Lepak v. McClain

LEPAK, Petitioner, Greg McCLAIN, Judge

The Honorable R.B. County Garvin District

Court, Respondent.

No. 78950.

Supreme Court of Oklahoma.

Dec. Whitten, Jr., Jr.,

Hal Ely, S. John J. City, petitioner. Spowls, Valley, respon- John Pauls dent.

853 WILSON, payments for failure to make on a ALMA Justice: contempt proceed- ment debt and thus the presented in impression The first issue ing contrary prohibition against applica- original action is whether an this 2, imprisonment for art. 13 of the § civil for citation for indirect tion Oklahoma Constitution. Hervey responds compliance enforce may be maintained to underlying purpose that order, 12 of the con- pursuant to O.S. with an entered 1991, 850, directing tempt proceeding preservation a debtor to make is the § payments money judg- on a installment integrity of the district court order direct- negative. in the ment. We hold ing payments installment contempt proceed- debt and therefore the Jerry Hervey, plaintiff 2, ing is not violative of art. 13. (Hervey), § initiated the action creditor below against Greg Lepak, d/b/a Red below question The central this con Company, petitioner/de- Fence Sands 2, troversy is whether art. 13 of the (Le- fendant and debtor below prevents legis Oklahoma Constitution pak), Hervey of contract. took breach authorizing judi lature from the use of judgment against Lepak in the a default $10,298.09 damages, actual contempt powers amount of cial to coerce installment $10,000.00 $1,250.00 damages, punitive payments ques on a This debt. attorney fees and for costs. At $110.60 squarely original jurisdic tion is within the assets, par- post-judgment petition of this court.1 A tion for writ of money judgment agreed ties that prohibition appropriate remedy is an paid in trial should be installments. The challenge the constitutionality of a statute directing Lepak court entered an order to vesting power in the district courts.2 This pay specified specified amounts on dates original jurisdiction court will assume toward satisfaction of the petition prohibition consider a for writ of Lepak did not make the ordered Apparently judicial where the trial court’s use of force Hervey installment filed an challenged though even is oth cause application for citation for indirect civil con- properly cognizable by erwise the inferior Lepak tempt, alleging willfully that And, judi tribunal.3 where the exercisе contumaciously the installment violated power law, cial violates fundamental this seeking punishment orders and prohibition will issue writ of Lepak by monetary imprisonment. fine and performance judicial proceedi control the Lepak applica- for dismissal of the moved ngs.4 grounds tion for citation on the 2, jurisdiction. We assume that the violates art. 13 of We Constitution, 2, the Oklahoma Constitution. The trial court find that the Oklahoma art. Lepak’s 13, denied dismissal motion and dock- prohibits legislature from autho- Hervey’s eted for citation application rizing money judgment enforcement of a Lepak for trial on the merits. contempt procedure pro- an indirect civil asking filed his in this Court O.S.1991, vided in the last sentence of 12 original jurisdiction assume we 850; and, constitutionally imper- that the prohibition against issue a writ of further missible sentence is severable from the re- contempt proceedings indirect civil before mainder of the statute. We hold that the trial court. O.S.1991, last sentence of 12 850 contra- express venes the terms of the Oklahoma Lepak pending contemрt asserts that the Constitution, 2, 13; and, proceeding may result in his incarceration art. that the last Const., Wiseman, 389, 1. Okla. art. v. 772 P.2d Inhofe (Okla.1989). 2. The ancient common law writ of judicial was fashioned to restrain an inferior Atchison, Love, Ry. T. & S.F. Co. v. 29 Okl. jurisdiction tribunal from further exercise of State, (1911) Draper 119 P. legally with which it is not vested. Hirsh (Okla.1980). P.2d Twyford, 40 Okl. 139 P. O.S.1991, pose provision, the constitutional in or- hereby 850 is sentence of uphold legislative enactment.10 from the statute. der to and stricken severed legislature prevents Article 13 of Article Section would, enacting any di- statute states: Constitution rectly indirectly,11 body authorize the prohibited, Imprisonment for debt is attachment of an individual for failure to of fines and except non-payment pay a debt. the violation of penalties imposed for statute, O.S.1991, challenged 12 The law. 850, states: 2, 13 must The of art. be words judge hearing provided The after the ordinary plain, their natural given may any property herein of the may imprisoned meaning.5 That no one debtor, law, judgment exempt by nonpayment except of a a fine or a possession or under his control to be 2, meaning of art. penalty is obvious applied toward the satisfaction of the meaning, apparent This on the face 13.6 by may judgment, and enforce the same 2, 13, accepted.7 must be The of art. in case re- imprisonment for prohibition against clear fusal or disobedience. mandatory the words of debt is because judge may The further order the 2, express imply 13 neither nor art. ment debtor to cred- directory only.8 provision that the is intent itor or install- ments, determining portion non-exempt the constitutionali such of his income, enactment, we or wherever earned or ty legislative of a look however acquired, may proper constitution to determine whether the as the court deem doing regard any payments from after due re- legislature prohibited is mandatory provision quired by A in our consti to be made debt- act.9 tution, 2, upon by prior art. 13 is a limitation or virtue law or order of a legislature. object wage assignments of art. court or under out- power of the 2, protection standing. of our resident 13 is the Where by body gov proved rendering from attachment оur claims or is to be ser- citizens employed by officials of a failure to vices to or a relative or ernmental because adopt person by corporation pay a will not a strict or other or owned debt. We per- construction of our constitution or controlled a relative or other technical son, object pur- salary compensation, without or or so as to defeat the evident 561, Norman, 230, Deacon, City Wimberly v. Okl. 144 P.2d 10. Williams v. 85 Okl. (1944). (1922). P. 144 Morgan v. National Bank Commerce duty-bound 11. This Court is to be intolerant of 388, 280, (1923). Shawnee, 217 P. 90 Okl. legislature’s attempt indirectly to do directly prohibits. constitution Re Grumbine, 95, 137 Okl. 278 P. 311 7. Shaw Board, herman v. Oklahoma Water Resources (1929). 1296, (Okla.1984), 679 P.2d 1301-1302 wherein we said: mandatory, provisions are un 8. Constitutional (W)hat may directly not be done should not thereof, express appears terms less it from the Further, indirectly. be allowed to be done by necessary implication language from the Co., Trapp the Court stated in v. Cook Const. used, directory they are intended to be (1909): 24 Okl. 105 P. Freeman, only. 146 P.2d Jones v. 193 Okl. violating An act the true intent and mean- (1944) appeal 322 U.S. dismissed [Constitution], аlthough ing not within S.Ct. 88 L.Ed. 1558. letter, purview is as much within the constitutionality legis- ascertaining as if within the strict of a effect of letter; act, to the constitution to and an act in evasion of the terms of lative we do not look Constitution, interpreted legislature properly is authorized the understood, determine whether the act, frustrating general legislature is to do an but whether the necessarily clearly expressed implied pur- doing prohibited from an act. Reherman Bd., pose, clearly express void as if in terms Water Resources 679 P.2d 1296 (Okla.1984). forbidden.... salary compensation so at a inade- and orders debt. The quate satisfy as to the court that such remedy creditors’ on assets and salary compensation merely color- turn over paragraph orders the first designed impede to defraud or able adopted 850 were Kansas 1910.12 debtor, of such the creditors court Prior to enactment of the Kansas such pay- direct debtor to make upheld against statute had been an impris- judgment, ments on account challenge. onment for debt ex State rel. v. installments, upon based a reasonable Burrows, Kan. 5 P. 449 value services rendered such Supreme Kansas construed con- employ- debtor under his said tempt provisions applicable to be to ‍​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌‍orders ment or earning said debtor’s then directing the debtor to turn over identified ability. The from time to in his or her at the time, modify an order made under this entered, the time turn over order was rath- upon party section of either er an pay than order to a debt. upon notice to the other. A or failure ground error, As of another it is insist- neglect comply to with an order of di- by appellant ed the ... that the order court, punished rection the of shall be made was one commanding appellant the contempt. [Emphasis for added.] debt, to a and that to commit him for face, para- it is clear that the two On contempt in failing obey the order graphs of purposes. serve different would, effect, purposes of provisions The obvious the con- proceedings, such “the judge paragraph tained the first of 850 are may any order judgment of the .property require delivery the of the idеntified debtor, law, exempt by not in the hands property by possession owned the or any person corporation, of himself or or judgment control of the debtor toward the debtor, or due to the judgment to be debt; judgment the applied towards the satisfaction of the delivery enforce the order for turn or over judgment, enforce the same by incarceration, property by if the proceedings contempt, in case of re- unjustly apply ment debtor refuses to the fusal or disobedience.” Section property identified towards the satisfaction judge Code. In this case the found that judgment. a pur- While the obvious appellant property, the had which con- provisions poses of the contained in the money possession sisted his paragraph require second are control, law, exempt by under his not judgment debtor to set aside and deliv- be applied that should towards satis- portion er a of his/her income future to- the judgment; faction of and ordered debt; judgment ward satisfaction of applied. that it be It so was not order and to enforcе the order for but was a direction to future income incarceration. It is the apply property, certain discovered contempt provision in paragraph the second the examination possession to be which we conclude is violative Okla- appellant, to the satisfaction of the Constitution, homa art. judgment against him. early upholding The decisions the con- Burrows, page ex 5 P. State rel. v. at tempt provision paragraph in the first later, orders turn again 850 differentiated over Six months Burrows was be- property identified at Supreme origi- assets fore Kansas Court in an disobedience; adopted earnings 12. Revised Laws but Kansas, services, read follows: personal any his at time within order, judge may any property preceding order next three months can- debtor, law, judgment exempt by not in the applied, appear, be so it not when is made to any persons hands of either himself other otherwise, by the debtor’s affidavit or debtor, corporation, or due to the earnings necessary are such for the use of a applied to be tоward satisfaction of the family supported wholly partly his la- judgment, by pro- same enforce the bor. ceedings in case of refusal or corpus. nal in habeas In re We therefore conclude that provi- Burrows, Kan. 7 P. 148 execution,” sions of the “in Code aid of Leaving jail Burrows committed to until conferring upon judge the district satisfied, and costs were power require debtor to Supreme Kansas Court said: appear before him to concerning answer 25, 1884, March F.H. Kollock On his property, unjustly which he refuses Fanning B. justice recovered before a towards the satisfaction of a peace state, county, of Marion in this him, against recovered and to judgment against Burrows, Melvin money or other in his costs, $325.30_ aggregating with possession control, actual and under his judge had, found that Burrows his law, exempt by up to be delivered examination, upon person his and under applied towards the satisfaction of control, money his actual to the amount under proceed- which the $1,000.00, law, exempt by and he had, ings are and to enforce said orders then him apply orderеd sufficient of by proceedings in case of moneys said so towards disobedience, refusal or are not violative the satisfaction of 5, 10, of sections or 16 of the bill of him.... rights state, of the constitution of the Burrows, page In re 7 P. at the fifth amendment of the federal con- denying right Burrows claim to a 483, 490, Code; stitution. Sections State by jury, high trial the Kansas court ex- Burrows, supra. plained purpose the of the statute: ease, ... In this Burrows is imprisoned execution, ... The proceeding in hid of simply wholly because he will not though by statute, proceed- created is a up money deliver possession his ing in the action in judgment which the under his control in payment judg- of the recovered, judgment after the debt- ment. He can terminate imprison- the trial, or has had a and is a any at time the mere substitute for the exercise of formerly creditors’ bill will; is, his own chancery. used The that satisfying is a the simple regulation of judgment costs, well-established and and the jurisdiction, well-defined which courts of costs of the supplementary proceed- equity were accustomed employ. Af- which, ings, of under findings the of —all ter the decree in a court equity for the judge, the district he has the ability to delivery effects, property the debt- do. or, upon disobeying the decree was ad- Burrows, pages re 7 P. at 151 and 152. judged contumacy guilty for his of con- Hence, validity the tempt authority He, contempt provi- of the of the of the court. therefore, imprisoned hinges could be sions in 850 long upon so the orders to be Obedience, he contempt. remained in by contempt. enforced The contempt pro- however, decree, is, to the upheld de- vision in Burrows pre- serves to —that livery property, terminate integrity serve the of the turn over orders —would any pur- time. The upon proof are based that the judg- pose of require the statute is to the deliv- “had, examination, ment debtor at his ery of property judgment debt- person and under his actual control” payment debts; or for the of his if and it which he was ap- directed to made, imprisoned. debtor cannot be ply toward satisfaction of the judgment only It is when the debtor has property challenged contempt debt. The provision unjustly which he refusеs to to- of 850 serves to directing enforce orders wards the satisfaction of a judgment, payment of future income toward satisfac- being after opportunity afforded an so to tion judgment of a debt which are based do, that he can imprisoned.... be upon proof judgment that the debtor Burrows, page In re 7 P. at capacity or has the to earn income from The Kansas court concluded that: employment rendering or other of services future which he or she is The purpose directed such statutes is not to toward satisfaction debt. disputes ownership settle as to proper- ty, but to aid creditors in the context, directing delivery In this orders discovery nonexempt of debtor’s assets distinguished earnings of future must be and their judg- to unsatisfied directing delivery earnings from orders ments. If court finds from evi- possession in the debtor at dence income debtor has of the turn the time issuance over order. over statutory exemptions, and above the early specifically pro- The versions of § partially pay judgment, sufficient to in the vided funds it during payment order the were earnеd installments. preceding ninety applied could The days contempt proceeding not be authorized if the debtor demon- designed enforce the order is punish such family strated need for funds for required pay- failure to make the has support. upheld appli- This Court ments existing from funds and not for earnings non-exempt cation of hands satisfy failure of a of the debtor toward satisfaction Heiman, Freeman v. 426 F.2d at 1052. Britton, ment debt. Smith v. 185 Okl. We find reasoning the Tenth Cir- 89 P.2d 953 cuit in contrary Freeman v. Heiman contempt provision at issue was en- Burrows inconsistent with art. constitutionality acted 1965.13 The fallacy 13. The in the Tenth Circuit’s challenged contempt provision in 12 reasoning is its characterization of an order O.S.Supp.1965, obey failure directing payments future installment installment orders was addressed directing payment an order existing Heiman, in Freeman v. 426 F.2d 1050 Clearly, funds. installment to- Cir.1970). (10th Heiman, appellant, ward a debt were challenged constitutionality the pro- ordered in Freeman v. Heiman because authorizing visions the courts to order in- the evidence established that had Heiman payments toward stallment satisfaction of $40,000.00 the capacity to earn in the next a authorizing debt and the courts succeeding year. expected in- Heiman’s punish failure come during the next year was not an holding ordered.14 that existing fund the time the order was provision in 850 does contravene art. § Further, entered. relied Tenth ‍​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌‍Circuit 2, 13, the Tenth Circuit reasoned that the § jurisdictions decisional law from punish is contempt proceeding designed to only statutory prohibitions had payment existing for failure to make from against imprisonment for debts rather than that this Recognizing funds. court has not clear prohibitions state constitutional simi- citing construed 850 and In re Burrows § lar to art. 13.15 § Burrows, alia, inter the Tenth State Circuit stated: mandatory challenged language, contempt provision requires punish-

A number of have states enacted stat- who, willfully ment of providing pay- utes installment a debtor whether of judgments negligently, ment similar to 850.... comply fails to with an order § opinion, 13. ch. As time Okla.Sess.Laws 6. stated of the Tenth Circuit § constitu- previously, Section contains forty-one two tions of states included a challenged provisions. language of The con- against imprisonment for while the other tempt provision in has not been amended § 850 states, including nine York and New several since its enactment in 1965. jurisdictions other cited in the annotation at against impris- statutory A.L.R. had ban Heiman, page 14. Freeman v. 426 F.2d at 1051. Oklahoma, now, debt. onment for then and provided prohibition against impris- an absolute 15. Tenth the New case The Circuit cited York See, 1679, 1679, Crownshield, onment L.R. for debt. 80 Yale Reeves 283, 274 N.Y. 8 N.E.2d 1, (1971) (1937) listing note for a adopted states which 111 A.L.R. reasoning jurisdic had of those constitutional bans states Canadian out in the A.L.R. At the for debt. tions set annotation. turn over his/her payments out of non-ex- directing periodic judgment. sat- satisfaction of a earnings or other income toward control toward empt legisla- The emphasize opinion debt.16 this does not of a We isfaction contempts as direct and defined contempt provisions ture has in the first affect the O.S.1991, 565.17 Whether reasoning indirect. § paragraph 850. § indirect, legisla- contempt is direct expressly restrict- holding opinion of this punishment to consist authorized ture has challenged contempt provision ed to the exceeding and/or $500.00 fine not of a O.S.1991, 850. sentence of 12 the last § in the exceeding six months sentence presumption cognizant are also We of the trial county jail, at the discretion challenged contempt validity19 O.S.1991, legislature 566. The court. § since its enactment provision proceedings or provided any special has not opinion shall be The effect of this contempts of installment punishments prospective operative as to the con- legisla- under payment orders and all other con- tempt proceeding below by incar- punishment not excluded ture has pursuant initiated tempt proceedings jail for those con- county in the ceration pending 850 and before last sentence in en- to aid a creditor tempts authorized appellate or the courts. the district courts Be- of a debt. forcing McClain, R.B. Associate The Honorable contemplat- contempt proceeding cause the County, hereby Judge for Garvin District in 850 result by the last sentence ed judi- exercising further prohibited , for failure incarceration of a debtor in the O.S.1991, power pursuant to 12 cial debt, we find the last in the incarceration of may result contrary to the 850 to be sentence install- petitioner for the failure to make express terms of art. ment prohibits hold that the art. We ORIGI- APPLICATION TO ASSUME authorizing enforce- legislature from GRANTED; WRIT NAL JURISDICTION in an indirect money judgment of a OF PROHIBITION ISSUED. the debt- contempt proceeding wherein civil in the punished by incarceration HODGES, OPALA, C.J., V.C.J. and that the last sentence county jail and WILSON, KAUGER, ALMA SUMMERS constitutionally impermissible 850 is WATT, JJ., concur. challenged con- void. We find severable,18 in and tempt provision 850 is § HARGRAVE, LAVENDER, SIMMS O.S.1991, 12 the last sentence of hold that JJ., dissent. from the statute. 850 is stricken ALA, Justice, concurring. OP Chief earlier, appeal does not noted this As we question The narrow to be answered contempt provision in the challenge the prerogative for a this authorizing con- paragraph of 850 first contempt, is whether the use autho- district court writ tempt proceedings to enforce paragraph in 8501to by rized the second directing judgment orders contempt negligent punishment for failure out of The authorized installment 16. non-exempt present comply in- direction is and future with a court ordered the debtor’s O.S.1991, earnings is or investments 850 with 21 come from inconsistent 565. post- prejudgment and in addition to remedies, including garnishment 86, Atchison, Ry. Long, & v. 122 Okl. T. S.F. continuing garnishment, available six month (1926). 251 P. 486 O.S.1991, 1171, seq. et §§ creditors in Water Resources Reherman v. Oklahoma Constitution, 2, 25 re- art. 17. The Board, (Okla.1984); P.2d Ear contempts legislature quires the to define LeGrand, (Okla. nest, 621 P.2d Inc. v. punishment regulate proceedings 1980). negli- ordinary contempts. acts of We note statutory gence definition are not within pertinent 850 are: 1. The terms of O.S.1991 contempts. Willfulness direct nor indirect judge hearing provided after the here- "The expressly required element of indirect con- any property mandating may order tempt. of § The last sentence punish nonpayment judicially a debtor’s scheduled installments by enforced money contempt, scheduled installments on while orders that generally call ment, violates Oklahoma’s constitutional in- payment money adjudged to be terdiction of for debt.2 owing cannot. original cognizance

The court assumes I grants prohibition. Today’s a writ рrovisions pronouncement those invalidates KANSAS JURISPRUDENCE BEFORE contempt power’s 850 which sanction OKLAHOMA’SSTATEHOOD punish pay use a debtor’s failure to statutory procedure Oklahoma's in aid of postjudgment installments scheduled in a execution came from A Kansas.3 Kansas disposition order. I concur in the court’s appellate opinion promulgated before our (a) provisions declares the contested statehood, which construes a statute later of 850 to be violative of the constitutional State, adopted by this force of law of imprisonment interdiction for debt and incorporated adopted into the text of (b) our impermissible condemns as an statute.4 enforcing compliance remedial device for general

with a postjudgment jurisprudence Kansas antedating our to pay adjudicated directs the debtor an I, statehood —Burrows Burrows II and obligation in installments but does not O’Connell5—and extant Oklahoma deci- specific non-exempt identify any assets applying teachings sional law6 then in appli- existence and available for binding authority Kansas are consistent judgment’s cation towards the satisfac- with the notion that orders directing deliv tion. ery specific non-exempt property to be I separately explain applied write re- and to towards the a debt emphasize post- the court’s rationale that for payment orders an from identifi (a) directing obligor orders non-exempt able then in existence fund pay specified non-exempt from a fund distinguished available must be account, (b) non-exempt to deliver described general orders of a debt. The person’s possession or under former are enforceable (c) specific one’s control to sell a non- they specific call for facially capable acts proceeds exempt asset and use the performance.7 immediate The latter— debtor, law, Okl., exempt by Speake, (1987); in his 743 P.2d 650 n. 5 applied State, Okl., or under his control to be toward the Atlantic Co. P.2d Richfield judgment, 930, 934 (1983); Pierce, Okl., satisfaction of the enforce Horath v. 506 P.2d by proceedings the same in case of refusal or disobedience. judge may further order the Burrows, (1885) State Kan. 5 P. 449 debtor to creditor or (Burrows Burrows, I); In re 33 Kan. ‍​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌‍7 P. installments, such (1885) (Burrows II); O'Connell, 148 re 49 income, portion nonexempt of his or however 415, (1892). Kan. P. 30 456 acquired, may wherever earned or as the court regard proper any pay- deem after due for 435, Ryland City Milling, v. Arkansas 19 Okl. required by ments to be made the 160, 92 P. 162-163 by prior virtue law of of order a wage assignments court or under outstand- general 7. A order in aid of execution which ing. neglect comply A... to an with failure pay a directs debtor to the in install court, pun- order direction the shall be of of (i.e., earnings out ments of his future nonex mine.) contempt." (Emphasis ished as for 1) empt by income as defined 31 O.S.1991 2, 13, Const., 2. The terms of Art. Okl. are: specific facially not does command a act shown “Imprisonment prohibited, except capable performance. for debt is to be of immediate Such non-payment penalties by contempt for the of fines and an order not enforceable either imposed pre-statehood the of jurisprudence for violation law.” under from Kansas I, II, (Burrows O’Connell,supra Burrows nоte 5 1910, 850, 3. RL 5198. See 12 O.S.1991 His- 9) note or under Oklahoma's decision infra torical Notes. 6). (Ryland, supra Although al law note § 850 Welch, Okl., Freight, Way salutary Lee purpose Motor Inc. indeed serves a in that it facili 191, (1988); money judgments by affording P.2d n. 14 Matter Estate tates collection of of of money a tion towards i.e., no more and general orders —command satisfaction of a debt within payment judgment.9 no less than 13, Const.,8 which meaning of Art. Okl. prohibits remedy imprisonment as a for II of a debt. collection PRO- BODY RESTRAINT COERCIVE pre-statehood cases Kansas These A DEBT FALLS COLLECT CESS TO judiciary teach that eloquently THE WITHIN CONSTITUTIONAL a imprisonment by to powerless enforce OF IMPRISON- INTERDICTION order, directing than one disobeyed other DEBT MENT FOR money, when payment generally as less by Contempt not be sanctioned performance the debtor the commanded bring that would specific permissible act odious hence as a variant calls for a non-exempt property’s applica- capias.10 about a common-law abolished McLin, (1980); supra P.2d at 1047 n. opportunity secure a to division creditors V.C.J., dissenting). (Opala, adjudged obligation small into installments рayments a to schedule convenient time- I, supra note debt- Burrows table, provisions unpaid enforcement was or in a in aid of execution pass contempt cannot installments muster nonexempt property pos- found "in his to have unequivocal law’s the face of fundamental his should be session and under control” which debt. prohibition adjudicat- applied toward the satisfaction of an ed debtor was later held in debt. The Const., provisions 8.For of Art. Okl. refusing willfully comply with the court’s supra note 2. The im- see appellate opinion order. viewed the order prisonment is couched in absolute debt, pay as a "a one to but rather as according a There is hence no room for terms. apply property, certain discovered direction to willfully who different treatment to those refuse possession the examination to in the pay a debt and those who are unable to it appellant, satisfaction of they general because lack resources. Insofar II, him." Id. 5 P. 452. In Burrows affected, pay money both are classes orders suprа corpus proceed- note a related habeas delinquent debtors must be treated alike. Both ing, opined that could be the court a debtor clearly protected by the absolute terms of are imprisoned only property he "has he when which command. The dissent our fundamental law’s unjustly apply towards the refuses adju- appears to make a distinction between an being judgment, opportu- after afforded unpaid debt’s installments and dicated accrued nity sup- (emphasis so P. at to do.” Id. 7 be made in the ordered to future. plied). the former re- The dissent concludes that O’Connell, supra fatally note held infirm an one’s accrued sult in willful failure imprisoning debtor based ap- The distinction drawn dissent petitioner money general finding "a that the had (cid:127) facially pears an order irrelevant. Unless shows possession property in his and under his non-exempt property there is identified unjustly control he refused satisfaction, contempt pro- available for debt's debts_" the mity of his The order’s infir- necessarily will for the order’s enforcement cess specify said to сonsist of its failure constitutional condem- fall under axe of our property, "the amount of kind of state the nation. money petitioner possession had in ... correctly concludes here that Free- property describe the under his con- [and to] Heiman, (10th Cir.1970), man 426 F.2d added). (emphasis Citing trol.” Id. P. at 456 that the § case which holds 850 con- federal II, proceed- court stated Burrows that "[i]n tempt provisions our do not violate constitution- execution, ings in examination aid of where an interdiction is un- al has resulted in disclosure that the debtor wisely Today’s opinion rejects persuasive. Free- unjustly apply money refused teachings utterly our man’s inconsistent with has in his or under his he I constitutional mandate. concur in the State’s control ren- of a pronouncement view. A federal court’s court’s him, practice against dered is for the court question binding state-law is never on this on a judge to order the debtor to deliver Okl., Corp., Hess court. Stewart v. Amerada 604 money over a sum of or turn out sufficient 854, Okl., Trimble, (1980); 857 McLin v. P.2d satisfy property enough to such 1035, V.C.J., (1990) (Opala, P.2d 1044-1045 795 costs; then, willfully disobeys if he such controlling dissеnting). Where there is no order, may by proceed- the same be enforced U.S.Supreme precedent, opt we as a often ings contempt_” Id. for at 456. comity jurispru- to follow federal-law matter of “general spe- Appeals Capias of 10th 10. is the name for several dence U.S. Court for the See, Williams, Okl., writs, e.g., Phillips v. cies the common characteristic of Circuit. of The ancient creditors’ remedies body of SUMMARY (capias ad respondendum)11 attachment Insofar as authorizes contempt as (capias ad satisfacien- body execution a compelling payment means of money )12 dum have existed many forms since adjudged owing to be either in judgment a days English the earliest Roman or in law, postjudgment a imprisonment permitted order in- scheduling where nearly type for meth- payments, debt.13 These stallment it is violative of enforcing initially ods of debts were explicit absolute and constitutional in- adopted by during American colonies their imprisonment terdiction debt. To- for early development.14 An eighteenth-centu- day’s pronouncement expressly сonfined ry recognition of these remedies’ harshness to the effectiveness of the last sentence use, to led efforts to their most abolish 12 O.S.1991 850. The use contempt to notably by prohibitions state constitutional orders or awards matrimonial enforce imprisonment for fun- debt.15 Our litigation is not by pro- our affected specifically abrogates capias damental law nouncement. 2, 13, Okl. Const.16 All for Art. body process coercive restraint forms of imprisonment may for lead debt— SIMMS, Justice, dissenting: attachment, by body by whether some new Today majority reaches out to incor- form of resurrected capias and cloaked rectly decide ripe a case that is not like that of ne exeat17— by writ an ancient adjudication. At the time this ac- explicit must fall under the constitutional filed, tion was hearing a short, body coercive restraint axe.18 no a citation had not been held. process constitutionally permissible as We have no evidence before that a us hear- a substitute the writ execution to ing occurred, has Lepak, petitioner general enforce below, herein and judicially scheduled installments defendant does not al- money judgment. lege that one was conducted. Without first Notes, they require Body

which is that the officer to take the 14. Body Attachment and Execution: body Gone, custody.” Forgotten, of the defendant into Mary Black’s But Not 17 Wm. & L.Rev. Dictionary (5th Ed.1979). (1976). Law 543-550 Notes, (ca. supra Capias 15. respondendum resp.) “judi- note 14 at 11. ad 548-550. is a by writ cial ... at actions law were commenced; frequently Const., and which 16. commands For the terms Art. Okl. defendant, safely the sheriff take supra and him note 2. keep, body he so that have his before the day, plaintiff on a certain answer the person 17. Ne exeat is a "writ which forbids action_” Dictionary, supra Black’s Law country, whom it is addressed leave state, note at 188. jurisdiction of the court....” Dictionary, supra Law Black’s note at 929. (ca.sa.) Capias 12. ad is a "writ of satisfaciendum n Only pay statutorily 18. execution those who fail ... commands the sheriff to im- named, posed party safely, penalties expressly keep take the fines or are him excluded so Const., purview body from the that he Art. Okl. hаve his before the court on a 2; Potter, supra day, satisfy damages supra note note 12 1280- certain or debt and damages deprives par- in certain actions. It ty liberty taken of his until he makes the satis- significance appears The dissent to attach some awarded_” Dictionary, faction Black’s Law perceived to a distinction between common-law executory supra process note 10 at capias contempt process only and the because originally lay means ca.sa. the latter but not the former affords only trespass vz' at common law et armis and pre-commitment hearing. The constitution’s later came to extended statute other legal absolute interdiction admits of no differ- Forsythe Judge, cases. See v. Washtenaw Circuit ence between for debt after (1914); 180 Mich. 147 N.W. Potter hearing. one occurs sans Our Okl., Wilson, P.2d prohibits fundamental law more mere com- than prison mitment debtors’ without an anterior Ford, Debt, Imprisonment judicial hearing; absolutely explicitly pro- 25 Mich.L.Rev. it (1926). 24 tects from all forms of for debt. 862 Therefore, for a writ of heаring, Lepak this cannot

being afforded a should be denied. contempt. Const. Okla. imprisoned for 25; 2, 149 Okl. Kroeger, Art. Martin § Additionally, argued if it could be even Morse, 141 (1931); parte 119, P. 472 Ex 299 challenge properly is the constitutional that date, Lepak 75, (1930). 284 To P. 18 Okl. Court, Lepak this waived such chal- before and is adjudged has not been the statu- lenge by agreeing to be bound being imprisoned. in no threat of tory payments installment majority notes at outset that Maness, 1011 470 P.2d In Rath v. agreed money judgment parties 1970), pass to (Okla. refused this Court fact, paid in to be installments. constitutionality of the statute upon the reads, in order entered in aid execution issue, O.S.1981, the chal because § part, follows: pertinent as Therein, the premature. lenge to it was upon pay agreement “and and between to the defendant trial court ordered parties, agrees defendant both said pursuant week plaintiff each $5.00 $12,400.00, full pay the total sum of immediate Defendant provisions rendered satisfaction of the argu appeal to this Court ly perfected an 2, 1988, payable fol- herein on June authorizing ing portion that the $2,400.00 lows, to wit: the sum of on or on debts payments installment 30, 1988, August before the sum payments by con and enforcement September or on before $200.00 pro violative of the tempt proceedings was like and a sum of each succeed- $200.00 found on debt hibition thereafter, ing ... until the sum of week response, this Art. Okla. Const. $12,400.00, fully paid.” is held: unanimously Court circumstances present “Under the is no this There evidence before Court constitutionality of the question Lepak objected appeal- this that order or required face, is is not one that this court law it. On its the order indicates ed time. Defendant Lepak agreement to determine at this was full with the trial directly plaintiff from the order and the appealed [to pursuant had not cited for to 12 He been installments O.S. installments]. Hence, Lepak any pay- has waived for failure make objections not to be denied such installment ments and he was about constitutionality any challenges was right he privilege some majority erroneously ad- 850. The lawfully entitled. objection petitioner which the dresses pass the con- upon “This court will laрse. himself has allowed to Legislature, act of the stitutionality of an there is any provisions, until nor reasons are sufficient The above-stated case in it is presented proper Lepak’s writ. Howev- to warrant denial of complain- appear person that the made to event, er, majority’s resolution any or is ing by thereof has been reason is the issue erroneous. privi- right some about to be denied First, “impris- we are not concerned with lawfully is entitled lege which he Lepak sense for debt” in the onment subjected to some who about to be failing with incarceration for threatened penalties. its burdens or Starner promisso- pay an installment 170, 236 P.2d City, 205 Okl. Rather, or the like. ry note 479.” P.2d at 1014. him, he entered prema- merged, along action before us is a previously owed was with attempt pass action, this judgment. ture to have into the the cause Co., constitutionality of 850 under circum- 105 Okl. Nye v. Prairie Oil & Gas Brown, (1924); require Le- stances which do not action. 238 P. 962 Cressler v. (1920); being Am.Jur.2d danger in no at this time of P. 417 pak is Okl. (1969); Judg- ‍​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌‍C.J.S. subjected penalties Judgments, to the burdens ments, 850; contempt. he has been cited for judg- Once debt was reduced a State of Kansas unequivocally said no. ment, the acted “declare the not, That has day, changed Court to this its debt, amount, fix its existence of position, pronouncement for the in Bur- the means of secure to the creditor enforc- rows II has neither been overruled nor ing payment.” Judgments, 50 C.J.S. modified. Thus, p. follow-up Burrows II was a case State liability, a debt or creates new distinct Burrows, (1885) 33 Kan. P. Indeed, claim demand. Id. (Burrows I) only which not discusses the debt, liability, this new holds a prohibition against imprison- constitutional position priority general over debts ment for debt in Kansas but also notes the judg- can liens on real estate of the become “in aid of execution” statute from which 12 O.S.1991, ment debtor under 12 O.S.1991, originated. debt, This distinction between a created promissory general by a note or other mon- I, Supreme Burrows the' Kansas obligation, ey important and a is the argument addressed before us. highlights because it the difference be- There, against a was rendered imprisoning failing pay tween one for defendant, proceedings were imprisoning their debts and оne for dis- brought in aid judg- of execution of that obeying pay judg- a court order to on a pursuant ment ato statute like 850. The Although ment. the former constitution- is trial court determined that the defendant ally impermissible, latter does vio- nonexempt had property which could be against late constitutional applied towards the ordered the imprisonment for debt. pay plaintiff defendant from that Next, majority decision overrules property. When defendant failed to precedent. years of state constitutional comply, contempt proceedings were insti- ruling judges trial of Okla- The renders contempt hearing had, tuted. After a was impotent homa to enforce their orders is- the defendant was in deemed hearings in sued of execution. Like- aid imprisoned ordered be until complied he wise, crushing it delivers a blow to The appealed with the order. defendant rights satisfy in their creditors efforts to arguing “that to commit him judgments. valid would, effect, failing obey pertaining Oklahoma statutes to hear imprisonment for be debt.” ings aid origin of execution had their The then discussed the statute of Kansas. state Okla.Rev.Laws judge which authorizes the to order satis- 5198. See O.S.A. 850 and judgment through a nonexempt faction of very Historical Notes thereunder. It through and enforce that order Kansas, important note that Okla like proceedings, holding: homa, provision prohib has a constitutional iting imprisonment for debt. Kan. Const. “In judge this case the found that the 16 1; Okla. Const, Rights, Bill art. appellant property, had which consisted money possession and under his control, exempt law, that should proposition the majority advanced applied be towards the satisfaction hardly new. the State of Kan- judgment; ap- and ordered that it so be proposition; sas addressed this exact plied. debt, It was not order to is, whether for failure to prop- but a direction to certain obey court order to on valid erty, discovered the examination to following in aid of execu- appellant, be in of the tion constituted debt. In Burrows, (1885) re Kan. 7 P. 148 II).

(Burrows Supreme Court of him. Rights, person imprisoned Section 16 Bill Constitution "No cept shall ex- Kansas, the State of reads: in cases of fraud.” Ultimаtely that statute by concluding the debtor that the showing judgment “A prohibition against order was not im- of the did not violate the his disobedience contumacious, occa- was prisonment willful for debt in the Kansas Consti- but. property money of by a lack tution, sioned the court held: further judgment, satisfy to the which with case, imprisoned “In this sim- Burrows is ordinarily him to a dis- entitle would wholly ply and because he will not deliv- contempt, for charge; and a commitment up money in his under er and obey order in to on the refusal based payment judgment. in his control of the case, in viola- probably would be such a imprisonment can terminate at He the constitution, which forbids of our tion by own any time the mere exercise of his debt, in cases of except for imprisonment will; is, by the satisfying that P. at fraud.” 5 costs, of the judgment and and the costs Kansas again the The case came before of supplementary proceedings,—all year in a habeas Supreme that same which, findings under the of the district Burrows, supra proceeding. re corpus In at judge, ability he has the to do.” 7 P. II). operation In the (Burrows explaining statute, thе of the “in aid execution” attempting distinguish to the Burrows court stated: cases, majority places emphasis the much execution, proceeding “The in aid upon the “future” character of the install- statute, proceed- a though created payments. majority suggests ment The judgment the ing in the action in which payments the installment that because recovered, judgment debt- after the was Lepak agreed which to were to come from trial, and is a has had future, he in earnings would receive the formerly the bill creditors’ substitute payment judgment the the chancery. is a in The used property which identified at was not simple regulation of well-established point hearing. majority The misses the jurisdiction, which courts of well-defined allowing payments. installment employ. Af- equity were accustomed to equity in a for the ter the decree First, Legislature for the provided effects, delivery property payment judgments by installments debtor, decree, was upon disobeying the 850 both to assist creditors guilty adjudged contumacy of their aid judgments to authority court. contempt of the of the payment making debtors therefore, He, so imprisoned could be pay- Installment easier. long contempt. he Obedi- remained judgments ments on the burden on the ease however, decree, is, ence, —that having to judgment debtor from delivery of the ter- property, —would lump payment sum then available from his time. minate the payments property spreading out the require of the purpose statute is Moreover, period of time. an install- over a delivery property plan payment ment facilitates the of his ment debtor requiring without made, debts; and if it is the debtor can- every sixty to come before the court imprisoned. only when the not be It is has days property to answer as what he unjustly he debtor has which apply judgment. towards the Install- towards the satisfac- refuses payments have since ment been authorized judgment, being tion afforded after pre- statehood because the statute do, so he can be opportunity 850, R.L.1910, 5198, provided for ceded § is not imprisoned. ‘The ap- earnings debtor’s neglect but refusal plied judgment. legal duty, perform moral and ’ Secondly, importаntly, a find- more ability. in his performance resting C.J., Lepak under Hardy, ing parte Ex BRiCKELL, made, added) (Emphasis P. at 150. if ever be for install- Ala. 339.” would already tempt.” provision due authorizing are in 850 hence, earnings are owing, future district court to enforce its order via proceedings basis citation. keeping not the is in with Lepak pay, directing authority. the court $2,400.00 payments August, of in ordered Article prohibits 25 further im- the § Sep- in the second week of $200.00 position contempt of being without first tember, 1988, and each week there- $200.00 given a hearing charge contempt. on the of $12,400.00 paid. the entire after until was The trial court in the case at bar has dock- schedule, Lepak If had adhered to this the a hearing eted on application the for a en- paid would have been citation, contempt Lepak will an have September late tirety August or earlier opportunity explain why to he has failed to contempt of 1989. The for comply with the court-ordered installment 30, 1991, August ex- citation filed payments. If the court Lepak finds that is actly years payment after final two the cаpable paying of the installments is but owing the was due and under order. wilfully refusing, then would lie Therefore, sought the is citation II, him. Ryland, supra; Burrows earnings, future wilful for but for fail- However, supra. if the court determines make court ure to ordered Lepak that not have sufficient does nonex- owing. are due Lepak which now all empt property meet obligations to his other order, already disobeyed has the court’s pay installments, and also the ordered then majority’s and the distinction on the imprisonment for of court would directing of grounds delivery “orders Thus, appropriate. not be Id. the statute earnings” has future no foundation. face imprison on its does not for but debt only disregard for willful and contumacious Moreover, II, Burrows was followed and of the court’s order. Oklahoma, in the of Ryland cited case Co., City Milling v. Arkansas Okl. safeguard important placed Another (1907). Therein, 92 P. 160 this Court held within judg- is reference to the § obey to an of the that failure order district exemption ment debtor’s rights under stat- judge issued in aid of execution was By authorizing utes. the trial grounds contempt proceedings for which the judgment “order debtor imprisonment. may lead or apply creditor installments, portion such his Finally, analysis question closer income,” O.S.1981, nonexempt discloses is added), (emphasis Legislature specifi- rather, obey for failure an but order some, all, cally indicated that if not the court. Article 13 of ex- creditor’s income would be prohibits Constitution O.S.1991, empt. Title 31 lists the nonpayment of that debtor debt but types exempt are prohibit imprisonment does not for con- attachment, execution or other forced sale. tempt of court. O.S.1991, exempts: Subsection 18 of The final sentence of 850 states that “Seventy-five percent (75%) cur- of all neglect comply failure with “[a] wages earnings personal rent court, order direction of the shall be professional earned during services punished contempt.” provision as for This (90) days, except ninety provided last body is not an authorization to attach in Title 12 Oklahoma Statutes failing of a his debtor garnishment proceedings collection Rather, majority holds. clause support;” child put an effort to teeth into the trial сourt’s Therefore, regarding judgment. per- twenty-five Article no more than (25%) grants Lepak’s wages may ap- the Oklahoma Constitution cent 25 of be However, legislature power “pass plied to the ex- judgment. laws give defining contempt regulating pro- emption protec- statutes even more 1.1, O.S.1991, ceedings punishment in matters of Under 31 con- tion. Furthermore, I wages and am disturbed with his may apply to have all McCrary majority’s distinction of showing exempt upon earnings declared (Okla.1986), McCrary, 723 P.2d earnings are wages the court that a statute similar Court addressed family aof necessary for the maintenance statute, 12 operation 850. The by the labor wholly partially supported 1276.2, O.S.Supp.1985, provides: judgment debtor. money as “Any order for the applied for all Hence, have Lepak could part spousal property of a division of exempt made earnings to be wages pursuant separate mainte- to a divorce nothing in the There from execution. action, willfully disobeyed, may nance if Lepak resorted to record to indicate contempt of enforced as an indirect 1.1, him under protection afforded the § court.” exemption statutes to I note these but statute, discussing the the effect of Legislature gone has the show that majority, using pen, the same wrote: the protection lengths provide great contempt power find the above “We explicitly in- Section 850 ment debtors. the consti- conferred does not contravene protection. cludes such imprisonment tutional interdiction of ruling fulfills Additionally, majority’s contempt in lies not for debts warning given by Justice prophetic incurred, enforcement but is limited to Hargrave in his dissent Potter Wil- offending party who has Potter, (Okla.1980). In son, 609 P.2d disobeyed an willfully order of gave to a terms of a decree title divorce (Emphasis at 271. in court.” 723 P.2d along enterprise to the wife jointly-owned original) outstanding indebtedness of the with 1276.2, like does not au- Section § holding the thereby husband business debts, rather, thorize but When the wife for that debt. harmless is limited to enforcement of an order dis- brought the husband defaulted on obeyed by the contemnor. contempt against the wife citation for Likewise, 850 does not constitutе a res- § her district court to use requesting the capias of the common law as urrection divorce contempt powers to enforce the Opala implies in his concur- Chief Justice applied for a writ of The wife decree. ring opinion. As the Black’s Law Dictio- majority of this prohibition, and a bare indicates, nary capias definition ad sa- Const, art. Court held that Okla. a writ authorized which coercing tisfaciendum the district court from barred jail the sheriff to arrest and civilly adjudicated claim for of a “payment in a civil action until he satisfied the debtor by imprisonment. money” damages obviously It is distin- or debt. Barnes, joined by Justices In a dissent Capias guishable from however. writer, Hargrave this Justice Doolin and imprisonment, immediate authorized that the district court had pointed out in requires hearing first whereas power to use to enforce inherent execution to determine how much aid of He further stated: its orders. non-exempt property majority’s feel the rationale is as “I judgment. toward the It then has as it is to applicable to 12 O.S.1971 850 imprisonment may that before oc- requires proceeding, fact is an the instant cur, given a debtor must be promulgated here indicia of error obey, hearing on for failure to P.2d at 1282. ...” contempt by the trial court. and be found Thus, Potter, large addition, took a majority this Court overlooks the Heiman, erasing unquestioned inherent 426 F.2d step logic toward of Freeman v. Cir.1970), (10th the Tenth court to enforce its orders power of a correctly concluded that in the instant case contempt. majority Circuit Court Const, art. stripping the did not violate the Okla. taking step another against imprisonment for power. courts of their side- majority majority the case bar has failed to demonstrate how steps grounds “clearly, Freeman on palpably statute and plainly juris- relied decisions from Tenth Circuit inconsistent” with art. 13. When read statutory prohibitions having only dictions properly applied correctly, the statute against imprisonment for debts rather than does provi- not violate the constitutional prohibitions art. state constitutional like sion. However, Freeman relies on Bur- I deny would Petitioner’s and, above, authority, I rоws noted original jurisdiction assume because it is prohibi- the Kansas Constitution contains a premature, and allow the district court to against imprisonment tion for debt. proceed with its on the citation for The conclusion the Tenth reached Circuit contempt. about 850 mirrors the determination of Supreme concerning the Kansas I am authorized to state that Justice statute, holding “in aid of execution” that LAVENDER and join Justice HARGRAVE the statutes were constitutional because with expressed me the views herein. they did not authorize debt but for of court. This con-

gruency is bolstered the fact that the

genesis 850 was statute construed

by the Kansas court cases. Burrows

The courts in Freeman Burrows purpose procedure

understood like

statutes 850. Those decisions cor- rectly interpreted legislative intent GREGG, Appellant, Carroll Evans such “in aid of execution” statutes as- sisting judgment in discovering creditors Oklahoma, Appellee. The STATE of nonexempt property debtors get order to of judgments. No. F-90-1158. Both courts further held that imprison- Appeals of Criminal of Oklahoma. imposed was for and not for Hence, failure to a debt. Dec. corresponding Kansas’ statute held were Rehearing Denied Jan. provisions. violative of constitutional

My reading understanding

legislative comports intent of with of the court in ‍​​‌‌​‌‌​‌‌‌‌​‌‌​​​​​‌​​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌‌​‌​‌​‌‍Freeman. Section construed, properly only upholds

when legislative intent which is clear used,

language also passes but constitu-

tional muster. deciding constitutionality

“In stat

utes, legislative presumed act is to be upheld will

constitutional and unless it clearly, palpably plainly inconsis

tent with the Constitution. Whenever

possible, should statutes be construed

uphold constitutionality.” their Reher Bd.,

man v. Water Resources (Okla.1984).

679 P.2d presumption

This constitutional validi- strong,

ty is Black Ball Janitorial

Serv., Inc., (Okla.1986), 730 P.2d 510

Case Details

Case Name: Lepak v. McClain

Court Name: Supreme Court of Oklahoma

Date Published: Dec 22, 1992

Citation: 844 P.2d 852

Docket Number: 78950

Court Abbreviation: Okla.