Campbell v. Campbell
| Decision Date | 12 July 1994 |
| Docket Number | No. 76020,76020 |
| Citation | 1994 OK 84,878 P.2d 1037 |
| Parties | William H. CAMPBELL, Appellant, v. Donna M. CAMPBELL, Appellee. |
| Court | Oklahoma Supreme Court |
Certiorari to the Court of Appeals, Division No. 4, Appeal from the District Court of Cleveland County; Preston A. Trimble, Trial Judge.
Appellant non-custodial parent sought modification of child custody in district court. During the pendency of the action Appellee custodial parent's attorney made an oral motion before the court to reduce child support arrearage Appellant owed Appellee to judgment. Appellee died subsequent to the making of the oral motion. At the hearing, two months later, the court granted Appellee's motion and declared Appellant's request for custody modification moot. The Court of Appeals affirmed. Held: Where the right of action survives the death of a party to pending litigation, the action may only proceed upon proper application of 12 O.S.1991, § 2025(A)(1), Substitution of Parties.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED.
William H. Campbell, Oklahoma City, for appellant.
Peggy Stockwell, Dave Stockwell, Stockwell Law Offices, Norman, for appellee.
This matter presents the issue of the effect of 12 O.S.1991 § 2025(A)(1) upon a pending motion to reduce unpaid child support to a judgment in favor of the mother of the children where the mother dies before the judgment is rendered. We hold that upon the death of the mother the trial court lost its authority to proceed except in the manner prescribed by the statute. We further hold that pending the filing of the suggestion of the death of the litigant substantially in the form prescribed by the statute, the action remains pending.
The court further holds that the mother's oral motion for a judgment for the arrearage made during the hearing on the father's motion to modify the child custody order, was a sufficient commencement of the action for such arrearage so that the action remained pending.
We further hold that upon the death of his client the attorney for the mother no longer had the authority to appear on her behalf.
We further hold that upon such death the authority of the court became suspended pending the filing of the statutorily required suggestion of the death and that such suggestion of death is required to be filed by either a party to the litigation or by the representative of the decedent.
We also find that the failure of the husband to file the statutory suggestion of the death of his ex-wife did not work a waiver of his right to raise the necessity for such a suggestion upon the power of the court to enter the judgment appealed here.
William H. Campbell, Appellant, (Campbell) and Donna M. Campbell, (Appellee) were divorced in 1986. Appellee was made custodial parent of the couple's son. The court ordered Campbell to pay monthly child support. Due to Appellee's health problems Campbell sought modification of custody in 1989, requesting sole custody. During the pendency of the custody action several continuances were requested by both parties, some due to the poor health and hospitalization of Appellee. Appellee's counsel moved for another continuance on April 6, 1990 because Appellee was hospitalized in the intensive care unit at a local hospital. The court continued the hearing to June 22, 1990.
At the time of the continuance request, April 6, Appellee, through her counsel, made an oral motion before the court to reduce child support arrearage owed by Campbell to Appellee to judgment. Later that same day Appellee's counsel prepared and filed a written motion to the same effect. That motion stated that Campbell owed Appellee $3,000 in child support. Sometime on April 6 after the making of the oral motion and before the filing of the written motion, Appellee died.
The hearing was held on June 22, 1990. Appellee's motion to reduce child support arrearage to judgment was granted. The trial court deemed Campbell's motion to modify the custody order was mooted by the death of the appellee.
Campbell appealed the arrearage judgment claiming the court had acted without authority because there was no party to the action following Appellee's death and Appellee's counsel could not act in Appellee's stead. Campbell also argued the arrearage judgment was made without evidence or verification of an amount owed to Appellee. Campbell stated in his appeal brief that he made all these objections to the trial court. However, there is no transcript of the hearing in the record. The court minute simply states that Appellee's motion to reduce arrearage to judgment is sustained and Campbell's motion to modify custody is moot. On appeal Campbell further argued that the trial court was aware of Appellee's death at the time of the June 22, 1990 hearing and its knowledge formed the basis for the court deeming the modification action moot. 1
The Court of Appeals affirmed the trial court, holding that Campbell did not inform the trial court that Appellee had died prior to the court's action and Campbell made no objection to Appellee's motion regarding the arrearage. The Court of Appeals in its memorandum concluded that Appellee died at or around the time of the judgment and stated that Campbell may not remain silent on an issue and then attempt to raise it for the first time on appeal. Campbell's request for rehearing was denied. Certiorari has previously been granted and the matter is now before us.
Campbell argues that the April 6 written motion regarding arrearage was filed after Appellee's death by Appellee's counsel. Campbell asserts that because the motion was not filed until after Appellee's death the court was without authority to enter judgment herein. He also argues in the alternative that because the trial court was aware of Appellee's death at the time of the June 22 hearing its judgment for Appellee was void. He relies on Hambright v. City of Cleveland wherein we held that the court's authority is suspended at the death of a party. 2 Campbell argues that whether or not he raised objection to the court's proceeding after the death is of no consequence since a court or reviewing court can question at any time its jurisdiction over a matter. Therefore, Campbell argues, the Court of Appeals should have questioned the trial court's jurisdiction over the matter regardless of any objection Campbell did or did not make. Campbell also contends that Appellee's counsel presented no evidence to show proof of arrearage and has shown no authority that permits an attorney to proceed in an action absent a client.
Appellee's counsel contends in opposing Campbell's petition for certiorari that Campbell failed to raise the issue of the trial court's lack of jurisdiction at the trial level and cannot raise it for the first time on appeal. Appellee also maintains Campbell did not file an objection to Appellee's arrearage motion and cannot do so for the first time on appeal.
Campbell argues that the written motion regarding arrearage was made after Appellee's death and therefore a nullity in that an action cannot be brought by a dead person.
This action was not however, commenced by a dead person as Campbell alleges, but rather, by Campbell himself when he filed his motion to modify custody provisions on July 25, 1989. It is true that Appellee's written motion regarding arrearage was filed after Appellee's death. However, under 12 O.S.1994, § 2007(B)(1.) "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought...." (Emphasis added). At the hearing on the motion to continue held the morning of April 6th, Appellee's counsel made an oral motion to reduce child support payments to judgment. Campbell does not dispute that there was an oral motion before the court regarding this issue prior to Appellee's death however, Campbell argues that "[i]t is a fundamental concept that an action is not commenced until it is filed."
Campbell also maintains that this court was without jurisdiction to proceed in this case after Appellee's death. Appellee's counsel argues that since Campbell did not object to lack of jurisdiction, service or evidence, at the trial court level, Campbell cannot object to it on appeal. Appellee's counsel further maintains that Campbell, by failing to deny the Request for Admission according to 12 O.S. § 3236 A, has admitted owing Appellee the $3000.00 arrearage and that therefore, pursuant to 43 O.S. § 137 4 there was already a valid judgment in existence. Hence, all Appellee requested on April 6, 1990 when the oral motion was made, was to reduce this existing judgment to writing. Therefore, Appellee argues, in that the judgment was in existence prior to Appellee's death at approximately noon on April 6, 1990, the Court had jurisdiction to merely order the judgment reduced to writing.
As we have already determined, the cause of action was commenced prior to Appellee's death. The question becomes, what was the result of her death as to this cause of action?
With certain...
To continue reading
Request your trial
-
Brown v. Patel
...West, 2003 OK 84, n. 4, 78 P.3d 946, 949; Winston v. Stewart & Elder, P.C., 2002 OK 68, n. 27, 55 P.3d 1063, 1071; Campbell v. Campbell, 1994 OK 84, n. 7, 878 P.2d 1037, 1042; Gay v. Akin, 1988 OK 150, n. 18, 766 P.2d 985, 990 15. The analysis using four requirements to show a right to inte......
-
Osage Nation v. Bd. of Comm'rs of Osage Cnty., 113414
...of the jurisdictional issue necessarily adjudicates an element to a cause of action or defense thereto).16 Campbell v. Campbell, 1994 OK 84, 878 P.2d 1037, 1040 ("Case law also holds that oral motions are acceptable in this jurisdiction.").12 O.S. 2011 2007(B)(1) : "An application to the co......
-
Shaffer v. Jeffery
...may be raised at any time in the course of the proceedings. Barrett v. Barrett, 878 P.2d 1051, 1054 (Okla.1994); Campbell v. Campbell, 878 P.2d 1037, 1044 n. 24 (Okla.1994). Additionally, a lack of subject matter jurisdiction results in dismissal. 12 O.S.1991 § 2012(F)(3). As opposed to thi......
-
Garrett v. Gordon
...after Rule 25 of the Federal Rules of Civil Procedure and, therefore, federal cases interpreting that Rule can be instructive. Campbell v. Campbell, 1994 OK 84, ¶ 19, n. 7, 878 P.2d 1037, 1042. The Tenth Circuit has held that “the service required by Rule 25(a)(1) on nonparties, specificall......