Flippo v. Nelson

1990 OK CIV APP 34, 792 P.2d 99, 61 O.B.A.J. 1602, 1990 Okla. Civ. App. LEXIS 25, 1990 WL 78099
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 8, 1990
DocketNo. 71417
StatusPublished
Cited by1 cases

This text of 1990 OK CIV APP 34 (Flippo v. Nelson) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flippo v. Nelson, 1990 OK CIV APP 34, 792 P.2d 99, 61 O.B.A.J. 1602, 1990 Okla. Civ. App. LEXIS 25, 1990 WL 78099 (Okla. Ct. App. 1990).

Opinion

BRIGHTMIRE, Chief Judge.

The issue presented for review in this, partition action is whether the trial court’s in kind allocation of subject land in accordance with the commissioners’ final report was clearly unfair and inequitable as to the objecting plaintiff under the evidence.

We hold that it was and modify the final decree.

I

The orientational background facts are that the plaintiff, Dorothy Flippo, formerly Shannon, is the daughter of the late L.D. Shannon who died testate leaving an estate consisting of, among other things, several pieces of real estate located in various counties in this state. The decedent’s will was probated and his land was distributed August 4, 1976, to the defendant trustees of two trusts created by the terms of the [100]*100will, one of which was called “My Wife’s Trust Estate” and the other “My Residuary Trust Estate.” The trustees are Barlow Nelson and Yandell Shannon, the plaintiff’s mother.

The trusts were each devised a one-half interest in the decedent’s real estate. The plaintiff and her sister, Darlene Kay Geli-no, a defendant, were made equal beneficiaries of the assets of “My Residuary Trust” with distribution of one-third of the corpus at ages 35, 40 and 45.

The plaintiff’s late father, L.D. Shannon, executed his last will in 1963. It was probated and the estate distributed in 1976. Not long thereafter the trustees of the estate trusts conveyed a 40-acre tract located in Section 7, T17N, R10E, Creek County, Oklahoma, to the plaintiff and a 40-acre tract in the same section to her sister, defendant Gelino. The two tracts were separated by an 80-acre tract owned by the trusts.

After acquiring her 40 acres the plaintiff started up a dairy farm business which she and her son operated. Early on the plaintiff received permission from her mother to run her cattle on the adjoining 80 acres for both grazing and watering and has so used the acreage through the years.

On June 13, 1985, the plaintiff filed this action asking that the real property held by the Shannon trusts be partitioned in kind if practical and if not then sold and the proceeds distributed. The trustees answered asking the court to refuse to grant partition relief, or else order the property sold.

Commissioners were appointed January 15, 1986. They issued a partial report March 19, 1986, appraising certain improved real estate situated outside Creek County, and certified it could not be divided in kind without great injury to the parties. The report was not objected to and the property was eventually sold pursuant to a court order and the funds distributed by the court.

On May 24, 1988, the commissioners filed their final report saying they “found that partition of [the remaining real] property can be made among the said parties according to their respective interests as determined and ordered by [the court] without manifest injury to said parties, and we have accordingly partitioned the said property as follows, to wit:”

“To [the] Trustees of 'my wife’s trust’ ” a 10-acre tract and a 30-acre tract in Cherokee County, a 120-acre tract and a 30-acre tract in Creek County (near De-pew, Oklahoma) and an 80-acre tract in Creek County (the Kellyville tract that adjoins the plaintiff’s farm);
“To Darlene Kay Gelino” an 80-aere tract and a 40-acre tract in Creek County;
“To [plaintiff] Dorothy Ann Flippo” a 130-acre tract (near Depew, Oklahoma) some 25 or so road miles away from her dairy farm.

The plaintiff filed an objection to the report based on the fact that as a matter of equity she should be allotted the 80 acres which adjoin her dairy farm to the west and on which she has been running her cattle with the permission of her mother for many years; and that it will work an economic hardship on her if the tract is not allotted to her. Both the trustees and Gelino objected to the plaintiff’s objection.

The matter was heard June 1, 1988. The plaintiff presented evidence that as a permissive user for many years she had become economically dependent on the continued use of subject 80 acres as a source of both food and pond water for her herd of cattle; that it was not cost efficient to hand feed her 65 head of cattle or tap into the rural water system or truck water in, or run the cattle to the allotted 130 acres some 25 miles away, and that constructing a pond on her present acreage would be quite expensive and impractical. The plaintiff further testified she had been unable to lease nearby or adjoining land and the well located on her property had gone dry some time ago. She offered to agree that the 130 acres awarded her could be allotted to the trustees in exchange for the allocation of the 80 acres next to the plaintiff’s farm and the 30-acre tract near Depew — a total of only 110 acres.

[101]*101The only reason defendant Gelino — who did not occupy the 40 acres she owned adjoining subject 80 acres on the west— could come up with in opposition to the commissioners’ strange allocation was that the 80-acre tract was the “most saleable” and she felt it should be left in the trust because in the event her mother wanted to sell it she, Gelino, would offer her 40 at the same time so that a prospective purchaser would be able to buy 120 acres; and that the care of her aging mother was depleting the cash on hand and she would eventually need more cash to supplement her income from oil and gas interests.

Of course the rationale of Gelino overlooked the rather obvious fact that the appraisers had placed fair market values on the various tracts and the allocations were made on the basis of such values. The plaintiffs offer to agree that her 130-acre allotment be exchanged for 110 acres means that the mother would be gaining an additional 20 acres of value.

Moreover, the appraisal report regarding the Kellyville tract contains comments on market data which tend to destroy the validity of Gelino’s thinking. It states that most large tracts in the area are being “cut up” into 10-acre tracts if rural water is available. The report further stated that until such time as water taps can be made available the best use for the property is agricultural.

The report regarding the 160-acre De-pew tract states that the dominant use of the land is agricultural with some rural homesteads. The tract could be partitioned into 40-acre tracts. The market data comments in the Depew tract report indicate that the current market in the area is slow.

At the conclusion of the testimony the trial court seemed to brush aside the evidence of injury to the plaintiff by the commissioners’ recommended allocation and entered an order affirming the report of the commissioners. Regarding the plaintiff’s request that she be allotted subject 80-acre tract for the operation of her dairy, the trial court stated:

“I can certainly understand that she would like to have her dairy operation right where it is, but I am not convinced that arrangements could not be worked out elsewhere for this same operation. I think she has got other property to go to, or she would have the option to purchase the very eighty or the very forty that has been discussed here if she sells some of her other property. I don’t know of any reason that hasn’t been shown to this Court why the trustees would not sell this eighty to her.

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Related

Barth v. Barth
1995 OK CIV APP 83 (Court of Civil Appeals of Oklahoma, 1995)

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Bluebook (online)
1990 OK CIV APP 34, 792 P.2d 99, 61 O.B.A.J. 1602, 1990 Okla. Civ. App. LEXIS 25, 1990 WL 78099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flippo-v-nelson-oklacivapp-1990.