Lead Opinion
¶1 Our state constitution provides that “Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.” Okla. Const.Art. 2 § 13. The question before us is whether that provision is violated when past due court-ordered alimony payments are reduced to judgment, and that judgment is enforced by a contempt proceeding which could result in imprisonment. We conclude that a contempt proceeding to satisfy an award of support alimony is constitutionally permissible even though the payments have been reduced to judgment.
¶2 The 1985 divorce decree ordered Husband to pay Wife support alimony in the amount of $101,400.00 at the rate of $1,300 per month. In 1989 Ex-wife obtained a judgment in the amount of $7,068 based upon the past-due unpaid alimony. The decree was modified reducing the amount of alimony. Then in 1994 the she obtained a judgment in the amount of $29,000 based on past-due alimony payments.
¶3 She then brought a proceeding for indirect contempt, citing Ex-husband’s failure to pay support alimony from 1990 through 1993. Ex-husband filed a motion in limine, seeking to exclude from evidence any non-payments of alimony that Ex-wife had reduced to judgment. The trial court sustained the motion in limine, and ruled that any alimony payment reduced to judgment could not be used to show contempt of the decree. The trial court then certified its order for our discretionary review.
¶4 This Court has jurisdiction of an appeal to review a sentence imposed for contempt of court occurring in a civil matter. Okla.Sup.Ct.R. 1.21(e)(1); Fulreader v. State,
¶5 However, this Court may exercise its discretion to review certain interlocutory trial court orders when certified by the trial court. The order must affect a substantial part of the merits of controversy and be certified by the trial judge that an immediate appeal may materially advance the ultimate termination of the litigation.
¶6 The trial court order does more than exclude evidence used to prove an alleged contempt. The order makes findings that (1) Ex-wife can no longer enforce unpaid support alimony payments by indirect contempt when the payments are reduced to judgment, (2) collection procedures available to a judgment creditor are not cumulative when the judgment is based upon unpaid alimony support, (3) an election by the judgment creditor to reduce the alimony arrear-age to judgment is an election to forego collection by indirect contempt and, (4) a creditor loses the ability to use contempt to enforce alimony when the alimony is converted to a judgment. The trial court thus ruled that as a matter of law Ex-wife could not proceed on her contempt citation for alimony payments that had been reduced to judgment.
¶7 In Oklahoma contempts are not governed by the common law, but by the Oklahoma Constitution and Statutes. Watson v. State ex rel. Michael,
¶8 We have said that disobedience of an order to pay alimony in a divorce proceeding constitutes indirect contempt of court. Ex parte Bighorse,
¶9 The people have proclaimed that debt shall not be the basis for imprisonment. Okla.Const. Art. 2 § 13. A constitutional scholar has stated that our prohibition of imprisonment for debt was derived from the Massachusetts Body of Liberties of 1641 and similar provisions in the Constitutions of Missouri, Alabama, Georgia, Maryland, Mississippi, and Texas. R.L. Williams, The Constitution of Oklahoma and Enabling Act, Art. 2 § 13 (2d ed.1941). See 5 Sources and Documents of United States Constitutions, 52 (W. Swindler ed., 1975). Although judicial process, i.e., the decree, is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines if that imprisonment is lawful. Thus this Court, as well as others, has examined the alimony claim underlying the judgment or decree and determined that it is not a “debt” within the meaning of that term in Art. 2 § 13.
It is the general rule supported by the weight of authority that alimony is not a debt within the constitutional or statutory provisions against imprisonment for debt, and generally there is no distinction between temporary and permanent alimony.
Id.
In Commons v. Bragg,
¶11 Then in Potter v. Wilson,
¶12 Pursuant to this type of analysis courts look not to the form the judicial process takes, but the nature of the claim underlying that process. In one case a party argued that marriage was a contract, support was a term of that contract, a breach thereof created a debt, and that debts were not subject to enforcement by contempt. State v. English,
1Í13 The argument made here is that when the alimony decree-required payment is reduced to a judgment its nature is changed to a “judgment debt” and thus a debt for the purpose of Art. 2 § 13. In Doak v. Doak,
¶14 When a decree provides for periodic payments they are not owing and enforceable until they are due. Record v. Record,
¶15 The action seeking both a determination of the aggregate due and execution results in a judgment by the District Court. Wade v. Wade,
Final decrees imposing a definite personal obligation for alimony or support have been held to be enforceable by action the same as any other judgment for money. This is true not only as to domestic decrees, but also as to decrees rendered in other states or countries. But in so far as the decree is subject to modification it does not possess such finality as to warrant an action upon it, particularly in the case of an allowance pendente lite. This, however, would not affect the right of action as to amounts or installments already due and therefore not subject to change. The installment feature of such a decree would not prevent an action upon it, at least as to anything then due.
II Freeman on Judgments, § 1067 (5th ed.1925), (notes citing authority omitted).
¶16 The typical Article 2 § 13 analysis requires examining the underlying claim and not the form of the action or process. In other words, the underlying claim of alimony is not changed into an Art. 2 § 13 “debt” merely by enforcing the alimony claim via a judgment and execution as contrasted with a decree and contempt. Generally, even when familial support obligations have been reduced to a judgment they have not been considered as debts within the meaning of constitutional prohibitions against imprisonment for debt. For example, the Indiana Supreme Court said this:
Nor do procedural steps taken by a court to assist in the collection of child support payments affect the availability of contempt. Upon the request of the parent to whom child support is owed and the entry of the requisite findings, trial courts may, as in the instant case, compute the amount and order the payment of accrued arrearages or, as in other cases, enter a money judgment against the delinquent parent for past due amounts. We view such orders and judgments, at least as they relate to child support payments in respect of unemancipated children, as natural extensions of the court’s efforts to assure that parents live up to their duties to their children. As such, the nature of a parent’s underlying obligations remain unchanged and it is unduly formalistic and contrary to sound public policy to consider the entry of such an order or judgment as somehow changing the obligation in such a way as to make contempt unavailable to assist in its enforcement.
Pettit v. Pettit,
Establishing a support decree as a money judgment does not destroy the decree as an order to pay support nor is the obligation reduced to an ordinary judgment debt enforceable only at law_ The purpose of the award remains the payment of support to the former spouse or the children regardless of its form- Ostrander v. Ostrander,190 Minn. 547 ,252 N.W. 449 , 450 (1934). A decree for support is different than a judgment for money or property: It is a continuing obligation based on the moral as well as legal duty of a parent to support his or her children. Sackler [v. Sackler ], 47 So.2d [292,] at 294 [ (Fla.1950) ] (quoting Rule v. Rule,313 Ill.App. 108 ,39 N.E.2d 379 (1942)). Because of this difference, a judgment for support should be enforced by more efficient means than ordinary execution at law. To hold that such a judgment can be enforced only by execution at law would amount to depriving a support award of its inherent power of enforcement by contempt. McDuffie [v. McDuffie,155 Fla. 63 ], 19 So.2d [511] at 513 [ (1944) ]. The courts have a duty to provide an effective, realistic means for enforcing a support order, or the parent or former spouse for all practical purposes becomes immune from an order for support. In our view, this duty includes enforcement of a judgment of support by equitable processes of the court because a remedy at law that is ineffective in practice is not an adequate remedy.
Pettit,
¶17 In a similar opinion a Texas court explained that contempt was permissible because a support obligation was not a debt, and that the contempt arose from a willful failure to obey a court order. Ex parte Wilbanks,
¶18 In our case Ex-husband relies upon Lepak v. McClain,
¶19 In Lepak a breach of contract action was filed, a default judgment entered, and pursuant to an agreement of the parties the trial court entered an order requiring the judgment-debtor, Lepak, to pay the judgment in installments. When the installments were not paid as ordered an application for citation for indirect contempt was filed against Lepak. We explained that Art. 2 § 13 prohibited the Legislature from authorizing the enforcement of a money judgment by using an indirect civil contempt procedure when the debtor had been ordered to pay future installments from funds not existing at the time of the order. Id.
¶20 Ex-husband’s reliance upon Potter v. Wilson gives him no relief. In Potter we said that “debt” is not coextensive with
¶21 He cites Section 732 for the proposition that the types of execution listed therein
¶22 It is true that § 732 contains no provision for body attachment (contempt proceedings). Potter v. Wilson,
¶23 His reliance upon authority relating to enforcing a property division by contempt does not advance his argument. Five opinions of this Court are usually cited for the proposition that alimony in the nature of property division cannot be enforced by contempt. Lemons v. Lemons,
¶24 Subsequent to Potter this Court has defined “debt” to exclude orders directing the transfer of property in existence at the time of the order. We have explained that contempt may be used to enforce willful disobedience to a court order dividing the marital estate. McCrary v. McCrary,
¶25 In McCrary we expressly held that a statute authorizing contempt to enforce a property award did not violate Okla.Constr. Art. 2 § 13. Id.
¶26 One published opinion of our Court of Civil Appeals does come close to supporting his argument. League v. League,
¶27 In Wade the support arrearages were reduced to judgment. We discussed the trial court’s authority to allow the judgment to be paid in installments and whether it amounted to a retroactive modification of the decree. We then said that the order providing for installments limited the right of the wife to pursue statutory provisional remedies, and that these remedies were inherent in the judgment itself. Id.
¶28 In sum, alimony in the nature of support may be enforced via a court’s contempt powers after the alimony payments become due, even after support arrearages are reduced to judgment. For the purposes of Art. 2 § 13 we view a contempt proceeding for willful failure to pay the judgment of arrearage as one for willful disobedience of the underlying support order. The Constitution is not offended. The order of the District Court is reversed, the stay is dissolved, and the District Court shall proceed in accordance with this opinion.
Notes
. The dissent would hold that all post-judgment issues are beyond this court’s power to review when they are presented to us by a certified interlocutory order. This same argument was
. A court also possesses inherent power to punish for contempt. Harber v. Shaffer,
. 43 O.S.Supp.1992§ 110.
. Former 12 O.S.Supp.1985 § 1276.2 provided for enforcement of a property award directing the payment of money via a court’s contempt powers. In 1992 a similar provision was codified at 43 O.S.Supp.1992 § 111. That section states that: "Any order pertaining to the division of property pursuant to a divorce decree or separate maintenance action, if willfully disobeyed, may be enforced as an indirect contempt of court.”
. Ex parte Hall,
. 12 O.S.1991 § 732:
Executions are of three kinds:
First, against the property of the judgment debtor.
Second, for the delivery of possession of real or personal property, with damages for withholding the same, and costs.
Third, executions in special cases.
. 12 O.S.1991 § 902:
When the judgment is not for the recovery of money or real property, the same may be enforced by attachment, by the court rendering judgment, upon motion made, or by a rule of the court upon the defendant; but in either case, notice of the motion or service of the copy of the rule shall be made on the defendant, a reasonable time before the order of attachment is made.
. Potter cites to the opinion of the Court of Civil Appeals in Pierce. 609 P.2d at 1280 n. 8. However, the language of Potter refers to our opinion discussing contempt, and the opinion discussing contempt in that litigation was the opinion of this Court reported at
. In Alexander we relied upon Stone v. Stidham,
Dissenting Opinion
dissenting from the court’s decision to grant certiorari for review of the certified interlocutory order tendered in this cause.
¶1 The question before the court — certified for our review under the provisions of 12 O.S.1991 § 952(b)(3)
¶2 I recede from the court's decision to grant certiorari. The question certified presents a purely procedural issue. It does not affect (however minimally, tangentially or obliquely) any substantive rights of either the alimony obligee or those of the alimony obligor. Because we are asked to pronounce what methods are the obligee’s due for collection of delinquent support alimony that stands transformed into a judgment at law, no issue on the merits is presented. The question clearly lies dehors this court’s § 952(b)(3) cognizance.
I
THE ANATOMY OF LITIGATION
¶3 The plaintiff (ex-wife) is the obligee of an order for payment of support alimony, which stands commuted to judgment for the amount of past due and unpaid installments. She instituted contempt proceedings for nonpayment of the delinquent arrearage due for a period between 1990 and 1993. The ex-husband moved in limine for exclusion from the evidence to be offered at trial any delinquent installments which had been reduced to judgment. He argued that a judgment’s enforcement by contempt would offend his constitutional protection from imprisonment for debt. The trial court sustained the ex-husband’s argument, declaring that alimony arrearage, once commuted to judgment, may not be enforced by contempt. It is this ruling that was certified for our review under § 952(b)(3) by the trial judge’s interlocutory order now before us.
II
¶4 THE STATUTORY REQUIREMENTS FOR THE SUPREME COURT’S REVIEW OF A CERTIFIED INTERLOCUTORY ORDER
¶5 A proceeding to review a certified interlocutory order must meet the strictures of 12 O.S.1991 § 952(b)(3)
¶6 THE HISTORICAL ANTECEDENTS OF THE LEGAL TERM “MERITS”
¶7 The term “merits” (“on the merits”) arrived in the Anglo-American legal tradition before the end of the writ era.
IV
¶8 THE DEFINITION TO BE GIVEN “MERITS” IN THE § 952(b)(3) SENSE MUST ACCORD WITH THAT WORD’S GENERAL MEANING AT COMMON LAW
¶9 The word “merits” has a well-defined meaning in law. What is on or dehors the merits depends on whether the issue at hand affects one or more elements of the claim for relief or those of the defenses that may be interposed against it.
¶10 Matters of practice, procedure and evidence are not embraced within the term “merits”.
V
¶11 THE DEFINITION TO BE GIVEN THE TERM “MERITS,” WHICH IS FOUND IN 12 O.S.1991 § 952(b)(3), MUST BE EXACTLY THE SAME AS THAT ACCORDED THE IDENTICAL WORD IN OTHER STATUTORY LOCATIONS
¶13 We must accept that the word “merits,” which is found in § 952(b)(3), is used there in its technical common-law sense. The same term also is present in other parts of our law’s corpus.
VI
¶14 ALTHOUGH AN ISSUE ON THE MERITS MIGHT BE TENDERED IN A POSTJUDGMENT PROCEEDING, THIS CASE PRESENTS A POSTJUDGMENT ISSUE THAT IS PURELY COLLATERAL TO THE MERITS OF THE ADJUDGED INTERSPOUSAL ALIMONY OBLIGATION
¶15 The question sought to be presented in this case is not one “on the merits of the controversy.” Instead, it tenders for this court’s review a purely procedural point that arose at the postjudgment enforcement stage of the obligation.
SUMMARY
¶16 The provisions of § 952(b)(3)
. The pertinent terms of 12 O.S.1991 § 952(b)(3) are:
" * * * (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: * * ⅞ 3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. * * *" (Emphasis supplied.)
. See the text of 12 O.S.1991 952(b)(3), supra note 1.
. For the pertinent terms of 12 O.S.1991 § 952(b)(3), see supra note 1.
. Rules 1.50-1.56, Rules on Perfecting a Civil Appeal, 12 O.S.1991, Ch. 15, App. 2. After this proceeding was brought, the rules' title was changed, effective January 1, 1997, to Oklahoma Supreme Court Rules.
. Roark v. Shelter Mutual Ins. Co., Okl.,
. For a historical discussion of the writ system and the movement to code pleading, see Fleming James, Jr., Geoffrey C. Hazard, Jr., Civil Procedure §§ 1.3-1.6 at 8-20 (2d ed.1977). The entire procedural regime of the common law was inextricably interwoven with what is called the writ system. A pleader needed first to select a proper writ that would cover the facts upon which relief was sought. It is the selected writ that governed both substantive and procedural aspects of the claim. If the facts (alleged and proved) fell within the scope of the writ and the pleader had followed the required procedures, the relief available under the writ would be granted. Jack H. Friedenthal, Mary Kay Kane, Arthur R. Miller, Civil Procedure 238-39 (2d ed.1993). The authors of the cited treatise note that under the late-nineteenth centuiy procedural reform in both the United States and England, "it was hoped that cases would turn on their substantive merits rather than on the lawyers’ technical and tactical skills, as had been the case under the common law [writ] system”. Id. (emphasis supplied).
. The term "cause of action” is said to refer "to a group of facts that give rise to one or more rights of relief.” Fleming & Hazard, supra note 6, § 2.9 at 75-76 (citing Clark, Code Pleading § 19 (2d ed.1947) and Elliott v. Mosgrove,
. An issue on the merits contrasts sharply with collateral orders in the federal-law sense. The latter are appealable as final decisions without regard to the mainstream litigation’s posture. To fit within this class an order must dispose of a claimed right that is not an essential ingredient of the main cause and can be considered separately from its merits. Cohen v. Beneficial Industrial Loan Corp.,
. Roach v. Jimmy D. Enterprises, Ltd.,
. See, e.g., Pryse Monument Company v. District Court of Kay County, Old.,
. Roark, supra note 5, at 390 (Opala, J., concurring); see also Neil Acquisition, L.L.C. v. Wingrod Inv. Corp.,
. The terms of 12 O.S.1991 § 552 provide:
Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party, and controverted by the other. There are two kinds. First, of law; Second, of fact.
Pleadings are defined in 12 O.S.1991 § 2007(A). Its terms are:
A. PLEADINGS. There shall be a petition and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim denominated as such; a third-party petition, if a person who was not an original party is summoned under the provisions of Section 14 of this act; and a third-party answer, if a third party petition is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
. A merit-related issue may inferentially arise on a motion in limine that seeks to exclude evidence supportive of a defense pleaded in the answer. See, e.g., Roark, supra note 5 at 390 (Opala, J., concurring). There, the certified in limine ruling, which in effect struck the defendant's pleaded defense of fraud, raised an issue on the merits that substantially affected the defense. A motion to vacate can inferentially raise, at a postjudgment stage, an issue on the merits. See, e.g., Peralta v. Heights Medical Center, Inc.,
. Roach, supra note 9 at 854; Flick, supra note 5 at 261; see also, Young, supra note 5 at 23-24; Beasler, supra note 5 at 814; see also Hayes v. Ricard,
. Roach, supra note 9 at 854; Flick, supra note 5 at 261; Young, supra note 5 at 23-24; Beasler, supra note 5 at 814.
. The pertinent terms of 25 O.S.1991 § 1 are: "Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears....”
. City of Muskogee v. Landry, Okl.,
. The terms of 25 O.S.1991 § 2 are:
Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.
. See, e.g., 12 O.S.1991 §§ 100, 683, 952; 15 O.S.1991 § 761.1(A); 18 O.S.1991 § 1031(C), 23 O.S.1991 § 103, 36 O.S.Supp.1992 §§ 1937, 2020.
. The terms of 12 O.S.1991 § 100 are:
"If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.” (Emphasis supplied).
. In the writ system’s context the word "merits” was often used to set apart case terminations effected for want of jurisdiction (or for some other reasons unrelated to the legal sufficiency of the plaintiff's demand or the defendant’s defense) from cases that failed because of some legal infirmity in the plaintiff’s claim or in the defendant’s attempt to defeat it. The former reasons came to be known as "otherwise than on the merits,” while the latter are called "on the merits.” Pryse, supra note 10 at 437-38. This was the law’s way of separating purely procedural failures from those based on want of a substantive right. Purely procedural failures came to be protected from the bar of res judicata. For historical antecedents that led to the enactment of the original English version of our savings statute, 12 O.S.1991 § 100, see Gaines v. City of New York,
. The savings provisions in 12 O.S.1991 § 100 are applicable to actions timely filed and later dismissed on grounds dehors the merits of the controversy. Ross v. Kelsey Hayes, Inc.,
. The modern notions of merits traveled along two developmental tracks that were not necessarily connected. Although entirely consistent, these tracks do not appear to have run parallel one to the other. The first track began when writs that failed dehors the merits came to be saved from the effect of res judicata by the English prototype of 12 O.S.1991 § 100, the so-called savings statute. See discussion, supra note 22.The second of these emerged — and was later fine-tuned — when the rigidity of writs (forms of action) was replaced by a structured system of defined theories of actionability, each with a cat-alogue of liability-defeating and recovery-reducing defenses. See Part III of the text, supra. In the following procedural settings the Oklahoma savings statute has been held available to protect the viability of a litigant’s cause of action against the bar of res judicata because the earlier suit's failure was found to have been dehors the merits: (a) dismissal for nonjoinder of a party plaintiff (Haught v. Continental Oil Co.,
. In Passman, supra note 7, the Court distinguished between the concepts of "cause of action” and "relief” awarded:
"/CJause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available." Id.,442 U.S. at 240, n. 18 ,99 S.Ct. at 2274, n. 18 (emphasis mine).
Civil contempt is a remedial measure for the enforcement of a judgment. Harber v. Shaffer,
. In Haugens v. Holmes,
. Jones, supra note 25 at 198-99; Saylors, supra note 25 at 610. See also Passman, supra note 7,
. For the pertinent terms of
. Beasler supra note 5 at 814; Young, supra note 5 at 23; White supra note 5 at 16; Roark, supra note 5 at 390 (Opala, J., concurring).
. Fundamental fairness cannot be afforded except within a framework of orderly procedure. Pryse, supra note 10 at 438.
. O'Bannon v. Oklahoma Tax Commission,