Dickason v. Dickason

• Decision Date: 19 February 1980
• Docket Number: No. 51793,51793
• Citation: Dickason v. Dickason, 607 P.2d 674, 1980 OK 24 (Okla. 1980)
• Parties: Nancy Neal DICKASON, Appellant, v. L. King Dickason, Jr., Appellee.
• Court: Oklahoma Supreme Court

Page 674

607 P.2d 674

1980 OK 24

Nancy Neal DICKASON, Appellant, v.L. King Dickason, Jr., Appellee.

No. 51793.

Supreme Court of Oklahoma.

Feb. 19, 1980.

Appeal from District Court, Tulsa County; David E. Winslow, Judge.

Post-decree proceeding in which divorced wife sought an order directing her former husband to continue alimony payments beyond her remarriage, basing her claim on alleged unincorporated provision of a pre-suit agreement.Trial court refused to admit proffered evidence of the contract provision relied upon by the wife and denied the relief sought.Wife appeals.AFFIRMED.

Doerner, Stuart, Saunders, Daniel & Langenkamp by Sam P. Daniel, Jr., Tulsa, for appellant.

Maynard I. Ungerman, John B. Wimbish, Tulsa, for appellee.

OPALA, Justice:

A statute enacted in 1967 made a divorce-related support-alimony award terminable by force of law on the death or remarriage of the obligee.¹The issue presented by this appeal is: If the pre-suit spousal agreement as to the amount of support-alimony and the court decree based thereon on both silent with respect to the statutorily-imposed terminability features that attach to an award by force of 12 O.S.Supp.1979 § 1289(B), ² may the obligee, after more than two years from the time the decree was rendered, secure its modification on being permitted to show by testimony extrinsic to the judgment roll, that the parties, when entering into their contract, did not intend the alimony obligation to become terminable upon the statutory contingencies?

We hold the trial court was correct in ruling that the consent decree in suit could not be modified after the applicable time limits of 12 O.S.1971 § 1038 for modifying or vacating a judgment had run.Since the judgment roll in this case utterly fails to disclose that the parties did intend the alimony not to be subject to abridgement upon the contingencies provided in 1289(B), the statutorily-imposed attributes of terminability must be applied to the decree before us.

In contemplation of divorce the litigants herein reached an agreement adjusting their rights in property, alimony and child custody.So far as pertinent, the agreement provided that the wife (obligee) be awarded a judgment for "alimony in the nature of support in the amount of $34,000.00 to be paid at the rate of $575.00 per month for a period of sixty months."There was no provision in the contract expressly protecting the agreed-upon alimony award from becoming terminable on death or remarriage of the obligee.Obligee brought a divorce suit and obligor waived appearance and notice.While the decree, rendered June 25, 1975, recites that it is based upon, and incorporates, the terms of the spouses' pre-suit agreement, it is utterly silent on the effect of § 1289(B) upon the efficacy of the contractually stipulated alimony obligation beyond either of the two statutory contingencies.

Obligee remarried July 7, 1977.Alimony payments ceased the following month.On October 14, 1977, more than 90 days after her remarriage, and more than two years after the divorce, obligee brought the instant post-decree proceeding by application "for payment of alimony and to reduce arrearage to judgment."In this instrument she sought to have the decree modified on the basis of her averment that by the parties' agreement her alimony award was intended not to be subject to abridgement upon the happening of remarriage.Obligor defended by invoking the provisions of § 1289(B) as being applicable to the award.He sought an order declaring his former wife's right to payments terminated as a matter of law.The trial court rejected obligee's offer to show, by proof extrinsic to the judgment roll, (a) an intent of the contracting parties not to be bound, in case of remarriage, by the legal consequences of § 1289(B) and (b) that her consent to the terms of the pre-suit agreement, later incorporated in the decree, had been secured by fraud, overreaching or misrepresentation.From an order denying her relief and terminating obligor's alimony liability, obligee prosecutes this appeal.

Inasmuch as obligee's "application" was filed below more than 90 days after her remarriage and more than two years following the divorce, counsel for obligee was invited, at oral argument, to characterize the instant post-judgment proceeding in terms of the statutory remedy that was being invoked.Counsel replied generally the obligee's purpose was to have the decree "construed" in light of her pre-suit agreement.He declined to place the proceeding in a more precise procedural posture.

The terms of a judgment actually pronounced but inadvertently omitted from its written memorial by scrivener's error may be supplied nunc pro tunc at any time to make the record "speak the truth".³A judgment whose terms exclude some essential elements of the bargain upon which it was based may be subject either to vacation or modification under the provisions of 12 O.S.1971 § 1031.⁴Unless void on the face of the judgment roll, no judgment may, however, be modified or vacated pursuant to 12 O.S.1971 § 1031 et seq. if proceedings for relief thereunder were instituted after the applicable periods of limitations prescribed therefor in 12 O.S.1971 § 1038 had expired.⁵Post-judgment proceedings for relief from fraud must be brought within two years after judgment was rendered.⁶

The obligee's application clearly did not state grounds for a nunc pro tunc amendment of the decree.Nor did she bring herself within the purview of 12 O.S.1971 § 1031, subdiv. 4, which authorizes vacation or modification on grounds of fraud practiced upon her.For this relief her application, filed more than two years after the decree, came too late.Lastly, she was also tardy for relief by judicial extension of alimony liability beyond remarriage on the basis of need.The terms of § 1289(B) prescribe a 90-day period during which alimony termination on remarriage may be avoided.

Neither may obligee secure the relief she seeks by characterizing this proceeding as one to construe a prior judgment.The judgment roll presents no ambiguity to be construed.

A pre-divorce property settlement agreement is not enforceable absent its affirmative approval by the court.Once incorporated in full or in part by judicial approval, the parties' contract merges into the decree to the extent that its terms are embodied therein.When a spousal agreement is approved and is hence incorporated in the decree, the rights which the parties have thereunder merge into that decree.The agreement is then extinguished by force of law.The rights cease to be contractual.They come to be governed and become enforceable as a judgment.⁷

An intent to modify applicable law by contract is not effective unless the power is expressly exercised.There is no rule of law that makes a contract-based divorce decree (a) per se free from legal incidents ordinarily attachable to the class of judgments into which it falls or (b) impervious to the law which generally governs the class of obligations comprised within it.To escape the...