Ryan v. Ryan
78 P.3d 961
Okla. Civ. App.
2003
Check Treatment

*1 CIV APP 86 RYAN, Appellee, Keith Gene Plaintiff/ RYAN, Hinch,

Nancy now Karen

Defendant/Appellant.

No. Appeals of

Court of Civil

DivisionNo. 4.

Sept.16,2003. *2 Patterson, Tulsa, Wayne OK,

R. for Plain- tiff/ Askew, Jr.,

Thomas M. L. Randolph, John Walker, Jackman, Pray, Williamson & Mar- lar, Tulsa, OK,for Defendant/Appellant. RAPP, Opinion by KEITH Judge: defendant, 1 1 The trial court Nancy Karen Ryan, (Hinch), appeals now Hinch an order overruling her motion for following new trial the trial court's decision in favor of the trial plaintiff, Ryan (Ryan), Keith Gene to terminate following her

BACKGROUND T2 The were in divorced The decree agree resulted from a settlement ment, although separate agreement is not in the record. provides The decree that Hinch would receive "subject the residence to the mortgage indebtedness thereon." The specific decree's payment assign debts do not mortgage indebtedness.1 provides The Decree further Ryan will pay to equal Hinch a sum mortgage specified the sum as alimony.2 wording The of the Decree is: THE COURT FURTHER FINDS that Plaintiff pay taxable Defendant total sum of Id., p. Record 11 at T 11. Decree, Record ¥ 10, 13-14. p. Ryan ruled in favor of monthly T 6 The trial court $308,428.00, in a amount payable trial. mortgage payment at and overruled Hinch's motion new equal to the current month. In per Erie of $929.00 9208 South appeals. Hinch house before the of sale of the the event full, the event paid *3 STANDARD OF REVIEW to casual- of the house due the destruction rule, general a motion for new continuing T7 As agrees to make ty, Plaintiff the to the trial court's sound trial is addressed per up month of support payments $929.00 current balance equal and, amount to the pure error as to a and discretion absent law, arbitrary mort- or question schedule of the unmixed of amortization on the occurs, if sale as

gage when the event action, every capricious presumption should ruling indulged had not occurred.... Such in favor of the trial court's or destruction be alimony support be deemed payments Hall, 122, v. 1967 OK appeal. on Bennett ¶ 5, 839, pur- 431 P.2d 340-41. for income tax treated as such and Defendant poses by both Plaintiff underlying dispute T8 The involved alimony Support year(s) payment. pertaining to construction of the statute ter upon the in all cireumstances will cease support mination of and of De of the or repayment earlier question of law. cree and thus a Whether of the Defendant. upon the death is existence of contained there Subsequently, Hinch decided to remar- T3 made language of the decree is a decision further Ryan then ceased ry and did so. Mercury Inv. v. by the trial court. See Co. alimony asserting support of the payments Co., 38, Woolworth OK F.W. statutorily remarriage terminated her lan If the court determines that the 523. 134(B). O0.98.2001,§ obligation. 48 guage ambiguous, is not the construction Ryan Ryan contempt and Hinch cited is also a matter of law the decree obligation. moved to terminate Co., v. Rus court. Ferrell Constr. Inc. See that the did not 1 4 Hinch asserted Co., 24, 645 P.2d Creek Coal 1982 OK sell payments upon re to terminate the intend plenary, appellate 1005. The court has the their marriage desired that because authority to independent and nondeferential to remain in the residence. child be able rulings. legal trial court's Neil reexamine a Thus, any provision specific the absence Wingrod v. Investment Acquisition, L.L.C. marriage is consistent with that concerning 1. 982 P.2d 1100 n. Corp., 1996 OK Alternatively, argued Hinch that the intent. present involving legislative intent Matters ambiguous because of the absence Decree is inde law which are examined questions of construing it with provision and that trial deference to the pendently and without her evidence establishes the aid of additional Ry. Springs v. ruling. Sand court's Keizor positions.3 Co., APP 1993OK CIV had to Ryan argued that the Decree T5 failing exempt remarriage, to do

specifically operated to terminate the statute ANALYSIS AND REVIEW Alternatively, Ryan argued that obligation. a divorce-relat 19 The statute makes ambiguous Decree was construction of an support alimony terminate award of ed judgment roll and limited to a review of or contingencies of death argu- force of law on the not Hinch's this review did 43 O.S. party recipient.4 ment. 674, 676-77; 24, 6,¶ son, Key sup some 1980 OK made no effort to claim that 3. Hinch syl. Key, 388 P.2d 505 inequi port and that it would be was still needed Also, payments. Hinch to terminate the table then in Dickason was statute construed 4. The attempted to set to assert some basis has not changed in not in Title but has codified modify the decree to include aside or or reform statute, pertinent parts Title 43. The under inadvertently provision omitted. The for was in 1996 and when the divorce entered effect v. Dicka- time-barred. See Dickason mer now, provides: 184(B); Dickason, 24 at I solely OK roll consists Thus, unambig 607 P.2d at 675-76. when an of the decree pleadings, process, verdicts, orders, subject reports, judgments, uous decree not to modification or and all proceedings material acts or of the trial regarding correction is silent these contin Co., Royal gencies, court. Timmons v. Globe Ins. occurrence of contin 76, 17, n. 5. The gencies terminates inquiry court's Dickason, judgment's meaning into a award force of law. ¶¶ 1, beyond 607 P.2d at cannot extend roll and proceedings appar outside the record Moreover, parties to a divorce ent on the face the record not be may agree modify application Thus, considered. documents offered be *4 However, statute. such Hinch, must be by affidavits, low such as letters and expressly provided the decree inasmuch as may not be considered if the decree is sub ject to construction.5 parties' agreement subject the is both to the applicable only law and enforceable when it Ryan-Hinch 113 The decree is silent re- approval has received the of the court. Dic- garding remarriage the contingency and its kason, 1980 OK 24 at 607 P.2d at alimony support obligation. affect on the However, examination of the entire decree discloses that the support obligation However, 111 if a decree suffers am is parties' mortgage tied to the indebtedness biguity, but, then the court construe it on the pro- residence. The decree makes no doing the court is judg limited to the assign vision to responsibility, as between ment roll. payment the that debt. The for of judgment aOnee has become final for want judgment not, review, upon roll does resolve appeal of an or in consequence appel- of an any question regarding provi- the absence of decision, any controversy late court's over payment sion for any question of that debt or meaning the judgment and effect of that about regarding the silence remarriage the by must be resorting solely resolved contingency. However, the on are judgment the meaning roll. The of notice of the of the statutes. face of judgment a is to be divined from the terms Thus, the incorpo its text, expressed in its which is to be con- ration of agreement, the suffers from parts strued with the judg- other of the concerning responsibility Only ment roll. judgment if a ambigu- payment for of the debt but not ous on the face of proper may the record concerning support alimony which terminates the court reach it construction. When by force of law. A ambiguity" "latent is one do, upon called to so the court stands not evident from the face of the instrument inspection confined to an of the alone but apparent becomes applying when roll. It inquiry cannot extend its dekors the instrument the facts as exist. In comprise instruments that the roll. Kirk, re Estate 127 Idaho 907 P.2d of Stork, Stork v. (1995); Marriage In re Holloway, of (2000); 299 Mont. see provide B. The recipient, court shall also recipient in the divorce unless the can make a upon proper showing remarriage that the death or that some amount of recipient, payments support, if not is still needed and that circumstances have not accrued, shall terminate. The court already payment rendered inequitable, of the same order the provided recipient commences an action terminated, support to be and the lien released determination, (90) ninety days for such within upon presentation proper proof of death of the date of such recipient proper unless a claim is made 134(B). 0.$.2001, any past-due support payments amount of executor, an administrator, or heir by within appear It does not that the trial court consid- (90) ninety days from the date of death of the reaching ered such materials in its conclusion recipient. Upon proper application the court support alimony obligation that the terminated. shall order terminated and discharged lien after words, the court Eversole, T17 In other In re Estate of the contract but now looks to Dictionary still construes Law n. 20. Black's it in the parol evidence to assist determina ambiguity" as a defect which "latent defines language used is meant the contract word face of tion of what appear on the does parties. ing It to ascertain the intent being considered. arises and or an instrument Wilson, Sunray Packing Co. v. intelligible language is clear when In that event meaning, single but suggests but a evidence admit for consideration some extraneous fact or extrinsic showing the cireum- trier of fact evidence interpretation or a necessity for a creates contract was made possible mean under which the two or more stances choice between clearly the intention of the in order to ascertain ambiguity is one ings. patent face of the document. appears on the parties. (West Group Dictionary, p. 80

Black's Law modify testimony vary, cannot parol While ed.1999). writing contains "Where Tth instrument, or contradict the terms as a object thing, to an reference explain meaning of admissible to it is by extrinsic evidence and it is shown pump, ambiguity in when there is a latent words objects, things or are two or more that there Thus agreement. text of the the written might properly to which it pumps, such as agreement, of an practical construction *5 ambiguity arises." Williams apply, a latent by acts and conduct of as evidenced Co., 13, Idaho 245 73 v. Idaho Potato Starch only in the event of is available (1952). 1045,1048-49 P.2d ambiguity. an [ Here, Co., ¶ 9, when ambiguity arises Mercury 15 38 at 706 Inv. 1985 OK issue re- hand create an about the facts at P.2d at 529. obligation, the for a common sponsibility now iden The above discussion %18 hand it would mortgage On the one debt. faced the trial tifies the dilemma responsible to Hinch would be appear that ambigui having latent which was: contract money sup- payments, with make the debt using parol and extrin ty may construed sup- Ryan in a form structured as plied by evidence, of a but construction sic However, support when the port alimony. judgment roll. In the case is limited to the law, ceases force of obligation issues, domestic of a contract to settle necessity fact creates then that extrinsic here, teaching of contract under the as interpretation or a choice be- for an here merged into the decree Dickason is possible meanings as to two or more tween by resort parties' rights are determined responsible for the Ryan or Hinch is whether Dickason, 1980 OK the decree. combination of mortgage payments, or some at 677. responsibility results. ¶19 problem follows solution to the The par The reading of Dickason. from a close relationship were parties' 116 If decree "Lo contractual, merged is into the agreement to ties' the court could resort simply there terms are embodied the extent that its to assist in its resolution parol evidence Here, parties agreement, in." meaning ambiguity. Where if the latent responsibility any, regarding dispute, evidence ambiguous an contract is obligation is not embodied debt is admissible and construc of extrinsic facts ques money for contract becomes a mixed tion of the the source of in the decree when here, Malloy, is, fact.6 Altshuler v. in the tion of law and as after divorce alimony. 388 P.2d 1. 1963OK form of Evidence, (1994). (1977); 1135 jurisdictions parol 29A Am.Jur.2d evidence not In majority parties' intention in followed the be admitted to determine Oklahoma courts have jurisdictions patent ambiguity. Most cases of CIV APP Barnes, 1990 OK rule. See Shuler v. permit parol dispense the distinction and with contained where the instrument regardless of whether evidence ambiguities deemed utiliza- patent and the Court variety. variety patent or latent Hokama proper. parol evidence tion Corp., P.2d 283 57 Haw. Reline

120 The trial court's first task on trial court shall correct the decree to accurately agreement. par- reflect the If the remand is to ascertain whether such an agreement mortgage pay was made about agreement responsibil- ties made no then the responsibility. agreement ment If an ity was unchanged for the debt remains from its made, and if the terms thereof were inadver inception. tently omitted from the 123 REVERSED AND REMANDED accurately be reformed to reflect FOR FURTHER PROCEEDINGS. Dickason, agreement. at ¶6, 607 P.2d at 676-77. The trial court is GOODMAN, P.J., concurs, REIF, J., confined to the roll in this dissents. determination to ambigui resolve the latent ty. REIF, J., dissenting, ¶ 21 If trial parties court finds that the 1 1 I do not provi find the overlooked and thus omitted from their sion to patent suffer from either or latent provision ambiguity, nor is it "silent as to the mortgage payments support alimony when intent vis-a-vis the that applies law to them ceased, governed then the trial court shall be [ie., statutory termination alimony]." Hickman, by Hickman v. ¶ Dickason, 24, 10, Dickason v. P.2d 85. (footnote omitted). The ex unambiguous An agreement dividing the press language support alimony provi property parties between the to a divorce sion reflects that the considered and cannot be modified without consent of both addressed in detail the cireumstances under Stuart, parties. Stuart v. which termination would and would not oc (Okla.1976). However, when assets specifying cur. In the cireumstances for ter acquired during coverture are omitted *6 non-termination, mination and parties re from providing the court's decree flected a clear intent support alimony division of property, even when the divi- in would terminate those cireumstances alone property sion of the by agree- was reached Significantly, and no others. affirma ment of the property is owned tively chose statutory grounds- one party in which title was vested By specifying death. limiting the cir before Chapman the divorcee. Chap- v. termination, cumstances I believe the man, (Okla.1984). We parties expressly power exercised their to see no reason to treat the debts of the modify applicable by contract, law and effec parties any differently than the assets. tively excluded ground as a When a debt is omitted from the divorce termination, though they even specifi did not liability for the debt re- cally remarriage. mention Id. at unchanged. mains P.2d at 677.

Hickman, I OK. at 987 P.2d at 87- {2 It is well settled ambiguity that "mere judgment's will not affect validity, unless susceptible none its terms is

CONCLUSION to construc tion which will make it conformable to law." 22 In summary, support alimony ter- Jackson, Jackson v. minated force of law on (citation omitted). "An unclear However, the termination in results carry should construed so as to contained the involving intent, out its purport evident rather matter not included the decree. There- it, than defeat and a court should consider fore, the matter is remanded to the trial the situation applied to which it was determine whether purpose sought accomplished." to be agreed as to the mortgage support alimony debt when 13 I would reverse the denial Wife's ceased and whether such was in- motion for new trial and remand with di- advertently omitted from the If decree. rections to enforce the with the alimony in accordance

the decree. CIV APP 88 Pamela Tommie OF

PROTEST to Unclaimed

HOLTSLANDER Ray.

Property of Carl Holtslander, Appellant,

Pamela Tommie Treasurer, Robert

Office Of State Treasurer, Butkin,

A. State

No. Appeals

Court of Civil

Division No.

Sept.19,2003. *7 Norman, Roberts,

Barry K. Appellant. Preslar, Attorney Gen- Assistant W.
Janis OK, eral, City, Oklahoma