READ v. READ

READ v. READ
2001 OK 87
57 P.3d 561
72 OBJ 3055
Case Number: 92930
Decided: 10/16/2001
Modified: 02/11/2002
Mandate Issued: 11/01/2002
Rehearing Denied: February 11, 2002
THE SUPREME COURT OF THE STATE OF OKLAHOMA

[57 P.3d 561]

SHAWNA K. READ, Plaintiff-Appellee/Counter-Appellant
v.
MICHAEL RAY READ, Defendant-Appellant/Counter-Appellee

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV

¶0 Former wife twice brought contempt proceedings against former husband for failure to pay child support. In the first proceeding, the trial court found former husband guilty and sentenced him to six (6) months in the county jail, subject to the payment of a purge fee of $3,000.00. Former wife appealed from that portion of the order which set the amount of the purge fee. In the second proceeding, the trial court again found former husband guilty and sentenced him to six (6) months in the county jail, subject to a purge fee of $9,200.00. Former husband sought review of the second contempt order, the related commutation to judgment of the unpaid child support, and the order made in each of the two proceedings that awarded former wife an attorney's fee and costs. The parties' appeals were consolidated for disposition. The Court of Civil Appeals, Division IV, held that the child support order was void and unenforceable because its legal predicate -- the parties' divorce decree -- had been entered without personal jurisdiction over former husband. COCA vacated inter alia the divorce decree's determination of paternity and order to pay child support as well as both contempt orders. It then remanded the cause with directions to reopen the divorce action to permit former husband to be heard on the merits of any issue bearing on his liability for child support. COCA declined to reach former wife's counter-appeal regarding the purge fee pending post-remand proceedings over former husband's liability for child support. Upon former wife's petition for certiorari,
THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE NISI PRIUS ORDERS TENDERED BY FORMER HUSBAND FOR REVIEW ARE AFFIRMED, AND THE CAUSE IS REMANDED TO THE COURT OF CIVIL APPEALS WITH INSTRUCTIONS TO ADDRESS THE ISSUE RAISED IN FORMER WIFE'S COUNTER-APPEAL

Shannon Davis, Law Office of Shannon Davis, Tulsa, Oklahoma, for Plaintiff-Appellee/Counter-Appellant.
David H. Sanders, Sanders & Sanders, Tulsa, Oklahoma, for Defendant, Appellant/Counter-Appellee

OPALA, J.

¶1 The dispositive issues

I
ANATOMY OF LITIGATION

¶2 Shawna K. Read, now Shawna K. Dunn (Dunn), and Michael Ray Read (Read) were married on 16 May 1987 in Tulsa, Oklahoma. On or about 1 December 1987, a child was born of their marriage. Approximately seven months later, Read departed from the state of Oklahoma, leaving behind his wife and child who were not informed of his whereabouts.

¶3 On 26 February 1990, Dunn filed a petition for divorce in which she sought approval of service upon Read by publication. Although Dunn stated in the petition that she had a last known Oklahoma address for Read, she also alleged that she had had no contact with him since June 1988 and was unable to determine his whereabouts despite the exercise of due diligence. A hearing on the divorce petition was held on 30 April 1990. Read did not appear and Dunn was granted a default judgment. The decree recites that Dunn had timely but unsuccessfully attempted service of summons on Read and that service by publication was authorized and proper. Read was ordered to pay child support in the amount of $403.20 per month.

¶4 Over the next six and one-half years Read neither challenged the divorce decree nor complied with its order to pay child support. On 6 December 1996 Dunn filed her first application for contempt (first contempt). Read responded by filing a petition to vacate the divorce decree -- the legal predicate for the child support order -- alleging lack of personal jurisdiction over him in the divorce proceeding. Read's motion was denied and he appealed. The Court of Civil Appeals, Division III, affirmed and this court denied certiorari.

¶5 While Read's appeal from the vacation quest's denial was pending, a non-jury trial was held on Dunn's contempt application. The trial court withheld a decision on the issue of contempt, but did commute the accrued unpaid child support to judgment (for the period from the date of the divorce decree through 28 April 1997 in the amount of $32,659.20 plus interest).

¶6 On 8 December 1998, the trial court finally reconvened to decide whether Read should be held in contempt.

¶7 As of mid-December 1998, Read had paid none of the commuted child-support arrearage other than the $3,000 purge fee, nor had he paid any further monthly child support. On 18 December 1998, Dunn filed a second contempt application (second contempt) covering all unpaid child support, including that which had been at issue in the first contempt proceeding. In response to Read's argument that this constituted double jeopardy, the trial court ordered Dunn to amend her application to cover only unpaid child support not covered by the first contempt order. [57 P.3d 564] 

¶8 On the day set for jury trial, Read filed another motion to dismiss the proceeding, which in addition to again raising the double jeopardy issue, also challenged the facial validity of the divorce decree on a new jurisdictional ground: lack of judicial power to impose the particular child support obligation incorporated in the divorce decree.

¶9 A jury trial was then held on the second contempt application and Read was found guilty of nonsupport (for the period from 25 April 1997 through 31 January 1999). He was sentenced to six (6) months in the Tulsa County Jail, with the contempt subject to purge by the payment of $9,200.00. Unable to pay the purge fee, Read was incarcerated. A petition to this court for a writ of habeas corpus was denied.

¶10 Read appealed from this second order of contempt, urging among other errors the trial court's refusal to dismiss the contempt application based upon the alleged jurisdictional defects in the divorce decree.

¶11 The Court of Civil Appeals, Division Four, agreed with Read, holding that "the divorce decree was unenforceable as to child support in either contempt proceeding because the decree-based child support was entered without personal jurisdiction [57 P.3d 565] over [Read]." Accordingly, COCA vacated the divorce decree's determination of paternity and its order to pay child support as well as the various other judgments and orders tendered by Read for review. It then remanded the cause to the trial court to permit Read to be heard on the merits of any issue bearing on his liability for child support. COCA declined to decide Dunn's counter-appeal pending post-remand adjudication of Read's liability for child support.

¶12 We granted certiorari on Dunn's petition and now vacate COCA's opinion, affirm the orders tendered by Read for review, and remand the cause to COCA for a determination of Dunn's counter-appeal.

II
ALLEGED ERRORS IN THE DIVORCE PROCEEDING ARE NO LONGER AMENABLE TO CORRECTIVE RELIEF

¶13 Read contends that the child support obligation -- for nonpayment of which he has been twice held in contempt -- is unenforceable because the divorce decree upon which it is predicated is void on the face of the judgment roll. Even if Read were correct, the procedural posture of this appeal bars him from obtaining the corrective relief he seeks.

¶14 We need not inquire into whether the divorce decree is or is not facially void. If it is facially valid because evidence dehors the judgment roll is necessary to establish the jurisdictional defect in its rendition, a direct attack upon it is now barred by the three-year limitation period applicable to statutory vacation proceedings.

¶15 The law affords no more than a single opportunity to litigate a disputed [57 P.3d 566]question of a tribunal's jurisdiction.

¶16 The procedural straightjacket in which Read finds himself with respect to corrective relief from the divorce decree for lack of personal jurisdiction likewise bars him from challenging the decree for lack of the third element of jurisdiction -- judicial power to render the particular decision. The doctrine of res judicata bars relitigation not only of those issues raised and decided but also of those issues which could have been raised and were not.

¶17 Were we nevertheless to entertain Read's argument that the trial court in the divorce proceeding did not have the judicial power to impose the particular child support obligation set forth in the decree, Read still would not prevail. He argues that jurisdiction to enter the particular order was absent because (1) the decree's requirement that Read pay $403.20 per month when Dunn had asked for only $180.00 per month went beyond the issue presented to the trial court for determination, and (2) the divorce petition failed to comply with the provisions of

¶18 Read is wrong on both counts. By force of statute, child support - its award and amount - is always within the issues framed by a divorce petition where the parties have minor children.

¶19 Read's contention that the notice in the divorce proceeding failed to comply with statutory requirements is also without merit. A divorce proceeding in which child support is an issue is not a common-law action for the recovery of money. Hence, the notice requirement of

¶20 Read cites Bailey v. Campbell,

¶21 Southwestern Surety

III
READ WAS NOT PLACED IN DOUBLE JEOPARDY
BY THE SECOND CONTEMPT PROCEEDING

¶22 Read argues that his constitutional protection against double jeopardy, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitu-[57 P.3d 569]tion, has been violated because he was tried and sentenced in the second contempt proceeding for the same "offense" for which he had already been tried and sentenced in the first contempt proceeding.

IV
THE CAUSE SHOULD BE REMANDED TO THE COURT OF CIVIL APPEALS FOR CONSIDERATION OF THE ISSUE RAISED IN DUNN'S COUNTER-APPEAL

¶23 Dunn also filed a counter- appeal in this case for review of the order setting the purge fee in the first contempt proceeding. Although the order finding Read guilty in the first contempt proceeding was not among the orders for which Read sought corrective relief, COCA nevertheless vacated that order. Because of that decision, COCA declined to review whether the purge fee was proper. It held that corrective relief is unavailable until the issue of Read's paternity and liability for child support shall have been determined. Today's pronouncement vacating COCA's opinion restores the issue raised by Dunn's counter-appeal. When this court vacates the opinion of the Court of Civil Appeals, it may address any issue properly raised in the appeal or remand the cause to the Court of Civil Appeals for that court to address that issue.38 Whether the trial court [57 P.3d 570]erred in setting the purge fee should be reviewed in the first instance by the Court of Civil Appeals. We hence remand the cause to that court to address this issue.

V
SUMMARY

¶24 Read seeks our pronouncement that decree-imposed child support cannot be enforced against him by means of contempt because the child-support obligation's legal predicate - the parties' divorce decree - is void on the face of the judgment roll. This precise issue has previously been determined against Read and he is forever barred from seeking corrective relief on this basis. His contention that the proceedings below placed him in double jeopardy is likewise legally unsupportable. The cause is remanded for COCA's disposition of Dunn's counter-appeal for review of the purge fee set in the first contempt proceeding.

¶25 THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE NISI PRIUS ORDERS TENDERED BY FORMER HUSBAND FOR REVIEW ARE AFFIRMED, AND THE CAUSE IS REMANDED TO THE COURT OF CIVIL APPEALS WITH INSTRUCTIONS

¶26 HARGRAVE, C.J., and HODGES, LAVENDER, OPALA, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur;

¶27 WATT, V.C.J., dissents;

¶28 KAUGER, J., concurs in part and dissents in part. [57 P.3d 571]

FOOTNOTES

1Read also seeks review of the trial court's denial of his request to undergo a paternity test and its rulings on a series of motions in limine. Because the Court of Civil Appeals found the jurisdictional issue dispositive, it did not address these contentions. When this court vacates the opinion of the Court of Civil Appeals, it may address any issue properly preserved and briefed in the appeal. Rule 1.180, Oklahoma Supreme Court Rules, 12 O.S. Supp. 1999, Ch. 15, App. 1. Today's pronouncement that Read is barred from attacking the validity of the divorce decree renders a paternity test irrelevant. As for the motions in limine, Read's brief fails to specify with citation to authority why any particular one of the court's rulings was erroneous. Where an assignment of error lacks any citation of authority, it need not be considered. S.W. v. Duncan, 2001 OK 39, ¶31, 24 P.3d 846, 857; Mills v. Grotheer, 1998 OK 33, ¶15, 957 P.2d 540, 544. Instead, Read argues generally that the error was in the cumulative effect of the court's rulings, which was to deprive him of any defenses. This contention is without merit. Read cites no authority, and we are aware of none that requires a trial court to admit evidence which is otherwise inadmissible solely to provide a litigant a claim or defense to be presented at trial.

2Shawna K. Read v. Michael Ray Read, Sup. Ct. No. 89,225 (an unpublished opinion by the Court of Civil Appeals, Div. III, decided 10 February 1998).

3Shawna K. Read v. Michael Ray Read, supra note 2, cert denied, 15 June 1998.

4The hearing, which had begun on 25 April 1997, was continued for twenty months -- until 8 December 1998 -- pending the outcome of certain other proceedings brought by Read to challenge the nisi prius court's power to hold him in contempt.

5By statute and court rule, contempt may be purged and incarceration avoided by (1) making all future child support and child-support-related payments and (2) paying the full amount of any child support arrearage, or some portion of the arrearage, in a lump sum, if possible, and (3) making monthly payments on the remaining arrearage if the full amount of the arrearage is not paid in a lump sum. See 21 O.S. 1991 §566 and Rule 8.3, Rules for the District Courts of Oklahoma, 12 O.S. 1991, ch.2, App.

6"[T]he jurisdiction necessary to empower a court to render a valid judgment is of three types: (1) Jurisdiction of the parties; (2) jurisdiction of the general subject matter; and (3) jurisdiction of the particular matter which the judgment professes to decide." La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, ¶8, 418 P.2d 949, 953.

7The trial court reserved a ruling on the double jeopardy defense insofar as it related to nonpayment of child support for the period of time already covered by the judgment in the first contempt proceeding - from the date of the divorce decree through 28 April 1997. The record does not reflect that the court ever issued a ruling on that matter, but its contempt order did not cover the earlier period of nonpayment.

8This ruling came in the context of a pre-trial argument on a motion by Read to stay the proceedings for five days to allow him to apply for a writ of prohibition. That motion was denied.

9This court's order of 14 April 1999 denying the writ succinctly states:

"The judgment which stands as a bar to the petitioner's plea for relief in this court is not the 1990 divorce decree, facially void or valid, but the subsequent ruling on his 1997 petition to vacate, which declined to set aside the 1990 divorce decree, which was affirmed on appeal in cause no. 89,225 and was left undisturbed by this court's vote on certiorari."

10The parties' appeals were consolidated by this court's 12 May 1999 order.

11A post-decree contempt proceeding for unpaid child support culminates in a single order made up of the finding of contempt, a sentence of incarceration subject to purge, and a commutation of the unpaid child support to judgment. That single order stands or falls as a unit. Today's pronouncement that Read is barred from the corrective relief he seeks applies as much to the "arrearage judgment" as to the finding and sentence of contempt. The apparent overlapping of the two "arrearage judgments" in this case, in which the commutation granted in the second contempt proceeding includes within it unpaid child support already commuted to judgment in the first contempt proceeding, is not an error amenable to corrective relief in this appeal. Of course, Dunn may not obtain a double recovery. Read is entitled in a proper post-decree proceeding to a credit toward one "arrearage judgment" for any amounts paid on the other.

12The provisions of 12 O.S. 1991 §2004 (C)(3)(f) state:

"A party against whom a default judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three (3) years after the filing of the judgment or order, have the judgment or order set aside in the manner prescribed in Sections 1031.1 and 1033 of this title. . . ."

See

"A petition or cross-petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are minor children of the marriage, the court:

1. Shall make provision for guardianship, custody, medical care, support and education of the children; . . ."

25Ahrens v. Ahrens, 1917 OK 619, 169 P. 486, 487 (a married woman cannot, by a separate contract, relieve her husband of the obligation to support his minor children); State Dept. of Human Services ex rel. K.A.G. v. T.D.G., 1993 OK 126, ¶9, 861 P.2d 990, 994 (an unwed mother may not, through settlement agreement, relieve a putative father of his obligation to support his minor child); Parkey v. Parkey, 1962 OK 110, ¶18, 371 P.2d 711, 714.

26Donahoe v. Alcorn, 1940 OK 348, ¶13, 108 P.2d 786,788 ("In view of the statutory duty imposed on the court to provide for the support of minor children and the previous decisions of this court recognizing the analogous power of the court to award alimony against a defaulting defendant in granting a divorce, even though specific request for such relief has not been included in the petition, we conclude, and hold, that the court may, at the time of granting a divorce against a defaulting defendant, enter judgment providing for the support of minor children, even though the relief thus granted is not pursuant to or in accord with a specific prayer of the petition. (emphasis added) The defaulting defendant is presumed to be cognizant of the duty imposed by law upon the court in this respect.").

271966 OK 183, 418 P.2d 949. In La Bellman, the trial court entered a judgment foreclosing upon property other than that described in the petition and the court held that the trial court had exceeded its jurisdiction in doing so.

281991 OK 67, 862 P.2d 461.

291926 OK 103, 247 P. 392.

301937 OK 190, 66 P.2d 1073.

31In Southwestern Surety v. Farriss, supra note 29, the district court granted Southwestern Surety a lien by subrogation on allotments of five Indian children despite the fact that federal law specifically prohibited any court other than a probate court from alienating the allotments of Indian minors. Seven years later, when two of the minors reached adulthood, they petitioned the district court to vacate the decree on the grounds that it was outside the issues raised by the pleadings and was void for lack of power in the district court to render it. Their petition to vacate was denied and no appeal was lodged. Southwestern Surety filed an action to enforce its lien. The trial court denied foreclosure and Southwestern Surety appealed. The court held that the denial of the motion to vacate the original decree did not bar the Indian landowners from raising the issue of jurisdiction again in the foreclosure action as a defense against enforcement of the original decree.

32In Hinkle v. Jones, supra note 30, a mortgagee filed an action to foreclose a real estate mortgage against three defendants. Two of the defendants were the former owners of the land who were personally liable for the mortgage debt and the plaintiff sought a personal judgment against them. The third defendant (Keahey) was the grantee of the two original owners. Keahey had no personal liability on debt and the plaintiff did not ask for a money judgment against him. Nevertheless, the trial court entered a personal judgment against Keahey. At the next term of court, Keahey moved to vacate the judgment. None of the grounds alleged was jurisdictional. That motion was denied. Apparently, no appeal was filed. The land was sold and the deficiency judgment was assigned to Hinkle. Execution was issued against Keahey and he moved to quash the execution on the grounds that the original judgment had been entered without notice while an answer was on file and that the original money judgment and the deficiency judgment were both void insofar as they rendered a personal money judgment against him. He asked that both the original and deficiency judgments be vacated. This motion was also denied and no appeal was lodged. When an order for a hearing on assets was issued, Keahey filed a third motion to vacate on the grounds that the judgment was void on its face and the court lacked jurisdiction to render it because it was outside the issues formed by the pleadings. This motion was granted. Hinkle appealed, arguing that the court erred in granting the motion to vacate because previous motions to vacate had been denied and not appealed. Keahey, they argued, was barred from attacking the judgment again. The Oklahoma Supreme Court disagreed, stating,

"This proposition is in the nature of the plea of res adjudicata, which, in view of the prior decisions of this court, would not and could not be good, as the court holds that this is a judgment void on its face, and the fact that the defendant Keahey did not appeal from the orders overruling prior motions to vacate did not affect his rights to file subsequent motions for the reason, as set out in the statute, that a void judgment may be attacked at any time by a party affected thereby." Id. at ¶ 28, at 1076-77.

33White v. White, supra note 17.

34The Double Jeopardy Clause of the Fifth Amendment, U.S. Const., provides in pertinent part: "No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb; . . ." The protections of the Fifth Amendment are made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S. Ct. 1805, 1812, 80 L. Ed. 2d 311 (1984).The state counterpart to the Fifth Amendment offers identical protection. See the terms of Art.2, §21, Okla. Const., which provide in pertinent part that "No person . . . after having been once acquitted by a jury, [shall] be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense."

35North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969), (overruled on other grounds); Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228 (1980); Johnson v. State, 1980 OK CR 45, ¶15, 611 P.2d 1137, 1141; Marutzky v. State, 1973 OK CR 398, ¶6, 514 P.2d 430, 431.

36Because we base our holding regarding Read's double jeopardy argument upon the absence of any significant record evidence of overlap between the two contempt orders, we need not address what might otherwise be the threshold question of whether the double jeopardy guarantee applies to a civil contempt proceeding.

37If the child support obligation is viewed as accruing each month on a daily basis, then there would in fact be a five day overlap between the two orders. In light of the substantial, non-overlapping periods of time covered by the two orders, we view this five-day overlap as insufficient to raise double-jeopardy concerns. The second contempt order unmistakably rests upon many months during which Read did not pay child support , for which he was not held in contempt the first contempt proceeding.

38Boren v. Thompson & Associates, 2000 OK 3, ¶26, 999 P.2d 438, 448; Beets v. Metropolitan Life Ins. Co., 1999 OK 15, ¶4, 995 P.2d 1071, 1078 (Opala, J., dissenting). The provisions of Rule 1.180(b), Rules of the Supreme Court, 12 O.S. Supp. 1999 Ch. 15, App. 1 state: