Janitz v. Janitz

2013 OK CIV APP 107, 315 P.3d 410, 2013 WL 6700091, 2013 Okla. Civ. App. LEXIS 99
CourtCourt of Civil Appeals of Oklahoma
DecidedNovember 8, 2013
DocketNo. 110680
StatusPublished

This text of 2013 OK CIV APP 107 (Janitz v. Janitz) 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
Janitz v. Janitz, 2013 OK CIV APP 107, 315 P.3d 410, 2013 WL 6700091, 2013 Okla. Civ. App. LEXIS 99 (Okla. Ct. App. 2013).

Opinion

BRIAN JACK GOREE, Judge.

{ 1 Petitioner, Lezlie A. Janitz (Wife) seeks review of that part of the trial court's Agreed Decree of Dissolution of Marriage (Decree) in which it awarded certain property to Respondent, Roger E. Janitz (Husband), as his separate property, divided a debt it characterized as a marital debt, and refused Wife's request for support alimony. We affirm.

2 In 1998, Wife and Husband were married. In 1997, Husband moved out of the home, and fourteen years later, on March 14, 2011, Wife filed a Petition for Dissolution of Marriage.1 Following a trial of the matter, [412]*412the trial court entered an Agreed Decree of Dissolution of Marriage (Decree) on April 11, 2012. In the Decree, the trial court found, among other things, the parties separated in June 1997 and that joint industry ended at the time of separation. It divided their marital property and also found Wife was not entitled to support alimony. Wife appeals.

18 A divorcee action is one of equitable cognizance in which the trial court has discretionary power to divide the marital estate. Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d 994, 996. We will not disturb that division unless we find an abuse of discretion, or that the trial court determination is clearly contrary to the weight of the evidence. Id. at 998. Likewise, a trial court is vested with wide discretion in awarding support alimony. Hutchings v. Hutchings, 2011 OK 17, ¶ 14, 250 P.3d 324, 327.

L.

T4 Wife complains the trial court abused its discretion in dividing the parties' property because it found the parties separated in June 1997 and joint industry ceased on that date; therefore, the property Husband accumulated thereafter was his separate property.

[5 Husband is an oral surgeon who began his practice in 1985. In 1987, he purchased a home. Following the 1998 marriage, Wife and her daughter from a previous marriage moved into the home with Husband. Husband never added Wife's name to the title to the home. He moved out of the home in June 1997 and moved in with his mother when she became ill.

T6 From 1997 until 2011, when she filed for divorce, Wife and her daughter lived in the home, and Husband continued to support both of them. Specifically, he paid the house payment, the utilities, Wife's cell phone, all of her credit cards, homeowners' insurance, her car, automobile insurance, real estate taxes, and medical bills. Also, Husband and Wife filed tax returns as a married couple for the entire 18 years of marriage.

T7 In 2000 or 2001, Wife attended school to become an aesthetician. She received a grant to finance her training and then began repaying the grant, but Husband paid the balance. Also, in 2001, Wife filed a petition for dissolution of the marriage, which apparently was dismissed.

T8 During the marriage, Husband had his own checking account, and Wife had her own. After he left the home in 1997, Husband left some clothing and his woodworking shop there. He testified he spent one night at the home when Wife was there, and spent two nights dog sitting when Wife and her daughter were out of town. Otherwise, after he left the home in June 1997, Husband and Wife remained apart and never again lived in the home together. The trial court's determination that Husband and Wife separated in June 1997 is not against the clear weight of the evidence. Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d at 998.

19 Joint property is that which is accumulated by joint industry of the spouses during a marriage. 48 O.S.Supp.2006 § 121. Smith v. Villareal, 2012 OK 114, ¶ 8, 298 P.3d 533, 536. Although property acquired during coverture is generally marital property, it is possible for one spouse to acquire separate property during marriage. See, eg. Harden v. Harden, 1938 OK 54, 182 Okla. 364, 77 P.2d 721. In Harden, the husband and wife separated, living separate and apart until their divoree. After the separation, the husband acquired certain properties The Supreme Court held, ". .. there is no cireum-stance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties.... The parties never lived together after [the husband] acquired [the property] ... We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute. (now 48 0.8.2011 § 121)" See also, Weaver v. Weaver, 1975 OK CIV APP 25, 545 P.2d 1305.

110 In the present case, the parties did not live together after their June 1997 separation; therefore, the trial court did not [413]*413abuse its discretion in determining joint industry ceased thereafter.2 Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d at 998. Property acquired by a party between the time of separation and the time of trial is separate property, not subject to division. See Forristall v. Forristall, 1992 OK CIV APP 64, ¶ 12, 831 P.2d 1017, 1020.

I 11 In the Decree, the trial court awarded Husband, as his separate property, his IRA, his 2002 Buick Le Sabre, and the 2006 Mazda Miata. Wife contends these items were accumulated during the marriage. However, the 2002 Buick Le Sabre, the 2006 Mazda Miata, and Husband's IRA, which he created in 2000, were acquired after separation.

(12 Wife also contends the office equipment and furnishings and a business account were accumulated during the marriage. The trial court awarded Husband, as his separate property, the office equipment and furnishings. They were acquired by the Husband after he began his oral surgery practice in 1985-86, several years before the parties married in 1998. The trial court did not abuse its discretion in awarding these foregoing items to Husband as his separate property. Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d at 998.

113 The trial court awarded Husband the business operating account titled in his name only. Considering the fact that the parties had been separated for 14 years before Wife filed the divorcee petition, it was not an abuse of discretion for the trial court to award Husband the business operating account containing funds acquired long after the parties separated.3 The trial court did not abuse its discretion in awarding the business operating account to Husband. Id.

114 Wife argues the trial court abused its discretion in awarding only one-half of the increase in the net equity of the home from the date of the marriage to the date of separation.4 The trial court awarded Husband the home as his separate property subject to an award to Wife of one-half of the increase in the net equity of the home between the date of marriage and date of separation.

{15 The home was Husband's separate property at the time of the marriage. Wife's name was never added to the title, and Husband paid the mortgage payments from his separate checking account. Moreover, other than cleaning the home and possibly painting it, Wife does not argue her personal efforts of labor changed the character of Husband's separate property into jointly acquired property.5 Title 48 0.8.2011 § 121 contemplates a division of jointly acquired property. Bishop v. Bishop, 1944 OK 180, ¶ 6, 194 Okla. 209, 148 P.2d 472, 474. The home remained Husband's separate property beyond the date of separation when joint industry stopped. See Crocker v. Crocker, 1991 OK 130, ¶ 23, 824 P.2d 1117, 1124.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Weaver v. Weaver
545 P.2d 1305 (Court of Civil Appeals of Oklahoma, 1976)
McLaughlin v. McLaughlin
1999 OK 34 (Supreme Court of Oklahoma, 1999)
Crocker v. Crocker
1991 OK 130 (Supreme Court of Oklahoma, 1991)
Teel v. Teel
1988 OK 151 (Supreme Court of Oklahoma, 1988)
May v. May
1979 OK 82 (Supreme Court of Oklahoma, 1979)
Forristall v. Forristall
1992 OK CIV APP 64 (Court of Civil Appeals of Oklahoma, 1992)
Hutchings v. Hutchings
2011 OK 17 (Supreme Court of Oklahoma, 2011)
Ray v. Ray
2006 OK 30 (Supreme Court of Oklahoma, 2006)
Smith v. Smith
1993 OK CIV APP 17 (Court of Civil Appeals of Oklahoma, 1993)
Peyravy v. Peyravy
2003 OK 92 (Supreme Court of Oklahoma, 2003)
Bishop v. Bishop
1944 OK 180 (Supreme Court of Oklahoma, 1944)
Harden v. Harden
1938 OK 54 (Supreme Court of Oklahoma, 1938)
Marriage of Smith v. Villareal
2012 OK 114 (Supreme Court of Oklahoma, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2013 OK CIV APP 107, 315 P.3d 410, 2013 WL 6700091, 2013 Okla. Civ. App. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janitz-v-janitz-oklacivapp-2013.