ask for divorce. The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties. Conversely, when actionable incompatibility is shown, a divorce may not be denied solely because the defending spouse voices opposition to its granting. A contrary holding would make incompatibility dependent in its application upon an agreement or a stipulation between the parties, and thus furnish a vehicle for a consensual divorce which the law did not intend to sanction.

¶13 It is our opinion that the judgment of the trial court denying plaintiff a divorce is against the clear weight of the evidence.

¶14 While the alimony judgment cannot stand in conjunction with the decree of separate maintenance for the reasons discussed above, it can and should be re-entered as an incident to an absolute divorce. Its amount, challenged here for excessiveness, appears reasonable when we consider defendant's total unpreparedness for gainful employment, her emotional and physical state of health, the length of the marriage, and the husband's present salary of $35,000 per year, coupled with a potential for higher earnings. Neither did the trial court err in effecting an equitable division of the joint property. It appears that the defendant-wife received less than one-half of the total assets. Chappell v. Chappell, supra; Whiteker v. Whiteker, Okl.,

¶15 Plaintiff finally urges that the trial court abused its discretion in granting defendant an attorney's fee of $7,250. The fee so awarded was paid by the plaintiff. After appeal defendant applied to this court for an allowance of additional attorney's fee which request was denied. In determining the amount of reasonable counsel fee to be awarded a wife in a contested divorce action, the ability of the husband to pay and the means and property of the parties are proper factors to be considered, together with the nature of legal work performed, the time required therefor, and the complexity of the issues involved in the litigation. McElreath v. McElreath, Okl.,

¶16 The judgment of the trial court is reversed; cause is remanded with directions to set aside the decree of separate maintenance, enter judgment granting plaintiff a divorce, and award the defendant alimony and division of joint property in accordance with the views expressed in this opinion.