McCAULEY v. McCAULEY

McCAULEY v. McCAULEY
1950 OK 134
216 P.2d 978
203 Okla. 107
Case Number: 34475
Decided: 05/16/1950
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR District court without authority to review judgment and retry divorce case, upon application of one of the parties.
After trial and judgment in an action for divorce, alimony and child custody either party may review the judgment by appeal, but there is no authority in the district court to thereafter review such judgment and re-try the cause upon application of one of the parties which application is presented in the nature of a petition for review or a petition in the nature of a bill of review.

F. E. Riddle, Tulsa, for plaintiff in error.

S. J. Clendinning, Tulsa, for defendant in error.

PER CURIAM.

¶1 Several months after final judgment in the district court, plaintiff filed in the same cause a pleading in the nature of a petition for review, seeking in effect to vacate the final judgment and retry the cause.

¶2 The former judgment was rendered on complete trial. Although both parties appeared and presented evidence there was no exception to the judgment or motion for new trial or appeal from such judgment.

¶3 The final judgment granted divorce to the defendant, granted substantial alimony to the plaintiff and granted defendant exclusive custody of the child of the parties.

¶4 Upon the filing of this subsequent application or petition by the plaintiff, the defendant filed motion to dismiss such application and upon hearing the trial judge concluded there was no authority in law to so review the former judgment and retry the cause, and the trial court dismissed the subsequent application or petition of the plaintiff. It is from that order of dismissal that this appeal is prosecuted.

¶5 The plaintiff, as plaintiff in error here, shows no right to so review such judgment and so retry the cause.

¶6 Either party to the divorce action had the right and remedy to test the final judgment by appeal and there is continuing judicial authority in the district court to consider and determine the matter of child custody, but no authority is shown for either party to obtain review of the judgment and retry the cause upon such a pleading as filed herein by the plaintiff.

¶7 The action of the trial court in dismissing such subsequent petition was correct and for lack of authority in the plaintiff to so proceed this appeal is dismissed.