SAGER v. SAGER

SAGER v. SAGER
2010 OK CIV APP 130
Case Number: 107038
Decided: 09/24/2010
Mandate Issued: 11/30/2010
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

IN RE THE MARRIAGE OF:
S. M. SAGER, now Hicks, Petitioner/Appellee,
and
S. D. SAGER, Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE CARLOS J. CHAPPELLE, JUDGE

REVERSED AND REMANDED WITH INSTRUCTIONS

David W. Cole, Tulsa, Oklahoma, for Petitioner/Appellee,
James C. Linger, Tulsa, Oklahoma, for Respondent/Appellant.

Wm. C. Hetherington, Jr., Judge:

¶1 In post-decree contempt proceedings initiated by S.M. Sager, now Hicks (Ex-wife), against S.D. Sager (Ex-husband) for failure to comply with their consent decree of dissolution, Ex-husband seeks review of a trial court order finding him guilty of indirect contempt for failure to pay child support and other child-related expenses and sentencing him to 6 months incarceration subject to purge. Legal errors require we reverse the order and remand with instructions to dismiss it.

STANDARD OF REVIEW

¶2 "In a contempt proceeding, questions of fact will not be reviewed." Kerr v. Clary, 2001 OK 90, ¶18, 37 P.3d 841, 845. As a result, we review only questions of law. Cowan v. Cowan, 2001 OK CIV APP 14, 19 P.3d 322; Torres v. Torres, 1998 OK CIV APP 18, 956 P.2d 166.

FACTS

¶3 During the parties' eleven year marriage, three children were born. After the petition for dissolution was filed March 1, 2006, the parties agreed to a joint legal custody and physical custody/time sharing plan, child support according to their respective percentage of gross income, a 50-50% split for other child-related expenses, and division of their property and debts. Ex-husband also agreed to pay 50% of Ex-wife's attorney fees and costs. The parties executed a joint custody plan and "Agreed Decree of Dissolution of Marriage," which was approved by the court and filed on November 9, 2006 (11/9/06 Agreed Decree).1

¶5 A trial was held February 27, 2009, during which counsel for the parties and the Department of Human Services (DHS) participated, both parties testified, and numerous exhibits were admitted into evidence. After closing arguments, the trial court announced Ex-wife had carried her burden of clear and convincing evidence for establishing Ex-husband's wilful failure to pay child support and child related expenses and found him "guilty of contempt of court." The trial court sentenced Ex-husband to six months in the Tulsa County jail, assessed $500 in fines plus costs, revoked all his licenses, set a purge fee total in the amount of $20,171.36, and reserved Ex-wife's application for attorney fees.

¶6 The Contempt Order filed April 2, 2009 includes the court's findings and also finds Ex-husband "is not in compliance and . . . [is] guilty of indirect contempt of Court," ordering the payments of fines and purge fee by "cash only," and that "[t]he fee is payable to DHS."

1. January and February 2009 child support

$ 695.48

2. Unpaid extracurricular activities

$ 1,324.30

3. Unpaid Medical Expenses

$ 788.60

4. Unpaid Childcare

$ 5,928.81

5. Remaining Monies due on Decree Judgment

$ 2,829.33

6. DHS Modifications for Medical & Childcare

$ 1,796.63

7. DHS Claim

$ 6,808.21

Totaling

$20,171.36

The Contempt Order also reserved the issue of Ex-wife's request for attorney fees.

¶7 Ex-husband timely filed his Petition-in-Error from the Contempt Order. After the trial court entered its Order Awarding Attorney Fees in favor of Ex-wife in the amount of $14,328.85, Ex-husband amended his petition to include review of that post-judgment order.

ANALYSIS

¶8 Ex-husband alleges the trial court erred as a matter of law by finding him guilty of indirect contempt for failing to pay child support and child-related expenses (collectively, obligations) which were: (1) not included in Ex-wife's contempt application, (2) accrued subsequent to the contempt application, (3) due under a subsequently filed DHS order, and (4) due under a temporary order but not reserved in the final decree. After review of the applicable law, we address Ex-husband's last argument as "Pre-decree obligations" and his remaining arguments as "Post-decree obligations."

Oklahoma Law Pertaining to Indirect Contempt of Court

¶9 Contempts are defined and limited by Oklahoma's Constitution and Statutes which have set forth a complete and all-inclusive definition of contempts. In the Matter of J.H., 2008 OK 104, ¶8, 213 P.2d 545, 547. Since 1910, an indirect contempt of court has been defined under § 565 of Title 21 as "willful disobedience of any process or order lawfully issued or made by court." Effective November 1, 2008, the Legislature enacted a new statute, 21 O.S.Supp.2008 § 566.1, which applies to indirect contempt of a court "order compelling a parent to furnish child support, necessary food, clothing, shelter, medical support, payment of child care expenses or other remedial care of the minor child of the parent."

¶10 Section 566.1 includes four subsections: [1] the "prima facie evidence of an indirect civil contempt of court,"4 § 566.1(A); [2] the punishments for "indirect contempt for the failure to comply with an order for child support, child support arrearages, or other support," § 566.1(B); [3] alternative programs/payment plan, see § 566.1(C); and [4] specific factors mandated for use by courts in determining a sentence and purge fee for indirect contempt, see § 566.1(D).5

Pre-decree Obligations

¶12 Ex-husband alleges the trial court erred by finding him guilty of indirect contempt for obligations due under temporary orders, arguing the 11/9/06 Agreed Decree failed to state such obligations were "still due" and expressly provided that it "supercedes all prior Orders entered by the Court herein."

¶13 Ex-husband made these same arguments at the contempt trial when objecting to admission of Ex-wife's Exhibit No. 1, the two-page "DHS Record of Payment" executed on "2-24-09,"

¶14 In response to Ex-husband's objections, counsel for DHS conceded the 11/9/06 Agreed Decree "is silent as to any amounts that were due under the temporary order," but argued that such omission does not bar collection of such amounts, relying on "

¶15 Ex-wife does not address the "superseding" provision in the 11/9/06 Agreed Decree in her Answer Brief, but argues, as DHS did below, that "the Modified Temporary Order and Divorce Decree were valid orders and the provisions thereof were enforceable by a contempt action." She also relies on

¶16 We first note § 118I(B)(2) did not go into effect until July 1, 2009, four months after the contempt trial, however, its inclusion in § 118I resulted from the Legislature's transfer of a subsection from a different statute,

¶17 Statutory interpretation presents a question of law. Fanning v. Brown,

¶18 Different statutes on the same subject are generally to be viewed as in pari materia and must be construed as a harmonious whole. Taylor v. State Farm Fire and Casualty Company,

¶19 We first note that the term"collection" is not specifically defined in Title 43 or in § 118, and our research reveals no published Oklahoma cases interpreting the statutory language at issue since its addition to § 118 in 1999.

¶20 As relevant here, §137(A)(1), which had its origin as

A. Any payment or installment of child support ordered pursuant to any order, judgment, or decree of the district court . . .is, on or after the date it becomes past due, a judgment by operation of law. Judgments for past due support shall:

(1) have the full force and effect of any other judgment of this state, including the ability to be enforced by any method available under the laws of this state to enforce and collect money judgments." (Emphasis added.)

Also since 1987, § 137(B)(2) has provided "[a]n order that provides for payment of child support, if willfully disobeyed, may be enforced by indirect civil contempt proceedings, notwithstanding that the support payment is a judgment on and after the date it becomes past due." (Emphasis added.) Other "means of enforcement" or "methods of collection" which were originally included in the 1994 version of § 137 but deleted by the Legislature in 1996, i.e., income or wage assignment, court-ordered periodic payments, tax refund interruption, are still available "collection mechanisms" for past due child support. State ex rel. Department of Human Services v. Tarrant,

¶21 Acceptance of the trial court's interpretation of § 118(E)(16)(b)(2) would force this court to ignore, not only the superceding provision in the 11/9/06 Agreed Decree, but also a statute specifically addressing temporary orders and indirect contempt proceedings,

Any temporary orders and the automatic temporary injunction, or specific terms thereof, may be vacated or modified prior to or in conjunction with a final decree on a showing by either party of facts necessary for vacation or modification." Temporary orders and the automatic temporary injunction terminate when the final judgment on all issues, except attorney fees and costs, is rendered or when the action is dismissed. The court may reserve jurisdiction to rule on an application for a contempt citation for a violation of a temporary order or the automatic temporary injunction which is filed any time prior to the time the temporary order or injunction terminates." (Emphasis added.)

¶22 We find no published Oklahoma cases interpreting, in the context of indirect contempt, § 110(C)'s second and third sentences.

¶23 Section 110(C)'s third sentence essentially acts like a proviso or exception to the temporary order termination rule. Limitation of a legislative act drafted in general terms may be achieved by a proviso, an exception, or through the use of a "case" or "condition," the latter of which narrows the range of situations or circumstances subject to the rule of the act. Sutherland Statutory Construction, §§ 20.22 and 21.06 (5th Ed.). Although the third sentence does not begin with the typical words introducing a statutory exception or proviso, its clear and unambiguous language removes or excepts a specific condition from application of the general rule set forth in the second sentence. By allowing the trial court to reserve or retain jurisdiction over a temporary order after the final decree is rendered only if an application for contempt citation alleging a violation of such order has been filed prior to the termination of the temporary order, § 110(C)'s third sentence, as written, unmistakably mandates that a trial court has no authority to decide whether a party is guilty of indirect contempt for violating a temporary order in the absence of compliance with this specific requirement. The obvious consequence for such failure is elimination of a post-decree proceeding for indirect contempt as a method to collect past due amounts of support and interest as provided by § 118(E)(16)(B)(2).

¶24 In this post-decree contempt proceeding, the final judgment was rendered or pronounced when the trial court approved the parties' Agreed Decree. However, there is no indication in the record that Ex-wife filed an application for a contempt citation for Ex-husband's alleged violation of the temporary orders prior to court approval of their decree. Therefore, we conclude the trial court lacked jurisdiction to rule on Ex-wife's 5/19/08 Contempt Application as to any child support or other child-related expenses due under the temporary orders in the dissolution proceedings.

¶25 Review of the first page of Ex-wife's Exhibit No. 1 confirms Ex-husband's position that the pre-decree child support obligation shown therein, $5,525.72,

¶26 Ex-husband argues Ex-wife's other exhibits also erroneously included pre-decree obligations. Our review of her exhibits reveals only one. Ex-wife's Exhibit No. 5, child care expenses of $5,928.81, has in its "Date Incurred" column three entries marked as only "2006". Ex-husband's 2006 share would be $3,720.00. However, the exact amount of pre-decree child care obligation is not ascertainable from Ex-wife's exhibit because there are no payment receipts and two of the three attached invoices for 2006 lack adequate "Date Incurred" information.

Post-decree Obligations

¶28 Ex-husband further argues the trial court's purge fee erroneously included amounts of obligations that were either not alleged in Ex-wife's Contempt Application or were ordered to be paid by a subsequent valid and enforceable order. Pointing out the increase between the total debt Ex-wife claimed in her Contempt Application, $14,175.94, and the trial court's $20,171.36 total purge fee, Ex-husband further argues the amount of each obligation alleged in her Contempt Application that became due and owing after the application was filed should not have been included in the purge fee. We agree with both arguments.

¶29 Title

¶30 In this case, Ex-wife's Contempt Application against Ex-husband was based solely on his failure to comply with the 11/9/06 Agreed Decree. She did not amend that application prior to trial but submitted Exhibits No. 3 through 5,

¶31 Despite Ex-husband's objections to the above exhibits on the same grounds, he argues on appeal Ex-wife never moved to amend her pending contempt application to conform to the proof presented at trial, as allowed by

¶32 The trial court erred, as a matter of law, by including in the total purge fee (1) arrearage amounts in excess of the amounts Ex-wife originally claimed in her 5/19/08 Contempt Application, and (2) obligations which arose by a valid and enforceable order rendered subsequent to the 11/9/06 Agreed Decree. Our conclusion on this issue, however, does not effect expense obligations incurred between the 11/9/06 Agreed Decree and the 05/19/08 Contempt Application, either or both of which post-decree obligations could support the trial court's finding of indirect contempt following remand.

CONCLUSION

¶33 Pursuant to

¶34 This legal error alone affects the two largest obligations claimed by Ex-wife, deduction of which pre-decree amounts substantially decreases the trial court's total purge fee and further impacts several of the factors trial courts are required to use in determining a sentence and purge fee pursuant to

¶35 For these reasons and the trial court's express reliance on Ex-wife's Exhibit No. 1 in finding Ex-husband guilty of indirect contempt, we reverse the contempt order and remand with instructions to reconsider the contempt citation in reference to compliance or noncompliance with the 11/9/06 Agreed Decree as to the balance of obligations due after that date and prior to the 5/19/08 Contempt Application and in light of both § 566.1(D)'s sentencing and purge fee factors and Rule 8.3, Rules for the District Courts of Oklahoma, 12 O.S.1991, ch.2, App.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

BUETTNER, P.J., concurs in result, and HANSEN, J., concurs.

FOOTNOTES

1 In paragraph 18 of the 11/9/06 Agreed Decree, Ex-husband's agreement to pay 50% of Ex-wife's attorney fees and costs was reduced to judgment in the amount of $2,750.00, and he was ordered to pay "a minimum of fifty dollars ($50.00) per month each and every month until this judgment is paid in full."

2 No error has been raised on appeal concerning the trial court's order directing payment to DHS or its participation in this post-decree proceeding. DHS did not file an entry of appearance or move to intervene but "was represented" by counsel first at an October 2008 hearing and then at the February 27, 2009 contempt trial. Contrary to 43 O.S.Supp.2007 § 112(F), the trial court did not inquire at that trial whether any "public assistance money or medical support" has been provided by DHS, and neither the record nor the parties explain what services or public assistance if any, Ex-wife received from DHS. It appears from the record that Ex-wife received either child support or enforcement services, and therefore we presume DHS was entitled, pursuant to § 112(F), to participate in the contempt proceeding on Ex-wife's behalf, without the need to intervene.

3 Both petitions were served on DHS, who did not file an entry of appearance nor did it file an answer brief or join in Ex-wife's brief.

4 The required "proof" was originally enacted in 1990 as part of another Title 21 statute, see 21 O.S.Supp.1990 § 566(B)(2), and in 2008, transferred without modification to § 566.1(A).

5 These same factors were originally enacted in 1989 in another Title 21 statute, see 21 O.S.Supp.1989 § 566(B)(1), and in 2008, transferred to § 566.1(D).

6 We do not address Ex-husband's third appellate argument based on ¶26 of the Agreed Decree of Dissolution, in which the parties warranted, to each other and the court, that a full disclosure of the existence and value of all property and debts owed jointly or separately by the parties had been made and the division of the property and debts is based upon such disclosure and warranty. Ex-husband did not make this specific argument to the trial court.

7 Ex-Wife's Exhibit No. 1 states that it is "based on the official records of the Oklahoma Centralized Support Registry."

8 See footnote 2.

9 DHS recognized § 118I was not operative on the date of trial, because during closing, it also cited to "§ 118(16)(B)(2)," apparently intending "§ 118(E)(16)(B)(2)."

10 See 43 O.S.Supp.1999 § 118(C)(15)(b)(2).

11 The Court in Gray v. Gray, 1996 OK 84, ¶18, 922 P.2d 615, 621, interpreted the first two sentences of § 110(C)'s predecessor, 43 O.S.Supp.1992 § 110(B), which then allowed temporary orders to be vacated or modified "before final decree." When deciding if the trial court had abused its discretion by retroactively modifying a temporary support order at trial, the Court held, "[p]ursuant to this statute, a trial court may modify a temporary order in conjunction with the issuance of a final decree. It is only after the final decree has been entered that a court loses authority to modify a temporary order." (Emphasis in original.)

12 Lincoln Bank and Trust Co. cites in footnote 12 of that opinion several cases as authority for this holding, including Kuchler v. Weaver, 1909 OK 55, 100 P. 915, and Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, a marital dissolution case also discussed in Gray v. Gray, 1996 OK 84, 922 P.2d 615.

13 Because § 110(B) did not specify if temporary orders could be modified at trial, the Gray Court relied on the following quote from Johnson v. Johnson, 1983 OK 117, 674 P.2d 539:

Obligations created by interlocutory orders pendente lite do not survive, but merge in, the final judgment. Unlike accrued unpaid installments under a decree or some final order, an arrearage due under the terms of an interlocutory order may be modified or extinguished retroactively.... In short, the divorce decree operate[s] effectively to extinguish all pre-existing rights of the parties arising out of their former marital status. (Emphasis added.) Gray, ¶18.