Mayhue v. Mayhue

Mayhue v. Mayhue
1985 OK 68
706 P.2d 890
Case Number: 62805
Decided: 09/17/1985
Supreme Court of Oklahoma

JUDITH ELIZABETH MAYHUE, APPELLANT,
v.
FRANCIS E. MAYHUE, G.C. MAYHUE, JR., LEONE S. MAYHUE, ETHEL WALKER, AND MARY JO MELLOR, APPELLEES.

Appeal from the District Court, Pontotoc County; Ronald L. Jones, Judge.

¶0 In a post-divorce accounting proceeding to enforce support alimony award, the trial court vacated, as void for indefiniteness, that part of the decree by which the wife received a one-fourth interest in certain portions of the husband's distributive share in the estates of his parents. REVERSED AND REMANDED.

Dan Little, Little, Little, Little & Windel, Madill, for appellant.

Austin R. Deaton, Jr., Deaton & Davison. Ada, for appellee Francis E. Mayhue.

OPALA, Justice.

[706 P.2d 892]

¶1 This appeal from an order in a post-divorce accounting proceeding tenders for our review the question whether the challenged provisions of a divorce decree - by which one spouse received as support alimony a share of property inherited by, but not yet fully distributed to, the other spouse - are facially void

¶2 A 1970 divorce decree granted the wife as support alimony a monetary award, as well as an undivided one-fourth interest in a certain portion of the husband's distributive share in the estates of his deceased parents, only one of which estates was then [706 P.2d 893] in probate.

¶3 In a post-decree proceeding

¶4 The wife's contention is that her alimony award in contest here is valid under our decision in Frensley v. Frensley.

¶5 The posture in which this case comes does not call upon us either to place a construction on the terms of the contested alimony award

[706 P.2d 894]

¶6 The validity of a judgment must be determined by the law in force when judgment was rendered. It is axiomatic that a judgment that is valid when rendered cannot have its efficacy impaired by any after-enacted legislation.

¶7 The district court attempted to take this case out of the Frensley rule by pointing out that there the trust created for the benefit of the husband, in which the wife was granted an interest, had a fixed, 20-year duration, whereas here the ultimate point in time at which the husband's interest will be distributed from the parents' estates, as well as the total amount to be received and transferred to the wife are unascertainable.

[706 P.2d 895]

¶8 Because the terms of 12 O.S. 1961 § 1278 - as well as those of its current version, 12 O.S.Supp. 1985 § 1278 - require that an in-kind alimony award be "just and equitable,"

¶9 The trial court obviously misconstrued the rationale of our pronouncement in Frensley. The life span of the trust was not critical to our holding in that case. Our opinion explained that the right to receive the proceeds of a trust is a property interest,

¶10 Here, the husband's interest in the proceeds of his deceased parents' estates constitutes a species of property which the decree may transfer, in whole or in part, to the wife as her alimony without an antecedent conversion of the interest to a fixed sum of money or its commutation to a monetary award. The interest awarded operates as a transfer thereof to the wife. Although the res so transferred is in assets to be received and accounted for at some unspecified time in the future, the quantum awarded does not appear incapable of ascertainment by periodical accounting. In short, the face of the judgment roll utterly fails to reveal any jurisdictional defect in the challenged alimony adjudication.

¶11 The trial court erred in concluding that if it is uncertain when and how much money the obligee will ultimately receive from an interest transferred by in-kind alimony provisions of a divorce decree, the alimony award is fatally flawed on the face of the judgment roll.

¶12 The trial court's order is reversed and the cause remanded for further proceedings not inconsistent with this pronouncement.

¶13 DOOLIN, V.C.J., and HODGES, LAVENDER, HARGRAVE, ALMA WILSON, KAUGER, and SUMMERS, JJ., concur.

¶14 SIMMS, C.J., concurs in judgment.

Footnotes:

1 A facially void judgment is one whose invalidity appears on the face of the judgment roll. Kolp v. State ex rel. Commissioners of Land Office, Okl., 312 P.2d 483, 485 [1957]; Prickett v. Moore, Okl., 684 P.2d 1191, 1193-1194 [1984]; see footnote 9, infra.

2 The one-fourth share set apart to the wife was limited to the "net proceeds," which term was defined as all income derived from the estates and from the sale of the property of the estates or the husband's interest in the property already distributed to him over and above its appraised value.

3 The wife's instant claim for accounting was brought as a "new action" rather than as an ancillary post-decree proceeding in the divorce case. When remedies in aid of execution appear inadequate, a prior judgment may be enforced in a new action founded upon it. Chapman v. Chapman, Okl., 692 P.2d 1369, 1374 [1984]; Pitchford v. Blanchard, Okl., 503 P.2d 1270 [1972]; Davis v. Foley, 60 Okl. 87, 159 P. 646 [1916].

4 The order under review operates to vacate in part the trial court's prior alimony award and hence precludes the wife from proceeding further with her claim for accounting. When an alimony award is declared void as an indefinite obligation, the obligor's liability is subject to readjudication. Oder v. Oder, 149 Okl. 63, 299 P. 202, 203-204 [1931]. An order that either vacates in part the court's prior judgment or precludes a party from proceeding further in the trial court is appealable. Chemco Products, Inc. v. Moley Produce Company, Inc., Okl., 615 P.2d 300 [1980] and Centorp Corp. v. Gulf Production Corp., 183 Okl. 436, 83 P.2d 181, 185 [1938].

When appeal constitutes the proper remedy, but relief is sought by some other method, this court may treat the case as an appeal, if the proceeding was brought within the statutory time limit for the commencement of an appeal. Amarex, Inc. v. Baker, Okl., 655 P.2d 1040, 1043 [1983]; White v. Wensauer, Okl., 702 P.2d 15, 16 [1985]; Prock v. District Court of Pittsburg County, Okl., 630 P.2d 772, 775 [1981].

5 177 Okl. 221, 58 P.2d 307, 311-313 [1936].

6 An ambiguous judgment may be construed by resort to the judgment roll. Dickason v. Dickason, Okl., 607 P.2d 674, 677 [1980]; Filtsch v. Sipe, 198 Okl. 356, 178 P.2d 612, 615 [1947]. A judgment is presumed to be valid, and unless none of its terms is susceptible to construction which will make it conformable to the law, mere ambiguity or obscurity will not affect its validity. Knight v. Armstrong, Okl., 303 P.2d 421, 424-425 [1956].

7 The power of a court to decide includes the power to decide wrongly. An erroneous decision is as binding as one that is correct until it is set aside or corrected in a manner provided by law. Woodrow v. Ewing, Okl., 263 P.2d 167, 171 [1953].

8 A decision is void on the face of the judgment roll when, from the four corners of that roll, it may be determined that at least one of the three elements of jurisdiction was absent, i.e., jurisdiction over the parties, over the subject matter or jurisdictional power to pronounce the particular judgment that was rendered. Scoufos v. Fuller, Okl., 280 P.2d 720, 723 [1955] and State ex rel. Commissioners of Land Office v. Keller, Okl., 264 P.2d 742, 747-748 [1953]. The husband cites us only to those cases which address monetary awards found to be indefinite either because the total alimony obligation was not determined or could not be ascertained from the terms of the decree. Clark v. Clark, Okl., 460 P.2d 936 [1969]; Munsey v. Munsey, Okl., 385 P.2d 902 [1963]; Vanderslice v. Vanderslice, 195 Okl. 496, 159 P.2d 560 [1945]; Finley v. Finley, 174 Okl. 457, 50 P.2d 643 [1935]; Steincamp v. Steincamp, Okl., 593 P.2d 495 [1979]; May v. May, Okl., 596 P.2d 536 [1979].

9 Lake v. Bonynge, 161 Cal. 120, 118 P. 535, 540 [1911]; Pacific Power Co. v. State, 32 Cal. App. 175, 162 P. 643, 646 [1917]; John S. Westervelt's Sons v. Regency, 3 N.J. 472, 70 A.2d 767, 771 [1950]; Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 738 [1960]; see also, Washabaugh v. Bartlett Collins Glass Co., 177 Okl. 159, 57 P.2d 1162, 1164 [1936]; Apple v. State Insurance Fund, Okl., 540 P.2d 545, 547 [1975]; Weber v. Armco, Inc., Okl., 663 P.2d 1221, 1227 [1983].

The judgment of a court constitutes "an obligation of the highest nature known to law." A right to a judgment is "vested." Vaughn v. Osborne, 103 Okl. 59, 229 P. 467, 470 [1924]. "A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created either by common law, statute or by contract. Once created, it becomes absolute, and is protected from legislative invasion by Art. 5, Secs. 52 and 54 of our Constitution." [emphasis added]. Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District, Okl., 464 P.2d 748, 755 [1969]; Smith v. Smith, Okl., 652 P.2d 297, 299 [1982]. (Opala, J., concurring).

10 In Frensley v. Frensley, supra note 5 at 312, we quoted the relevant portion of the statute then in effect (O.S. 1931, § 672):

". . . the wife . . . shall be allowed such alimony out of the husband's real and personal property as the court shall think reasonable, giving due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable."

11 Alimony must be awarded either in specific property or in a definite sum of money. Bishop v. Bishop, 194 Okl. 209, 148 P.2d 472, 475 [1944]; Frensley v. Frensley, supra note 5 at 312.

In Oder v. Oder, supra note 4 at 203, we considered an open-ended monetary award of alimony. The Oder divorce decree provided for monthly alimony payments in a sum certain to be made during an indefinite period in the future. The court held the award void because its open-ended terms violated the statutory command that an alimony judgment be certain as to the total amount of the imposed obligation. The Oder doctrine is not invocable here because the award under review does not call for payment of money. Frensley v. Frensley, supra note 5 at 312.

12 Frensley v. Frensley, supra note 5 at 312, and cases cited therein.

13 Frensley v. Frensley, supra note 5 at 312-313.

14 See footnote 10 supra and accompanying text.

15 May v. May, supra note 8 at 540 and cases cited therein.

16 Scoufos v. Fuller, supra note 8 at 725.

17 Petty v. Roberts, 186 Okl. 269, 98 P.2d 602, 603 [1939] and Scoufos v. Fuller, supra note 8. The judgment roll, which is synonymous with "record proper," consists of ". . . the petition, the process, the return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; . . ." 12 O.S. 1981 § 32.1 , renumbered in 1972 from 12 O.S. 1971 § 704 , Okla.Sess.L. 1972, c. 119 § 5; Mid-Continent Pipe Line Co. v. Seminole County Excise Bd, 194 Okl. 40, 146 P.2d 996, 1000 [1944]; Veiser v. Armstrong, Okl., 688 P.2d 796, 800 [1984].

18 Frensley v. Frensley, supra note 5 at 312.

19 Frensley v. Frensley, supra note 5 at 312-313.

20 The husband relies on Clark v. Clark, Okl., 460 P.2d 936 [1969]. In Clark, we held that an alimony award, which required a husband to maintain life insurance for the benefit of his wife, was void because the amount of premiums ultimately to be paid could not be reduced to a sum certain. That holding viewed continued payment of insurance premiums as an obligation in the nature of a money judgment for alimony and hence subject to the sum-certain requirement.

Our pronouncement today is not inconsistent with Clark. After determining in Clark that the imposed liability for premium payment was void, the court went on to consider separately the portion of the decree requiring the husband to name his wife as the beneficiary of his life insurance policy. It expressly noted that the trial court had statutory authority to award specific property as alimony in lieu of money. Only the obligation to pay premiums was set aside as violative of the statutory policy against the open-ended monetary awards of money.