Fulsom v. Fulsom

Citation81 P.3d 652,2003 OK 96
Decision Date12 November 2003
Docket NumberNo. 96,458.,96,458.
PartiesDenise Dianne FULSOM, Plaintiff/Appellee, v. Bodine FULSOM, Defendant/Appellee, and Joe Fulsom and Jean Fulsom, Intervening Defendants/Appellants.
CourtOklahoma Supreme Court

B.H. Shoemake of Shoemake Law Office, Pawhuska, OK, for Plaintiff/Appellee.

Grace K. Yates and Kenneth E. Holmes of Holmes and Yates, Ponca City, OK, for Defendant/Appellee.

Patti J. Palmer of Palmer & Lamirand, Pawhuska, Oklahoma for Intervening Defendants/Appellants.

LAVENDER, J.:

¶ 1 In this case we decide whether 43 O.S.2001, § 110(D) authorized the trial court to order Joe and Jean Fulsom (intervening defendants/appellants/paternal grandparents) to pay attorney fees to Denise Dianne Fulsom (plaintiff/ex-wife/appellee/mother) and Bodine Fulsom (defendant/ex-husband/appellee/father), in a post-divorce-decree child custody modification proceeding. We hold § 110(D) does not provide authority for the attorney fee awards against grandparents. Instead, § 110(D) only gives a trial court discretionary equitable authority to award attorney fees for or against the two original parties to the divorce case, i.e., the divorced spouses, based on a judicial balancing of the equities between those two parties.

PART I. STANDARD OF REVIEW.

¶ 2 The focus of this case is gauging the meaning of § 110(D); thus, confronting us is a question of law. A legal question involving statutory interpretation is subject to de novo review [Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5], i.e., a non-deferential, plenary and independent review of the trial court's legal ruling. Id.

PART II. FACTUAL AND PROCEDURAL BACKGROUND.

¶ 3 Mother and father divorced in 1997. The divorce decree awarded father custody of the parties' two minor children. In 2000 mother sought to modify the decree to place custody with her, which father opposed. Paternal grandparents intervened in the post-divorce-decree child custody modification proceeding and sought to place custody with them. After hearing, via an "Order of Modification" filed in March 2001, the trial court dismissed grandparents' motion to modify based on a finding they failed to show either mother or father was unfit, granted mother's motion and awarded her custody.1

¶ 4 Thereafter, both parents separately moved to have grandparents pay their attorney fees, each relying on § 110(D) as the authority allowing a fee recovery. Grandparents responded, arguing § 110 did not provide authority to award fees against them. The trial court granted both motions, grandparents were ordered to pay the attorney fees of each parent and grandparents appealed the fee awards.2

¶ 5 In a 2-1 decision the Court of Civil Appeals (COCA), Division I reversed the awards.3 In effect, the COCA's majority opinion held that § 110(D), read in conjunction with § 110(C), granted only discretionary authority to award attorney fees for or against the two original parties to the divorce case, i.e., the divorced wife and husband.4 The COCA's dissenting judge believed § 110(D) should be interpreted in light of 10 O.S.2001, § 5(E)(7) and (H), provisions concerning authority to award attorney fees in proceedings involving grandparents and visitation with their grandchildren.5 ¶ 6 Though the COCA's majority opinion correctly held § 110(D) did not authorize the attorney fee awards against grandparents, we previously granted parents' separate petitions for writs of certiorari to decide a first impression question, to wit: does § 110(D) authorize the attorney fee awards against grandparents in this post-divorce-decree modification proceeding or, instead, does § 110(D) grant only discretionary equitable authority to award attorney fees against or in favor of the two parties to the original divorce case, i.e., the divorced spouses at the time of the modification proceeding?

PART III. ANALYSIS.

¶ 7 The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 20. The plain meaning of a statute's language is conclusive except in the rare case when literal construction would produce a result demonstrably at odds with legislative intent. Samman v. Multiple Injury Trust Fund, supra, 2001 OK 71, at ¶ 13, 33 P.3d at 307; City of Tulsa v. Public Employees Relations Board, 1998 OK 92, ¶ 14, 967 P.2d 1214, 1220. Also, a court is duty-bound to give effect to legislative acts, not amend, repeal or circumvent them. Id., 1998 OK 92, at ¶ 18, 967 P.2d at 1221. A universally recognized principle in cases when a court is called on to interpret legislative enactments is that the court is without authority to rewrite a statute merely because the legislation does not comport with the court's conception of prudent public policy. See id.

¶ 8 This Court stated the following in State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 16, 61 P.3d 234, 243, concerning the well-known American Rule as to the recovery of attorney fees in litigation:

Oklahoma follows the American Rule.... The Rule is generally that each litigant pays for their own legal representation and our courts are without authority to assess attorney fees in the absence of a specific statute or contract allowing for their recovery. Exceptions to the Rule are narrowly defined and carved out with great caution because it is understood liberality of attorney fee awards against the non-prevailing party has a chilling effect on our open access to courts guarantee. [Citations omitted.]

Oklahoma jurisprudence, thus, recognizes that attorney fee statutes are strictly applied because to do otherwise holds out the real possibility of chilling access to the courts. Beard v. Richards, 1991 OK 117, 820 P.2d 812, 816; In re Adoption of K.M.S., 2000 OK CIV APP 25, ¶ 3, 997 P.2d 856, 857; see Abbott v. Abbott, 2002 OK CIV APP 6, ¶ 14, 38 P.3d 937, 941

. For an award of attorney fees to be authorized under a particular statute the authorization must be found within the strict confines of the involved statute. Beard v. Richards, supra, 820 P.2d at 816. Further, if the involved attorney fee statute requires interpretation it may be read in context with other parts of the statute and in light of the law in effect at the time of its enactment. See id. ¶ 9 In McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777, this Court held that grandparents may intervene in the parents' divorce action to attempt to show themselves entitled to custody of their minor grandchildren upon a proper showing, by clear and conclusive evidence, of unfitness of both parents. 870 P.2d at 781-782. Custody so awarded is considered temporary in nature because once a parent shows themselves fit they are generally entitled to regain custody. Id.6 The propriety of an attorney fee award was not an issue in McDonald v. Wrigley. Thus, although we have recognized grandparental intervention in a parents' divorce case to seek custody of their grandchildren, we have not construed either § 110(C) or (D) to gauge whether or not those provisions are applicable to allow an award of attorney fees for or against grandparents who do so.

¶ 10 In matrimonial litigation generally, the propriety of a counsel-fee allowance does not depend on prevailing party status, but is based on a judicial balancing of the equities. Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, 934-935; Merritt v. Merritt, 2003 OK 68, ¶ 20, 73 P.3d 878, 884 (attorney fees in such cases are granted only to litigant who qualifies for the benefit through process of judicial balancing of the equities); Abbott v. Abbott, 2001 OK 31, ¶ 11, 25 P.3d 291, 294 (counsel-fee allowances in child custody modification proceedings under § 110(D) do not depend on any one factor such as status as prevailing party or financial means of a party, but are granted to litigant who qualifies through process of equitable judicial balancing). Title 43 O.S.2001, § 110(C) and (D) provide:

C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.
D. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.7

¶ 11 When one reads § 110(C) and (D), the plain language points to legislative contemplation of but two parties, the divorcing or divorced spouses. As noted by the COCA's majority opinion, to include others in addition to those two parties (such as intervening grandparents) would require substituting the words "any party" for "either party" and "of any other party" for "of the other".8 Giving such a broad scope to § 110(C) and (D) would also entail liberal application, rather than strict; would be based on implication, rather than expression; and would run counter to the normal way we apply and view attorney fee statutes.

¶ 12 Nothing in the other subsections of § 110 expresses an intent that others, such as intervening grandparents, were meant to fall within the ambit of the expense provisions found in § 110(C) and (D). See supra note 7 for other subsections of § 110. For us to rule that intervening grandparents are included within the terms of the provisions would entail rewriting the language, something we have no warrant in undertaking. If the Legislature intends to include others in addition to the divorcing or divorced spouses within the discretionary equitable sweep of § 110(C) and (D), it is that body which must do so. To date, the Legislature has not expressed such an intention.

¶ 13 We also find nothing in 10 O.S. 2001, § 5(E)(7) and (H) (concerning grandparental visitation...

To continue reading

Request your trial
83 cases
  • Mehdipour v. State Dept. of Corrections
    • United States
    • Oklahoma Supreme Court
    • March 30, 2004
    ...is expressly imposed by law." Because these arguments were raised for the first time on appeal, we need not address them. Fulsom v. Fulsom, 2003 OK 96, ¶ 5, n. 5, 81 P.3d 652; Niemeyer v. United States Fidelity and Guaranty Co., 1990 OK 32, ¶ 12, 789 P.2d 1318; Mothershed v. Mothershed, 198......
  • State v. Torres
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...considering the motion as a whole confessed or as on this basis constituting an admission of the facts alleged in the motion. See Fulsom v. Fulsom, 2003 OK 96, ¶ 5, n. 5, 81 P.3d 652, 654, n. 5. We know of no other basis for holding that the mere failure to controvert a material fact contai......
  • Johnson v. CSAA Gen. Ins. Co.
    • United States
    • Oklahoma Supreme Court
    • December 15, 2020
    ...Court's decision, or is clearly erroneous as a matter of law).4 McIntosh v. Watkins , 2019 OK 6, ¶4, 441 P.3d 1094, 1096, citing Fulsom v. Fulsom , 2003 OK 96, ¶ 2, 81 P.3d 652.5 May v. Mid-Century Insurance Company , 2006 OK 100, ¶ 22, n. 37, 151 P.3d 132, 140, citing American Economy Ins.......
  • Odom v. Penske Truck Leasing Co.
    • United States
    • Oklahoma Supreme Court
    • March 13, 2018
    ...Van & Storage, Guar. Ins. , 2017 OK 71, ¶ 10, 404 P.3d 856 ; Legarde-Bober v. Okla. State Univ. , 2016 OK 78, ¶ 5, 378 P.3d 562 ; Fulsom v. Fulsom , 2003 OK 96, ¶ 2, 81 P.3d 652.III.ANALYSIS¶10 At issue in this matter is the interpretation of 85A O.S. Supp. 2013 § 5(A), which provides:The r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT