*1 WHITE, Marilyn Appellee, Gene WHITE, Appellant.
Charles Samuel No. 52071. Gabbard, II, Atoka, Douglas J. appel- Supreme Court of Oklahoma. lee. Feb. Stamper, Burrage by Otis & Michael Bur- Antlers,
rage, appellant. DOOLIN, Justice: May Marilyn Gene (Wife) filed a divorce in Atoka husband, Charles, County. Her filed an and waiver. Later court, the trial motion, on Wife’s dismissed the couple the basis the had reconciled. Within two weeks moved to vacate the Wife dis- stating they missal had failed to effect a reconciliation of their differences. The tri- al court vacated the dismissal and entered the decree of divorce. The decree ordered pay Husband to for their two children. No was tak- en from this order. years
Over three later1 Wife filed an application for a citation alleging paid Husband had never provided for in the decree and was in ar- rears of appearance pleading filed jurisdiction, and a motion to in which he claimed since the divorce decree in he and Wife had established common-law subsequently that she had abandoned him. He copy attached a of a petition for divorce he had filed in Johnston couple of weeks before Wife sought contempt. Petition stated Wife had obtained decree of divorce in Atoka Coun- ty. contempt hearing At the Husband ad- knowledge mitted of the 1973 divorce de- required cree. He testified he knew he was copy and had seen a the divorce decree. He knew Wife had remarried and had another child. Wife de- Marilyn 1. In the interim filed a motion to modi- der was issued but record shows no further fy. temporary restraining disposition. reveals a or- Record
701 quired by to with the Decree of Divorce entered had returned live nied she ever 24, ever them- they by held September Husband or that this Court ’on 1973.” wife after the selves out as husband and appeal No was taken from this mainly to Testimony was directed decree. rehearing but Husband filed a motion for a of the existence of common-law evidence 21,1976, claiming on for the first No made on the 1973 marriage. attack was process by time he due that was denied court The trial overruled decree itself. 1973, trial it court in because vacated the motion to special demurrer and petition of and dismissal the divorce en- for contempt. and cited him. tered the decree without to a “min- judgment, denominated of did not attack the no common- 1976, ute,” 16, was entered December marriage. law pertinent part: stated in 11, 1977, January On over- hearing, being in “After advised motion for ruled Husband’s premises taken said cause un- a warrant for his arrest for issued bench advisement, der finds: contempt. appear Husband did not at this were That Plaintiff and Defendant 1] hearing. appeal No was taken and Hus- day in on the 24th divorced this Court band was incarcerated in the Atoka and Defendant was Or- jail. in the sum of support dered to child beginning October 17, 1977, timely a On June Husband filed vacate motion and to the order the De- That at the time of trial 2] 11, overruling his motion for sum of arrearage fendant was rehearing, grounds of unavoidable casu- arguing that alty preventing him from are That the facts established in- 3] until tion. This motion was not heard Feb- a com- consistent with the existence of 27,1978. At time the trial court ruary as Defendant urged mon-law 11 denied motion paying as a defense to not appeals. order. Husband
payments.
petition in error filed March
In his
entered on the
That
4]
Husband seeks review all
above
day
is a valid
24th
However,
appeal must be re-
orders.
divorce.
only
from the denial
viewed
as
That no valid common-law mar-
5]
his motion to vacate the
order.
Plaintiff and De-
riage existed between
motion for
fendant.
trial as
rehearing was a motion
new
marriage is
That Plaintiffs’ second
6]
651 under either
by 12 O.S.1971 §
defined
marriage.
a valid
or
subsection. This motion
the first
sixth
has
That Charles
Samuel
7]
it
operated
to
time until
extend
he still
failed to
children and
At that
was
overruled
legal duties.
owes his children certain
began
day appeal time
to
thirty
time the
White is in
That Charles Samuel
8]
run,
filed.
no
in error was
contempt of
Court for his failure to
provides:
as re-
payments
O.S.1971
make
O.S.Supp.
1.12(c)
any ground specified
App.
in 12
ment on
Rule
O.S.1971 Ch.
amended,
timely
a
motion for
1980. See
651 and 655 but
§§
effective
[since
provided:
modifying
order
or
trial
to an
49]
OBJ
new
refusing
directed
modify
trial,
to vacate or
filing
new
reconsid-
of motion for
ground
is
in 12
enumerated
eration, re-examination, rehearing
toor
va-
time.
1031 will extend
operate
modify
shall
cate or
a decision
post-
granting
denying a
An
or
II.
order
is
when such motion
di-
extend
time
notwithstand-
motion
rected to:
modify-
denying
ing
An
a new trial or
the verdict.
I.
order
modify
judg-
or
or
vacate
Principles
entered.3
vorce decree was
power
have
shall
District Court
“The
jurisdic-
judicata apply
questions
judgments or
modify its own
vacate
issues.4
well as other
tion as
.:
.
.
orders
Trial court’s order of
AFFIRMED.
hereby
as for
casualty or
For unavoidable
Seventh.
misfortune,
party
from
preventing
*3
WILLIAMS,
LAVENDER,
J.,C.
defending.”
prosecuting
BARNES,
HODGES,
and HAR-
SIMMS
January 11
the
motion to vacate
JJ.,
GRAVE,
concur.
and thus
subsection
on this
order was based
OPALA, J.,
concur
V. C.
limitation
two
under the
timely filed
in result.
1038.
of 12 O.S.1971 OPALA, Justice, concurring in result:
appeal is not ad-
argument on
should
to the reasons
dressed
re-
sought
presented
to be
The issue
order, i. e. unavoida-
vacate the
16,1976 con-
whether the December
view is
arguing
casualty preventing him from
ble
nonsupport rests
tempt
court order for
argument is
trial. His
his motion for new
25, 1976.
decree of
on a void
jurisdiction
the
the issue of
directed to
hopes
no doubt
divorced father
[father]
dismissal of the
trial court
pronouncement hold-
secure this court’s
1973, without notice to
divorce
be-
contempt
the
order unenforceable
counters,
emphasizing
him. Wife
legal predicate
divorce de-
cause its
—the
specifically
waiver
appearance and
the
void on the face of
cree—is
requirement of further
waived
roll.
to him.
procedural posture
this issue. At
need to reach
We do not
corrective relief he
bars the father from the
contempt hearing, Husband
any effec-
simply
He is
too late for
seeks.
decree, had
recognized the divorce
stated he
tive review.
he was ordered to
copy and knew
read a
ourselves with the
We need not concern
He
his minor children.
provide support for
underlying
of whether the
decree
problem
money
paid no
into
admitted he had
If the
facially
void or not.
any-
contribute
little effort to
and made
is not void on the face
1976 divorce decree
support of his children.
thing to the
evidence de-
roll because
divorce action had
actual notice the
necessary
proper
record
is in fact
hors the
finish;
apparently
he was
proceeded jurisdictional infirmity in
establish the
interrupted at
the action had been
unaware
rendition,
peri-
three-year limitation
its
to the
any stage. His defense
expired before
attack had
od for a direct
marriage after
a common-law
citation was
“rehearing
it in his
the father
launched
divorce,
of the decree.
not lack of notice
If, on the
of December
motion”
hand,
decree is void on
reason to allow
We can find no
roll,
in that no
against a
face of the
successfully
to defend
needed to establish
the record is
unappealed
dehors
obligation on
it, no limitation
jurisdictional defect in
three
fatal
for over
procedural defect unattacked
principle
apply,2
another
period would
but
for Husband
years. It is too late
attack.
as a barrier to a successful
the di-
stands
at the time
lack of
Fuller, Okl.,
Johnston,
cessively Appellant, William Carl aggrieved litigant is allowed erally. Thé facially void “whack” at single Oklahoma, whack at it Appellee. The father had that
target.3 The STATE of the attack his “rehear- he launched when No. F-77-332. met ing motion” of of Janu- trial court’s adverse order with the Appeals Criminal Oklahoma. 1977. An should have been ary denial. brought directly from that order of Jan. ruling implicit Absent such judgment is facial- denial—that the judicata.4 judi- Its res ly void—is now cannot be avoided without show-
cata effect *4 ground within legal a tenable here that meaning of 12 O.S.1971 1031subdiv. setting aside the deni- actually
did exist for June 1977 vacation
al on father’s showing has not been made
tion. That
here.5 appellant-father summary, —too
late here for effective relief—stands procedural
before us in a veritable strait-
jacket. His fails. He is unable to
show error in the trial court’s
1978 order 1977 denial of his motion.
This is so because there is here no record casualty or misfortune” “unavoidable 11, 1977
sufficient to make the legally vulnerable to attack and va-
denial must, be allowed to
cation. The denial operates relitigation It to bar of the
stand. grounds decree is
attack on the
facially void.
I am authorized to state that V. views.
C. concurs in these Miller, Okl., [1961]; grounds 5. Father did not demonstrate v. Bruce al„ 277 P. It Brett v. Fielder et 136 Okl. relief under subdiv. Turben, [1929]; Tippins syllabus 4 in v. of “unavoidable casu- would take father’s [1933], alty kept him from effec- or misfortune” tive judicata operates to bar 4. The doctrine of him to succeed jurisdictional on the same successive attacks requisite showing order vacated. There is no Fielder, 3; Tip grounds. supra Brett v. note in this record. Turben, 3; pins supra Mo note Consolidated Vineyard, Terminal v. tor