Kelley v. Kelley

1968 OK 126, 447 P.2d 774, 1968 Okla. LEXIS 434
CourtSupreme Court of Oklahoma
DecidedSeptember 10, 1968
DocketNo. 41637
StatusPublished
Cited by2 cases

This text of 1968 OK 126 (Kelley v. Kelley) 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
Kelley v. Kelley, 1968 OK 126, 447 P.2d 774, 1968 Okla. LEXIS 434 (Okla. 1968).

Opinion

BLACKBIRD, Justice:

As the parties appear here in the same order in which they appeared in the trial court, they will hereinafter be referred to by their trial court designations.

Plaintiff and defendant were previously the “plaintiff” and “defendant” in a divorce action docketed as Cause No. 100,467, in the District Court of Oklahoma County. In the divorce decree entered in said cause on August 19, 1959, the court found, among other things, that the defendant should be granted the divorce on the ground asserted in her cross petition, and that the couple had certain jointly acquired property that should be divided between them. This included a farm in Canadian County, a ranch in Pontotoc County, and an approximate 4-acre parcel of improved real estate at the corner of Oklahoma City’s Sixteenth and McArthur Streets, described, by geographical subdivision, as a part of the South Half of the Southwest Quarter of the Southwest Quarter of the Northwest Quarter of Section 27, Township 12 North, Range 4 West, in Oklahoma County, on a part of which their home was located. This parcel of city real estate consisted of four adjoining parts, at least partially separated by fence lines, and used for different purposes, and referred to in the decree as “tracts”.

In said decree, the court awarded two of these tracts to plaintiff and the other two tracts to defendant, and ordered the two parties to exchange quit claim deeds to effect the property settlement and division prescribed in said decree. The two parts of the 4-acres, that, according to the decree, were to become plaintiff’s separate property, were described therein as follows:

“(a) A tract in the Southeast Corner 129 feet North and South by 276.82 feet East and West.
“(b) A tract or lot 129.5 feet East and West by 329.34 feet North and South, being the West lot of the East portion of said tract.”

The two other parts awarded to defendant by the decree were described therein as:

“(1) A tract in the Northwest Corner 200 feet North and South by 276.88 feet East and West.
“(2) The East tract or lot being 129.9 feet East and West by 329.34 feet North and South.”

Within a few days after entry of the above described divorce decree in 1959, the parties exchanged deeds, including one from defendant to plaintiff containing descriptions, by metes and bounds, that conformed to those set forth in the decree opposite “(a)” and “(b)” as shown above.

Thereafter, in October, 1961, the Oklahoma City real estate, here involved, was surveyed. The survey revealed, according to plaintiff, that division of the four acres into the tracts described in the divorce decree has unconscionable and absurd results never contemplated at the time it was ordered. In less than a month thereafter plaintiff filed an application wherein he alleged that:

“ * * * the land described in said decree as ‘a tract in the Southeast Corner 129 feet North and South by 276.82 feet East and West’ does not lie in the Southeast Corner but lies in the Southwest Corner and said description places the North line of the tract awarded to the plaintiff several feet south of a chain link fence and overlays the tract awarded to the defendant which is described in said decree as ‘a tract in the Northwest Corner 200 feet North and South by 276.82 feet East and West’ which descrip[776]*776tion not only overlays the tract awarded to the plaintiff as aforesaid, but would place the defendant’s South line several feet South of said chain link fence and would extend through the approximate center of a twenty-five foot tin garage;

After alleging other respects in which the tracts to be exchanged were erroneously described in the divorce decree, and in the deeds executed in conformity therewith, plaintiff’s application prayed that, after hearing evidence on the matter, the court enter an order correcting the decree and the deeds, “to the end that each of the parties may enjoy the property rights awarded to them * * * and intended to be described, but which were erroneously described and incorporated * * * ” in the Journal Entry of said decree, and the deeds which followed it.

The evidence introduced at the hearing on plaintiff’s application, over defendant’s objection that the court then had no jurisdiction to modify the divorce decree, included a deposition by the attorney who had represented plaintiff in the divorce proceedings. In this deposition, the attorney stated, in substance, that, at the time of the divorce proceedings, it was the intention of the parties concerned that one of the tracts plaintiff was to have, with the above mentioned tin garage on it, would extend north to the chain link fence on the southern edge of the family home’s yard, and that, on the east, this yard around the home, that was to be defendant’s would extend to a retaining wall extending, from north to south, along that side of the home. According to this attorney’s deposition, the judge who granted the divorce had unintentionally failed to carry out this plan because he had used incorrect measurements in describing the respective tracts that the parties were to own, as their separate property, after the divorce; and that the property lines indicated by those measurements would extend through the aforementioned tin garage and give defendant two wells that plaintiff had drilled after the divorce was granted, in the space between this garage and the true southern line of defendant’s property, as well as necessitate moving, to the west, the fence on the east side of defendant’s property.

Plaintiff’s application was thereafter denied by an order in which the court found that there had been no “clerical error” in the divorce decree and that the court was without jurisdiction to grant relief sought in the application.

When plaintiff thereafter filed the present action seeking reformation of the deeds, he alleged in his petition that the descriptions of the tracts carved out of the 4 acres, contained in the previous divorce decree and deeds, were the result of mutual mistake. Among other matters, defendant’s answer and cross petition pleaded res judi-cata and alleged that plaintiff was estopped by the divorce decree, and the above described subsequent order, from maintaining his present action.

At the trial, although the court allowed the introduction of both documentary evidence and oral testimony, pro and con of the issue of whether the judge who granted the divorce had used incorrect measurements for the division of the four acres prescribed in his decree, it is obvious that in the judgment thereafter entered, he did not determine this issue of fact, but, instead, based his decision on defendant’s plea in avoidance of that issue, as reflected in the following portion of the journal entry of said judgment:

“ * * * the court made findings that inasmuch as a determination of the property to be conveyed or exchanged between the parties and the deeds exchanged were in conformity with the findings of the Trial Judge in the divorce proceedings and no timely appeal was filed by plaintiff the prior ruling in the divorce proceeding constituted estoppel by judgment and is res judicata as to this action and that this court is without jurisdiction to grant the relief prayed; * *

[777]*777After the overruling of his motion for a new trial, plaintiff lodged the present appeal.

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Bluebook (online)
1968 OK 126, 447 P.2d 774, 1968 Okla. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-kelley-okla-1968.