Cunningham v. Cunningham

• Decision Date: 01 November 1977
• Docket Number: No. 49415,49415
• Citation: 1977 OK 203,571 P.2d 839
• Parties: Elsie Jo CUNNINGHAM, Appellee, v. Johnnie Wayne CUNNINGHAM, Appellant.
• Court: Oklahoma Supreme Court

Page 839

571 P.2d 839

Elsie Jo CUNNINGHAM, Appellee, v. Johnnie Wayne CUNNINGHAM, Appellant.

No. 49415.

Supreme Court of Oklahoma.

Nov. 1, 1977.

Rehearing Denied Dec. 6, 1977.

Appeal from the District Court of Oklahoma County; Charles E. Halley, Trial Judge.

Certiorari to the Court of Appeals, Division 1.

This case involves a Petition for Writ of Certiorari, in which the plaintiff below asks this Court to assume jurisdiction and reverse an opinion of the Court of Appeals, which reversed the action of the trial court.

The sole question presented is whether the defendant below's Amended Petition to Vacate the trial court's decree stated a cause of action under the provisions of 12 O.S.1971 § 1031. Finding that the Petition did not state a cause of action, we vacate the decision of the Court of Appeals and affirm the judgment of the trial court.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; DECISION OF THE TRIAL COURT AFFIRMED.

Miskovsky, Sullivan & Miskovsky by Carroll E. Gregg, Everett J. Sweeney, Oklahoma City, for appellee.

David A. Cheek, McKinney, Stringer & Webster, Oklahoma City, for appellant.

DAVISON, Justice:

In October, 1975, the District Court of Oklahoma County, issued a decree granting Elsie Jo Cunningham a divorce from her spouse Johnnie Wayne Cunningham. The decree made a division of property and also contained an award of attorney fees in favor of the plaintiff, Elsie Jo Cunningham.

Defendant, Johnnie Wayne Cunningham, under the provisions of 12 O.S.1971 § 1031, filed a Petition to Vacate that decree. The trial court sustained a demurrer to the Petition to Vacate. Upon the filing of an Amended Petition to Vacate, the trial court sustained a demurrer to that petition, and dismissed the cause. The defendant appealed from the sustaining of the demurrer and dismissal, and the Court of Appeals, Division 1, reversed and remanded the case, holding that the Amended Petition to Vacate stated a cause of action. In so ruling, the Court of Appeals held that the Amended Petition to Vacate stated a cause of action to vacate, under the provisions of 12 O.S.1971 § 1031, as the decree was entered due to an "irregularity" in obtaining the order, for the case was not at issue at the time the decree was entered. The Court of Appeals' finding that the case was not at issue was based on the plaintiff's failure to file an answer to the defendant's cross-petition.

Plaintiff below has petitioned this Court to grant a Writ of Certiorari and to review the opinion of the Court of Appeals.

As the opinion of the Court of Appeals is contra to both statutory and case law in this jurisdiction, we grant certiorari and reverse the decision of the Court of Appeals.

In holding that the divorce action was not at issue, the Court of Appeals ignored the provisions of 12 O.S.1971 § 306 and 12 O.S.1971 § 666.

12 O.S.1971 § 306 provides:

"Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true ; but the allegations of new matter in the reply shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the case may require. A demurrer to a reply shall not be held to admit any of the facts alleged in such reply for any purpose other than to determine the sufficiency thereof. Allegations of value, or of amount of damages, shall not be considered as true, by failure to controvert them; but this shall not apply to the amount claimed in action on contract, express or implied, for the recovery of money only." (Emphasis added)

Under the provisions of the above quoted statute, every material allegation of new matter in the defendant below's cross-petition, not controverted in an answer to the cross-petition, was deemed true for the purpose of the cause of action.

12 O.S.1971 § 666 provides:

"Actions shall be triable at the first term of court, after or during which the issues therein, by the time fixed for pleading are, or shall have been made up. When the issues are made up, or when the defendant has failed to plead within the time fixed; the cause shall be placed on the trial docket, and if it be a trial case shall stand for trial at such term ten days after the issues are made up, and shall, in case of default stand for trial forthwith. When any demurrer shall be adjudged to be frivolous the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance." (Emphasis added).

Under the provisions of the above quoted statute, a case is properly set for trial when the issues are made up or when the defendant has failed to plead within the time fixed. Here, plaintiff in the position of a defendant for the purposes of the cross-petition, failed to timely answer the cross-petition. At the time of plaintiff's default, the cause was properly placed on a trial docket.

In ruling that the trial court erred in sustaining a demurrer to the Amended Petition to Vacate, the Court of Appeals held that when no answer to a cross-petition is filed in a case, the case is not "at issue", and setting the case for trial constitutes an "irregularity" as that term is used in 12 O.S.1971 § 1031. As the setting of the case in which no answer has been filed is proper once the time to answer has elapsed, we hold that the Court of Appeals' opinion was incorrect.

Accordingly, we hold that the allegations in the defendant below's petition, with respect to the case "not being at issue" were insufficient to state a cause of action, which would give rise to the vacation of a judgment or order.

We next consider the other allegations in the defendant below's Amended Petition to Vacate. In addition to the allegations discussed, the defendant below's Amended Petition to Vacate alleged that the divorce decree entered by the trial court should be vacated for:

1. The decree was the produce of fraud on the part of the successful party, and the result of an unavoidable casualty or misfortune, in that the defendant was not notified of the day of trial, either by plaintiff's counsel or by his own counsel, who withdrew, allegedly not notifying his client of the date of trial.

2. The judgment was taken upon a warrant of plaintiff's attorneys for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of the taking of the judgment.

3. The judgment was rendered due to an irregularity in that there is additional jointly acquired property to which the decree did not speak, and that the trailer home which the defendant received in the property settlement was, at the time of the initiation of the divorce proceedings, no longer an asset of the parties because it had been sold.

The petition shows on its face that at the time the case was set for trial, defendant below was represented by counsel, who later withdrew. Defendant below alleged in his...