Bailey v. Bailey

Decision Date18 January 1994
Docket NumberNo. 74943,74943
Citation867 P.2d 1267,1994 OK 6
PartiesRolland Lee BAILEY, Appellant, v. Sharon Anne BAILEY, Appellee.
CourtOklahoma Supreme Court

Certiorari to the Oklahoma Court of Appeals, Division No. 3.

The father residing in Arkansas filed a motion to modify a divorce decree in the District Court of Murray County where the decree of divorce was rendered. The mother, a resident of Texas, made a special appearance and moved to dismiss the proceeding. The Honorable Timothy K. Colbert, Judge of the District Court, sustained the motion to dismiss, and the father appealed. The Court of Appeals reversed and remanded.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

Ronald E. Highnight, Tulsa, for appellant.

Polly Murphy, Ardmore, for appellee.

SUMMERS, Justice.

In 1983 the parties were divorced in Oklahoma. The father was given custody of the children. The decree was silent as to child support. He then took his medical practice to Arkansas and the mother took hers to Texas. In 1989 the father filed a motion to modify in the District Court where the divorce was granted, seeking child support. The mother appeared specially and challenged the court's in personam jurisdiction over her, principally relying on 12 O.S.1981 § 1272.2 (now renumbered and found at 43 O.S.1991 § 104).

The District Court of Murray County sustained the mother's plea to the jurisdiction. On review the Court of Appeals reversed. We have granted certiorari to address the question of first impression. That question is whether the statute divests the court of jurisdiction when both parties have left the state. We find that it does not. We arrive at the same result as the Court of Appeals and remand for further proceedings on the application for child support.

The mother first argued before the trial court that the proceeding was a new action to impose a new obligation, and was not a continuation of the divorce proceeding. We disagree. Divorce proceedings are special statutory proceedings. Langley v. District Court of Sequoyah County, 846 P.2d 376, 377 (Okla.1993). A District Court possesses the statutory power to modify its prior divorce decree to further adjudicate child support matters. 43 O.S.Supp.1993 § 112. 1 This court has described this power as the continuing jurisdiction of a divorce court to modify its decrees. Barnett v. Klein, 765 P.2d 777, 779 (Okla.1988); Application of Price, 528 P.2d 1107, 1109 (Okla.1974); Fletcher v. Fletcher, 362 P.2d 691, 693 (Okla.1961).

The fact that the decree was originally silent as to child support is of no consequence. We have described imposing child support obligations as a "statutory duty", Jones v. Jones, 402 P.2d 272, 274 (Okla.1965), and explained that the authority of the trial court to impose an obligation of supporting minor children "either at the time of or after judgment, in a divorce," arose from 12 O.S.Supp.1974 § 1277, now codified at 43 O.S.1991 § 112. LeCrone v. LeCrone, 596 P.2d 1262, 1264 (Okla.1979). Similarly, in Wade v. Wade, 570 P.2d 337 (Okla.1977) we stated that "the trial court must provide for the support of minor children and it is an abuse of discretion to do otherwise." Id. 570 P.2d at 339. The father argues that the continuing jurisdiction of the District Court is sufficient for the court to exercise jurisdiction over the mother and hear the matter. He is correct.

Historically, when a divorce court exercised this continuing jurisdiction and modified one of its earlier decrees, the modification proceeding was considered to be an extension of, or a part of, the earlier divorce proceeding. For this reason issuance of summons was not necessary to give the court jurisdiction over a party to the modification proceeding who was also a party to the earlier divorce proceeding. For example, in Fletcher v. Fletcher, 362 P.2d 691 (Okla.1961) we said: "Here the petition to modify the divorce decree was filed in the original action and the court had continuing jurisdiction." Id. 362 P.2d at 693. We further said that "it is unnecessary to have a summons issued and served, as the court has continuing jurisdiction in the action,...." Id. 362 P.2d at 692. (Syllabus by the court). See also Stoner v. Weiss, 96 Okla. 285, 222 P. 547 (Okla.1924), (support of a minor child may be modified upon a supplemental petition in the original action, and summons need not issue on a motion to modify a decree in the court of rendition); Thompson v. Thompson, 347 P.2d 799, 802 (Okla.1959), (same).

Courts have long recognized that notice of a modification proceeding brought to modify alimony or child support need not comply with the requisites of notice that is required to commence a divorce when the court's jurisdiction over alimony and child support continues after the original decree, even when the defendant is a non-resident at the time of the modification. For example, in Dupre v. Guillory, 216 So.2d 327 (La.App.1968) the court explained:

Where a proceeding for modification of an award of alimony or child support in a matrimonial action is permissible as a mere continuation of the original proceeding in which the award was rendered, it has been universally held that, as against a party over whom the court had personal jurisdiction in the original proceeding in which the award was made, the court's power to modify the award may be exercised upon reasonable notice other than personal service within the court's jurisdiction, even though the person notified is a nonresident at that time.

Id. 216 So.2d at 328, emphasis added and quoting Annot. 62 A.L.R.2d 544, 546 (1958). 2 Courts have applied this rule to circumstances when both parties to a divorce have moved to states other than where the divorce decree was pronounced. 3

Such an application is nothing more than a recognition "that if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause." Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867 (1913). Many courts have relied on Michigan Trust Co. v. Ferry, for controversies of this nature have recurred with some frequency. 4 For example, in State ex rel. Ravitz v. Fox, 166 W.Va. 194, 273 S.E.2d 370 (1980) that Court cited Michigan Trust Co. v. Ferry, supra, and said that once jurisdiction over a person in a divorce action attaches jurisdiction continues:

... throughout all subsequent proceedings which arise out of the original cause of action, including matters relating to alimony, child support, and custody, and that a party may not avoid the continuing jurisdiction of the trial court to modify orders concerning alimony, child support, and custody by moving outside the geographical jurisdiction of this State.

Id. 273 S.E.2d at 373. 5

The mother's claim that the modification proceeding is a new action is without merit.

We now come to the mother's contention that any continuing jurisdiction over her has been abrogated by 12 O.S.1981 § 1272.2, presently codified at 43 O.S.1991 § 104. She asserts that the statute provides for personal jurisdiction over a nonresident only when the other party to the marital relationship continues to reside in the state. She argues that since the father did not continue to reside in Oklahoma the Oklahoma Court had no personal jurisdiction over her.

The statute states:

Personal jurisdiction in certain divorce actions

A court may exercise personal jurisdiction over a person, whether or not a resident of this state, who lived within this state in a marital or parental relationship, or both, as to all obligations for alimony and child support where the other party to the marital relationship continues to reside in this state. When the person who is subject to the jurisdiction of the court has departed from the state, he may be served outside of the state by any method that is authorized by the statutes of this state.

When the motion to modify support was filed on October 27, 1989, 12 O.S.Supp.1988 § 2004(F) was also in effect, which states:

ASSERTION OF JURISDICTION. A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.

The in personam jurisdiction of the modification proceeding is based upon the continuing jurisdiction of the District Court over the mother, a proper party to the divorce proceeding, and is consistent with the Constitution in this case. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). Section 1272.2 (43 O.S.1991 § 104) does not act to snatch away personal jurisdiction in a proceeding where such jurisdiction is vested by a constitutionally valid method.

The section relied on by the mother was intended for a use other than in cases such as this one. At one time a marital defendant's physical presence in the state was necessary for an in personam judgment for child support or alimony. That unsatisfactory state of affairs was well known to the drafters of our long-arm statutes. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Daniel v. Daniel, 348 P.2d 185, 188 (Okla.1959). In 1970 this court concluded that an Oklahoma court could exercise personal jurisdiction over a nonresident defendant in a marital action where the record showed that the defendant had five contacts with the State of Oklahoma. Hines v. Clendenning, 465 P.2d 460, 463 (Okla.1970). However, it was not until 1978 in Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) that the United States Supreme Court applied a similar theory to a marital proceeding. 6

Section 1272.2 was enacted in 1973, prior to Kulko,...

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