*1 aid of acknowledges Court prep- Supreme Commissioners Court tentative opinion. After aration of this by Commissioner opinion written was approved by NEASE, H. Jean
James CRAWFORD, W. REED and R. J. of this Court assigned to was cause Justice report Court. for examination report and consideration Thereafter, upon opinion conference, foregoing
adopted the Court. WILLIAMS, J.,C. JOHNSON, J.,C. V. HALLEY, DAVISON, BLACKBIRD, HUNT, JJ., concur. JACKSON JONES, Error,
Blair JONES, in Error. Defendant
Bernadean
No. 36765.
Supreme of Oklahoma. 21, 1956.
Feb. *2 Ordered, Adjudged
“It Is Further
By
and
the Court that the de-
Decreed
pay
plaintiff,
the
fendant
or to the
to.
Court,
support
of
Clerk
of
this
named,
their minor children
the
above
month,
per
except
sum of
that’
$100.00
custody
the defendant has the
of the
if
named,
minor children
dur-
above
two
July
the
ing
August
months of
and
of
Melton, McElroy
Frederick,
Roe,
Roe &
year,
payment
child support
each
Chiekasha,
plaintiff
error.
Vaughn,
&
per
shall
inbe
the amount of $25.00
n Chamberlin
Frederick, for de-
Slagle,
&
July
during
month
said two months of
in error.
fendant
August,
support
and
and
September,
for the month of
DAVISON, Justice.
1953, shall be in the sum
amount
and
Blair
appeal
perfected, by
This
was
$50.00, and in the
sum $100.00
action
Jones, the
divorce
-per
during
month thereafter
all of the
wife,
Jones, was
wherein his
Bernadean
except
the year,
during
months
made
from
the court
plaintiff,
an order of
July
months
and August
of each
original
modify
upon
application
year
support
when such
care, custody
support of
and
order as to
shall be
if the
defendant has
$25.00
parties will
three children. The
their
custody of
care and
the said Milton
they
trial
appeared in the
referred to as
Dean
and
Clifton
John
Jones
Jones
two
during said
months.
granted
the time of the
At
divorce
“ * * *
support
That
the child
29, 1953,
were of
children
June
payments
above set forth
as
shall be
son,
ages:
Jones, a
Milton Dean
following
n and
upon
undivided
10;
age
Mary
Jones,
Ann
age
daughter,
( nn )
one-sixth
interest of the defend-
son, age
7;
Jones,
5.
and
Clifton
John
Quarter
ant
and to
Northeast
care,
provisions
decree made
for their
Town-
(NE^4)
(4),
of Section Four
custody
support,
and
as follows:
ship
(4 S), Range
Four South
Sixteen
Ordered, Adjudged
“It Is Further
WIM.,
County,
Tillman
(16)
Okla-
By
That the
and Decreed
the Court
homa,
security
as
for such
Care,
custody
control and
of the minor
according to
be made
this decree.
named,
the same
children above
be and
Ordered, Adjudged
“It Is Furthered
hereby
plaintiff,
awarded
with
By the
in ad-
and Decreed
Court that
part of
right
privilege
and
on the
support payments
to the child
dition
custody
the defendant to have the
forth, the
above
defendant shall
set
Dean
the above named Milton
Jones
plaintiff,
time,
from
pay
time to
during the
and
Clifton
John
Jones
may
as the same
be and become neces-
July
August of each
months of
and
expenses
sary,
necessary
and all
any
year,
right
privilege
and the
and
of the
children,
supplies
said minor
school
minor
defendant to see and visit said
children,
and
clothing
said minor
during
remaining
months
children
necessary medical,
drug
and all
year
custody
while in
expenses
surgical
and
for said minor
complies
plaintiff,
long
so
as
with
children.”
the order of this court for
15, 1954,
children,
July
defendant filed a
-right
On
mo-
said minor
and the
part
seeking modification of all of that
privilege
tion
plaintiff
to see and
yisit
quoted
decree above
both
of the divorce
said Milton Dean
Jones
John
custody
and on
November
at reasonable times
Clifton Jones
was
custody
the same
modifiedto the extent
places while in the
of the de-
part
eliminating
thereof
during
July
the months of
which is
fendant
year.
as above
In all
each
italicized
shown.
August of
past
those
Bashore case does
modify
denied.
due. The
respects
the motion
12, O.S.
take
of Title
note
section 1277
appeal
that order.
This
is from
empowers
1951 which
and authorizes
be
intervening
time
During the
*3
“provision
guardianship,
court to make
for
there
orders
the two
tween the entries of
minor
custody, support
the
and education of
the
all
compliance with
was a substantial
making such
marriage.”
children of the
In
by both
decree
provisions
the divorce
of
provision,
intended
legislature
the
no doubt
not disclose
parties. The
does
record
implied authority
that the court should have
parties
the
condition of
change
material
in
performance
the decree.
to secure the
of
always
court has
since the divorce. This
upon
only
But the lien
ordered
be
should
quoted
the case of
rule
in
adhered
the
to
specific
only in
property
items
those
of
333, 193 P.2d
Jackson,
Okl.
200
v.
Jackson
legal
cases where
discretion of
the sound
that,
561, 562,
the effect
to
procedure
the
the court
for
dictates such
“ ‘ *
**
cus-
fixing
A
the
decree
welfare of the children.
is, however,
the
final on
tody
aof
child
herein
that the correct-
contends
and should
existing
then
conditions
position
support
ness of her
the au-
in
unless
changed
not be
afterward
thority
the trial court make
order
to
the
or
the decree
conditions since
altered
is, by implication, recognized in the case of
the time
existing at
on material facts
401,
Bussey
Bussey,
P.
10,
148 Okl.
296
court,
of the decree but unknown
that,
syllabus
wherein it was held in the
only
welfare of the
then
for the
”
“An
by
order made
a court
the
child.’
payment by
monthly
parent
a
sums
testimony
at
From the
period
years
over
for the care and
trial,
chief com-
apparent that his
it is
custody of
not
minor children does
to the allowance
plaint was with reference
create
property
a lien on the
of the
expense
clothing and school
made for
parent
in the
an
to
absence of
order
monthly
and above' the
the children over
effect,
that
and an order to that effect
provi-
objected to
payments of
The
$100.
only
should be made
where the facts
by
in the
the trial court
sion was stricken
by
circumstances
evi-
disclosed
latter order.
necessity
dence show a
therefor
or-
in
Thurman,
In
Bashore v.
the case of
payment
to insure
der
the sums
249,
1,
712,
re
152
P.2d
79 A.L.R.
Okl.
3
paid.”
ordered to be
defendant,
upon by
court was con
this
lied
case,
In
the cited
the trial
with an award for
court decreed
cerned
upon
prop
upon
lien
property
lien
all
all of
which had been made a
defendant’s
to
acquired
secure the
erty
or thereafter
of the award
then owned
support.
appeal,
held,
case
one in
On
not
The cited
court
defendant.
this
in
the de
that the trial
partition
authority
of land which
court lacked
make
of a tract
to
'
order,
interest.
It
but
an
making
owned an undivided
that
of it was
fendant
opinion
the abuse of
In
that
installments of
discretion.
it was
was held
unmatured
pointed
prop
a lien on the
out that “the
award did
record shows that
not
opinion
and defendant
is
erty.
reading of
a careful and
From a
conservative
400,
man;
Hill,
high regard
Or.
business
that he had a
of Mansfield v.
56
case
children,
cited for his
P.
which was
and that he is kind
107 P.
apparent
in
authority,
both considerate of them.
If his natural
in-
as
it is
prompt
not
considering the stat
clination does
him to
the courts were
take care
cases
them,
generally.
subject
process
applicable
judgments,
compel
is
to
to
utes
Damage
of the
do
They
docketing
good
that-the
him to
so.
rather
than
both held
making
payments
arise from
did not create a will
lien
for child
* * *
property.
upon
upon
property of the defendant
his
amount
lien
The
uncertainty
prescribed
of the amount of those
for the
of the
term
because
case, may
$17,000.
ultimately
paid.
aggregate
the Bashore
a sum in
to be
In
excess
upon
property
lien
non-existent
make the same a lien
was held to be
To
deprive
in
of the defendant would be to
installments but
effect as to
him
unmatured
prop- merous similar
his
decisions are cited
privilege
dealing
with
erty.
in annotation in
do
only by securing
Many have held the same of the courts Court, in the of Mer- case 'California WILLIAMS, J., as to C. dissents V. 234, Cal.App. P. Merritt, 106 289 ritt v. lien, granting concurs otherwise. 240, au- court has inherent divorce property thority to a lien on to se- declare WELCH, part. J., in dissents the allowance for child cure however, it jurisdiction, support. In this WELCH, (dissenting). Justice inherent necessary to determine the is not majority portion I dissent regard in this because power of the court fixing opinion approving the and maintain- O.S.1951, 12, of Title Section lien ing on defendant’s land for supra. support. por- of child That future Davis, 228 Iowa original judgment Davis v. should have In the case of tion 808, .modify. Iowa this motion to 292 N.W. been eliminated on that, statute, under a there facts far as hold I the record were no went so As view 598.14, authorizing pleaded presented, findings order no fact made “such or I.C.A. § children, property, parties, court, statutory no or other the trial relation parties authority, justify such as to and sus- as shall legal the maintenance implied authority establishing and main- had trial court in tain the right”, court land for that, alimony awards for lien on this taining upon any be a lien installments should unmatured future, pos- years many into running the defendant Nu- property which owned. n sibly minority during the for sixteen /ears
(cid:127)of the son. that WIL-
I am state authorized to
LIAMS, in these views. concurs J., V. C. Oklahoma, ARDMORE, a Munici
CITY OF Error, Corporation, pal Error. STUCHUL, Defendant
R. S. No. 36913.
Supreme of Oklahoma. 22, 1955.
Nov.
Rehearing 1956. Jan. Denied Peti-
Application File Second for Leave Rehearing 1956. Feb. Denied tion for Ledbetter, Ardmore, plaintiff
H. A. in error. Ardmore, Shilling,
Marvin defend- ant in error.
JOHNSON, Chief Justice. they ap- will be referred Parties to as trial peared in the Plaintiff, Stuchul, brought R. S. suit defendant, City Ardmore, against automobile, damages to his alleging municipal corporation was a law; driving under Oklahoma