1961 OK 112, 363 P.2d 155 (1961)
The appellant, who was the plaintiff below, and the appellee had been married for some 28 years and had no children.1 The plaintiff filed a petition for divorce on the ground of incompatibility, which the defendant denied in her answer while praying for separate maintenance.2 Neither party charged the other with any marital misconduct.3 The trial court denied the plaintiff's petition on the basis of his failure to sustain the burden of proof.4
The trial court excluded from evidence verified pleadings filed by the parties in two previous matrimonial actions.5 The record reflects that with a steady rise to economic success the parties gradually began drifting apart until their habits, tastes and interests became so different that there was nothing left in common to share, with resentment, indifference, coolness and distrust animating the course of the relation.6 The court set 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 an automobile, with the value of this property set at $91,500.7 The remainder of the joint assets, fixed at the total sum of $199,328.75, was awarded to the plaintiff.8 The court also granted the defendant 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, with the journal entry reciting that the judgment was intended to be final and conclusive and a bar to any further claim.9
The husband's present salary was $35,000 per year.10 The trial court granted the defendant an attorney's fee of $7,250, which was paid by the plaintiff.11 The plaintiff appealed, complaining of errors in the judgment denying him a divorce and allowing separate maintenance to his wife.12
Whether the trial court erred in denying the plaintiff a divorce on the ground of incompatibility?13
Incompatibility describes a state of irremediable rift or discord produced by a reciprocal conflict of personalities. It must be bilateral. Once established by the clear weight of the evidence as a fact, a divorce may not be denied solely because the defending spouse voices opposition to its granting.14
Yes. The parties had been married for some 28 years with no children. With a steady rise to economic success they gradually began drifting apart until their habits, tastes and interests became so different that there was nothing left in common to share. Resentment, indifference, coolness and distrust animated the course of the relation. These antagonistic feelings appear irreversible. The trial court denied the petition on the basis of failure to sustain the burden of proof.15 Yet the comments made by the trial judge at the close of the proceedings show that he considered the evidence sufficient to show incompatibility.16 The record impels the conclusion that the denial occurred because the court felt reluctant to grant a divorce over the objection of the wife who elected to stand on the prayer for legal separation.17
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. When actionable incompatibility is shown, a divorce may not be denied solely because the defending spouse voices opposition.18
The trial court erred in denying the plaintiff a divorce on the ground of incompatibility.19
Whether the trial court had authority to enter a fixed-sum alimony judgment as part of a separate maintenance decree?20
Under 12 O.S.Supp.1955 § 1275, the court may make such order as may be proper for the custody, maintenance, and education of the children. The court may also provide for the control and equitable division and disposition of the property of the parties. An order for alimony without a divorce is continually subject to modification as the needs of the wife may change. The court lacks jurisdictional power to enter an alimony judgment in a fixed amount so as to preclude its future modification.21
No. The statute authorizes an equitable division of jointly acquired property but does not authorize a final fixed-sum alimony award when a divorce is refused.22 The trial court set apart to the wife property valued at $91,500 and awarded the remainder of joint assets totaling $199,328.75 to the plaintiff. It then granted the defendant 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 recited that the judgment was intended to be final and conclusive and a bar to any further claim.23
This fixed amount judgment cannot stand as an incident of a decree for separate maintenance. An order for alimony without a divorce contemplates the present needs and conditions of the wife alone and remains subject to revision.24
The trial court lacked authority to enter a fixed-sum alimony judgment as part of the separate maintenance decree.25
Whether the trial court erred in excluding verified pleadings from prior matrimonial actions?26
Pleadings in a prior action of the same general character, though not conclusive upon a party, are of evidentiary force in a subsequent proceeding. They constitute judicial admissions and should be accorded consideration when they furnish material facts as to past controversies and shed light upon the reasons for an absence of harmony between the parties.27
Yes. The plaintiff sought to establish a continuous, deep and irremediable discord effecting a rift in the intimate life of the parties. The allegations in the proffered pleadings, which were carefully examined, furnish material facts as to past controversies between the parties and shed light upon the reasons for an absence of harmony between them. They strongly militate against the conclusion that the complaint of incompatibility is bottomed on a mere subterfuge or afterthought.28
There was error in the exclusion of this evidence.29
The trial court erred in excluding verified pleadings from prior matrimonial actions.30
Whether the alimony award was excessive?31
In determining the amount of alimony after divorce the court must consider the future support of the wife, including her total unpreparedness for gainful employment, her emotional and physical state of health, the length of the marriage, and the husband’s present salary coupled with a potential for higher earnings.32
No. The amount of the alimony judgment appears reasonable when measured against these factors. The defendant’s total unpreparedness for gainful employment, her emotional and physical state of health, the length of the marriage of some 28 years, and the husband’s present salary of $35,000 per year coupled with a potential for higher earnings all support the sum awarded.33 The trial court did not err in the amount fixed for alimony when re-entered as an incident to an absolute divorce.34
The alimony award was not excessive.35
Whether the trial court abused its discretion in awarding the defendant an attorney's fee of $7,250?36
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.37
No. The fee awarded constitutes adequate compensation for all the services rendered to the defendant in connection with the present litigation. Considering the extent of work performed by counsel for the defendant both here and in the trial court, and taking due notice of the ability of the husband to pay, the means and property of the parties, the nature of legal work performed, the time required therefor, and the complexity of the issues involved, the fee of $7,250 may be approved.38
The trial court did not abuse its discretion in awarding the defendant an attorney's fee of $7,250.39