Opinion:Bixler v. Fassnacht-Bixler, 2022 OK CIV APP 28
Subject matter:Family Law
Date Decided:May 6, 2022
Trial Court:District Court of Payne County; Judge Kistler
Route to this Court:Appellant appealed several parts of a divorce decree entered between him and his now ex-wife, Kim Fassnacht.
Facts:In June Mr. Bixler filed for divorce. The contentious issues were that Ms Fassnacht claimed she substantially contributed to the purchase and remodeling of the family home and requested equitable adjustment to the property distribution for those funds to which the court allowed an adjustment of around $100,000. Ms. Fassnacht also alleged that the Unum disability policy had been purchased with marital funds and that proceeds should be divisible. The trial court ordered half the proceeds to be divided between the two every month. Ms Fassnacht further argued that contributions made to a Fidelity account were made with joint funds and the account was therefore divisible. The trial court agreed. Lastly, Ms Fassnacht requested support alimony to allow her to retrain and complete a nursing degree. Mr. Bixler argued that 43 O.S. § 134(K) prohibited the court from considering $3,057 of his income because it came from VA benefits. Thus applying 134(K), he would have no available income to pay alimony. The trial court held that 134(K) did not apply because it was enacted after he filed for divorce.
Mr. Bixler appeals from the ruling on each of these issues.
Standard of Review:The Court will not disturb the trial court’s decision regarding property division unless the trial court abused its discretion or the decision is clearly against the weight of the evidence. Standefer v. Standefer, 2001 OK 37, ¶ 19. See also Smith v. Villareal, 2012 OK 114, ¶ 7. In exercising its general appellate jurisdiction, the Court reviewed the issues that present the pure questions of law de novo. Lincoln Farm, L.L.C. v. Oppliger, 2013 OK 85, ¶ 12.
Analysis:In response to how the trial court divided the $100,000 in additional equity to Ms. Fassnacht, the Court relied on precedent giving trial courts wide discretion in the division of marital property, and it refused to reverse the trial court’s rulings on the issue because the division was not contrary to law against the clear weight of the evidence, nor was it an abuse of discretion. Jackson v. Jackson, 2002 OK 25, ¶ 2. In regard to his Unum insurance policy, Mr. Bixler argued that his disability payments are substitutes for post-decree income, rather than deferred benefits accrued during marriage, relying on Christmas v. Christmas, 1990 OK 16. In that case, the Oklahoma Supreme Court used a replacement analysis which focused on the replacement nature of the benefits and classified benefits according to the nature of the assets they replace. Mr. Bixler’s payments were thus characterized as wage continuation and not retirement benefits to be divided because the payments ended when he turned 65, and he began drawing the benefits at a regular retirement age. The nature of the policy was insurance-like and was purchased in case he could not continue to work and support his family. The Court reversed the trial court’s ruling on this issue.

As to the retroactive effect of 43 O.S. § 134(K), the Court determined that the legislative history and the statute’s application showed that the law was not meant to be applied retroactively. The issue here was whether the statute was remedial/procedural or substantive in such cases as this. The argument was that 134(K) changed a mode of procedure and must be applied to cases filed before the statute was enacted. Statutes that are remedial or procedural which do not create, enlarge, diminish, or destroy vested or contractual rights and which relate only to modes of procedure are generally held to be retroactive, unless that operation would affect substantive rights. The Court rejected the argument that Newman v. Newman, 1930 OK 340 held that alimony is not a right, thus the principle that it is not a right cannot destroy a vested or contractual right.

The court ruled that the Nantz theory of alimony awards vesting month-to-month has been repudiated and has no applicability to the question of retroactive application of 137(K) and whether statutory change that takes place during pendency of a divorce. The difficulty the Court faced here was how to balance and apply the “procedural rights versus vested rights” principle and interpreting statutory change which reduces or eliminates alimony, but does not explicitly eliminate it. To answer this, the Court held that finding 134(K) to be procedural implied that any substantive right can be effectively destroyed retroactively as long as the legislature does so by a procedural formula. The Legislature had reduced or eliminated alimony in this case with the change to this statute. The award of property, money, or pension benefits are clearly substantive and accrued at the time of filing.

At the time of filing, the remedy sought was alimony. The statutes were changed shortly after, and the application of those statutes would deprive Ms Fassnacht would not be able to receive alimony. Mr. Bixler might have relied on not having to pay alimony in his decision to file for divorce. The traditional rights is that a substantive right vests at the time of injury. Divorce proceedings do not have a definable time of injury, and so the “time of injury” here was the time of filing for divorce. Thus, Ms Fassnacht was entitled to receive alimony and 134(K) was not applicable.
Outcome:Affirmed in Part, Reversed in Part, and Remanded.
Vote:3-0. Wiseman, P.J., Rapp, J., and Blackwell, J. (author) concur.
Other: N/A