HOLLEYMAN v. HOLLEYMAN

Annotate this Case

HOLLEYMAN v. HOLLEYMAN
2003 OK 48
78 P.3d 921
Case Number: 95584
Decided: 05/13/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

CYNTHIA JO HOLLEYMAN, now WARD, Plaintiff/Appellant,

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

¶0 The parties divorced in 1993, and in 1999 Father stopped making child support payments when the child graduated from high school at the age of 21 years. Mother filed an application seeking additional child support and other relief. Father responded with a motion to dismiss challenging the jurisdiction of the court. The Honorable Joseph Balkenbush, Judge of District Court of Oklahoma County, granted the motion and Mother appealed. The Court of Civil Appeals affirmed the judgment. On certiorari we hold that parties to a divorce may agree to child support obligations in addition to those required by statute, and that the trial court must determine if such agreement was made by the parties.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL
APPEALS VACATED; AND JUDGMENT OF DISTRICT COURT REVERSED

Jim Pearson, Oklahoma City, Oklahoma. for Plaintiff/Appellant
William E. Liebel, James T. Gorton, Oklahoma City, Oklahoma, for Defendant/Appellee

SUMMERS, J.

¶1 Our question involves the enforceability of a divorce decree by which the parties purport to agree "to leave the child support open after the minor child reaches the age of eighteen and/or complete high school . . ." based on the needs of the child, if any. The parties agree that the child is a "special needs" child with some degree of retardation and seizure problems.

¶2 Mother and Father divorced in 1993 when their child was fifteen years old. Father stopped providing medical insurance in 2000. Mother then sought an order from the District Court to (1) compel Father to provide medical insurance, (2) pay additional child support, (3) reimburse Mother for payments made to maintain the insurance and for medical expenses, (4) pay child support payments that were unpaid since 1999, and (5) adjudicate future support amounts needed by the child. She alleged that at the time of the divorce the parties agreed that Father would provide support after the child was 21 years old.

¶3 Father responded to Mother's application with a motion to dismiss. He stated that he stopped making the child support payments in May of 1999 after the child graduated from high school at the age of 21 years. He argued that the District Court was without jurisdiction to order payments to support a child after the child has reached the age of 21 years.

¶4 The trial court heard argument of counsel and granted the motion to dismiss. Mother appealed and the judgment was affirmed by the Court of Civil Appeals. We vacate the opinion of the Court of Civil Appeals and reverse the judgment of the District Court.

¶5 The Father maintains that the decree is not a judgment by consent, or "consent decree." We have discussed the characteristics of a consent decree:

A consent judgment is the agreement of the parties entered upon the record with the sanction of the court. McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948). A consent decree in a divorce is the result of negotiations between the parties and subsequent settlement of the issues involved, which settlement is then presented to the court as a proposed judgment. Although it is not a judicial determination of the rights of the parties, it acquires the status of a judgment through the approval of the judge of the pre-existing agreement of the parties.
Whitehead v. Whitehead,

Father's brief describes the events leading up to the decree: "After the parties had been litigating the trial for a matter of days, settlement discussions ensued between the parties and their respective counsel that led to the Journal Entry Order and Decree of Divorce . . . ." The record supports this description in that the decree states that the parties agreed to the provisions of the divorce decree "with regard to all issues." Decree of Divorce, O.R. at 9. The decree is a judgment by consent or a "consent decree."

¶6 Of course, characterizing the decree as a consent decree does not determine that the parties agreed to a particular matter. The controversy in the trial court centered on one provision of the 1993 divorce decree. It states that:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant shall pay child support in the amount of Four Hundred Dollars ($400.00) per month, deviated from the child support guidelines, attached hereto as Exhibit "A", as agreed upon by the parties. Due to the special needs of the minor child, the parties have agreed to leave the child support open after the minor child reaches the age of eighteen (18) and/or completes high school, and the Court will retain jurisdiction for either party to file an application for further support based upon the specific needs and requirements of the minor child, if any.
Id. O.R. at 11.

Mother claims that the trial court has jurisdiction to order more child support because of Father's agreement. Father claims that a District Court has no subject matter jurisdiction to compel child support payments for the support of children after they have reached the age of 21 years, and that subject matter jurisdiction cannot be created by an agreement of parties.

¶7 We have said that a parent has a legal duty to support his or her child until the child reaches the age of majority. State, ex rel. Dept. of Human Services ex rel. Jones v. Baggett,

Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years.

Thus, at the time of the decree this statute-based obligation for child support did not extend beyond the child's nineteenth birthday. Id.

¶8 But the decree in this case is a consent decree, and parties to a consent decree may agree to obligations between themselves that exceed those required by law.

If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties. Stuart,

Thus, when a trial court is requested to enforce a child-support obligation upon a parent an important issue must be addressed: What is the source of that obligation? Does the obligation spring from mandatory law or does it spring from a consensual agreement? We noted this distinction in Greeson v. Greeson,

¶9 In Greeson we observed that a trial court did not possess statutory power to modify child support retroactively, but the parties could agree to such modification and incorporate such agreement in a judgment by consent. We explained that such a consent decree was judicially enforceable.

With this contention we agree. Under

However, it is agreed that the order of December 21, 1946 was a consent order entered by the court upon the agreement and consent of the parties. While in its retroactive aspect it is void as a court order, yet being a consent order, it is in the nature of a contract, and in the absence of fraud or mistake, is a binding obligation between the parties thereto.
Greeson v. Greeson,

Just as parties may consent to a retroactive adjustment of their personal rights, they may also contract as to their personal rights in the future. For example, in Kittredge v. Kittredge,

The husband argues the trial court did not have the jurisdictional power to divide his future earnings because the consent of his rights even though he consented to the division. In Ettinger v. Ettinger,

Kittredge v. Kittredge

¶10 Father further argues that a "consent decree may not leave anything for determination by the trial court." He relies upon language in Whitehead stating that: "If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties." Whitehead v. Whitehead,

¶11 Once we recognize that parties may agree to alter their obligations the next steps are determining if such agreement did occur and the substance of the agreement. We use principles of contract law to make these determinations. We have said that we construe a consent judgment "as other contracts" and ascertain the intent of the parties.

An agreed judgment is in the nature of a contract and is to be construed as other contracts. Grayson v. Pure Oil Co., 189 Okl. 550,

¶12 Father points to the lack of specificity in an amount to be determined in the future. A lack of specificity in either the amount or scope of an obligation does not necessarily mean an absence of a judicially enforceable obligation. We have explained that even if a provision of a contract is too vague and indefinite to determine the intent of the parties, their conduct may supply the necessary information to determine intent of the parties. Bartlett v. Sterling Const. Co.,

¶13 The intent of the parties at the time they entered into an agreement controls the meaning of their written contract, and the statutory rules for ascertaining intent are set out at

¶14 We note that while this matter was pending the Legislature added

¶15 The trial court dismissed the claims with two conclusions: first, that it did not possess subject matter jurisdiction, and secondly, that once a child reaches his or her majority the child is the proper party to bring a legal action against a parent for the parent's failure to pay support during that child's minority. A child does possess an independent right to maintain an action and to request support and maintenance. State Dept. of Human Services ex rel. K.A.G. v. T.D.G.,

¶16 Generally, we use a de novo standard to review a trial court's dismissal of a party's petition for relief because such dismissal is usually based solely upon an issue of law and not fact. Miller v. Miller,

¶17 That order is correct insofar as it determines a lack of jurisdiction to award statutory child support under Title 43. But district courts have jurisdiction to adjudicate the existence and effect of contracts. Here the Mother's claim is for enforcement of a contract she alleges to be in effect. She alleges consideration for the bargain by way of her agreeing to give up part of her statutorily calculated child support. The Father does not dispute this, but the trial court has never adjudicated the existence or non-existence of that alleged contract. The trial court did not determine whether Father agreed to pay child support after the child reached her majority. We will not determine in the first instance whether the decree contains such an agreement. Oklahoma Public Employees Association v. Oklahoma Dept. of Central Services, supra; Patel v. OMH Medical Center, Inc., supra. The Mother is entitled to her day in court to prove what, if anything, the parties agreed to, and whether the Father is in fact in breach of any agreement.

¶18 The opinion of the Court of Civil Appeals is vacated. The judgment of the District Court is reversed, and the matter is remanded to the District Court for further proceedings consistent with this opinion.

¶19 WATT, C.J., OPALA, V.C.J., HODGES, HARGRAVE, KAUGER, SUMMERS, JJ. - Concur

¶20 LAVENDER, BOUDREAU, WINCHESTER, JJ. - Dissent

FOOTNOTES

OPALA, V.C.J.

¶1 The court holds that in this post-decree proceeding the district court has cognizance to determine the quantum of Father's obligation (if any he have) to support his disabled adult child of a dissolved marriage. The dissent challenges for want of jurisdictional support the enforceability of Father's decree-imposed duty. Father's successful liability-defeating defense below calls on us here to retest the trial court's view that it lacked cognizance to enforce the decree-created obligation.

¶2 Even if it were true that the decree portion sought to be enforced is patently infirm, at least insofar as it imposes on Father a duty to support his disabled adult child, the district court would not be without jurisdiction to entertain Mother's quest for enforcement of that promise and for determination of the support's quantum. The district court is an omnicompetent tribunal of "unlimited jurisdiction."

I

THE CRITICAL FACTS IN LITIGATION

¶3 Cynthia Jo (Mother or obligee) and Randall Dexter Holleyman (Father or obligor) were divorced by a 1993 consent decree. By its terms they agreed (a) to leave undetermined the quantum of Father's post-majority support obligation until the minor should reach the age of eighteen or complete high school and (b) to let the district court (upon either party's request) set the amount of Father's post-majority support obligation, based upon the then-established needs and requirements of the child-beneficiary. The divorced father stopped paying support when his child graduated from high school at the age of 21. By her post-decree proceeding now on review Mother moved to enforce Father's on-the-record, decree-approved promise to provide support for the parties' disabled offspring. After the trial court's dismissal (for want of jurisdiction) of Mother's proceeding stood affirmed by the Court of Civil Appeals, we granted certiorari on Mother's petition.

¶4 The cognizance-related issues tendered by arguments on certiorari

II

THE DISTRICT COURT'S SUBJECT-MATTER JURISDICTION

A.

The District Court Has A Constitutionally-Derived Unlimited
Original Cognizance Over Mother's Claim To Father's
Support For Her Disabled Adult Child

¶5 The district court's subject-matter jurisdiction is derived from the State's constitution. Under its provisions, the court serves as an omnicompetent, single-level, first-instance tribunal

B.

The Impact of Docket Boundaries on Divorce-Related Issues

¶6 Interdocket boundaries cannot be invoked to restrict the tribunal's constitutional omnicompetence.

¶7 Oklahoma's jurisprudential development has led to a very early post-statehood accommodation of expanded issues cognizable within the cases placed upon what is now the family-and-domestic docket of the district court.

¶8 In sum, there is no longer any doubt about the propriety of allowing the parties in a divorce suit to expand the litigation's scope by injecting into the decisional process extra-statutory issues generated by an interspousal agreement that settles either some or all marital rights in contest. In this stage of our jurisprudential development, it is much too late to restrict the family-and-domestic docket disputes solely to rights that are statutorily defined.

III

THE EXTENT OF THE DISTRICT COURT'S SUBJECT-MATTER
JURISDICTION IN POST-DECREE STAGES

¶9 The district court's authority to approve an on-the-record agreement clearly includes the power to enforce the parties' pacts through post-decree modification proceedings brought upon the family-and-domestic docket (under the earlier-assigned cause number).

¶10 Once an interspousal agreement is approved and incorporated into the decree, the parties' private contract stands converted to a solemn judicially enforceable obligation of record which is no longer one of a purely private-law (or contractual) character.18 Because a mid-divorce, on-the-record promise to provide support for one's disabled adult child may be enforced in post-decree proceedings, the claim falls within the family-and-domestic docket boundary.19 In that sense and for that purpose this district court docket may be said to include all promise-generated, post-decree issues to the end that the same enforcement remedies stand accorded all decree-bottomed obligations - those that are solely statute-based as well as those that derive from approved interspousal pacts.20

¶11 We need not be concerned here about the custodial Mother's post-decree standing as a Hohfeldian

IV

THE DISSENT'S VIEW OF THE DECREE-IMPOSED SUPPORT DUTY
AS A JURISDICTION-VITIATING FACIAL DEFECT RESTS ON THE
MISTAKEN NOTION THAT (1) THE INTERSPOUSAL CONTRACT
WAS INDEFINITE, (2) IT WAS UNENFORCEABLE QUA CONTRACT
AND (3) ITS DECREE-IMPOSED DUTY STANDS SUSPENDED
IN A JURISDICTIONAL VACUUM

¶12 The dissent appears to argue that had the trial court not dismissed Mother's motion (for want of cognizance), the efforts to enforce Father's promise would have been in vain because the decree-rendering nisi prius court stood sans cognizance to transform the decreed obligation into an enforceable judgment for the latter's want of a requisite jurisdictional element - that of power to enter a support judgment in favor of an adult child.23 The decree's facial invalidity also is urged to stem from the dissent's view that the terms of the interspousal agreement are indefinite and hence unenforceable as a contract.

A.

In the Absence of a Complete Judgment Roll, a Forensic Assessment of the
Decree's Facial Invalidity Is Impermissible

¶13 A judgment may not be attacked for facial invalidity when the entire (complete) judgment roll24 has not been incorporated into the record for review.25 The record before us falls far short of what is necessary to establish a facial jurisdictional defect in the 1993 duty-creating decree.26

B.

A Mistake of Law Cannot Be Catapulted to the Level
of a Jurisdictional Flaw

¶14 Even if a complete judgment roll were now before the court, an attack on the decree-imposed duty to provide support for the disabled adult child, based on an alleged facial flaw, would be impermissible. The defect Father invokes does not constitute an infirmity that would serve to divest the court of jurisdiction over the post-decree modification quest. The relied-on infirmity in the critical decree clause (if any there was) would at most constitute legal error, rather than a jurisdiction-vitiating defect. A facially apparent mistake of law will not taint the judgment roll by an imprint of facial invalidity.27 Excessive use of the term "jurisdiction" - as mere synonym for error or for some other deficiency - introduces confusion into the law and undermines the district court's constitutional sweep of cognizance. This court's duty is to protect the stability of judgments rather than expose them to procedurally impermissible and hence unwarranted delayed attacks.

¶15 A district court has jurisdiction over unenforceable judgments to the same extent as it does over nonactionable claims.28 When authority to deal with a subject is present, the manner and extent of the power's exercise, though patently excessive, must stand undisturbed, absent a direct attack timely launched within three years.29 The interspousal agreement, even if deficient for lack of specificity, would no longer be vulnerable to an attack unless it be mounted for its facial invalidity.30 Upon the record before us, that kind of attack is here clearly unwarranted.31

C.

The Misplaced Reliance On Chapman v. Parr Places
District Courts In A Pre-Statehood Jurisdictional Straitjacket

¶16 The dissent's reliance on Chapman v. Parr32 for the notion that courts exercising divorce cognizance are "without jurisdiction" when entertaining issues not authorized by statutory divorce law is an unwarranted extension of both Chapman and Irwin v. Irwin,33 the case on which Chapman is bottomed. Chapman dealt with the inapplicability of general venue statutes to divorce litigation. It refused to extend to divorce suits the common law's intrastate forum non conveniens doctrine. To that extent Chapman is still effective law. Insofar as Chapman appears to treat trial judges (sitting in divorce cases) as eunuchs fitted into a statutory straitjacket, its holding should be relegated to antiquarian lore as an aberrational exposition of post-statehood law. Chapman relies on Irwin,34 a pronouncement by the Supreme Court of the Territory of Oklahoma. Insofar as Chapman would deny the district court its power to entertain for approval agreement-generated issues, it is pure ipse dixit - a statement utterly unsupported by the text of Irwin or by any post-statehood jurisprudence of this court. The territorial court's pronouncement stands not only sans precedential effect, it is also imprisoned in territorial divorce law that is contrary to this court's extant (post-statehood) jurisprudence35 (as well as to the present-day statutory divorce-law regime).

D.

Settled Common-Law Contract Jurisprudence Militates Against Attributing
Lack Of Enforceability To The Decree-Imposed Support Obligation For Want
Of Definiteness In Father's Promise

¶17 Even under pure contract law the lack of the assumed obligation's specificity would not preclude its enforceability if the trial court is able to determine, with a reasonable degree of certainty, what the parties had intended.36 A contract will not fail for lack of specificity in its terms if it is clear that the parties contemplated the open terms to be resolved in a specified manner and in a specified time.37 The parties' promise here under review specifies that the post-majority child support will be determined by the trial judge based upon the established needs and requirements of the disabled adult child when he reaches the age of 18 or graduates from high school. The decree-approved interspousal agreement in controversy clearly contemplates further proceedings to ascertain the quantum of Father's post-majority support obligation. The parties' agreement and the decree-imposed support duty are hence free from both legal infirmity and facial invalidity.

E

The Common Law Of Contracts Is Not Implicated Here Because Mother
Is Enforcing A Solemn Judicial Obligation, Not A Contract

¶18 Mother is enforcing here a solemn judicial obligation created by the merger of Father's promise in, and its incorporation into, the decree which now stands converted to judgment38 by caselaw that authorizes enforcement of approved interspousal agreements qua judgment.39 Because Father's promise to provide support for his disabled adult child (1) is not unenforceable as a contract lacking specificity40 and (2) is a vital part of the agreement incorporated into and merged in the decree, now invulnerable to attack for nonfacial defects,41 the district court is vested with authority to adjudicate the modification quest in the exercise of its (Mother-invoked) power to ascertain and enforce the quantum of Father's assumed obligation.

F.

According To The Mainstream Of American Jurisprudence On
The Subject, A Promise To Support One's Disabled Adult Child
Is Neither Contrary To Public Policy Nor Unenforceable

¶19 Although the early common law did not extend one's parental duty of support beyond a child's minority,42 the great majority of American jurisdictions, in which the statutory law is silent, has recognized an exception where, as here, the child is unable to care for itself upon attaining majority.43 This view is rested on common-law developments.44 While at the time of the 1993 decree the issue had neither been addressed by this court nor by the legislature, the parents' interspousal agreement that creates a support duty clearly is not contrary to public policy nor to the mainstream of American jurisprudence.

¶20 An interspousal agreement that does not offend any public policy principles qualifies for judicial approval. The outer bounds of the district court's jurisdictional perimeter for decretal incorporation of approved agreements are co-extensive with their sanctioned terms. The critical terms in contest here are: (1) Father's promise-based assumption of post-majority support responsibility, (2) whose quantum is to be set after performance is due, (3) in a post-decree proceeding (4) which will be processed through and enforced by the trial court in the very same manner as if it were an imposed nonconsensual duty. None of these terms exceeds the district court's jurisdictional boundary. Their incorporation does not inject a fatal flaw into the judgment roll.45 Moreover, no judgment may be condemned for facial invalidity without a judicial inspection of the entire roll.46 The dissent's attempt to exempt consent decrees from the law's requirement (calling for a four-corners' examination of the record proper) rests neither on logic nor on extant authority.47 Mother's decree is clearly impervious to the dissent's attack on its facial fitness. Were we to follow today the dissent's analysis and were we to condemn - upon an incomplete judgment roll - the assailed part of the decree as unenforceable for facially apparent jurisdictional excess, Mother's adjudged rights would become impermissibly extinguished by interposition of after-pronounced jurisprudence. Because the validity, meaning, and effect of a judgment must always be assayed by the law in force at the time it was entered, judicial testing of these factors in an adjudged obligation must be kept free from impairment by after-enacted legislation and by after-promulgated caselaw.48

V

SUMMARY OF MY VIEWS IN CONCURRENCE

¶21 Constitutional omnicompetence of the district court is not subject to legislative abridgement. The district court's "unlimited jurisdiction" includes the authority to resolve extra-statutory status- or promise-related issues generated by a decree-approved, on-the-record interparental agreement for post-majority support of a disabled child of the marriage. The issues settled by an interspousal agreement, though expanding the divorce suit's range of cognizable matters, neither defeat the court's subject-matter jurisdiction nor make the suit unqualified for processing upon the family-and-domestic docket as a post-decree dispute. The district court's authority extends to those issues, arising after the divorce decree, which were generated by an approved (and memorialized) mid-divorce agreement imposing on Father a duty to support his disabled adult child.

¶22 The parties in a divorce suit may expand the litigation's scope by injecting into the decisional process extra-statutory issues generated by their approved agreement which settles some or all marital rights in controversy. The district court's constitution-derived omnicompetent cognizance that unquestionably includes divorce suits may not be circumscribed by resort to pre-1857 English-law restrictions (once attached to ecclesiastical divorce judicature and to the now-defunct authority of the British Parliament to dissolve marriages by special acts).49 Nonprecedential pre-statehood jurisprudence that would make the district court impotent to consider any divorce-related issues outside of those specifically sanctioned by legislation cannot be regarded as a correct exposition of present-day Oklahoma law.

¶23 Settled common-law contract jurisprudence firmly militates against declaring Father's assumed obligation unenforceable because his promise was not in a definite amount. The case presents no real challenge to the trial judge's jurisdiction over Mother's post-decree child-support quest. The decree-imposed obligation is now invulnerable to any attack for want of jurisdiction other than one pressed on grounds of facial invalidity. The record for this certiorari review presents no facial appearance of any fatal jurisdictional flaw. Even an apparent mistake of law would not taint the judgment roll by an imprint of facial invalidity. If ordinary error were to become a facial jurisdictional infirmity no judgment would be safe from delayed and unwarranted attack. Public policy calls on this court to stabilize judgments and protect them from unauthorized assaults. The district court is not divested of jurisdiction to entertain Mother's quest for enforcement of Father's decree-imposed duty. District courts have jurisdiction of actions that are barred by limitations as well as of those in which enforceability of a decree is sought to be defeated on jurisdictional grounds.

¶24 This case is not at all about want of jurisdiction but rather about enforceability of Father's decree-imposed duty to support his disabled adult child. Even if, as Father urges, his decree-imposed duty were jurisdictionally flawed, the district court would have jurisdiction to accept or reject that defense. The trial court's dismissal "for want of jurisdiction" was clearly erroneous and must be reversed even if the nisi prius court, by its ruling's confusing phraseology, meant to accept Father's jurisdictional challenge. For the latter disposition there is here a total absence of record-supported facial invalidity.

¶25 I hence concur in reversing the nisi prius order and remanding the cause for post-remand proceedings to be consistent with today's pronouncement

FOOTNOTES

" * * * The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article, and such powers of review of administrative action as may be provided by statute. * * *"

(emphasis added).

Pre-1969 district courts were tribunals of general jurisdiction. Art. 7 § 7, Okl. Const. (repealed in 1967, eff. Jan. 13, 1969); Flick v. Crouch,

10 A district court judgment (or order) is facially void if, on an inspection of the judgment roll, it is apparent that one or more of the requisite jurisdictional elements - that of subject matter jurisdiction, in personam cognizance, or the power to render a particular decision - is shown to have been absent. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶10, 981 P.2d 1244, 1249; Scoufos v. Fuller, 1954 OK 363, ¶15, 280 P.2d 720, 723. The materials included in the judgment roll are those enumerated in the provisions of 12 O.S. 2001 §32.1.

11 A suit for divorce, like condemnation, probate, adoption or juvenile cases, is not stricto sensu governed by the general regime of the Pleading Code. Langley v. District Court of Sequoyah County, 1993 OK 3, ¶¶2-3, 846 P.2d 376, 377; see in this connection City of Tahlequah, supra note , at ¶4, at 473-74 (Opala, J., dissenting).

12 Before the 1969 court reorganization, when the district court's constitutional jurisdiction was merely "general," this court had to confirm in a case-by-case approach whether matters not stricto sensu divorce-related (i.e., family-status or divorce-generated post-decree litigation) could be docketed in the district or in the county court. If a case did not fit into the district court's then-maintained civil or divorce docket, it would be deemed a county court matter. See, e.g., Green v. Green, 1957 OK 70, 309 P.2d 276 (an action filed under the Uniform Reciprocal Enforcement of Support Act to secure support for a child of a bigamous marriage, in which the court held that it was properly brought before the district court); Ex parte Yahola, 1937 OK 306, 71 P.2d 968, 972, 180 Okl. 637 (the court allowed the district court's docket to accommodate an original habeas corpus proceeding by a child's father against its grandmother); Ross v. Ross, 1949 OK 35, 203 P.2d 702, 705 (an original suit for a minor child's support was allowed to be brought in the district court); the Whitney v. Whitney trilogy: (a) 1942 OK 268, ¶¶25-26, 134 P.2d 357, 361, 192 Okl. 174 (the court recognized an equitable property right, described as an interest in a quasi-partnership estate, arising from a bigamous marriage and held that this right, though not marital, could be settled in a district court lawsuit between bigamous spouses); (b) 1944 OK 205, 151 P.2d 583, 194 Okl. 361 (the court allowed former bigamous spouses to bring a district court action for settlement of property rights arising from their void marriage); (c) 1947 OK 44, ¶10, 181 P.2d 245, 246-47, 198 Okl. 681 (the court held that a contract for settlement of rights claimed by bigamous spouses was enforceable in the district court). By the post-1969 district court's transformation from a general to an unlimited jurisdiction tribunal the fitness of a case for processing on the divorce track no longer presents a jurisdictional matter. All cases are now docketable (under one rubric or another) in the same single-level trial court.

13 Oklahoma is in the mainstream of jurisdictions that allow interspousal agreements to expand litigation issues by inclusion of those the court could not entertain in their absence. See the American Law Institute's (the authors and publishers of Restatements) Principles of the Law of Family Dissolution: Analysis and Recommendations [Principles] (adopted 16 May 2000), where it is observed that "[m]ost jurisdictions allow the court to incorporate agreement terms that the court does not have the power to order itself, and to enforce them as terms of the decree." Id., §7.10 (Incorporation of the Terms of a Separation Agreement in a Decree) Comment at 1022 (emphasis added); Reporter's Notes at § 7.11, pg. 1023). According to the Principles (Introduction at pgs. 39-40), "[s]eparation agreements resolving the terms of dissolution are favored, both under existing law and these Principles." It counsels that "the law should enforce separation agreements unless the rules of contract, viewed in the context of family dissolution, have been violated, or the terms of the agreement would frustrate some important policy of the law of family dissolution." Id..

14 Oklahoma jurisprudence has long sanctioned the expansion of the family-and-domestic docket cases by injecting issues generated through consent decrees that go far beyond the legislative limit of divorce-related parameters. Consent decrees are a legitimate means of expanding rights of divorcing parties. Whitehead v. Whitehead, 1999 OK 91, ¶10, 995 P.2d 1098, 1101; Dickason v. Dickason, 1980 OK 24, ¶¶9-13, 607 P.2d 674, 677-78; Greeson v. Greeson, 1953 OK 111, ¶10, 257 P.2d 276, 278 (the parties consented to a post-decree retroactive modification of child support). Divorce-related orders, which expand the issues, were never treated as facially void even when the district court exercised only "general jurisdiction." After the court came to be re-organized in 1969 and acquired unlimited jurisdiction, it is with even greater reason that we should now consider all consent-expanded issues effectively and legitimately within the district court's authority to settle.

15 Family-and-domestic docket boundaries are to be treated as elastic and dynamic with a shape that is far from static or mummified. They change as the law expands. Today's pronouncement adds no more than another logical sequence: an approved divorce-related promise to support one's disabled adult child, which is merged in the decree, is enforceable as a judgment, much like other consent-based obligations.

16 According to the dissent, "[w]hile a court may have general jurisdiction of the subject matter of a class of actions, it does not necessarily follow that the court may hear and determine a particular case submitted for its consideration. A court must have the judicial power to decide a particular matter and to render a particular judgment in order to pronounce a valid judgment. . . . The parties may not confer upon the court the jurisdiction to pronounce a particular decision it enters. 'Divorce was not recognized at common law, where divorces were either ecclesiastically or legislatively granted. The right to divorce is recognized as purely a creature of statute.' Chapman v. Parr, 1974 OK 46, ¶32, 521 P.2d 799, 803. Accordingly, all rights of parties with respect to divorce are fixed by the statutory law of the state." (citations omitted).

The dissent appears to view divorce litigation as firmly compressed in a straitjacket of statutory law. According to the dissent, despite its unlimited original jurisdiction, the district court is impotent to consider any divorce-related issue not specifically sanctioned by legislation. Overlooked by the dissent's analysis is that there are no textually demonstrable indicia of legislative intent to curb the district court's capacity for broad judicature upon all issues directly related or ancillary to divorce contests. This State's (as well as the Nation's) jurisprudence strongly militates against adopting the dissent-suggested constraints upon divorce judicature, even if these constraints could pass constitutional muster. See Part III and IV of my concurrence.

17 Neither the three courts of common law nor that of chancery could dissolve a marriage (or grant a separate maintenance decree). A divorce a mensa et thoro (from "bed and board", which meant a decree of legal separation) could be procured from ecclesiastical courts; a divorce a vinculo matrimonii ("from the bond of matrimony" or one granting "an absolute divorce," which means a marriage dissolution) might be obtained only by a special act of the British Parliament. Divorce jurisdiction was transferred in 1857 from ecclesiastical courts to the civil court system by the Matrimonial Causes Act of 1857, 20 & 21 Vict. c. 85. See Reaves v. Reaves, 1905 OK 32, ¶14, 82 P. 490, 494, 15 Okl. 240; Irwin v. Irwin, 1894 OK 29, ¶10, 37 P. 548, 557 (Scott, J., dissenting); 15 W. Holdsworth, A History Of English Law 205-06 (1965); Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 16.1, at 619 (2d ed. 1988); Max Radin, Anglo-American Legal History § 269, at 512-513 (1936).

18 When an approved interspousal agreement is incorporated into the decree, the former (contract) is extinguished and merged in the latter (decree) by force of law. Chapman v. Chapman, 1984 OK 89, ¶11, 692 P.2d 1369, 1374; Dickason, supra note , at ¶9, at 677; Acker v. Acker, 1979 OK 67, ¶7, 594 P.2d 1216, 1219. While the district court is not bound by an agreement of the parties settling their property rights, alimony and child support (Blount v. Blount, 1967 OK 74, ¶18, 425 P.2d 474, 477), once the interspousal agreement is incorporated into the decree upon its judicial approval, the rights the parties enjoy under its terms will merge in the decree. Chapman, supra, at ¶11, at 1374. These rights cease to be contractual and become enforceable as a judicial obligation. Dickason, supra note , at ¶9, at 677; Acker, supra, at ¶7, at 1219.

19 Warren v. Hunter, 1981 OK 98, ¶¶3-4, 632 P.2d. 418, 419 (an interparental support claim for an adult child is actionable by a parent who is providing the child with the necessities of life on a day-to-day basis; an equitable right of contribution by the custodial parent may be pressed against the nonpaying parent).

20 Dickason, supra note , at ¶¶9-13, at 677-78.

21 A Hohfeldian plaintiff is one who seeks judicial determination as a party litigant that it has "a right, a privilege, an immunity or a power" vis-a-vis the opposite party. Macy v. Board of County Com'rs, 1999 OK 53, ¶12 n.28, 986 P.2d 1130, 1137-38 n.28; Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶1 n.1, 890 P.2d 906, 914 n.1 (Opala, J., concurring); Fowler v. Bailey, 1992 OK 160 n.6, 844 P.2d 141, 150 n.6 (Opala, C.J., concurring); Louis L. Jaffe, The Citizen As Litigant In Public Actions: The non-Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968).

22 Warren, supra note , at ¶¶3-4, at 419 (parents, as co-obligors for child support, are required to contribute, either equally or equitably, toward the discharge of a common obligation).

23 For the three requisite jurisdictional elements, see supra note .

24 The record proper or judgment roll consists of "the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." 12 O.S. 2001 §32.1; Elliott v. Guthrie, 1986 OK 59, ¶7, n. 8, 725 P.2d 861, 863, n.8; Mayhue v. Mayhue, 1985 OK 68, ¶8, n.17, 706 P.2d 890, 895, n.17.

25 The absence of a jurisdictional element from a judgment roll must be rested on record support. Chamberlin v. Chamberlin, 1986 OK 30, ¶8, 720 P.2d 721, 725; Salazar v. City of Oklahoma City, 1999 OK 20, ¶11-12, 976 P.2d 1056, 1061-62.

26 The record on appeal includes only three items from the judgment roll of the 16 October 1993 decree - Mother's divorce petition, Father's answer and the October 16 journal entry granting a divorce.

27 Matter of Estate of Mouse, 1993 OK 157, ¶10, 864 P.2d 1284, 1286, citing Vanguard Underwriters Ins. Co. v. Amick, 1973 OK 86, ¶11, 512 P.2d 807, 808; State ex rel. Commissioners of Land Office v. Keller, 1953 OK 371, ¶19, 264 P.2d 742, 746; Fitzsimmons v. City of Oklahoma City, 1942 OK 422, ¶6, 135 P.2d 340, 342, 192 Okl. 248.

28 Woodrow v. Ewing, 1953 OK 60, ¶6, 263 P.2d 167, 171. Regardless of the post-remand proceeding's outcome, there is absolutely no doubt about the trial court's jurisdictional power to entertain Mother's modification quest.

29 See Pettis v. Johnston, 1920 OK 224, ¶19, 190 P. 681, 688 and Scoufos, supra note , at ¶33, at 725, holding that a judgment valid on its face may not be attacked after the passage of three years. Father did not attack the 26 October 1993 decree as facially infirm for want of jurisdiction until 2000. At that time he was limited to an attack for facial invalidity. See 12 O.S. 2001 §1038.

30 Jurisdiction is not wanting but merely exceeded when judicial authority is exercised erroneously. Mayhue, supra note at ¶5 n.8, at 893 n. 8; Woodrow, supra note , at ¶6, at 171. For the difference between absence and excess of jurisdiction see Oklahoma Tax Com'n v. City Vending, 1992 OK 110, ¶¶7-8, 835 P.2d 97, 104-05 (Opala, C.J., concurring in judgment).

31 See discussion in Part IV(F), ¶19, infra.

32 1974 OK 46, 521 P.2d 799.

33 Supra note . The dissent also relies on Williams v. Williams, 1975 OK 163, ¶9, 543 P.2d 1401, 1403. In Roesler v. Roesler, 1982 OK 21, ¶4, 641 P.2d 550, 550-51, the court observes that "[w]hile divorce is wholly a creature of statute [citing Williams, supra], actions for divorce and division of property are of purely equitable cognizance." The quoted Roesler explanation correctly identifies the notion that Oklahoma judges who hear divorce cases are not in the straitjacket imposed by the English legal system's ecclesiastical or parliamentary antecedents.

34 Supra note .

35 See, e.g., Whitehead, supra note , at ¶10, at 1101 Dickason, supra note , at ¶¶9-13, at 677-78; Greeson, supra note , at ¶10, at 278.

36 Brown v. Bivings, 1954 OK 301, ¶13, 277 P.2d 671, 673; Watts v. Elmore, 1946 OK 232, ¶8, 176 P.2d 220, 223; Webb v. Moran, 1939 OK 369, ¶21, 96 P.2d 308, 312; Harlow Publishing Co. v. Patrick, 1937 OK 579, ¶0 syl. 2, 72 P.2d 511, 181 Okl. 83. Once it is determined that the parties intended to form a binding agreement, the certainty of the terms is important only as a "basis for determining the existence of a breach and for giving an appropriate remedy." Restatement (Second) of Contracts § 33(2).

37 It is a settled principle that the law does not favor invalidation of agreements on the ground of uncertainty. A contract is not void for uncertainty because it fails to set out details as to the subject matter if it can be ascertained with a reasonable degree of certainty what the parties intended. Brown, supra note , at 673; Watts , supra note , at 223; Webb, supra note , at 312. This has long been the common law in Oklahoma. It is now codified in 12A O.S. 2001 §2-204 of the Uniform Commercial Code [UCC]. The terms of 12A O.S. 2001 §2-204(3) provide in pertinent part: "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy." According to the Uniform Commercial Code Comment that follows §2-204, "Oklahoma courts have not previously required absolute certainty in all respects to grant relief. The agreement has been held sufficiently certain if the court could determine the intention of the parties. * * * Since the Oklahoma courts have previously been liberal in considering all the circumstances, and searching for the intention of the parties in enforcing an agreement, it does not appear that this section materially changes Oklahoma law." In sum, the common law that antedates the adoption of Article 2 of the UCC, much like the Article itself, supports the enforceability of contracts with terms that are indefinite but capable of being ascertained by methods agreed upon and known to both parties. The lack of specific terms does not necessarily invalidate contracts as long as the open or missing terms could be reduced to certainty by the use of extraneous evidence. 1 Corbin on Contracts, § 4.1, p. 533 n. 19 (1993).

38 Chapman, supra note at ¶11, at 1374; Dickason, supra note , at ¶9, at 677; Acker, supra note , at ¶7, at 1219.

39 See cases cited in supra note .

40 See Part IV(D), supra.

41 See Part III, supra.

42 Nelson v. Nelson, 548 A.2d 109, 113 (D.C.1988) (citing Annotation, Parent's Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948)).

43 See American Law Institute's Principles, supra note , Introduction at pgs. 39-40, §§ 3.13(1) (Effect of a Parental Agreement on a Child-Support Award), 3.24(4) (Duration of the Child-Support Obligation), 7.09 (The Enforceability of a Separation Agreement), 7.10 (Incorporation of the Terms of a Separation Agreement in a Decree). The pertinent terms of § 3.13(1) are: "The child-support terms of a parental agreement should be approved and adopted by the court unless the agreement provides for substantially less child support than would otherwise be awarded under this Chapter." The terms of § 3.24 (4) state: "The parties may by agreement extend the duration of the child-support obligation." According to Comment h to § 3.24: "The parties may always agree to obligations to a child or to each other that exceed those imposed by law. This is a consistent theme in current law and in these Principles." Comment g to § 3.24 notes that the statutes of most states are silent as to post-majority support for disabled children, "in which case many courts have judicially extended the support obligation to adult disabled children." Id., citing in support Kamp v. Kamp, 640 P.2d 48, 50-51 (Wyo.1982); Streb v. Streb., 774 P.2d 798, 800 (Alaska 1989); Koltay v. Koltay, 667 P.2d 1374, 1377 (Colo. 1983); Nelson, supra note , at 119; Castle v. Castle, 473 N.E.2d 803, 806-807 (Ohio 1984); Kinder v. Schlaegel, 404 S.E.2d 545 (W.Va.1991), but noting a contrary view in Smith v. Smith, 447 N.W.2d 715 (Mich.1989).

44 In Nelson, supra note , the court observes that in the absence of statute (a) the "trend among courts considering this issue is to recognize the parental duty of support for the adult disabled child as a natural extension of the common law obligation of support for minor children" (id. at 116) and (b) that the vast majority of those courts "have found that the developing common law imposes such a duty" (id. at 115).

45 See Part IV(B) supra.

46 See Part IV(A) supra.

47 Consent decrees are not an exempted rubric from the sine qua non four-corners' examination. The parties failed to stipulate as to (or even suggest that they agreed on) the contents of the complete judgment roll in the proceedings that led to the decree here under the jurisdictional scrutiny. The burden to show a flaw on the face of the judgment roll is cast on Father. Salazar, supra note , at ¶11, at 1061. It was his duty to have in the record the four corners of the judgment roll. The record for Mother's appeal is devoid of her stipulation that the decree is facially and fatally void. Nothing short of Mother's stipulated admission (or concession) will support the dissent's analysis.

48 Hedges v. Hedges, 2002 OK 92, ¶26, 66 P.3d 364, 374; Evans v. Evans, 1993 OK 59, ¶¶ 10-11, 852 P.2d 145, 149; Messenger v. Messenger, 1992 OK 27, ¶12, 827 P.2d 865, 870; Timmons v. Royal Globe Ins. Co., 1985 OK 76, ¶13, 713 P.2d 589, 594 n.18; Mayhue v. Mayhue, 1985 OK 68, ¶6, 706 P.2d 890, 894; Nantz v. Nantz, 1988 OK 9, ¶6, 749 P.2d 1137, 1143 (Opala, J., dissenting); Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶24, 732 P.2d 438, 449; Wootten v. Askew, 1983 OK 37, ¶8, 668 P.2d 1123, 1124-125, citing Crain v. Farmer's United Cooperative Pool, 1970 OK 134, ¶13, 472 P.2d 882, 884 and Curtis v. Barby , 1961 OK 252 , ¶¶31-32, 366 P.2d 616, 622; Bomford v. Socony Mobil Oil Co., 1968 OK 43, ¶24, 440 P.2d 713, 720-21; American-first Title & Trust Company v. Ewing, 1965 OK 98, ¶40, 403 P.2d 488, 496.

49 For the various English restrictions upon divorce judicature see supra note .

BOUDREAU, J., with whom LAVENDER and WINCHESTER, JJ., join, dissenting:

¶1 I dissent because there is a major difference between enforcing an agreement between a husband and wife that obligates one or the other to pay child support after a child reaches majority, and enforcing an agreement which attempts to vest the court with jurisdiction to determine a child support obligation after the child reaches majority. Enforcing the latter agreement impermissibly allows the parties to confer jurisdiction upon the court to pronounce a particular decision that the Legislature has not currently extended to the court.

¶2 In this case, the trial court correctly determined that the parties did not enter into a legally enforceable agreement as to the terms of their obligations after the child reaches majority. They merely agreed that the court would "retain jurisdiction" to decide a post-minority application for child support. Their agreement reads, in pertinent part:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant shall pay child support in the amount of Four Hundred Dollars ($400.00), deviated from the child support guidelines, attached hereto as Exhibit "A", as agreed upon by the parties. Due to the special needs of the minor child, the parties have agreed to leave the child support open after the minor child reaches the age of eighteen (18) and/or completes high school, and the Court will retain jurisdiction for either party to file an application for further support based upon the specific needs and requirements of the minor child, if any.

(emphasis added).

¶3 While a court may have general jurisdiction of the subject matter of a class of actions, it does not necessarily follow that the court may hear and determine a particular case submitted for its consideration. A court must have the judicial power to decide a particular matter and to render a particular judgment in order to pronounce a valid judgment. Stork v. Stork, 1995 OK 61, 898 P.2d 732, 738 n.17; Petty v. Roberts, 1939 OK 560, 98 P.2d 602; Isenhower v. Isenhower, 1983 OK CIV APP 12, 666 P.2d 238. The parties may not confer upon the court the jurisdiction to pronounce a particular decision it enters.1

¶4 "Divorce was not recognized at common law, where divorces were either ecclesiastically or legislatively granted. The right to divorce is recognized as purely a creature of statute." Chapman v. Parr, 1974 OK 46, 521 P.2d 799; Williams v. Williams, 1975 OK 163, 543 P.2d 1401, 1403. Accordingly, all rights of parties with respect to divorce are fixed by the statutory law of the state.

¶5 The relevant statute in this case provides:

Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years.

¶6 In enacting this statute, the Legislature limited the authority of the trial court to issue a child support order. The authority of the trial court comes to an end when a child reaches eighteen years of age (or later, if the child is regularly and continuously attending highschool) and the court has no power to make or continue a provision for child support thereafter. Certainly the Legislature can extend the trial court's authority if it so desires, Lookout v Lookout,

¶7 The concurring opinion goes to great lengths to stress that Oklahoma allows judicial approval of consent decrees that confer upon the parties greater post-marital rights than those defined by statute. This proposition of law cannot be seriously contested. Unquestionably the parties in a divorce action may, by agreement, expand the issues beyond what a trial court could. Whitehead v. Whitehead,

¶8 Before today, we had held that a trial court retains jurisdiction in a divorce action to enforce the parties' agreement that the wife would receive a certain percentage of the husband's future income in lieu of property division. Kittredge, supra. We had also held that a trial court retains jurisdiction to enforce the parties' agreement that the wife would receive "$650.00 per month ... for such period as [the husband] continues to draw employment or retirement income from Burlington Northern and Army retirement." Whitehead, supra. In both Kittredge and Whitehead, the parties entered into a final agreement that left nothing for determination by the court on the question of the terms of the agreement.

¶9 Today, the majority opinion seems to say there is no difference between what the parties agreed to in Kittredge and Whitehead and what the parties agreed to in this case. In my view there is a major difference. In the former cases, the parties entered into fully executed agreements which left the trial court with nothing to do but enforce the agreed terms. In this case, the parties left the terms of their post-minority child support obligations open for the court to decide after the child reached majority.

¶10 While a trial court may approve and enforce any type of issue-expanding agreement offered by the parties in a divorce case, the trial court may not determine issues beyond the scope of its statutory authority, even when the parties attempt to confer such power on the court.

¶11 The concurring opinion argues that if there is an infirmity in the decree, it would at most constitute legal error rather than a jurisdictional-vitiating defect. I respectfully disagree. The critical clause in the decree, in my opinion, constitutes more than legal error or the erroneous exercise of judicial authority. It attempts to vest the court with a power that is not provided by statute. In this situation, jurisdiction is wanting.

¶12 The trial court's decision is void for lack of jurisdiction because the face of the judgment roll reveals that at least one of the three elements of jurisdiction is lacking, the judicial power to pronounce the particular decision that was entered. Stork v. Stork, 1995 OK 61, 898 P.2d 732, 738.3 Accordingly, the decision may be attacked at any time in the same case or by an independent action. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, 981 P.2d 1244, 1249.

¶13 In sum, a parent can bind himself or herself by agreement to support a child beyond minority, but the parents cannot confer jurisdiction on a court to decide, after the child has reached majority, the terms of post-minority child support. In the case in controversy, the trial court accurately apprehended that the parties did not enter into an agreement as to the terms of the their obligations after the child reaches majority, but merely agreed that the court could retain jurisdiction to decide their post-minority application for child support. The trial court correctly determined that it had no jurisdiction to decide the issue.

¶14 I would affirm the trial court.

FOOTNOTES

Neither party voiced an objection to the trial court's determination of the consent divorce decree's facial invalidity based upon an incomplete judgment roll, nor asserted that any missing documents, if presented there for inspection, would reveal anything legally significant relating to the condition of the decree's judgment roll. Nor was any objection ever raised before this Court on that ground. The record on appeal includes all essential items from the judgment roll of the 1993 decree: the mother's divorce petition, the father's answer, and the journal entry granting the decree. Although it does not contain the process and return, the parties stipulate in their briefs that they entered into and signed a consent divorce decree. The judgment roll of the consent divorce decree (aided by the parties admissions in their briefs) is complete enough to warrant a pronouncement that the decree is facially void.

SUPPLEMENTAL OPINION AFTER REHEARING'S DENIAL

OPALA, V.C.J.

¶1 This matrimonial dispute comes now for our consideration of appellant's motion to tax costs. See Supreme Court Rule 1.14a

I

THE PROVISIONS OF §978 COMMAND THAT A PREVAILING APPELLANT'S COSTS ON REVERSAL OF A JUDGMENT BE TAXED
DE CURSU

¶2 The terms of §978, whose enforcement procedure is regulated by Rule 1.14a, mandate that at the conclusion of appellate litigation the prevailing party be entitled to recover taxable costs de cursu.

¶3 As prevailing party on reversal appellant is entitled to two filing fees (for her petition in error and that for certiorari), totaling $300.00. These cost items are deposits taxable de cursu. They should be granted to appellant (as prevailing party on reversal of the trial court's dismissal order) in accordance with the terms of §978. Appellant also is entitled to have the court reporter's expense ($33.75) taxed as costs. Before the issuance of mandate, she has submitted, as required by Rule 1.14a, proof of payment for the court reporter's services.

II

THE TERMS OF §978, WHICH APPLY TO ALL APPEALS, ARE NOT ALTERED BY THE MATRIMONIAL CHARACTER OF THE CASE

¶4 The provisions of §978 and of Rule 1.14a are as applicable to appeals in matrimonial disputes as they are to appeals in other classes of litigation.

III

THE PROVISIONS OF §978 ARE NOT IN PARI MATERIA

¶5 The terms of §978 and those of §110D do not regulate the same subject matter and should not be construed together. The provisions of §978 address solely costs on appeal while those of §110D primarily authorize allowance of expenses in trial-court litigation. A party who seeks to tax appellate costs under the authority of §978 must initiate its pursuit in the appellate court,14 while a litigant in quest of a §110D matrimonial allowance must initially press for that relief in the trial court.15 In short, §110D allowances are generally not granted but only reviewed by the appellate tribunal. Moreover, the terms of §978 govern taxable appellate "costs" exclusively,16 whereas those of §110D regulate allowance of "expenses" incurred in enforcing or modifying a divorce-court order.17 Costs are not expenses.18 The former are creatures of statutes19 and are taxed de cursu by the court clerk20 based upon specific tariffs enacted by the legislature. Expenses, on the other hand, require judicial determination and may be subject to equitable apportionment.21 Costs de cursu, as distinguished from expenses, are never regulated by equitable principles. They are purely statutory.22 The terms "costs" and "expenses" are neither interchangeable nor synonymous. In appeals from matrimonial disputes, §110D (which addresses only expenses) will not control over §978 (which governs costs on appeal).

¶6 Though Larman v. Larman23 and Stepp v. Stepp24 left each party in a divorce proceeding with the burden of paying its own attorney's fee and litigation-related expenses, these cases are not germane to today's analysis. Neither Larman nor Stepp addresses taxable appellate costs (which are at issue here). Bingham v. Bingham25 also is inapposite to the issue before us. Though Bingham divides the appellate costs equally between the parties in a matrimonial dispute, it does not state any grounds or cite any authority (not even §110D) for this conclusion.26 Bingham does not refer to taxation of appellate costs upon reversal of a judgment. It deals only with allocation of these costs upon affirmance of a judgment.27 Finally, Bingham lacks precedential status.

IV

WHEN TAXING COURT COSTS COURTS MUST ADHERE STRICTLY
TO LEGISLATIVE ENACTMENTS

¶7 Combining an appeal-related attorney's fee with appellate costs for treatment as a single category of burdens to be imposed in the aftermath of appellate litigation strips the Legislature of its control over court costs. Early jurisprudence carefully avoids this conflict between legislative and judicial authority by ceding to the legislature the sole responsibility for controlling the taxation regime of court costs. When taxing court costs courts must adhere strictly to legislative enactments.28

¶8 It is this court's duty to obey the legislative cost-allocation scheme.

V

TODAY'S PRONOUNCEMENT IS RETROACTIVE AND
APPLIES TO THE PRESENT CASE

¶9 The court need not, as the dissent counsels, apply today's ruling prospectively. Its past practice of taxing appellate costs in matrimonial disputes in strict conformity to the terms of §978 has been followed uninterruptedly beyond the enactment of §110D.

VI

SUMMARY

¶10 In obedience to the provisions of §978, which clearly mandate that appellate costs be taxed de cursu in favor of the prevailing party on reversal of a judgment, and to Rule 1.14a, which governs in-court procedure for the enforcement of that statute, the appellant's motion to tax appellate costs in her favor is granted. Any other ruling would be an open invitation to judicial dispensation of favors, a practice which has no place in the legislative regime of court-costs regulation. The costs taxed today shall be enforced by the trial court - after receiving this court's mandate - and their execution shall be dealt with in the same manner as if each item had been taxed below.

¶11 OPALA, V.C.J, and HODGES, LAVENDER, HARGRAVE, SUMMERS and BOUDREAU, JJ., CONCUR.

¶12 WATT, C.J., and KAUGER and WINCHESTER, JJ., DISSENT.

FOOTNOTES

KAUGER, J., with whom Watt, C.J. and Winchester, J. join, dissenting to the supplemental opinion on rehearing:

¶1 The majority determines that appellate costs in matrimonial matters are automatically taxable against the prevailing party. To reach this result, the majority: 1) ignores principles of statutory construction insofar as

I.

¶2 TITLE

¶3 Where two or more enactments relate to the same subject matter, this Court's primary objective is to determine the latest expression of the legislative will.3 Under this rule of statutory construction, the most recent enactment will ordinarily prevail when there is an irreconcilable conflict between two statutes. When a special statute clearly includes the matter in controversy, the special statute controls over a statute of general applicability.4 Finally, our goal when considering two apparently conflicting legislative enactments dealing with the same subject matter is to consider them together as a harmonious whole and to give effect to each provision.5

¶4 The Legislature first enacted the provision for the equitable division of expenses in divorce-related proceedings, 43 O.S. 2001 §110, in 1965. However, the language of 12 O.S. 2001 §978, allowing costs on appeal, has been a part of Oklahoma law since 1910. Section 110 deals specifically with matrimonial matters while §978 addresses costs generally. While there is an apparent conflict between the provisions as it relates to costs, this conflict can be avoided by simply abiding by the established rules of statutory construction -- giving effect to the most recent expression of the legislative will, and allowing the specific statute to control over the more general.

II.

¶5 BINDING PRECEDENT SUPPORTS THE EQUITABLE DIVISION
OF COSTS.

¶6 In 1936, almost thirty years before the Legislature allowed the equitable division of costs in a divorce proceeding, this Court held in syllabus three of Gilcrease v. Gilcrease, 1936 OK 50, ¶0, 54 P.2d 1056:

"Notwithstanding the affirmance of the judgment of the trial court, this court may, in its discretion, tax the costs of appeal in a divorce proceeding against the prevailing party."

In decrying the efficacy of the Gilcrease opinion, the majority ignores well-settled law on another issue -- a syllabus, authored by this Court, embodies the law.6 The Court's language is not ipse dixit -- the bare assertion of an individual.7 Rather, it is the statement of this Court and is more akin to being carved in stone. We regularly rely upon syllabi as what they are -- Oklahoma law as expressed by this Court.8

¶7 The majority can only reach the result here by overruling precedent. If Gilcrease is to be overruled, the change in the law should be given prospective application. When a statute or rule of law appears obscure in its impact on the case at bar, our pronouncements are given prospective effect to protect those who would otherwise suffer.9

¶8 Research does not reveal any cause subsequent to Gilcrease in which this Court has equitably divided costs. Nevertheless, the Court of Civil Appeals evidently did not consider the practice so "foreign" to Oklahoma practice. In Bingham v. Bingham, 1981 OK CIV APP 26, 629 P.2d 1297, the Court of Civil Appeals taxed the costs of the appeal equally between the parties.10

III.

¶9 MATRIMONIAL SUITS ARE EQUITABLE IN NATURE.

¶10 The majority does not dispute that matrimonial suits are equitable in nature.11 Nevertheless, by questionable statutory construction and only by overruling controlling precedent, it requires that, in the matter of taxing appellate costs, equity be taken out of the equation. The position is unsupported either by statute or by controlling precedent.

IV.

¶11 NO ADDITIONAL BURDEN IS PRESENTED IF COSTS ON APPEAL
ARE EQUITABLY DIVIDED.

¶12 Everyone agrees that the award of attorney fees and expenses never depends upon prevailing party status in matrimonial matters.12 Where no compelling or overriding equitable considerations exist, husband and wives are each required to bear their own counsel fee obligations and litigation related expenses.13 Where there is an equitable reason for a different division, the court may consider the financial means of the parties and whether frivolous claims were pursued.14

¶13 Attorney fees and costs go together like bread and butter or mashed potatoes and gravy. Once you have to consider the equities for the award of attorney fees and expenses as is mandated by 43O.S. 2001 §110,15 the trial court has made the precise determination required for the award of costs. Presumably, the equities would support the same award for costs as for counsel fees. Therefore, the equitable division of costs requires no mental exercise that is not already being done when attorney fees and costs are awarded.

FOOTNOTES

"When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties."

". . . C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.

D. The court may in its discretion make additional orders relating to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."