Akers' Estate, Matter of

• Decision Date: 29 April 1975
• Docket Number: No. 2,Nos. 47237,47228 and 47371,s. 47237,2
• Citation: 541 P.2d 284,1975 OK CIV APP 29
• Parties: In the Matter of the ESTATE of Robert M. AKERS, Deceased
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 284

541 P.2d 284

In the Matter of the ESTATE of Robert M. AKERS, Deceased.

Nos. 47237, 47228 and 47371.

Court of Appeals of Oklahoma, Division No. 2.

April 29, 1975 Released for Publication by Order of the Court of Appeals.

O. A. Cargill, Jr., Leslie L. Conner, James M. Little, Leslie L. Conner, Jr., Conner, Little & Conner, Oklahoma City, for appellant Barbara Akers.

John B. Ogden, Oklahoma City, for appellant Patty Akers.

Shadid, Black & Albert, Oklahoma City, for appellee Verna Lee Akers.

Howell & Stinchecum, Oklahoma City, for appellees Harry Akers, Joseph M. Akers, Beatrice Toti and Lucille Morris.

BRIGHTMIRE, Judge.

Three women vie for the legal status of widowhood each claiming to be the common-law wife of the late Robert M. Akers--a prominent 62-year-old Oklahoma City land developer and businessman who died intestate October 18, 1973, leaving a substantial estate. Two of the 'wives'--Barbara and Verna--filed separate petitions for letters of administration four days latter on October 22, while the third one--Patty--filed her petition December 5. In the meantime on October 29 the brothers and sisters (Harry Akers, et al) of decedent filed a fourth petition seeking the letters as next of kin and only legal heirs.

In the middle of a hearing on the consolidated petitions held January 21, 1974, the trial court sustained an oral motion of Harry Akers, et al and dismissed the petitions of Barbara and Patty. ¹ These two would be 'widows' filed separate appeals which are consolidated here for review along with a second appeal by Barbara from a later order of the trial court appointing the special administrator of the estate, one Herman Merson, general administrator and continuing his $250,000 surety bond. ²

The dismissals came about when the court concluded the petitions of Barbara Tate Akers and Patty Sheppard Akers amounted to a collateral attack on a divorce decree obtained by Verna, the third petitioner, from Robert Akers on August 7, 1973--a couple months before the latter's death. While the marriage claims of Barbara and Patty are of course opposed to each other, they both share a common conviction here and that is that their petitions were not affected by the collateral attack doctrine and therefore were erroneously dismissed. We agree and reverse.

Historically Robert Akers' first recorded romance dates back to 1936 when he ceremoniously wedded Alma. A childless marriage, it lasted 35 years--until July 12, 1971, when a divorce was granted the parties.

In the meantime, however, Robert Akers developed other amors. Barbara, for instance, says she started living with him as his common-law wife in 1947 and continued to do so until his death. Patty on the other hand describes how she at the age of 28 began to share a common-law marital bed with the same man in 1965--a 'marriage' that also lasted until he died. Both claim their initial illicit relationships 'ripened' into a legal common-law marriage on January 13, 1972--the day on which ended the six non-remarriageable months following the Alma divorce.

And, as if the complexity of the concupiscent Robert's life-style was insufficient, he wooed and won still another paramour, Verna, whom he whisked off to Texas for a ceremonial wedding. Five months later, however, Verna filed for a divorce alleging the parties 'were legally married on February 22, 1973, at Gainsville, Texas . . . but have lived together only a short period' because they soon discovered they were completely and irreconcilably incompatible. Robert Akers filed an entry of appearance in which he waived the right to plead and agreed the cause could be heard and decided without notice to him. Consequently on August 7, 1973, a divorce decree was rendered finding the parties 'had been married, as in the Petition set forth.'

It is this finding that both Harry Akers and Verna contend Barbara and Patty are collaterally attacking by trying to prove one of them is the lawful surviving wife of Robert. ³ More explicitly put, the theory of Harry and Verna is that if either Barbara or Patty did effect a common-law marriage with Robert it had to be on January 13, 1972, and was therefore somehow destroyed by Verna's subsequent marriage and divorce which featured a judicial pronouncement establishing that Verna 'legally married' Robert--a finding that is binding on Barbara and Patty and one they must successfully reverse by a direct attack before they can gain standing to have their allegations of marriage heard in the probate court.

To resolve the matter requires an inquiry into the definition, scope, and nature of this state's collateral attack doctrine.

Definitionally a collateral attack on a domestic judgment is generally considered to be 'an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.' May v. Casker, 188 Okl. 448, 110 P.2d 287 (1940); Hixson v. Cook, Okl., 379 P.2d 677 (1962). At least one case defines 'collateral attack' as an 'objection' incidentally made to a former proceeding during a later one--a definition suggesting the necessity of expressly objecting to an earlier judgment in order to run afoul of the doctrine. Richardson v. Carr, 68 Okl. 46, 171 P. 476 (1917).

One of the general rule's features is its invocation of a presumption that judgments, when impeached collaterally, are in all respects valid. Warren v. Stansbury, 190 Okl. 554, 126 P.2d 251 (1942). Of more importance, however, is the fact that the doctrine is closely akin to two others--res judicata and collateral estoppel by judgment ⁴--and appears to have emerged from the equitable law of estoppel which the courts early created to aid justice and its administration by according finality to adjudicated controversies and thereby heading off repetitive litigation. Woodrow v. Ewing, Okl., 263 P.2d 167 (1953).

So in order that the doctrine be not used as an instrument of gross injustice the high court of this state like those of other jurisdictions has from time to time recognized certain restrictions on or exceptions to or variations of the collateral attack doctrine as factual peculiarities came before them. For instance, Oklahoma has held that where a judgment is void it may be attacked collaterally. Sharp v. Sharp, 65 Okl. 76, 166 P. 175 (1916). Extrinsic fraud may be shown to vitiate a judgment in a collateral proceeding regardless of what jurisdiction the rendering court had. Cochran v. Barkus, 112 Okl. 180, 240 P. 321 (1925). The conclusiveness of a judgment extends only to the question directly in issue, and not to any incidental or collateral matter, though it may have arisen and been passed on. Spencer v. Woods, 208 Okl. 204, 254 P.2d 974 (1953).

Significant also, so far as we have found, is the fact that most of the Oklahoma cases on the subject deal with factual situations wherein the parties attempting the collateral attack turn out to be parties to the proceedings under attack or people in privity with them. ⁵

Other refinements of the collateral attack doctrine have been judicially molded to satisfy the court's sense of justice. One relevant here is found in the leading case of Old Colony Trust Co. v. Porter, 324 Mass. 581, 88 N.E.2d 135, 12 A.L.R.2d 706 (1949). There testatrix, Virginia, died two days after 'marrying' one Charles Porter who earlier had obtained a decree of divorce from Gertrude Porter. Under Massachusetts law marriage operates to revoke a prior will of a party to the marriage, and as a consequence if Virginia's marriage to Porter was valid then she died intestate. To avoid this the trustee and other beneficiaries (including her minor children) named in Virginia's earlier will filed two petitions. The first one was filed in Porter's divorce action asking that the decree of divorce granted him be vacated on the ground it was void because the Porters misrepresented their residence in order to induce the Massachusetts court to take jurisdiction of the marital res. The second petition was filed in the probate court for probate of Virginia's will alleging it was not...