NELSON v. NELSON

NELSON v. NELSON
1998 OK 10
954 P.2d 1219
69 OBJ 452
Case Number: 88764
Decided: 02/03/1998
Mandate Issued: 03/06/1998
Supreme Court of Oklahoma

DEBBIE D. NELSON, Plaintiff/Appellee,
vs.
RICHARD E. NELSON, Defendant/Appellant.

[954 P.2d 1221]
APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY;
Honorable James L. Sontag, Associate District Judge.

¶0 The plaintiff/appellee, Debbie D. Nelson (wife/mother), filed for divorce seeking custody of two minor children with the defendant/appellee, Richard E. Nelson (husband/father), to have reasonable visitation. In a default proceeding, the trial judge, Honorable James L. Sontag, granted the parties a divorce, set child support, divided marital property and awarded the wife $5,000 in lieu of alimony as a property division. Custody of the children was placed with the wife. Because the father had not followed the mandate of Administrative Rule CV-95-1 requiring him to complete a course, Helping Children Cope with Divorce, he was denied visitation. The husband filed a motion to vacate the judgment. After a hearing, the trial court required that an order nunc pro tunc be entered to conform payment of child care expenses with the Oklahoma Child Support Guidelines, 43 O.S. Supp. 1995 §118, et seq., and it overruled the husband's motion to vacate. In a motion to retain, the husband requested that we consider the constitutionality of Administrative Order CV-95-1 and of 43 O.S. Supp. 1997 §107.2 which require the divorcing parents of minors to attend educational courses intended to help their children cope with divorce. We find that: 1) Administrative Order CV-95-1 and 43 O.S. Supp. 1997 §107.2 do not deny divorcing parents with minor children equal protection or due process nor do they constitute a prohibited delegation of the legislative authority; and 2) under the facts presented, the trial court abused its discretion by failing to vacate a default judgment entered without notice to the father that his visitation rights were in jeopardy.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

James H. Hadley, II, For Plaintiff/Appellee.

Pamela Pitcher-Hartley, Vinita, Oklahoma Bill R. Scarth, For Defendant/Appellant.

B. Ruth Kupcha, Claremore, Oklahoma, Sam P. Daniel, For Amicus Curiae.

Ronald W. Little Tulsa, Oklahoma.

¶1 KAUGER, C.J.:

¶2 Two issues are presented: 1) whether Administrative Order CV-95-11 and 43 O.S. Supp. 1997 §107.22 which require divorcing [954 P.2d 1222] parents with children to attend classes intended to help minors to cope with divorce are constitutional; and 2). whether, under the facts presented, the husband was entitled to have his timely-filed motion to vacate sustained. We find the administrative order and the statute do not violate constitutional standards of equal protection or due process nor do they constitute a prohibited delegation of the legislative authority. However, the cause must be reversed in part, because the father did not have notice that his rights to visitation were in jeopardy. Under the facts presented, the trial court abused its discretion by refusing to vacate the default judgment. The cause is remanded and the trial court is ordered to consider the father's application for visitation.

FACTS

¶3 On July 19, 1996, the plaintiff/appellee, Debbie D. Nelson (wife/mother), served the defendant/appellant, Richard E. Nelson (husband/father), with a petition for divorce. In the petition, the wife sought: custody of the couple's two minor children with the husband to have "reasonable visitation"; an award of child support and child care expenses computed in accordance with the Oklahoma Child Support Guidelines, 43 O.S. Supp. 1995 §118, et seq.; medical insurance and payment of a portion of any unpaid medical expenses of the children; an equitable division of marital property and debt; and attorney fees and costs. Because the husband believed that he and his wife were in the process of settling the issues presented in the divorce proceeding, he did not hire an attorney or file an answer.

¶4 Finding the husband in default, the trial court granted the divorce on November 4, 1996. Under the decree, the wife was given custody of the minor children, and the husband was denied visitation based on his failure to attend the course, "Helping Children Cope with Divorce."3 The husband was ordered to pay $611.16 monthly for child support and sixty-six percent of any child care expenses. He was also required to provide medical insurance for the children and to pay a portion of any uncovered medical expenses. The decree divided marital property between the parties and awarded the wife $5,000.00 in lieu of alimony as property division. Each party was directed to discharge the debt on vehicles awarded as their separate property. Finally, the husband was ordered to pay the wife's attorney fee of $550.00. It is undisputed that the only pleading served on the husband was the petition. In that filing, there was nothing to put the husband on notice that he could be denied visitation with his children.

¶5 On November 27, 1996, the husband filed a motion to vacate the judgment and decree of divorce.4 He asserted that: he did not file an answer because he believed that the property and child support issues would be settled; the child support awarded exceeded provisions of the Oklahoma Child Support Guidelines, 43 O.S. Supp. 1995 §118, et seq.; the division of property and debt was inequitable; and the decision to deny visitation based on his failure to attend the parenting seminar violated his right of association with his children and was not based on a consideration of the children's best interests.

¶6 A hearing on the motion to vacate was held on December 30, 1996, in which the husband requested that the decree be set aside as to all matters except for the portion of the judgment granting the parties' divorce. At the hearing, the husband acknowledged that he knew that he was required to attend the Children Coping With Divorce Seminar and that, after the decree was entered, he [954 P.2d 1223] completed the course.5 All attempts of the husband to offer evidence on the actual value of the marital estate were overruled. The trial court did accept evidence of the husband's income. Nevertheless, this information was not considered in adjusting the child support obligations. Instead, the wife was ordered to prepare an order nunc pro tunc removing child care expenses from the amount of child support originally ordered. On March 4, 1997, an order was entered designating the husband's child support obligation at $409.86 rather than $611.19 and requiring him to pay sixty-six percent of any employment-related child care expenses.

¶7 The husband appealed and he requested that the cause be retained to address the constitutionality of Administrative Order CV-95-1 and 43 O.S. Supp. 1997 §107.2. The motion was granted on April 25, 1997. Family and Children's Services, Inc. was given leave to file an amicus brief on May 29,1997,6 and the husband's final response was filed on June 27, 1997.

I

¶9 The husband argues that Administrative Order CV-95-1 and 43 O.S. Supp. 1997 §107.2, requiring the divorcing parents of a minor child to attend educational programs relating to the impact of divorce on a couple's children, are unconstitutional on equal protection and due process grounds. The wife and amicus curiae assert that neither the order nor §107.2 violate constitutional standards.

¶10 The issue of the constitutionality of statutes similar to Administrative Order CV-95-1 and 43 O.S. Supp. 1997 §107.2 is one of first impression in Oklahoma and in the nation.7 In other areas relating to divorce, state-enacted restrictions have been upheld, i.e., a one-year residency condition for maintaining an action for divorce,8 and a waiting period between the time of filing and the entry of the final decree.9 Additionally, there are established standards for the consideration of statutory enactments attacked on constitutional grounds.

A. Equal protection.

¶11 The equal protection clause of the fourteenth amendment requires that no state "deny to any person within its jurisdiction the equal protection of the laws."10 Due process protections encompassed within the Okla. Const. Art. 2, §711 are coextensive with those of its federal counterpart. The United States Constitution and the Oklahoma Constitution each contain built-in anti-discrimination components which afford protection against unreasonable or unreasoned classifications which serve no important governmental interests.12 The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, §7.13

[954 P.2d 1224] ¶12 There is a strong presumption which favors legislative enactments. A statute will be upheld unless it is clearly, palpably, and plainly inconsistent with fundamental law.

¶13 Administrative Order CV-95-1 and §107.2 make a single distinction----parents, or persons standing in the parental role, who invoke the jurisdiction of the court in an action which will alter the character of the parental unit may be required to take an educational course intended to lessen the impact of the change on minor children----if minor children are not involved, the requirement does not apply. Recognizing the harmful impact of divorce on children and in attempt to minimize the involvement of minors in parental conflict,

¶14 States may seek to protect and facilitate the parental bond through parental participation,

B. Due process.

¶15 The husband's due process attack on CV-95-1 and on §107.2 is procedural25---relating to his lack of notice---and substantive,26 concerning the burden attending an educational course relating to the impact of divorce on minors bears on his parental rights. We agree that the husband did not receive notice sufficient to appraise him that his visitation rights might be in peril.27 We also agree that a parent may not be penalized for failure to attend courses mandated either by the administrative order or by the statute absent notice that completion of the course is required. However, this Court will not assume that simply because here the husband did not receive adequate notice that parties generally will not be advised of the obligation to complete the educational courses.

¶16 The husband's constitutional attack on CV-95-1 and §107.2 on substantive grounds centers on an argument that, absent some jeopardy to the health or safety of children, the government may not intrude in the familial relationship and require parents to attend the mandated educational courses. However, in determining whether the order or the statute constitute a substantive due process violation, a balance must be struck between the right protected and the demands of society.28 We recognize that the relationship of parents to their children is a fundamental, constitutionally protected right.29 However, the liberty interest of the [954 P.2d 1225] parent must be balanced against the best interests of the child. In this arena, the child's interest are paramount30 and the parents rights are a counterpart of the responsibilities they have assumed.31 Unquestionably, the state has a constitutional right to declare and maintain a policy regarding marriage and divorce concerning persons domiciled within its borders.32 The Legislature's enactment of §107.2 and the district court's adoption of CV-95-1 is a recognition that children are impacted socially, emotionally and economically by divorce.33 The extent to which a parent may be inconvenienced by attendance at the educational seminars is subordinate to the need to protect the child's welfare. In addition, the requirement to attend the class or seminar creates no burden on the parent's right of association with the child. We find that neither Administrative Order CV-95-1 nor 43 O.S. Supp. 1997 §107.2 are unconstitutional on procedural or substantive due process grounds.

C. Delegation of legislative authority.

¶17 The husband's final attack on 43 O.S. Supp. 1997 §107.2 and on Administrative Order CV-95-1 centers on an argument that the statute and the rule provide for an unauthorized delegation of the legislative authority in violation of the Oklahoma Constitution art. IV, §134 and art. V, §1.35, because the courts are allowed to make rules to carry out the policy announced by the provision. However, this argument is unpersuasive. The language of §107.2(a) provides standards for the kind of educational course which is mandated. Subsection (b) merely authorizes the courts to implement local rules governing the program the Legislature has required.36

¶18 Additionally, neither the statute nor the administrative order are result determinative. Unquestionably, the relationship of a parent to a child is a constitutionally protected right.

II.

¶20 The father asserts that although he was served with the petition, he was not aware that he could be denied visitation with his children or that a money judgment could be entered against him.

¶21 It is elementary and fundamental that "due process of law" encompasses more than a party's right to be heard. It begins with a party's right to notice of the pendency of an action and of the nature of any relief sought.

¶22 The mother argues that the husband had constructive notice that his visitation rights were at issue by virtue of the existence of Administrative Order CV-95-1 requiring him to attend the seminar, "Children Coping with Divorce." Although it appears that the husband was aware of the order and of the requirement that he attend the class,

¶23 Because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits. Default judgments are not favored.

CONCLUSION

¶24 Only in exceptional cases should a parent be denied the right to visit his or her minor child.

[954 P.2d 1229] ¶25 The cause is remanded and the divorce decree is reversed and remanded for further proceedings insofar as it denies the husband visitation.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

KAUGER, C.J., SUMMERS, V.C.J., HODGES, LAVENDER, WILSON, WATT, JJ. concur.

OPALA, J., with whom SIMMS, J. joins, concurs in part and dissents in part.

HARGRAVE, J. dissents.

FOOTNOTES

1Administrative Order CV-95-1, adopted by the District Court for the 11th Judicial District, on May 12, 1995, provides in pertinent part:

". . . Section 1. This rule applies to all parties in all divorce, separate maintenance, guardianship, paternity, custody or visitation actions; or any modifications or enforcement of a prior court order in these actions, excluding domestic violence actions, filed on or after June 1, 1995, where the interests of children under 18 years of age are involved. The rule may be applied to all cases pending as of June 1, 1995 at the judge's discretion.

Section 2. All parties to such action shall successfully complete the seminar entitled 'Helping Children Cope with Divorce'. . . .

Section 5. Upon a party's failure to successfully complete the seminar pursuant to this rule, the judge assigned to the case may take appropriate action, including but not limited to the following:

a. The Court may decline to hear the petition, application, motion or other request for relief of the party who fails to attend;

b. The Court may consider a party's failure to attend as a factor in determining the best interest of the child; and

c. The Court may hold the party who fails to attend in contempt. . . . "

2Title 43 O.S. Supp. 1997 §107.2 provides:

"A. In all actions for divorce, separate maintenance, guardianship, paternity, custody or visitation, including modifications or enforcements of a prior court order, where the interest of a child under eighteen (18) years of age is involved, the court may require all adult parties to attend an educational program concerning, as appropriate, the impact of separate parenting and coparenting on children, the implications for visitation and conflict management, development of children, separate financial responsibility for children and such other instruction as deemed necessary by the court. The program shall be educational in nature and not designed for individual therapy.

B. Each judicial district may adopt its own local rules governing the program."

Even though §107.2 was enacted subsequent to the rulings of the district court, the husband, the wife and amicus curiae request that the Court consider its constitutionality.

3Paragraph 6 of the decree provides:

"6. That the plaintiff is a fit and proper person to be and is granted primary custody of said minor children. Defendant having failed to attend the course, ('Helping Children Cope with Divorce'), visitation is denied and upon completion of the course and application for visitation, the visitation rights of the non-custodial parent will be considered and if appropriate afforded."

4Title 12 O.S. Supp. 1994 §1031.1 provides in pertinent part:

". . . B. On motion of a party made not later than thirty (30) days after a judgment, decree or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk, the court may correct, open, modify or vacate the judgment, decree or appealable order. . . ."

5The transcript of proceedings, December 30, 1996, provides in pertinent part at p. 18:

". . . Q With regard to -- were you made aware that you were to attend the Children Copying [sic] With Divorce seminar?

A Yes.

Q And have you now done that?

A Yes. . . ."

6The single issue presented in the amicus brief concerns the constitutionality of 43 O.S. Supp. 1997 §107.2, see note 2, supra, and Administrative Order CV-95-1, see note 1, supra.

7Our research reveals no decisions in any jurisdiction on the issue and none are cited in the parties' briefs.

8Sosna v. Iowa, 419 U.S. 393, 405, 95 S. Ct. 553, 560, 42 L. Ed. 2d 532 (1975).

9People v. Connell, 9 III.2d 390, 137 N.E.2d 849, 851, 62 A.L.R.2d 1255 (1956).

10The United States Const., amend. XIV.

11The Okla. Const. art. 2, §7.

12DuLaney v. Oklahoma State Dept. of Health, 1993 OK 113, 868 P.2d 676, 685; Fair School Finance Council v. State, 1987 OK 114, 746 P.2d 1135, 1148.

13Fair School Finance Council v. State, see note 12, supra; McKeever Drilling Co. v. Egbert, 1935 OK ___, 170 Okla. 259, 40 P.2d 32, 35; Callaway v. City of Edmond, 1990 OK CR 25, 791 P.2d 104, 106.

14Abrego v. Abrego, 1991 OK 48, 812 P.2d 806, 810; Turley v. Flag-Redfern Oil Co., 1989 OK 144, 782 P.2d 130, 173; Black v. Ball Janitorial Serv., Inc., 1986 OK 75, 730 P.2d 510, 512; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, 679 P.2d 1296, 1300; Kimery v. Public Serv. Co., 1980 OK 187, 622 P.2d 1066.

15City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985); Abrego v. Abrego, see note 14, supra; Turley v. Flag-Redfern Oil Co., see note 14, supra; Kirk v. Board of County Comm'rs, 1979 OK 80, 595 P.2d 1334, 1336-37.

16Norvell v. Illinois, 373 U.S. 420, 423, 83 S. Ct. 1366, 1368, 10 L. Ed. 2d 456, 459 (1963); Abrego v. Abrego, see note 14, supra; Turley v. Flag-Redfern Oil Co., see note 14, supra.

17Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S. Ct. 505, 509, 98 L. Ed. 660, 665 (1954); Special Indem. Fund v. Bedford, 1993 OK 60, 852 P.2d 150, 155.

18McGowan v. State of Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393, 399 (1961); Association for Equitable Tax. v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, 806. See also, Madden v. Commonwealth of Kentucky, 309 U.S. 83, 88, 60 S. Ct. 406, 408, 64 L. Ed. 590, 593 (1940).

19L.Elrod, "A Review of the Year in Family Law," 28 Fam.L.Q. 541, 560 (1995); J. Kerr, "Effort Stalls in State Legislatures to Roll Back No-Fault Divorce Laws," 9-16-96 West.L.N. 9702 (1996); W. Fitzgerald, "Maturity, Difference, and Mystery: Children's Perspectives & The Law," 36 Az.L.R. 11, 109 (1994).

20Mont. Code Ann. §40-4-226 (1997); Colo. Rev. Stat. §14-10-123.7 (1997); Del. Code Ann. Tit. 13 §1507 (1996); Conn. Gen. Stat. An.. §46B-69B (1994); Fla. Stat. Ann. §61.13(2) (1994); Iowa Code Ann. §232.116 (1994); N.H. Rev. Stat. §458-d (1993); Utah Code Ann. §30-3-7 (1994).

21Hudgson v. Minnesota, 497 U.S. 417, 484, 110 S. Ct. 2926, 2963, 111 L. Ed. 2d 344 (1990). See also, Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 10 L. Ed. 2d 195 (1968).

22Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 904, 106 S. Ct. 2317, 2322, 99 L. Ed. 2d 899 (1986); Sosna v. Iowa, see note 8, supra; Williams v. North Carolina, 317 U.S. 207, 303, 63 S. Ct. 207, 87 L. Ed. 279, 143 A.L.R. 1273 (1942).

23See Administrative Order CV-95-1, note 1, and 43 O.S. Supp. 1997 §107.2, note 2, supra.

24Neither is the classification made between divorcing couples with children and those without in violation of the Okla. Const. art. 5, §46 prohibiting the promulgation of special laws as the dissent asserts. A classification is not a prohibited, special law if it establishes a reasonable classification of persons, entities or things, sharing the same circumstances. Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604, 615; State v. Goforth, 1989 OK 37, 772 P.2d 911, 914; Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822-23. In the separate concurring opinion in Wagnon v. State Farm Fire & Casualty Co., 1997 OK 160, ___ P.2d ___, it was acknowledged that legislation relating to "discrete subclasses . . . based upon identified distinguishing characteristics" would not be subject to art. 5, §46's prohibition against a special law. We have determined in our equal protection analysis that to the extent that a distinction is made---between divorcing couples and between divorcing parents--the distinction is justified. There is no "invidious underinclusion". Wagnon, supra. The law has a general operation on all parents covered by the class----they must attend educational courses related to children who are members of families experiencing divorce or other disruption of the family unit. This Court has never adopted uniform rules for the district courts. Although the issue of whether the promulgation of rules by individual district courts has never been addressed in this context, we have indicated that rules adopted by individual district courts in conformance with a statute would be upheld. See, State v. Whistler, 1977 OK 61, 562 P.2d 860, 862.

The dissent's assertion that the Administrative Order CV-95-1, see note 1, supra, and 43 O.S. Supp. 1997 §107.2, see note 2, supra, encroach upon the independence of the judicial decision making process is also unconvincing. Although the trial judge must order the parties to attend the educational course, a party's failure to complete the seminar does not determine the outcome of the cause or the custody of the child. It does not change the trial judge's duty to consider the minor's best interests.

25Procedural due process requires an inquiry into the constitutional adequacy of the State's procedural safeguards. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990); Matter of Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155, 1159.

26The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Daniels v. Williams, 474 U.S. 327, 352, 106 S. Ct. 662, 665, 88 L. Ed. 2d 677 (1986); Matter of Adoption of J.R.M., see note 24 at 1160, supra.

27See discussion, pp. 10-14, infra.

28Youngberg v. Romeo, 457 U.S. 307, 320, 102 S. Ct. 2452, 2460, 73 L. Ed. 2d 28 (1982); Matter of Adoption of J.R.M., see note 25 at 1160, supra.

29Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639, 94 S. Ct. 791, 796, 39 L. Ed. 2d 52, 60 (1974); Matter of Guardianship of S.A.W., 1993 OK 95, 856 P.2d 286, 289; Matter of Chad S., 1978 OK 94, 580 P.2d 983, 986.

30In re Bomgardner, 1985 OK 59, 711 P.2d 92, 97; Johnson v. Johnson, 1984 OK 19, 681 P.2d 78, 79-80.

31Matter of Adoption of Baby Boy D, 1985 OK 93, 742 P.2d 1059, 1065, cert. denied, 484 U.S. 1072, 108 S. Ct. 1042 (1985).

32In re Burrus, 136 U.S. 586, 593-94, 10 S. Ct. 850, 34 L. Ed. 500 (1890); Umber v. Umber, 1979 OK 24, 591 P.2d 299, 301; Williams v. Williams, 1975 OK 163, 543 P.2d 1401, 1403, appeal dismissed, 426 U.S. 901, 98 S. Ct. 2220 (1976).

33Stake, "Mandatory Planning for Divorce," 45 Van.L.Rev. 397, 408 (1992).

34The Okla. Const. art. IV, §1 provides:

"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."

35The Okla. Const. art. V, §1 provides:

"The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

36See, City of Oklahoma City v. State, 1995 OK 107, 918 P.2d 26, 29-30; State v. Parham, 1966 OK 9, 412 P.2d 142, 150-51.

37Quilloin v. Walcott, see note 29, supra; Cleveland Bd. of Educ. v. LaFleur, see note 29, supra; Matter of Guardianship of S.A.W., see note 29, supra; Matter of Chad S., see note 29, supra.

38Cravens v. Corporation Comm'n, 1980 OK 73, 613 P.2d 442, 444.

39Title 43 O.S. Supp. 199 §107.2, see note 2, supra.

40Administrative Order CV-95-1, see note 1, supra.

41Title 43 O.S. 1991 §111.1; 43 OS. Supp. 1997 §112; In re Bomgardner, see note 30, supra.

42Title 43 O.S. Supp. 1997 §107.2, see note 2, supra.

43Title 43 O.S. 1991 §111.1; 43 O.S. Supp. 1997 §112.

45The husband also raises other grounds for reversing the refusal to vacate the default judgment including a lack of evidence to support the judgment and the trial court's refusal to consider evidence of his income in setting child support. His assertion that he was without notice that he could be subjected to a money judgment is not persuasive. The husband was served with the petition providing for a division of the parties' property. The wife was awarded $5,000.00 property division in lieu of alimony.

46The husband was served with the petition which provides in pertinent part:

". . . 5. That during the marriage of the parties hereto, they have acquired certain real and personal property and indebtedness which should be fairly and equitably divided and distributed between the parties hereto. . . ."

47Notice is a jurisdictional requirement and a fundamental element of due process. Due process requires adequate notice, a realistic opportunity to appear and the right to participate in a meaningful manner. The right to be heard is of little value unless a party is appraised of rights which may be affected by judicial process. Due process is violated by the mere act of exercising judicial power upon process not reasonably calculated to appraise interested parties of the pendency of an action. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-15, 70 S. Ct. 652, 656- 57, 94 L. Ed. 865, 872-74 (1950); Bailey v. Campbell, 1991 OK 67, 862 P.2d 461, 469; Cate v. Archon Oil Co., 1985 OK 15, 695 P.2d 1352, 1356; Bomford v. Socony Mobil Oil Co., 1968 OK 43, 440 P.2d 713, 718. Lack of notice constitutes a jurisdictional infirmity. Bailey v. Campbell, see this note, supra; Cate v. Archon Oil, see this note, supra; Pointer v. Hill, 1975 OK 73, 536 P.2d 358, 361.

48The petition provides in pertinent part:

". . . 12. That in the best interest of the minor children of the parties, Plaintiff should be granted custody of the minor children, with reasonable visitation with the Defendant. . . ."

49See note, 5, supra.

50Administrative Order CV-95-1, see note 1, supra.

51Appellee's Answer Brief, p. 10 provides in pertinent part:

". . . Nelson's fitness as a parent was never at issue and was not a determinative factor in the decision to deny visitation to him. In the instant case, the trial court exercised its authority under the Administrative Order without so much of a degree of consideration as to Nelson's fitness (or unfitness) as a parent. Had the Court felt that Nelson was unfit, it certainly would not have given him the opportunity to come before the court and show his seminar attendance to regain visitation with the minor children. . . ."

Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record. Stork v. Stork, 1995 OK 61, 898 P.2d 732, 737; Reeves v. Agee, 1989 OK 25, 769 P.2d 745, 753; Womack v. City of Oklahoma City, 1986 OK 14, 726 P.2d 1178, 1181.

52Singleton v. LePak, 1967 OK 37, 425 P.2d 974, 977; Morrell v. Morrell, 1931 OK ___, 149 Okla. 187, 299 P. 866, 868.

53Farm Credit of Wichita v. Trent, 1997 OK 70, ¶21, ___ P.2d ___ (1997); Hassell v. Texaco, Inc., 1962 OK 136, 372 P.2d 233, 235.

54Farm Credit of Wichita v. Trent, see note 53, supra; American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.3d 1321, 1323; Midkiff v. Luckey, 1966 OK 79,412 P.2d 175-76. See also, Bailey v. Campbell, see note 47, supra .

55Title 12 O.S. Supp. 1996 §2004 provides in pertinent part:

". . . B. 2. A judgment by default shall not be different in kind from or exceed in amount that prayed for in either the demand for judgment or in cases not sounding in contract in a notice which has been given the party against whom default judgment is sought. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. . . ."

La

56See note 3, supra.

57Harmon v. Harmon, 1997 OK 91, ¶4, ___ P.2d ___; In Re McMenamin, 1957 OK 67, 310 P.2d 381; Clark v. Clark, 1936 OK ___, 177 Okla. 542, 61 P.2d 28.

58Title 43 O.S. Supp. 1997 §112; In Re Bomgardner, see note 30, supra..

[954 P.2d 1229]
OPALA, J., with whom SIMMS, J., joins, dissenting in part.

¶ 1 Today the court gives its imprimatur to a local court rule (Administrative Order CV-95-1 [CV-95-1]), 1 which requires all parties in every domestic case (divorce, separate maintenance, guardianship, paternity, custody or visitation actions) to complete a seminar entitled "Helping Children Cope with Divorce." The rule authorizes the trial court to visit sanctions on noncomplying suitors. By its pronouncement the court informs the public that the underpinnings for the rule's legitimacy are to be found in an after-enacted statute, 43 O.S.Supp.1997 § 107.2,2 which authorizes each judicial district to adopt its own rules for managing a similar program. Because the rule is based on a reasonable classification - applying as it does to divorcing couples with children as distinguished from those who have none - the court declares that the rule does not fall within the prohibition of Art. 5, § 46, Okl.Const.,3 which absolutely forbids regulation of procedure by special law.

¶ 2 This case is not about special law tainted by flawed classification. It is about local law that facially offends the § 46 prohibition against procedural rules which do not operate statewide. Unlike the court, I would condemn the judicial district's rule as (a) local adjective law impermissible under Art. 5, § 46, Okl.Const.,4 (b) an encroachment upon the powers expressly reserved in the Supreme Court by Art. 7, § 6, Okl.Const.,5 and (c) an invasion of an individual judge's decisionmaking independence. I would [954 P.2d 1230]pronounce all local rules, promulgated under the authority of § 107.2, to be ineffective. This is so because their content would offend against the § 46 uniformity-of-procedure mandate and usurp the constitutional power of this court to implement the command of § 46 - on a statewide basis - by an exercise of its § 6 authority. Because today's pronouncement so gravely contravenes Oklahoma's fundamental law, I recede from the court's opinion. My sentence of nullity for the local rule in contest would not limit any judge's power to do, in individual litigation, what proof and discretion may require.

I
THE TRILOGY OF CONSTITUTIONAL PROVISIONS THAT AFFECT LEGISLATIVE POWER TO ENACT "SPECIAL" OR "LOCAL" LAW

¶ 3 Pertinent to an understanding of the rule's infirmity are three constitutional sections that deal with the taint of "special" or "local" law - Art. 5, §§ 32,6 467 and 59.8

Art. 5, § 59, Okl.Const.

¶ 4 Art. 5, § 59 mandates the law's uniform application by enactment of general laws.

Art. 5, § 46, Okl.Const.

¶ 5 Art. 5, § 46 mandates in absolute terms statewide procedural uniformity for an entire class of similarly situated persons or things.

¶ 6 Although directed to the legislature, the terms of §§ 46 and 59 are equally binding on the courts.

Art. 5, § 32, Okl.Const.

¶ 7 The terms of Art. 5, § 32 provide a procedure to be followed in considering and passing local or special acts upon matters falling outside the prohibitory scope of the absolutely excluded § 46 subjects.

II
CLASSIFICATION THAT MAY BE TERMED PERMISSIBLE UNDER ART. 5, §§ 59 AND 46, OKL.CONST.

¶ 8 Classification was developed to test for fundamental-law conformity legislative acts challenged as violative of § 59.

¶ 9 Classification is still the test for legislative compliance with § 59 rather than for an act's orthodoxy when it is measured by the § 46 uniformity-of-procedure mandate. Outside of limitations, the test for § 46 conformity of a challenged act is the presence or absence of uniformity. That is the sole standard this dissent applies to conclude that changing a rule of procedure for an entire class of litigation (recognized by our statutory law) and confining the operation of that change to less than the entire state makes the rule an impermissible "local law" within the meaning of § 46's absolute bar against territorial disuniformity of Oklahoma's adjective law.

III
THE LOCAL-AND-SPECIAL-LAW DISTINCTION IN OKLAHOMA'S FUNDAMENTAL LAW

¶ 10 An impermissible "special act" is one that deals with a subject already covered [954 P.2d 1232] by general law and gives that subject a treatment different from that accorded by general law.

¶ 11 None of the subjects prohibited by Art. 5, § 46 may be dealt with by local law. Local law dealing with civil procedure (a subject included in the § 46 litany and protected against disuniformity) is invalid per se. The taint of locality does not stem from the vice of an impermissible classification.

IV
TODAY'S ANOINTMENT OF LOCAL RULE CV-95-1 CREATES A CONSTITUTIONALLY IMPERMISSIBLE TERRITORIAL DISUNIFORMITY IN CIVIL PROCEDURE, WHICH OFFENDS THE FUNDAMENTAL-LAW MANDATE FOR LIKE STATEWIDE PROCEDURE IN THE COURTS

¶ 12 We are not dealing here with an impermissible special law but with localization of adjective law by making it operative in but a single two-county district.

¶ 13 No classification is implicated in today's testing of the rule in contest. This is so because procedure must have uniform impact (a) in all judicial institutions of the same cognizance when they are processing like classes of litigation and (b) when they [954 P.2d 1233] are impacting similarly-situated suitors. The rule I would condemn today singles out litigants in the two-county district for a procedural treatment different from that accorded in like situations within the remainder of the state.

¶ 14 In the final analysis, the

V
THE RULE ENCROACHES UPON THE INDEPENDENCE OF THE JUDICIAL DECISIONMAKING PROCESS

¶ 15 The rule under scrutiny here also is offensive to the norm pronounced in Yellow Eyes By and Through Gold v. Blevins.

¶ 16 Because each trial court must decide independently whether the parties who stand before it should undergo the kind of training mandated by CV-95-1,

VI
THE COURT'S RESPONSE TO THIS DISSENT'S ANALYSIS RESTS ON A FACIAL LEGAL FALLACY

¶ 17 The court points to Wagnon v. State Farm Fire & Cas Co.

¶ 18 The court relies on State ex rel. Wise v. Whistler

¶ 19 In response to the court's notion that the rule's mandatory character is harmless because it does not determine the outcome of the cause (or the custody of the child), suffice it to say that adverse legal consequences do attach to a party's failure to knuckle under the rule's ukase.

¶ 20 Lastly, in answer to the opinion's comment that this court has not adopted uniform rules for the district courts, I would refer to the Rules for the District Courts of Oklahoma,

SUMMARY

¶ 21 I would condemn the rule under scrutiny here because it is "local" and affects a subject protected against territorial disuniformity. The rule is hence violative of Art. 5, § 46, Okl.Const. There can be no local tampering with a subject listed in § 46. No subject enumerated in § 46 may be regulated by a law or rule that does not extend to the whole state. Flawed classification is hence not the essence of infirmity to be found in the rule under review today.

¶ 22 Today's approval of the rule, as well as the pronouncement's support for the authority conferred on local courts by the provisions of

¶ 23 My condemnation of the rule would not preclude any nisi prius court from ordering a party's attendance of educational courses when its ruling is based on need shown and found to be present in a case sub judice.

FOOTNOTES

1 The pertinent terms of Administrative Order CV-95-1, adopted on May 12, 1995 by the District Court for the 11th Judicial District, are:

". . . Section 1. This rule applies to all parties in all divorce, separate maintenance, guardianship, paternity, custody or visitation actions; or any modifications or enforcement of a prior court order in these actions, excluding domestic violence actions, filed on or after June 1, 1995, where the interests of children under 18 years of age are involved. The rule may be applied to all cases pending as of June 1, 1995 at the judge's discretion.

Section 2. All parties to such action shall successfully complete the seminar entitled 'Helping Children Cope with Divorce' . . . .

* * *

Section 5. Upon a party's failure to successfully complete the seminar pursuant to this rule, the judge assigned to the case may take appropriate action, including but not limited to the following:

a. The court may decline to hear the petition, application, motion or other request for relief of the party who fails to attend;

b. The Court may consider a party's failure to attend as a factor in determining the best interest of the child; and

c. The Court may hold the party who fails to attend in contempt. . . ." (Emphasis supplied.)

2 The provisions of 43 O.S.Supp.1997 § 107.2 (eff. Jan. 1, 1997) are:

"A. In all actions for divorce, separate maintenance, guardianship, paternity, custody or visitation, including modifications or enforcements of a prior court order, where the interest of a child under eighteen (18) years of age is involved, the court may require all adult parties to attend an educational program concerning, as appropriate, the impact of separate parenting and coparenting on children, the implications for visitation and conflict management, development of children, separate financial responsibility for children and such other instruction as deemed necessary by the court. The program shall be educational in nature and not designed for individual therapy.

B. Each judicial district may adopt its own local rules governing the program." (Emphasis supplied.)

3 The pertinent terms of Art. 5, § 46, Okl. Const., are:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * *

Regulating the practice or jurisdiction of . . . in judicial proceedings or inquiry before the courts . . . or other tribunals. . . ." (Emphasis supplied.)

4 See Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, 714 P.2d 198, 203-204.

5 The pertinent terms of Art. 7, § 6, Okl.Const., are:

". . . [G]eneral administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. . . ."

6 The terms of Art. 5, § 32, Okl.Const., are:

No special or local law shall be considered by the Legislature until notice of the intended introduction of such bill or bills shall first have been published for four consecutive weeks in some weekly newspaper published or of general circulation in the city or county affected by such law, stating in substance the contents thereof, and verified proof of such publication filed with the Secretary of State.

7 For the pertinent text of Art. 5, § 46, Okl.Const., see supra note 3.

8 The terms of Art. 5, § 59, Okl.Const., are:

Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.

9 For the pertinent text of Art. 5, § 59, Okl.Const., see supra note 8.

10 Reynolds, supra note 4 at 822; State of Oklahoma ex rel. Nesbitt v. District Court of Mayes County, 1967 OK 228, 440 P.2d 700, 703 syl.1.

11 Ross v. Peters, 1993 OK 8, 846 P.2d 1107, 1119; Reynolds, supra note 4 at 822.

12 For the text of Art. 5, § 46, see supra note 3.

13 Reynolds, supra note 4 at 822.

14 Maule, supra note 4 at 203-204; Reynolds, supra note 4 at 822; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, 846 P.2d 1088, 1095-1096 (Opala, J., concurring). "Fundamental fairness cannot be afforded except within a framework of orderly procedure." Joiner v. Brown, 1996 OK 112, 925 P.2d 888, 890, citing Pryse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 438. "' * * * It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.'" Joiner, supra at 890 n.4, quoting from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179, 71 S. Ct. 624, 652, 95 L. Ed. 817 (1951) (Douglas, J., concurring).

15 Reynolds, supra note 4 at 822.

16 Reynolds, supra note 4 at 822.

17 For the text of Art. 5, § 32, see supra note 6.

18 While Art. 5, § 32 requires the legislature to publish notice (in a specified manner) before the intended introduction of a special or local act, it does not authorize the enactment of such laws upon subjects expressly prohibited by Art. 5, § 46. Nesbitt, supra note 10 at 705.

19 Nesbitt, supra note 10 at 705, citing Chickasha Cotton Oil Co. v. Lamb & Tyner, 28 Okl. 275, 114 P. 333, 336 (1911); White v. Infield, 122 Okl. 4, 250 P. 81, 82 (1926); Wade v. Board of Com'rs of Harmon County, 161 Okl. 245, 17 P.2d 690, 692 (1932); Leach v. Board of Com'rs of Mayes County, 173 Okl. 270, 47 P.2d 596 (1935); Missouri-Kansas-Texas Railroad Company v. Coryell, 1959 OK 175, 346 P.2d 935, 937.

20 "Classification is essentially the same in law as it is in other departments of knowledge or practice. It is the grouping of things because they agree with one another in certain particulars and differ from other things in those same particulars." Anderson v. Walker, 1958 OK 297, 333 P.2d 570, 574. As between the persons and places included within the operation of a law and those omitted, there must be some distinctive characteristic upon which a different treatment may be reasonably founded and that furnishes a practical and real basis for discrimination. Id. at 574 (quoting Haas v. Holloman, 1958 OK 174, 327 P.2d 655, 656); Nesbitt, supra note 10 at 704-705 (while certain subjects may be classified for legislative purposes, the classification adopted must be neither arbitrary nor capricious and must bear a rational relation to the object sought to be accomplished). It is arbitrary and capricious for the legislature to take a natural class of persons, split that class in two and then arbitrarily designate the dissevered faction of the original unit as two classes and enact different rules of law for the treatment of each. Anderson, supra at 574.

21 Supra note 4.

22 See in this connection City of Claremore v. Oklahoma Tax Commission, 197 Okl. 223, 169 P.2d 299, 301 syl. 4 (1946) (although upholding as constitutionally sound a three-year limitation period in a sales tax act, the court does not discuss the impact of Art. 5, § 46, Okl.Const., on the enactment).

23 Reynolds, supra note 4 at 822. Special or local laws are those which single out less than an entire class of similarly affected persons or things for different treatment. A special law is one that rests on a false or deficient classification. "It creates preference and establishes inequity." Barrett v. Board of Com'rs of Tulsa County, 185 Okl. 111, 90 P.2d 442, 446 (1939); Maule, supra note 4 at 203 n. 30; Dabney, supra note 14 at 1095-1096 (Opala, J., concurring).

24 In Territory ex rel. Taylor v. School Dist. No. 83 of Oklahoma County, 10 Okl. 556, 64 P. 241 syls. 1, 2 (1901), the court states:

. "1. The word 'local,' as a word of constitutional or statutory prohibition, signifies belonging or confined to a particular place, and relates only to a portion of the people of a state or their property. When applied to legislation, it signifies such legislation as relates to only a portion of the territory or state, or a part of its people, or to a fraction of the property of its citizens.

2. The word 'special,' when used in a statute prohibiting special legislation, relates to and distinguishes one section from others of a general class."

25 See, e.g., Nesbitt, supra note 10 at 705-706. Noting that Art. 5, § 46 prohibits special or local laws prescribing the powers and duties of county officers, the court held that nothing in Oklahoma's fundamental law authorizes the legislature to impose upon an arbitrarily selected group of county officials duties which do not stand imposed upon like officials in other counties of the state. Id.

26 Even a rational classification would not save a local or special act from the § 46 taint. That section absolutely condemns any disuniform law on a subject that is prohibited by its text. Reynolds, supra note 4 at 822-823. Court procedure is among the prohibited subjects. See the provisions of Art. 5, § 46, Okl.Const., supra note 3.

27 This localizing effect subjects the people in the two-county district to a different legal treatment from that which is accorded similarly- or like-situated persons in the rest of the state. See Anderson, supra note 20 at 573-574.

28 Territorial uniformity of procedure has had an interesting history in the federal system. The ABA movement for uniform federal procedural rules started with the proposition that the early congressional attempt by the enactment of the 1872 Conformity Act had failed, and that "lawyers had difficulty knowing what procedure would apply in any given federal district court." See Stephen N. Subrin, Uniformity In Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits, 49 Ala L.Rev. 79, 80 (1997). Uniformity in the federal system is cast in three dimensions: (1) inter-federal district court uniformity (national procedural uniformity across all federal courts); (2) intrastate uniformity (uniformity in both state and federal court within a state) and (3) trans-substantive uniformity (the same procedural rules for different types of cases, regardless of what substantive law is applied). Id. at 79-80.

29 Reynolds, supra note 4 at 823. The notion that procedural uniformity assures evenhanded treatment within the entire legal system finds expression in Oklahoma jurisprudence. In Williams v. Johnson, 1964 OK 188, 396 P.2d 518, the legislature enacted the District Court Conciliation Department Act, which created a conciliation department in the district court of counties having a population of more than 200,000 and less than 400,000. Because the act applied only to Tulsa County and there appeared to be no real and substantial distinction between Oklahoma and Tulsa Counties upon which varying treatment could be reasonably founded, the court held that the attempted classification of counties upon the basis of population offends the Art. 5, § 46, Okl.Const., uniformity-of-procedure mandate. In Anderson, supra note 20 at 573-574, the court (a) upheld the legislative act creating additional courts (juvenile court) in counties of more than 100,000 and less than 300,000 as general in application and complying with state fundamental law, but (b) condemned as arbitrary and capricious another part of the same act which provides for a different treatment (solely upon the basis of age) of male delinquents covered by the act from those in counties that are excluded from its operation. See also Killion v. Walker, 1959 OK CR 5, 334 P.2d 454, 457, adopting the rationale of Anderson.

30 In Sterling Refining v. Walker, 165 Okl. 45, 25 P.2d 312, 317-20 syl.4 (1933), the court holds that the legislature cannot impose on the Supreme Court the nonadjudicative duty of writing rules for the Corporation Commission. That power would change the functions of the court from adjudicative to executive. The court may neither make policy for an administrative agency nor promulgate procedural rules for the conduct of its business. The separation-of-powers doctrine enjoined on this government by Art. 4 § 1, Okl.Const., interdicts legislative encroachment upon the functions assigned by the constitution to some other branch. See Sterling, supra, and Earl v. Tulsa County Dist. Court, 1980 OK 157, 606 P.2d 545, 547.

31 For the pertinent terms of Art. 7, § 6, Okl.Const., see supra note 5. See also Workers' Compensation Court v. Merit Protection Commission, 1993 OK 145, 863 P.2d 1226, 1227; Chiles v. Children A, B, C, D, E and F, 589 So. 2d 260, 263-264 (Fla. 1991). The rule-making power of the Supreme Court is conferred not only by Art. 7, § 6, which invests the court with general administrative control over all inferior courts. It is also recognized in 12 O.S.1991 § 74. The terms of § 74 are:

The Justices of the Supreme Court shall meet every two (2) years during the month of June at the capitol of the state and revise their general rules, and make such amendments thereto as may be required to carry into effect the provisions of this Code, and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the Supreme Court, the county courts, the superior courts, the district courts and all other courts of record.

Eberle v. Dyer Const. Co., 1979 OK 49, 598 P.2d 1189, 1192-1193.

32 1985 OK 3, 696 P.2d 1026, 1027.

33 For the pertinent terms of CV-95-1, see supra note 1.

34 1997 OK 160, P.2d .

35 For a discussion of the distinguishing characteristics of local and special law, see Part III supra.

36 1977 OK 61, 562 P.2d 860.

37 Chiles, supra note 31 at 263-264.

38 For the pertinent terms of CV-95-1, see supra note 1.

39 12 O.S.1991, Ch. 2, App.