Chamberlin v. Chamberlin, 64172

CourtSupreme Court of Oklahoma
Citation1986 OK 30,720 P.2d 721
Docket NumberNo. 64172,64172
PartiesRoxanna F. CHAMBERLIN, Plaintiff-Appellee, v. Richard D. CHAMBERLIN, Defendant-Appellant.
Decision Date10 June 1986

Page 721

720 P.2d 721
1986 OK 30
Roxanna F. CHAMBERLIN, Plaintiff-Appellee,
Richard D. CHAMBERLIN, Defendant-Appellant.
No. 64172.
Supreme Court of Oklahoma.
June 10, 1986.

Page 723

Alvin L. Floyd, Sapulpa, for defendant-appellant.

John R. Richards, Richards, Paul & Wood, Tulsa, for plaintiff-appellee.

OPALA, Justice.

Two issues are tendered for our decision in this appeal by the husband from a post-mandate order in his divorce suit: Did the trial court have authority to entertain the wife's post-decree and post-remand request for a division of some newly-discovered or after-identified assets of spousal property? and Did the trial court err in denying the husband's claim for counsel fees and costs for the previous appeal in which he was successful in securing some corrective relief? We answer the first question in the affirmative and the second in the negative.


This is the husband's second appeal in his divorce suit [Chamberlin II ]. From the first [Chamberlin I 1 he emerged successful in securing a more favorable decision. After mandate in Chamberlin I he pressed below a motion against the wife for his appellate counsel fees and costs. His request met with adverse disposition. In the course of the same proceeding the trial court favorably considered the wife's plea for a division of certain newly-discovered or after-identified spousal assets (the cash value of certain insurance policies) which may have been omitted from consideration in the pre-decree proceedings. The husband appeals from both rulings incorporated in the single adverse order.


For inclusion in the appellate record the husband designated but two items: (a) a transcript of the last stage in the proceedings which culminated in the challenged rulings and (b) the trial court's appearance docket sheet in the divorce case. 2

In an effort to supplement the record the wife attached to her answer brief certain instruments that may have been on file below. 3 This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, 4

Page 724

nor may a deficient record be supplemented by material physically attached to a party's appellate brief. 5 Counter-designation affords the only sanctioned procedure for inclusion into the appellate record of material which, though omitted from designation by the appellant, is sought to be incorporated by the appellee. 6 A deficient record may not be supplemented on rehearing. 7

Without citing any authority, the husband urges here that the trial court lacked judicial power in a post-mandate proceeding to divide marital assets omitted from consideration in the decree because, after the Court of Appeals' opinion in Chamberlin I, joint spousal accumulations were no longer a fit subject for relitigation below.

We may take judicial cognizance of the appellate pronouncement in Chamberlin I as an acceptable source for ascertaining what stood adjudged by that decision. 8 There is nothing in that decisional action which settles the ownership status of the assets now in contest. 9 The Chamberlin I opinion does not allude to the insurance policies here before us as disputed items of either spousal or personal property. The settled-law-of-the-case doctrine cannot hence be invoked here to bar a party's claim to an asserted interest in omitted marital property from being pressed in a timely and statutorily-authorized postjudgment proceeding instituted after the termination of Chamberlin I.

It is the duty of the appealing party to procure a record that is sufficient to obtain the corrective relief sought. 10 That record, which should incorporate all pertinent and necessary pleadings or other papers, must always include a written memorial of the judicial action that triggered the appealable event. 11 For the record to be reviewed here the husband should have hence procured, at a minimum, a copy of the wife's motion, application or petition by which she tendered--for the post-remand division--the insurance policies appearing to fall under the rubric of newly-discovered or after-identified spousal assets and a transcript of all the evidentiary proceedings in which this issue came under the trial court's consideration. None of this was done. The husband had earlier been directed by this court to provide a certified

Page 725

copy of the order sought to be reviewed. 12 Rather than procuring the requested instrument, he merely supplied a transcript of some evidentiary proceedings held below. While the transcript provided for our review includes the trial court's oral pronouncement of the rulings from which relief is sought in this appeal, it does not show us how the wife's claim to a post-remand division of newly-discovered or after-identified property came to be tendered.

From the record before us we are unable to ascertain what procedural device came to trigger the proceeding that ultimately led to the challenged post-mandate division of the cash value in certain insurance policies. There is some indication that this issue may have been initially reached in a hearing held earlier than the one of which we have a transcript. We do not know whether the wife's original request for a judicial inquiry into this subject-matter had been made by (1) some unspecified post-decree motion, (2) a petition for division of newly-discovered or after-identified marital property, 13 or (3) a motion to set aside, modify or reopen the decree upon one of the grounds prescribed by statute for rendition of postjudgment relief. 14 Because the record is silent on this point and the order does not appear facially void, 15 we are compelled to conclude that the division of newly-discovered or after-identified spousal assets was an issue raised by some timely-filed and authorized procedural device, and that the trial court's disposition of the subject-matter tendered for its inquiry is not clearly contrary to the weight of the evidence upon which it rests or to any governing norm of law. 16


The husband asserts error in the trial court's refusal to allow him some unspecified costs for the first appeal. He relies on Rule 1.31(a)(1) 17 and 12 O.S.1981 § 978, 18 which, for the reasons to be explained, are not applicable to post-appeal claims pressed in the trial court for appeal-related costs.

The Court of Appeals' opinion in Chamberlin I did not address itself to appellate costs and there was no post-decisional order in that case specifically dealing with

Page 726

this subject. This court's mandate there shows that the trial court's decree was "affirmed in part and reversed in part" and that the appellant had made a cost deposit of $50.00. 19

If the husband did intend, on remand, to seek an award for the costs recoverable in Chamberlin I--such as the expenses of the transcript as well as the cost deposit--his request below came too late. When an opinion of the Court of Appeals is silent as to costs and there is no post-decisional order dealing with this item, costs are allowed "of course" by the appellate court clerk. 20 Under Rule 32, 21 a person who claims the expense of transcript--in addition to the cost deposit paid--must file before mandate is issued a verified statement with the appellate court clerk. 22 When a judgment is affirmed in part and reversed in part and no claim for transcript expenses is made under Rule 32, as was the case in Chamberlin I, the taxable costs consist only of the cost deposit which is then subject to an equal division by force of § 978 23 unless, of course, a pre-mandate motion to retax is filed in the appellate court. 24 Since the husband did not secure an order retaxing costs in Chamberlin I, it was the duty of the district court clerk, upon receipt of mandate from the Supreme Court, to allow de cursu (of course) against the wife, 25 in conformity to § 978 26 construed together with §§ 928 and 929, 27 one-half of the appellate cost deposit of $50.00.

Page 727

Costs are taxed in the court in which they are incurred. 28 While the original assessment of costs on appeal must be made by the appellate court, post-remand enforcement function of the taxed cost liability is by force of statute invested by the appellate court's mandate in the district court whence the case came. 29 The mandate in Chamberlin I reflects that the only taxed item was a $50.00 deposit. Because that appeal resulted in partial reversal, by force of § 978 only one-half of the total ($25.00) was taxable below in favor of the husband. If the clerk of the trial court failed to understand or to follow the mandate and neglected to tax the $25.00 item against the wife, the husband's sole remedy below was by motion to retax 30 pursuant to the terms of the appellate mandate and in conformity to the provisions of 12 O.S.1981 § 978.


The husband asserts that the trial court erred in refusing to assume judicial cognizance of his post-remand request for appeal-related counsel fees incurred by him in the first appeal. 31

During the pendency of appeal in a matrimonial case the trial court clearly may act on an application to allow counsel fees for services rendered, or to be rendered, on appeal. 32 The sweep of the trial court's cognizance over this issue is coextensive with that of the Supreme Court and its orders are reviewable, on motion filed in the appeal, as an ancillary issue in the case. 33 Although the trial court may assist a party in this manner during the transition from trial to an appellate stage of litigation by its order directing counsel fees to be advanced pending appeal, it cannot determine

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in a post-appeal...

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