Gilcrease v. Gilcrease

WELCH, V. C. J. Essential facts are that in a former action between the parties, who were husband and wife, the trial court judgment granted the husband a divorce and awarded alimony to the wife in the sum of $15,000, payable in equal monthly installments of $250. That judgment was approved and affirmed on appeal. Gilcrease v. Gilcrease, 176 Okla. 237, 54 P. 2d 1056. After the husband had made the monthly payments for some time, he filed his application to modify the former judgment by vacating the same as to future installments and for discontinuance of the monthly payments on account of the remarriage of his former wife to another man. The trial court, upon consideration of the husband’s application, and of the evidence, denied the application for modification of the former judgment, from which denial this appeal is prosecuted. At the outset we meet the question whether such an alimony judgment is a final judgment, or whether there is a continued right in the husband to have modification upon a change of condition of the wife. The exact question appears not to have been presented before, but we have held that in such case, that is, in case of divorce granted to the husband upon fault of the wife, that in proper circumstances, the trial court may award permanent alimony in a reasonable -amount to the wife. Elmore v. Elmore, 117 Okla. 63, 244 P. 788; Newman v. Newman, 144 Okla. 160, 290 P. 179; Flaxman v. Flaxman, 169 Okla. 65, 35 P. 2d 950, and Flaxman v. Flaxman, 177 Okla. 28, 57 P. 2d 819. Under our statutes permanent alimony must be awarded either in specific property or in a definite sum of money. Section 672, O. S. 1931, 12 Okla. St. Ann. § 1278; West v. West, 134 Okla. 226, 273 P. 209; Oder v. Oder, 149 Okla. 63, 299 P. 202; Flaxman v. Flaxman, 169 Okla. 65, 35 P. 2d 950; Dutton v. Dutton, 97 Okla. 234, 223 P. 149, and Javine v. Javine, 134 Okla. 283, 273 P. 267. And in Flaxman v. Flaxman, 169 Okla. 65, 35 P. 2d 950, we applied this same rule to the awarding of alimony to the wife where the divorce was granted on her fault. And in the second appeal between the same parties, 177 Okla. 28, 57 P. 2d 819, we treated the alimony award to the wife at fault, in a lump sum, as being in all respects a final judgment. And so far as indicated by the briefs of the parties or our independent research, this court has always treated a judgment for alimony as being capable of attaining definite finality, the same as any other judgment. Privett v. Privett, 93 Okla. 171, 220 P. 348; Davis v. Davis, 61 Okla. 275, 161 P. 190; Finley v. Finley, 174 Okla. 457, 50 P. 2d 643; Friedman v. Friedman, 132 Okla. 45, 269 P. 257, and Hatfield v. Hatfield, 59 Okla. 132, 158 P. 942. It is true these last-cited cases deal with judgments for alimony to the wife where the husband was at fault. But since we otherwise apply the identical test and rule to a judgment for alimony *453 granted the wife where the divorce was granted to the husband, as we did in the Flaxman Case, and since in this case the rule was followed in granting the alimony here involved in a fixed sum, we see no reason why we should not apply to such an alimony judgment all of the other rules applicable, including these fixed rules of finality thereof. Our attention is directed to the fact that in the former action the trial court first announced an award of $72,000 in alimony payable $200 per month so long as the wife remained unmarried, to terminate, however, upon her remarriage, but that in the further course of rendition of the judgment the alimony portion thereof was changed, and instead of such award the alimony award was made in the sum of $15,000, payable $250 per month, with complete elimination of any reference to remarriage of the wife or cessation of payments on account of her remarriage. We deem that not of controlling importance in view of our conclusion that the judgment for $15,000 in alimony attained the same complete finality as any other judgment rendered in the district court. This detail in the rendition of the alimony judgment in the former action was noticed in our opinion in Gilcrease v. Gilcrease, 176 Okla. 237, 54 P. 2d 1056. It is here urged that the first pronouncement of $72,000 alimony in monthly payments to terminate on remarriage was eliminated, and in lieu thereof there was substituted the judgment for $15,000 alimony in monthly payments not to terminate on remarriage of the wife, and that the husband acquiesced therein by not appealing therefrom, and that therefore he should not be heard to seek termination of the monthly payments upon her remarriage. But we deem that of no controlling importance, since we conclude that he has no right to modify the alimony judgment on this ground, on account of the legal finality thereof. We conclude that each judgment for alimony to the wife upon the granting of a divorce should be measured by the same rules as to finality, and that in no case does the husband have a right to modification of an alimony judgment, after the same has become final, on account of the remarriage of his wife to another man. In Bowen v. Bowen, 182 Okla. 114, 76 P. 2d 900, alimony was granted the wife in a fixed sum payable in equal monthly installments. This court held such alimony award not subject to modification upon marriage of wife to another man. In other jurisdictions, where an alimony award to the wife in money is not required to be made in a fixed sum, but may be made in monthly payments to run indefinitely in the future, it has been held that change in condition or status of the wife, such as remarriage to another, will justify modification of the decree. Such decisions are here presented and discussed in the briefs of the parties. However, in view of the different rule in this state as to the rendition and form of an alimony judgment, those decisions are not in point, as we analyze the former decisions of this court, and as our former decisions construe our applicable statutes. Following our former decisions, as we analyze them, the judgment of the trial court denying the husband’s application for modification of this final alimony judgment is affirmed. OSBORN, CORN, DAVISON, and HURST, JJ., concur. BAYLESS, C. J., and RILEY, GIBSON, and DANNER, JJ., dissenting.