JONES, GIVENS, GOTCHER & BOGAN, P.C. v. BERGER

JONES, GIVENS, GOTCHER & BOGAN, P.C. v. BERGER
2002 OK 31
46 P.3d 698
Case Number: 95297
Decided: 04/23/2002
Mandate Issued: 05/16/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

JONES, GIVENS, GOTCHER & BOGAN, P.C., Plaintiff
v.
JIM D. BERGER, and TANA D. PARKS, Defendants/Appellant

[46 P.3d 699]

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

¶0 Jones, Givens, Gotcher & Bogan, P.C. had a claim against Jim and Tana Berger (Ms. Parks). Jones, Givens, Gotcher & Bogan, P.C. settled its claim against Ms. Parks and took a default judgment against Mr. Berger. The judgment was later assigned and sheriff's sale proceedings began against the Tulsa property owned by Jim Berger in an effort to satisfy the default judgment and claims of other creditors. Jim Berger asserted homestead exemption status for the Tulsa property shortly after his 1998 divorce from Tana Parks Berger. His creditors took issue with the homestead exemption, asserting that because the Tulsa property was not Berger's principal residence he was not entitled to the exemption. The trial court held an evidentiary hearing to determine if sheriff's sale proceedings should continue. The trial court then ordered confirmation of the sheriff's sale based on its conclusion that the home was not Berger's principal residence. Berger then moved for a new trial, which the trial court denied. Because Berger established at trial that the property in question was impressed with the homestead exemption in 1998, the court should have determined at trial whether Berger abandoned the homestead and not whether it was currently his principal residence. As a result, the trial court erred as a matter of law when it determined only the question of principal residence, instead of whether the Tulsa homestead was abandoned by Berger. Therefore, [46 P.3d 700] the case is reversed and remanded for further proceedings to determine whether Jim Berger abandoned the Tulsa homestead.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
DECISION OF THE TRIAL COURT REVERSED
AND CAUSE REMANDED WITH DIRECTIONS
TO PROCEED IN A MANNER
CONSISTENT WITH THIS OPINION.

Debbra Gottschalk, Tulsa, Oklahoma, for the Defendant/Appellant, Jim Berger
Darven Brown, Ginger Brady, Tulsa, Oklahoma, for Appellees, Ted Parks, L.L.C. and Ted Parks
Tracy Robinett, Tulsa, Oklahoma, for Appellee, David Gordon White

BOUDREAU, J.

¶1 Jim Berger (Mr. Berger or Berger) owned a house and lot in Tulsa, Oklahoma. Mr. Berger had previously claimed homestead exemption for the property shortly after his divorce from Defendant, Tana Parks Berger (Ms. Parks). Plaintiff, Jones, Givens, Gotcher & Bogan, P.C. had a claim against Jim and Tana Berger. Jones, Givens, Gotcher & Bogan, P.C. settled its claim against Ms. Parks and took a default judgment against Mr. Berger. Jones, Givens, Gotcher & Bogan, P.C. assigned its judgment against Mr. Berger to Ms. Parks' parents, Ted and Jessie Parks. Ted Parks then assigned his interest to Ted Parks, L.L.C. and Jessie Parks' interest became one of the assets of her estate upon her death.

¶2 The trial court conducted an evidentiary hearing, after which it issued an order. The order found as follows:

Based on these findings, the trial court confirmed the sheriff's sale.

¶3 In confirming the sheriff's sale, the trial court focused its inquiry on identifying Berger's principal residence. In doing so, the trial court relied on a 1980 amendment to

Except as otherwise provided in this title and notwithstanding subsection B of this section, the following property shall be reserved to every person residing in the state, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as herein provided:

Once the trial court found Berger no longer used the Tulsa property as his principal residence, it determined that the property could not be impressed with the homestead exemption.

¶4 After the trial court's decision, Berger moved for a new trial. The trial court overruled his motion. Berger appealed the trial court's order overruling his new trial motion. The Court of Civil Appeals, with one judge dissenting, affirmed the trial court order confirming the sheriff's sale and Mr. Berger sought certiorari to this Court. In his Petition for Certiorari, Berger asserted the trial court erroneously shifted the burden of proof by requiring him to prove the home was his principal residence, instead of requiring the creditors to prove he abandoned the Tulsa property.

I. Standard of Review

¶5 In reviewing a trial court's decision denying a motion for new trial, the appellate court employs an abuse of discretion standard of review. State v. Vaughn,

II. The Homestead Exemption

¶6 In Oklahoma, the homestead exemption is both a statutorily and constitutionally created right. Okla. Const. art. 12, § 2;

¶7 A property owner asserting the homestead character of his property against a creditor has the burden of establishing that the property is impressed with the homestead exemption. See Hensley v. Maxwell,

III. Trial Court Erred by Failing to Apply the Law of Homestead Abandonment

¶8 The trial court found in its order that the property in question was impressed with homestead character after Berger's 1998 divorce. Once it made that finding, the [46 P.3d 702] trial court should have then directed its inquiry into whether Berger abandoned the homestead after that time and not whether the property continued to be his principal residence. The legislature did not abrogate the law of abandonment when it adopted the 1980 amendment to

¶9 In our view, the 1980 amendment defines the type of occupancy that is sufficient, in the first instance, to impress the property with homestead status. The amendment requires the property be the principal residence of the owner or his family in order for the homestead character to vest. It does not change pre-amendment jurisprudence relating to homestead abandonment.

¶10 To establish a property has been abandoned and therefore no longer shielded with the homestead exemption, the party attacking the homestead status must show by clear and convincing evidence the owner of the property 1) moved from the premises and 2) formed the intent never to return, either at the time of moving or sometime thereafter. Kunauntubbee,

¶11 The fact that an owner is no longer using property as a principal residence may be relevant on the issue of abandonment, but it is not dispositive. An owner's temporary absence from the property or an owner's occupancy of another premises does not necessarily demonstrate an intent to abandon the homestead under Oklahoma law.

¶12 Once Berger established at trial the property in question was impressed with the homestead exemption, the burden of proof shifted to the creditors to demonstrate that he had abandoned the homestead. At that point, the trial court should have focused its inquiry as to whether the creditors had demonstrated by clear and convincing evidence that Berger moved from the premises and had formed the intent, either concurrently with the move or subsequent thereto, never to return. The order confirming the sheriff's sale made no finding of fact with respect to Berger's intent never to return to the Tulsa property. Instead, the trial court limited its findings in the order to whether Berger was currently using the property as his principal residence. By failing to inquire as to whether Berger formed the intent never to return, the trial court applied an erroneous legal standard. [46 P.3d 703]

¶13 We find that the trial court abused its discretion when it failed to sustain Berger's motion for new trial. We reverse and remand this matter to the trial court with directions to conduct a new evidentiary hearing to determine whether creditors can establish by clear and convincing evidence that Berger abandoned the property as his homestead.

¶14 CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; DECISION OF THE TRIAL COURT REVERSED AND CAUSE REMANDED WITH DIRECTIONS TO PROCEED IN A MANNER CONSISTENT WITH THIS OPINION.

¶15 HARGRAVE, C.J., WATT, V.C.J., and HODGES, LAVENDER, OPALA, SUMMERS, and BOUDREAU, JJ., concur.

¶16 KAUGER, J., concurs in result.

¶17 WINCHESTER, J., dissents.

FOOTNOTES

1In addition to Ted and Jessie Parks, the executor of the estate of Winifred White, David Gordon White, also claimed an interest in the property as a judgment creditor, but was not listed in the original style of the case and is not listed in the style of the appealed from order. We will follow Supreme Court Rule 1.25(b), which provides that the style heading used in the appealed from order shall be the one used for purposes of appeal. Oklahoma Supreme Court Rules 12 O.S. Supp, Ch. 15, App.