Little v. Little

MR. JUSTICE METCALF:

(dissenting).

I believe the order of the trial court should be affirmed but not for all the reasons stated in Mr. Justice Angstman’s dissent.

Contrary to the statement in the majority opinion that “There is no jointly owned property here”, I am convinced that the Washington judgment which is the basis of this suit divided the community property and gave the husband and wife an interest in the Spartan house trailer. “In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable”. Rem. Rev. Stat. (Wash.), sec. 989.

The Washington court’s decree is more than a debt. It is just as if there were a partition suit and the court decreed that the property should be sold. One party would not lose his interest in the property and be .forced to rely on the credit of the other party. Here until this trailer house was sold in accordance with the decree and the money paid into the Washington court the husband and wife have each a proprietary interest. It was that interest awarded her by a judgment and decree of a Washington court that this wife sought to enforce. This is not alimony in the sense that “alimony” is used in our statute as a provision “for the maintenance of the children of the marriage” and “allowance to the wife for her support”. R. C. M. 1947, sec. 21-139. This was a division of the community property and that is not alimony. Kunc v. Kunc, 186 Okl. 297, 97 Pac. (2d) 771. It is my opinion R. C. M. 1947, sec. 21-140, has no application.

Perhaps this wife could have waived her interest in the trailer and sued for a debt. In that ease attachment would have been proper. But she is not compelled to do so. Here was property jointly owned. Here was property that had already been removed from the jurisdiction of one court and could reasonably be deemed to have been in danger of being again removed. In such a situation R. C. M. 1947, sec. 93-4401, authorizes the appointment of a receiver.