Nantz v. Nantz

Nantz v. Nantz
1988 OK 9
749 P.2d 1137
59 OBJ 335
Case Number: 62029
Decided: 02/02/1988
Modified: 02/03/1988
Supreme Court of Oklahoma

 
WILLIAM C. NANTZ, APPELLANT,
v.
PATRICIA ANN NANTZ, APPELLEE.

Appeal from the District Court of Comanche County; William Roberts, District Judge.

¶0 Appellant, William C. Nantz, filed a motion to modify support alimony on the ground that appellee, Patricia Ann Nantz, was cohabiting with a member of the opposite sex, and that the modification was therefore justified under the statutes. The trial court denied the motion.

REVERSED AND REMANDED.

Dan R. Brown, Lawton, for appellant.

John N. Fleur, Nicklas, Saenz & Lile, Inc., Lawton, for appellee.

ALMA WILSON, Justice:

[749 P.2d 1138]

¶1 We are called on again to address the subject of support alimony where the alimony recipient is cohabitating with a member of the opposite sex. The issue again addressed is the retroactivity of 12 O.S. 1981 § 1289 , and its subsequent amendments.

¶2 The parties to this appeal were granted a decree of divorce by the District Court of Comanche County on January 10, 1979. It provided, in addition to property division and child support payments, that the appellant pay the appellee support alimony in the amount of $300 per month from December 1, 1978, through June 1, 1993. Support alimony was subject to termination by the death or remarriage of the appellee.

¶3 On February 15, 1984, the appellant filed a motion to modify the support payments in Comanche County District Court. Appellant's motion was grounded on the allegation that the appellee was cohabiting with a member of the opposite sex and that modification or termination of support was therefore justified under 12 O.S. § 1289 (D).

[749 P.2d 1139]

¶4 Appellant's motion was denied by the district court on March 12, 1984. The trial court ruled that to sustain the motion would give retrospective effect to the statute, which became effective October 1, 1979, over nine months after the divorce had been granted.

¶5 Section 1289(D) makes voluntary cohabitation of a former spouse with a member of the opposite sex grounds for the modification or termination of future support payments where the moving party proves a substantial change of circumstances of either party to the divorce relating to need for support or ability to support.

¶6 Whether § 1289(D) should be retrospectively applied was addressed in Smith v. Smith, 652 P.2d 297 (Okl. 1982). In the Smith, case, the parties were granted a decree of divorce on February 15, 1979. After subsection D became effective, October 1, 1979, Mr. Smith filed a motion to modify his payments of support alimony on the ground that Mrs. Smith was cohabiting with a member of the opposite sex. The opinion held that 12 O.S. 1981 § 1289 (D) could have prospective application only because there was no language in the statute to indicate that the legislature intended to give retrospective effect to it.

¶7 After the Smith case was published in 1982, the legislature amended § 1289, adding subsection E:

Except as otherwise provided in subsection D of this section, the provisions of any divorce decree pertaining to the payment of support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Only those installments accruing subsequent to the motion for modification may be modified.

That subsection provides that any divorce decree may be modified. The movant need only prove changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable. Proof sufficient for relief under subsection D is similar, requiring "substantial change of circumstances of either party to the divorce relating to need for support or ability to support." In spite of the language that "any" divorce decree may be modified, this Court held in Holdsworth v. Holdsworth, 720 P.2d 326 (Okl. 1986), that the 1983 amendment did not apply retroactively to alimony provisions of a decree of divorce imposed prior to the effective date of the statute, November 1, 1983. Holdsworth concerned the reduction of support alimony due to a change in the movant's financial situation.

¶8 Even before Holdsworth was published, the legislature in an apparent attempt to further clarify this statute, amended subsection E, stating that "The provisions of this subsection shall have retrospective and prospective application with regards to modifications for the purpose of obtaining [749 P.2d 1140] support. . . ."

The provisions of subsections D and E of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered. The imperative language of the latest legislative amendment precludes an interpretation that would provide for prospective application only. The language of the amendments is progressively stronger and supports the conclusion that the legislature intended that trial courts have the power to modify support alimony payments regardless of the date that the divorce decree was entered.

¶9 Having made such a finding, we must decide whether the legislature has the power to retrospectively apply the statute. One method of examination is to determine whether the right to support alimony is vested. This approach has been the traditional method of determining whether a right is protected from invasion of the legislature under Article 2, §§ 7, 15 of the Constitution of Oklahoma. If the right is vested, the authorities are both clear and strong that it cannot be destroyed or impaired except by due process of law. Baker v. Tulsa Building & Loan Ass'n, 179 Okl. 432, 66 P.2d 45, 48 (Okl. 1937). The Baker Court held that a right was vested when the right of enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. Baker, 66 P.2d at 48.

¶10 An analysis of the statute under this approach would dictate that we determine whether support alimony is terminable or modifiable, and if so, we could conclude that the right is not vested because it would not be a present interest. This Court has held that death of either party will terminate alimony support payments absent agreement to the contrary. May v. May, 596 P.2d 536 (Okl. 1979). Under § 1289, an award of support alimony is now terminable upon death, remarriage, or cohabitation with a member of the opposite sex. Like child support, under § 1289, it is now modifiable. Since support alimony is terminable and modifiable, then the right is not vested at the time of the decree, but only at the time each payment becomes due.

¶11 The approach of determining that a right is not vested, and concluding therefore that no due process rights have been violated has been criticized.

¶12 The legislature generally may overcome the traditional bias against retrospective statutes as long as it rationally relates the legislation to a legitimate governmental purpose, and if that rational relationship is present, the law may be upheld even though it may impair recognizable property rights.

¶13 Section 1289 of title 12, and its recent amendments provide that support alimony, no matter when awarded, is now modifiable. This leaves to the district courts the decision of whether or not to modify the support. All of the objections as to the equity of the situation, including consideration of the effect the award of support alimony had upon the property division, the reliance the parties had upon the law at the time of the divorce decree, whether or not the cohabitation of the former spouse with a member of the opposite sex continued after modification of the statute, and any other equitable matter may be considered by the trial court.

¶14 We herein hold that the intent of the legislature can be retrospectively effected. Accordingly, we overrule Smith v. Smith, 652 P.2d 297 (Okl. 1982), and Holdsworth v. Holdsworth, 720 P.2d 326 (Okl. 1986), reverse the order of the trial court, and remand this case for a disposition in a manner not inconsistent with this opinion.

¶15 REVERSED AND REMANDED.

¶16 DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, LAVENDER and WILSON, JJ., concur.

¶17 SIMMS, OPALA, KAUGER and SUMMERS, JJ., dissent.

Footnotes:

1 The 1983 amendment was in effect at the time the motion to modify was filed. See, 1983 Okla. Sess. Laws, ch. 86, § 1 [86-1].

2 Subsection D of 12 O.S., § 1289 was added, and became effective on October 1, 1979, 1979 Okla. Sess. Laws, ch. 278, § 1, and has been amended three times since then. See, 1983 Okla. Sess. Laws, ch. 86, § 1 [86-1]; 1985 Okla. Sess. Laws, ch. 188, § 1; and 1987 Okla. Sess. Laws, ch. 130, § 1, effective June 3, 1987. The statute provides:

The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances of either party to the divorce relating to need for support or ability to support. As used in this subsection, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage. The petitioner shall make application for modification and shall follow notification procedures used in other divorce decree modification actions. The court that entered the divorce decree shall have jurisdiction over the modification application.

3 1983 Okla. Sess. Laws, ch. 86, § 1 [86-1], effective Nov. 1, 1983.

4 1985 Okla. Sess. Laws, ch. 188, § 1, effective Nov. 1, 1985.

5 1987 Okla. Sess. Laws, ch. 130, § 1.

6 The case cited by the dissent in footnote 6, Stanfield v. Stanfield, 67 Okl. 56, 168 P. 912, 914 (1917), supports the proposition that support alimony is terminable, and therefore is not vested. Stanfield holds:

Alimony decreed to a wife in a divorce is as much a debt, until the decree is recalled or modified, as any judgment for money is, and there is authority to the effect that the decree in favor of Mrs. Stanfield operated to cause an indebtedness to arise in her favor as each installment of alimony fell due. [Emphasis added, citation omitted.]

There is, in fact, support in our case law for the proposition that support alimony stands in a class by itself. The case of Grattan v. Tillman, 323 P.2d 982, 984 (Okla. 1957) quotes Commons v. Bragg, 183 Okl. 122, 80 P.2d 287, 290 (1938) as follows:

[A]n order for the payment of alimony possesses different characteristics from an ordinary debt since it is designed to secure the performance of a legal duty in which the public has an interest.

7 DeMars, Retrospectivity and Retroactivity of Civil Legislation Reconsidered, Ohio N.U.L.Rev. 253 (1983).

8 16A Am.Jur.2d Constitutional Law § 669 (1979).

9 J. Nowak, R. Rotunda, & J. Young, Constitutional Law, 476 (2d ed. 1983).

OPALA, Justice, with whom SIMMS, KAUGER and SUMMERS, JJ., join, dissenting.

¶1 The court today 1) sanctions judicial modification of support alimony obligations on grounds not authorized by law at the time of the monetary award's adjudication and 2) holds free from constitutional infirmity the terms of 12 O.S.Supp. 1987 § 1289 (G), [749 P.2d 1142] enacted after this appeal was lodged,

I.

CRITICAL FACTS IN LITIGATION

¶2 Appellant's 1984 motion sought modification of a divorce decree's monetary support alimony award. Movant relied upon obligee's voluntary cohabitation, a ground first allowed by § 1289(D).

II.

JUDGMENTS ARE CONSTITUTIONALLY PROTECTED BY ART. V, § 54, OKLA. CONST.

¶3 Monetary support alimony adjudicated in a divorce decree constitutes a judicially created pecuniary obligation which is protected from the effect of after-enacted legislation on a footing equal to a money judgment.

[749 P.2d 1143]

¶4 An alimony award is in some features different from other adjudicated monetary obligations.

¶5 There is no question that support alimony is modifiable and other money judgments are not. The issue here is what law must govern when the remedy of modification is sought in post-decree stages. Nothing in Stanfield v. Stanfield

¶6 A judgment's effect and validity must be governed by the law in force at the time of its rendition; neither can be adversely affected by later changes in the applicable law.

¶7 That portion of a support alimony obligation which is unmodified and unterminated at the time of its accrual stands on a constitutional footing identical with any other money judgment and is hence protected absolutely by § 54.

¶8 Unaccrued monetary alimony also is protected by the "proceedings begun" clause in § 54.

¶9 By providing in § 1289(G) that the § 1289(D) voluntary cohabitation ground for modifying alimony payments is applicable to awards rendered before the latter subsection's effective date, the legislature has created a constitutionally impermissible escape hatch for some alimony obligors and has deprived the adversely affected creditors of their fundamental law's protection under Art. V, § 54, Okla. Const.

III.

SECTION 1289(G)

VIOLATES THE SEPARATION OF POWERS DOCTRINE

¶10 The functions of government are divided by our fundamental law among three branches, each of which is forbidden from encroaching upon the powers and responsibilities of the other.

¶11 A judgment's validity depends upon the jurisdiction of the court that renders it.

¶12 Insofar as § 1289(G) sanctions changes in the terms of judgments rendered before the effective date of the statute in force at the time of rendition, it makes settled alimony claims vulnerable to readjudication upon grounds unknown at the time of the dispute's termination. The subsection clearly depreciates the value of decreed monetary support awards. Legislative alteration of judicially determined civil liability constitutes an exercise of adjudicative power that does not reside in the lawmaking body.

[749 P.2d 1145]

IV.

SECTION 1289(G) VIOLATES ART. II, §§ 7,

¶13 The rights that become vested in every judgment constitute private property within the meaning of Art. II, §§ 7, 23 and 24, Okla. Const.

¶14 Because § 1289(G) also impairs the enforcement of a narrow subclass of judgments - unaccrued monetary support alimony under awards rendered before the effective date of § 1289(D) - its terms violate Art. V, § 46, Okla. Const.

V.

SUMMARY

¶15 Article V, § 54, Okla. Const., makes monetary support alimony awards - both as to [749 P.2d 1146] accrued and unaccrued installments - impervious and invulnerable to tinkering by after-enacted legislation. The § 1289(D) ground for modification, if enacted after the affected decree's rendition, is not available to the obligor as a basis for modification. Recently enacted § 1289(G) violates the doctrine of separation of powers and offends Art. II, §§ 7, 23 and 24, as well as Art. V, §§ 46 and 54, Okla. Const.

¶16 I would continue to stand by the teachings of Smith

Footnotes:

1 The terms of 12 O.S.Supp. 1987 § 1289 (G), which became effective on June 3, 1987, provide:

The provisions of subsections (D) and (E) of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered. [Emphasis added.]

2 The pertinent text of 12 O.S.Supp. 1987 § 1289 (D) provides:

The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances. . . . [The underscored terms became effective October 1, 1979 and are codified in 12 O.S. 1981 § 1289 (D). They remain unchanged since their effective date.]

3 For pertinent text of § 1289(D) see supra note 2.

4 See Okl.Sess.Laws 1979, Ch. 278 § 1 at 793-794.

5 The terms of Art. V, § 54, Okla. Const., provide:

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute. [Emphasis added.]

This section applies not only to repealed statutes but also to any legislative changes by amendment. See Lee v. Volkswagen of America, Inc., infra note 7 and Prudential Property and Casualty Company v. Grimes, Okl., 725 P.2d 1246, 1250 [1986].

6 Stanfield v. Stanfield, 67 Okl. 56, 168 P. 912, 914 [1917].

7 Lee v. Volkswagen of America, Inc., Okl., 743 P.2d 1067, 1069 [1987]; Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 594 [1985]; Mayhue v. Mayhue, Okl., 706 P.2d 890, 894 [1985]; Oklahoma Water Res. Bd. v. Central Okl. M.C. Dist., Okl., 464 P.2d 748, 755 [1969]. See also, Prudential Property and Casualty Company v. Grimes, supra note 5.

8 Finnell v. Finnell, 113 Okl. 269, 230 P. 912, 913 [1924]; Henderson v. Arkansas, 71 Okl. 253, 176 P. 751, 753 [1918].

9 Grattan v. Tillman, Okl., 323 P.2d 982, 984 [1958].

10 11 U.S.C. § 523(a)(5).

11 12 O.S. 1981 § 1276 ; Potter v. Wilson, Okl., 609 P.2d 1278, 1281 [1980].

12 12 O.S.Supp. 1987 § 1289 (B), (D) and (E); Dickason v. Dickason, Okl., 607 P.2d 674, 676 [1980]; Funnell v. Funnell, Okl., 584 P.2d 1319, 1322 [1978].

13 See supra note 6.

14 See Morley v. Hurst, 174 Okl. 2, 49 P.2d 546, 548 [1935] and Crump v. Guyer, 60 Okl. 222, 157 P. 321, 322 [1916].

15 See Stanfield v. Stanfield, supra note 6.

16 Mayhue v. Mayhue, supra note 7; Lee v. Volkswagen of America, Inc., supra note 7; Timmons v. Royal Glove Insurance Company, supra note 7; Dickason v. Dickason, supra note 12 at 677; Prudential Property and Casualty Company v. Grimes, supra note 5.

17 Vaughn v. Osborne, 103 Okl. 59, 229 P. 467, 470 [1924].

18 Art. V, § 54, Okla. Const., quoted at supra note 5. See also the authorities cited at supra note 7.

19 Hammons v. Muskogee Medical Center Authority, Okl., 697 P.2d 539, 542 [1985].

20 Lee v. Volkswagen of America, Inc., supra note 7; Timmons v. Royal Globe Insurance Co., supra note 7; Crump v. Guyer, supra note 14.

21 See discussion in part III of this dissent.

22 For the pertinent text of Art. V, § 54, Okla. Const., see supra note 5.

23 See First Nat. Bank of Pauls Valley v. Crudup, Okl., 656 P.2d 914, 916 [1983]; State v. McCafferty, 25 Okl. 2, 105 P. 992, 996 [1909].

24 State v. Worten, 167 Okl. 187, 29 P.2d 1, 4 [1934].

25 Allgood v. Allgood, Okl., 626 P.2d 1323, 1325 [1981], is but one example of this court's recognition that support alimony may not be modified on grounds that were not in force when the award was rendered.

26 Art. IV, § 1, Okla. Const.; Puckett v. Cook, Okl., 586 P.2d 721, 722 [1978]; Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 573 [1944], appeal dismissed 322 U.S. 717, 64 S. Ct. 1288, 88 L. Ed. 1558.

The terms of Art. IV, § 1, Okla. Const., provide:

"The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." [Emphasis added.]

27 Tweedy v. Oklahoma Bar Association, Okl., 624 P.2d 1049, 1054 [1981]; In re Courthouse of Okmulgee County, 58 Okl. 683, 161 P. 200, 201 [1916].

28 Reynolds v. Brock, 122 Okl. 110, 250 P. 999, 1000 [1926].

29 Reynolds v. Brock, supra note 28.

30 Each separate department of government must use restraint to avoid encroaching upon the functions assigned to some other branch. See Sterling Refining Co. v. Walker, 165 Okl. 45, 25 P.2d 312, 318 [1933] and Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 547 [1980].

31 The terms of Art. II, § 7, Okla. Const., provide:

"No person shall be deprived of life, liberty, or property, without due process of law." [Emphasis added.]

32 The pertinent terms of Art. II, § 23, Okla. Const., provide:

"No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner. . . ."

33 The pertinent terms of Art. II, § 24, Okla. Const., provide:

"Private property shall not be taken or damaged for public use without just compensation. * * *"

34 The pertinent terms of Art. V, § 46, Okla. Const., provide:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing * * * providing or changing the methods for the collection of debts, or the enforcement of judgments * * *" [Emphasis added.]

35 See Swatek v. Board of Regents of Oklahoma Colleges, Okl., 535 P.2d 295, 298 [1975], citing Graham v. City of Duncan, Okl., 354 P.2d 458, 461 [1960].

36 See supra note 1 for the pertinent text and effective date of § 1289(G).

37 See Reynolds v. Brock, supra note 28 at 1001 and Swatek v. Board of Regents of Oklahoma Colleges, supra note 35.

In Swatek, a paving district was established by a city ordinance that imposed assessments against each benefited lot, payable in annual installments, and created a lien upon each. After issuance of paving bonds, but before the last installments came due, the Board of Regents purchased land within the district. Owner of the bonds secured by affecting the property sought payment after the installments became delinquent. Because the installments were the only source from which the bonds could be paid, and since the owner was precluded by statute from foreclosing upon the liens against the Regents' land, a reverse condemnation proceeding was filed. The court held that the land purchase by the Regents, made without satisfying the liens, amounted to a "taking" of property for public use without just compensation.

By analogy, just as the state was unable to purchase land after assessments were levied and under color of statute divest a lienholder of the right to payment, so is the legislature prohibited from using after-enacted legislation to divest judgment holders of the rights that became vested in them at the time of final adjudication.

38 See supra note 34 for the pertinent text of Art. V, § 46, Okla. Const.

39 See Maule v. Independent School District No. 9 of Tulsa County, Okl., 714 P.2d 198, 204 [1986]; Barrett v. Board of Com'rs of Tulsa County, 185 Okl. 111, 90 P.2d 442, 446-447 [1939]; see also, Prudential Property and Casualty Company v. Grimes, (Opala, J., concurring) supra note 5 at 1251.

40 Smith v. Smith, Okl., 652 P.2d 297 [1982].

41 Holdsworth v. Holdsworth, Okl., 720 P.2d 326 [1986].