|Owens v. Owens, 2023 OK 12
|Civil Litigation; Family Law
|February 14, 2023
|Tulsa County District Court; J. Huber
|Route to this Court:
|Appeal of trial court’s property division; Retained by OKSCT.
|Husband filed for divorce in Tulsa County District Court in 2019 and the only dispute that arose was over the division of property. Both parties agreed to mediation after several months of discovery and attorney advice. Husband brought a spreadsheet to the meeting and listed the proposed division of assets and liabilities. The mediator made amendments to the spreadsheet during the meeting. The parties agreed to the changes, and both parties signed the settlement agreement. Wife’s counsel subsequently informed Husband’s counsel that Wife refused to honor the signed agreement.
At the hearing on December 9th and 16th, 2020, both parties presented evidence to support their arguments and only Husband and Wife were called as witnesses. The trial court’s order granting the motion to enforce was filed in February 2021, and the court issued its Decree of Dissolution of Marriage in September 2021. Wife appealed the trial court’s property division.
|Standard of Review:
|A divorce suit is one of equitable cognizance. A trial court’s property division will not be disturbed unless the court abused its discretion or its decision is clearly against the weight of the evidence.
|The Court was faced with two main issues in this case, first, the timeliness of the appeal and, second, the merits of the appeal.
Under 12 O.S. § 696.2, Husband was required to serve a copy of the judgment on Wife. Further, 12 O.S.2021, § 990A(A) states that when a judgment, decree, or appealable order has been filed, that proof of notice of service of the judgment must be filed with the trial court. Upon filing notice of service of the judgment, the appellant has thirty days to appeal said judgment. Also, if proof of service is filed within three business days of the filing of judgment itself, then the 30-day appeal window is backdated to the date of filing judgment. Here, the Court noted that there were blank spaces on the certificate of service and that it was not clear from the trial court record when Husband’s counsel mailed the judgment to Wife’s counsel. Husband’s counsel states that the judgment was mailed to Wife’s counsel on September 13, which was no more than three days after the judgment was filed on September 10, thus the earlier date of filing judgment should be the start of the appeal clock. Wife’s counsel alleged that actual notice of the filing of judgment was received on September 15 and because of the defect in the certificate of service, the appeal clock should start on September 15, making the October 13 appeal timely. The Court held that the trial court record was unclear whether Husband’s counsel served a copy of the judgment on Wife because of the blank spaces. Therefore, the Wife’s appeal was timely.
The Court then reviewed Tidemark Exploration Inc. v. Good, 1998 OK 67; Whitehall Homeowners Ass’n. Inc. v. Appletree Enterprise Inc., 2012 OK 34; and State v. Cedars Group L.L.C., 2013 OK 99. In those cases, the prevailing party failed to provide proof of service in the trial record, and the reviewing court looked to extrinsic evidence to determine appeal timeliness, usually by undergoing a lengthy review into when actual notice occurred. The Court stated that it is ill-equipped to conduct the fact-specific inquiry of actual notice; That task belongs to the stamps, signatures, and postmarks which indicate proper notice and filing. The record of service aids appellate courts and removes the burden of undergoing lengthy fact-finding to determine actual notice. Therefore, the Court held that when a petition in error is presented to the Court, timeliness will be determined by the materials filed with the Court and on file in the trial court record. The petition will be accepted as timely if proof of service is absent, unless it is clear that the appellant prepared the judgment. If proof of service is present, then the date the proof was filed will be used to determine the start of the 30-day appeal clock.
In regard to the merits of the appeal, Wife’s chief complaint was that the trial court erroneously considered certain property she had acquired before the marriage as part of the marital estate. The Court reasoned that divorcing parties may agree between themselves on how to divide their assets and that public policy favors settlements and compromises over litigation. Whitehead v. Whitehead, 1999 OK 91, ¶¶ 9-10. When such agreement is made, the parties may effectively be abandoning legal claims over what property is separate and what property is marital. However, it is still up to the trial court to determine whether the agreement is fair.
The Court found that there was no dispute that the parties voluntarily undertook settlement negotiations and that they had agreed on the property division. Because both parties had the freedom to negotiate, that meant that they had the freedom to forgo potential claims that particular assets should be separate property. Wife presented no evidence that she intended to keep any of the assets in question segregated from the marital estate and presented no proof that the separate property had not been commingled in the marital estate. Because Wife had agreed to the original agreement and failed to show why she was entitled to more than the settlement provided, the trial court did not err in its division of property between the parties.
|7-2; J. Kuehn authored; J. Darby concurred in the result; J. Kauger concurred in part, dissented in part.
|Justice Kauger dissented in the majority’s decision to reverse precedent concerning “actual notice” of filing of judgment (the holdings of Tidemark Exploration Inc. v. Good, 1998 OK 67; Whitehall Homeowners Ass’n. Inc. v. Appletree Enterprise Inc., 2012 OK 34; and State v. Cedars Group L.L.C., 2013 OK 99). Believing that those cases are long-standing interpretations of statute that are so entrenched that departure from precedent should come from the Legislature by amendment to 12 O.S. 2011 §990A.