Davis v. Davis

1967 OK 35, 424 P.2d 76, 1967 Okla. LEXIS 351
CourtSupreme Court of Oklahoma
DecidedFebruary 7, 1967
DocketNo. 41488
StatusPublished
Cited by2 cases

This text of 1967 OK 35 (Davis v. Davis) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Davis, 1967 OK 35, 424 P.2d 76, 1967 Okla. LEXIS 351 (Okla. 1967).

Opinion

BLACKBIRD, Justice.

This appeal involves proceedings by defendant in error, hereinafter referred to as “plaintiff”, to obtain modification of the child support provisions of the previous decree of her divorce from plaintiff in error, hereinafter referred to as “defendant”.

At the time of the parties’ marriage to each other, they had both been married once previously to others, and those marriages had also ended in divorces. In connection with his previous divorce, defendant was awarded custody of his daughter, Susan, who was approximately thirteen years of age at the time of his and plaintiff’s divorce from each other. By the divorce decree, which dissolved her previous marriage, defendant was awarded custody of a son, Bill Allen Melton, born during that marriage. This boy was approximately eleven years old in 1961.

The child, whose support is involved here, is Dorothy Ella Davis, who was born either in late 1954 or early 1955, approximately a year after plaintiff’s and defendant’s marriage to each other. At the time of their subsequent divorce, in August, 1961, plaintiff was awarded custody of Dorothy Ella (hereinafter referred to merely as “Dorothy”) who was then six years old, and $50.00 per month for Dorothy’s support until she reached majority, or “until further order of the court.” In addition, plaintiff was awarded the parties’ 1960 model Chevrolet automobile, and all of their household furnishings and appliances, free and clear of the indebtedness on them, which defendant was ordered to pay. He was awarded the parties’ two airplanes, one of which was a 1958 model 2-place Champion, and the other a 4-place Bonanza.

In the motion plaintiff filed in 1964 to institute the present modification proceedings, she cited the fact that Dorothy was then nine years old, and alleged that more was required for her maintenance, support and education than when the parties were divorced from each other in 1961 (and she was awarded $50.00 per month for this [78]*78child’s support). She also alleged facts contemplated to show that defendant was in a better financial condition, and able to pay more for Dorothy’s support, than in 1961. Upon the basis of these alleged “changes in condition”, plaintiff prayed, among other things, for an increase in the monthly support payments from $50.00 to $100.00.

At the trial of this matter, in October, 1964, it was established that plaintiff had been living with Dorothy, and her son Bill Melton/ in a house trailer, she is in the process of buying, at the Mobile Home Park near Lake Murray; that she had been working as a clerk in an Ardmore drug store for -at least two years; that her only income, other than the child support money for Dorothy, was her monthly salary at the drug store, in the amount of $206.06 after deductions for income taxes, social security, etc.; that the payments on the purchase of the house trailer are $53.57 per month, and her utility bills average from $40.00 to $50.00 per month additionally; that Dor'othy was in the fourth grade at Admore’s Franklin School; that plaintiff drives her to school each day from Lake Murray as she goes to work at the Ard-more drug store; that during the days, or parts of days, while plaintiff is working and 'Dorothy is not in school, Dorothy stays, until picked up by plaintiff, at the Ardmore home of defendant’s 83-year-old mother, with whom his 16-year-old daughter, Susan, resides.

On the basis of plaintiff’s testimony, the fixed annual expenses of maintaining Dorothy, when divided by 12 to arrive at a monthly average, are as follows: $3.75 for school lunches; $40.00 for her breakfast and supper at home; her one-third share of the house trailer payments, $17.75; sundries and personal hygienic needs, $8.00; sick and accident insurance premiums, $4.75; transportation to school, $7.50; one-third share of plaintiff’s utilities, $16.-00; clothing, $3.33; birthday parties and presents, $1.25; and school supplies, $1.40.

After plaintiff’s testimony had shown that she received no support money for her son, Bill Melton, and had indicated that, on the basis of Dorothy’s share of plaintiff’s household expenses, plus her own personal expenses during the year 1963, the child’s annual expenses totalled between $1400.00 and $1500.00, counsel for defendant asked plaintiff the following question on cross examination:

“Q Mrs. Davis, if it is going to cost $1500.00, a year, to support a litttle girl at age nine, how much would you say that it costs to support you?”

The court sustained plaintiff counsel’s objection to this question on the ground that whatever it cost to support plaintiff was immaterial to the issues in this case.

Defendant’s testimony established, among other things, that his annual income consists of the following: $3037.00 from the City of Ada for operating its municipal airport; net profit, above the cost of fuel and usual expenses, of $1800.00 for the flying inspection, or patrolling, of Oklahoma Gas & Electric Company’s power lines; and approximately $300.00 for giving flying lessons.

It was also established that defendant lives in a house at the Ada Airport, free of any rental or utility bills, except charges for long distance telephone calls; that, since the parties’ divorce, he has purchased a 1963 Chevrolet automobile, on whose purchase-price-loan he is making monthly payments of $79.92 each; and, that in January, 1964, he purchased an 80-acre farm home, at a price of $14,500.00 with the proceeds of a G. I. loan, which he repays at the rate of $99.00 per month. Defendant testified that, in addition to the above monthly payments, and the $50.00 per month he has been paying for Dorothy’s support, he pays another $50.00 per month to his mother in Ardmore to apply on his daughter, Susan’s expenses, and that Susan, who has had nurse’s training, helps care for his aged mother, who is in poor health. The other expenses, to which defendant testified, were personal liability .insurance premiums on his airplane and other insurance premiums on his auto. [79]*79These annual sums, when divided by 12, amount to $4.75 per month for the airplane insurance and $9.58 per month for the auto insurance.

At the close of the evidence, the trial court entered an order and/or judgment modifying the child support provisions of the divorce decree by increasing defendant’s monthly payments from $50.00 to $85.00 each. Defendant thereafter filed a motion for a new trial, and, after it was overruled, perfected the present appeal.

Defendant’s first, of two, “PROPOSITIONS” for reversal is: “The judgment of the court is not sustained by sufficient evidence and is contrary to law.” Under this Proposition, defendant cites cases to the effect that a change in the parties’ condition must be shown as a prerequisite to obtaining modification of a previous court provision for child support. Pursuant to his argument, we observe that there is no evidence in the record before us as to what was the cost of maintaining the child, Dorothy, in 1961, when the parties were divorced and she was only six years old; and defendant contends that the mere fact that Dorothy, at the time of the trial, was three years older, constituted no evidence in, and of, itself that her expenses have increased since that time. The point of his argument seems to be that since no such evidence was introduced, the evidence of Dorothy’s present expenses presents no basis for comparison, and therefore shows no change of condition.

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Bluebook (online)
1967 OK 35, 424 P.2d 76, 1967 Okla. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-davis-okla-1967.