BACON, Judge.
The parties to this appeal were married May 23, 1953, and lived as husband and wife until May 9, 1966, when the parties desired a divorce while residing in the state of Virginia. At that time, because the state of Virginia required a two-year separation prior to granting a no-fault divorce, the parties entered into a separation agreement. Under the terms of the agreement appellee in effect received all assets of the parties including the home, fixtures and all other properties of the parties, in addition to $270 per month for the support of the parties’ two minor children. The parties never again lived together as husband and wife after the separation agreement.
Appellant, a civilian government employee involved in national security, went to Asia and ultimately was transferred to Saigon, South Viet Nam. On January 31, 1968, appellant was captured by the North. Vietnamese and remained a prisoner, of war for five years and two . months until March 16, 1973, when he was released with other American prisoners from Hanoi.
When the parties married appellee held a Bachelors Degree in Nursing and subsequently while appellant was a POW appel-lee moved to Norman, Oklahoma; obtained a Masters D'egree in Science and Nursing, and was earning $13,000 per year at time of trial. In addition she was receiving $3,420 per year rental income from the home in Virginia. Appellee also purchased another home in Norman. At the time of trial the equity in the Virginia home had increased to in excess of $30,000 and ap-pellee’s equity in the Norman home was in excess of $2,000. Appellee also had several vehicles and $2,100 in savings. During appellant’s imprisonment the U.S. Government paid appellee $33,515.76 (more than double the amount agreed upon in the separation agreement) out of appellant’s earnings for support in addition to numerous other sums of money for moving, cars, household furniture, etc.
During appellant’s imprisonment his POW savings had accumulated to $80,915.-52.
After appellant’s return to the United States appellee filed the present action for divorce in Oklahoma. The trial court awarded both parties a divorce for incompatibility. To appellee went all property, real and personal and $23,600 “alimony” out of appellant’s POW fund. Appellant was given his personal effects and the balance of his POW fund.
Appellant appeals from this judgment and appellee cross-appeals asserting the trial court erred in not allowing appellee
attorney’s fees over and above the $300 temporary fees and costs awarded by the trial court. Appellant’s primary complaint is the awarding of $23,600 “alimony” out of appellant’s POW fund.
The trial court in a divorce where parties are in equal wrong, has wide discretionary powers and is limited only by 12 O.S.1971 §§ 1275 & 1278.
Thus the trial court’s discretion is limited to making an equitable and just division “having due regard to the time and manner of acquiring such property.”
In the present case we find no journal entry or order but only a “Memorandum Opinion.”
In that opinion the
trial court states appellant’s contention “is much more reasonable and logical” than appellee’s. That is, appellant contends the property was divided by agreement in 1966 and what each party has accumulated since is his or her own. Yet the trial court concludes that simply because the “marriage existed until it was dissolved” each party “has a right to claim a share of the joint or several accumulation of property during their marriage.” We do not agree, however, that because the marriage of the separated couple had not been formally dissolved all property accumulated following the separation is to be treated as jointly acquired property or subject to claim by both parties. We think that for the trial court to so conclude and then “divide” the property was an abuse of discretion in view of §§ 1275 & 1278, supra.
The primary error involved in the property divisioñ was in considering the POW funds as jointly acquired property. We think clearly it was not “jointly acquired” property, especially when “having due regard to the time and manner” in which it was acquired, as required by §§ 1275 & 1278. We think this case is closely akin to
Harden v. Harden,
182 Okl. 364, 77 P.2d 721 (1938) wherein the wife and husband separated, living separate and apart until their divorce. In
Harden,
after the separation, the husband acquired certain properties which during the divorce the wife claimed as jointly acquired property. The Oklahoma Supreme Court in denying the wife’s contention said:
“And as to the purchase of the eighty acres by the defendant [husband] after plaintiff [wife] had moved away, there is no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties. The plaintiff likewise had án allotment, of land, and after she moved away from the defendant in 1914 she handled her affairs and her property separately, and the defendant handled his affairs and property separately. The- parties never lived together after defendant acquired this eighty acres. . . . We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute.” [§ 672 O.S.1931 now 12 O.S.1971 § 1278]
In the present case appellant and appel-lee separated, lived apart from that point on and handled their affairs and property separately. Having due regard for the “time and manner” in which appellant acquired this POW fund we find “no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties.”
Harden v. Harden,
supra. Once the POW fund is recognized as appellant’s separate property, it becomes manifest that the trial court did not equitably divide the jointly acquired property, but gave
all
of it to appellee!
Nor did the court’s attempt to disguise the POW fund award by labeling it “alimony” alter its essential character as a division of property. Moreover no evi-dentiary justification for alimony exists in this case. Alimony is for support and some evidence should be offered showing a need for support. Here the evidence shows just the opposite; that is, appellee owns two homes, furniture, several vehicles, has money in savings, a checking account, and is earning in excess of $13,000 a year. The children of the parties are no longer minors and were not at the time of trial. Additionally appellee has received some $16,000 plus out of appellant’s funds during his imprisonment over and above the $270 per month child support. Appel-lee also increased her education at the expense of appellant and the U.S. Government during the time appellant was a POW. Appellee also received numerous other benefits during this time at the expense of appellant, the U.S. Government and the American taxpaying public.
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BACON, Judge.
The parties to this appeal were married May 23, 1953, and lived as husband and wife until May 9, 1966, when the parties desired a divorce while residing in the state of Virginia. At that time, because the state of Virginia required a two-year separation prior to granting a no-fault divorce, the parties entered into a separation agreement. Under the terms of the agreement appellee in effect received all assets of the parties including the home, fixtures and all other properties of the parties, in addition to $270 per month for the support of the parties’ two minor children. The parties never again lived together as husband and wife after the separation agreement.
Appellant, a civilian government employee involved in national security, went to Asia and ultimately was transferred to Saigon, South Viet Nam. On January 31, 1968, appellant was captured by the North. Vietnamese and remained a prisoner, of war for five years and two . months until March 16, 1973, when he was released with other American prisoners from Hanoi.
When the parties married appellee held a Bachelors Degree in Nursing and subsequently while appellant was a POW appel-lee moved to Norman, Oklahoma; obtained a Masters D'egree in Science and Nursing, and was earning $13,000 per year at time of trial. In addition she was receiving $3,420 per year rental income from the home in Virginia. Appellee also purchased another home in Norman. At the time of trial the equity in the Virginia home had increased to in excess of $30,000 and ap-pellee’s equity in the Norman home was in excess of $2,000. Appellee also had several vehicles and $2,100 in savings. During appellant’s imprisonment the U.S. Government paid appellee $33,515.76 (more than double the amount agreed upon in the separation agreement) out of appellant’s earnings for support in addition to numerous other sums of money for moving, cars, household furniture, etc.
During appellant’s imprisonment his POW savings had accumulated to $80,915.-52.
After appellant’s return to the United States appellee filed the present action for divorce in Oklahoma. The trial court awarded both parties a divorce for incompatibility. To appellee went all property, real and personal and $23,600 “alimony” out of appellant’s POW fund. Appellant was given his personal effects and the balance of his POW fund.
Appellant appeals from this judgment and appellee cross-appeals asserting the trial court erred in not allowing appellee
attorney’s fees over and above the $300 temporary fees and costs awarded by the trial court. Appellant’s primary complaint is the awarding of $23,600 “alimony” out of appellant’s POW fund.
The trial court in a divorce where parties are in equal wrong, has wide discretionary powers and is limited only by 12 O.S.1971 §§ 1275 & 1278.
Thus the trial court’s discretion is limited to making an equitable and just division “having due regard to the time and manner of acquiring such property.”
In the present case we find no journal entry or order but only a “Memorandum Opinion.”
In that opinion the
trial court states appellant’s contention “is much more reasonable and logical” than appellee’s. That is, appellant contends the property was divided by agreement in 1966 and what each party has accumulated since is his or her own. Yet the trial court concludes that simply because the “marriage existed until it was dissolved” each party “has a right to claim a share of the joint or several accumulation of property during their marriage.” We do not agree, however, that because the marriage of the separated couple had not been formally dissolved all property accumulated following the separation is to be treated as jointly acquired property or subject to claim by both parties. We think that for the trial court to so conclude and then “divide” the property was an abuse of discretion in view of §§ 1275 & 1278, supra.
The primary error involved in the property divisioñ was in considering the POW funds as jointly acquired property. We think clearly it was not “jointly acquired” property, especially when “having due regard to the time and manner” in which it was acquired, as required by §§ 1275 & 1278. We think this case is closely akin to
Harden v. Harden,
182 Okl. 364, 77 P.2d 721 (1938) wherein the wife and husband separated, living separate and apart until their divorce. In
Harden,
after the separation, the husband acquired certain properties which during the divorce the wife claimed as jointly acquired property. The Oklahoma Supreme Court in denying the wife’s contention said:
“And as to the purchase of the eighty acres by the defendant [husband] after plaintiff [wife] had moved away, there is no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties. The plaintiff likewise had án allotment, of land, and after she moved away from the defendant in 1914 she handled her affairs and her property separately, and the defendant handled his affairs and property separately. The- parties never lived together after defendant acquired this eighty acres. . . . We therefore conclude that the property involved could not necessarily be said to have been jointly acquired within the meaning of the statute.” [§ 672 O.S.1931 now 12 O.S.1971 § 1278]
In the present case appellant and appel-lee separated, lived apart from that point on and handled their affairs and property separately. Having due regard for the “time and manner” in which appellant acquired this POW fund we find “no circumstance justifying the conclusion that it was in any sense acquired by the joint industry of the parties, or jointly acquired by the parties.”
Harden v. Harden,
supra. Once the POW fund is recognized as appellant’s separate property, it becomes manifest that the trial court did not equitably divide the jointly acquired property, but gave
all
of it to appellee!
Nor did the court’s attempt to disguise the POW fund award by labeling it “alimony” alter its essential character as a division of property. Moreover no evi-dentiary justification for alimony exists in this case. Alimony is for support and some evidence should be offered showing a need for support. Here the evidence shows just the opposite; that is, appellee owns two homes, furniture, several vehicles, has money in savings, a checking account, and is earning in excess of $13,000 a year. The children of the parties are no longer minors and were not at the time of trial. Additionally appellee has received some $16,000 plus out of appellant’s funds during his imprisonment over and above the $270 per month child support. Appel-lee also increased her education at the expense of appellant and the U.S. Government during the time appellant was a POW. Appellee also received numerous other benefits during this time at the expense of appellant, the U.S. Government and the American taxpaying public. Ap-pellee has clearly received much more than she expected when she signed the separation agreement in 1966 in which we note appellee agreed to waive any right to alimony or claims on property appellant thereafter acquired.
We find under the circumstances of this case that awarding appellee all jointly acquired property plus $23,600 out of appellant’s POW fund was not “equitable and just” as required by '§§ 1275 & 1278, supra, and therefore an abuse of discretion.
Appellant does not complain about the trial court awarding appellee all the jointly acquired property but only the award out of the POW fund. We therefore will not disturb the “judgment” entered by the trial court except as to the awarding of $23,600 to appellee and that portion of the judgment is reversed.
We have carefully examined the record and find nothing which would indicate the trial court abused its discretion in denying appellee additional attorney’s fees, and affirm the judgment in that regard.
The cause is reversed and remanded to the trial court with instruction to enter judgment in accordance with the views expressed herein.
BRIGHTMIRE, J„ concurs.
NEPTUNE, P. J., dissents.