Harmon v. Harmon
| Decision Date | 08 July 1997 |
| Docket Number | No. 84832,84832 |
| Citation | 943 P.2d 599,1997 OK 91 |
| Parties | Sonny L. HARMON, Appellant, v. Turenia G. HARMON, Appellee. |
| Court | Oklahoma Supreme Court |
Paul W. Austin and Ruth Furman Castillo of Legal Aid of Western Oklahoma, Inc., Norman, for Appellee.
¶1 The dispositive issue in this appeal is whether the rights of Sonny L. Harmon (husband), an incarcerated prison inmate and a party to a divorce suit, were violated by the trial court's conducting the trial of the matter in husband's absence. In that husband's absence was due to his incarceration and he adequately requested to be present at the trial, we hold it was error to proceed with the trial without making some type of arrangement(s) for husband's participation because he had constitutional and statutory rights to an opportunity to be heard at the trial.
PART I. FACTS AND PROCEDURAL HISTORY. 1
¶2 In February 1993, husband was allowed to proceed in forma pauperis and he instituted a petition for divorce against Turenia G. Harmon (wife). The petition set out the parties had a minor child who had been born during the marriage on October 18, 1991 and that husband was incarcerated in an Oklahoma Department of Correction's penal institution. 2 About two weeks after suit was filed, husband filed in the trial court an application for a writ of habeas corpus ad testificandum. The form application was left blank as to the date and time of the hearing at which he wanted to be present to testify. A letter to husband from a deputy court clerk dated the same day his application was filed essentially informs him, no writ of habeas corpus ad testificandum was issued because no date for hearing had then been set.
¶3 In March of 1993 wife filed an answer and a counterclaim for divorce. After both parties filed for temporary and/or restraining orders, a temporary order was issued by the judge then handling the case in April, which basically prohibited both parties from selling or destroying any of the personal property of the marriage and maintained the status quo as to other issues raised by the parties, pending a rescheduled hearing date to coincide with the date in which husband would be present in court.
¶4 Over a year transpired with no apparent activity in the case--until May 1994, when husband filed a motion to proceed. The motion sought to set the matter for hearing and stated that husband was "ready for hearing, and to be brought fourth (sic) as per application for writ of habeas corpus and testificandum filed in ... February ... 1993." In June 1994 husband's motion to proceed was granted by a new trial judge then handling the case, the Honorable W. Dean Hart, Jr., and a hearing was set for November 11, 1994.
¶5 In July 1994 husband filed an application for citation of direct contempt against wife, which alleged wife had violated a previous order issued in the case by selling, encumbering and concealing certain property covered by the earlier order. Husband requested the contempt matter be set for hearing as soon as possible and that he "be brought fourth (sic) ... [to] present [e]vidence as to the selling and encumbering ..." he claimed was in violation of the earlier court order. In September 1994 the November 11, 1994 hearing date was reset for January 6, 1995. In October 1994 husband filed a motion for appointment of counsel, noting he was proceeding pro se and he had been granted in forma pauperis status by leave of court.
¶6 On November 17, 1994 a new development occurred when husband filed a motion to dismiss without prejudice. The motion essentially asked to dismiss husband's divorce case against wife in its entirety. The reasons given were that husband believed there was a chance of reconciliation between the parties, wife was willing to return certain property to him and she was agreeable to allowing visitation with their minor son. On December 2, 1994 Judge Hart sustained husband's motion to dismiss--and his divorce petition and related motions were dismissed. His motion for appointment of counsel was denied and wife's counterclaim for divorce was set for trial on January 6, 1995.
¶7 Two weeks later, on December 16, 1994, husband filed a petition for Judge Hart to disqualify from the case and he moved for reinstatement of his divorce suit. Boiled down, husband claimed bias on the part of Judge Hart on two bases. One, purported statements made by the judge on December 2 when hearing husband's motion to dismiss and for appointment of counsel, showed bias. Two, husband claimed certain rulings from this Court and the Oklahoma Court of Criminal Appeals in other, separate civil and criminal cases, respectively, reversing orders and/or remanding matters to Judge Hart that he was apparently handling as trial judge, caused the judge to be prejudiced against him. Husband also asserted in his December 16 submission his inability to attend the December 2 hearing because of his incarceration, but he had sent his mother on his behalf to orally request he be allowed to withdraw his motion to dismiss his divorce suit. Basically, husband contended the only reason he had filed his motion to dismiss his divorce case against his wife was based on an agreement with her that she would also withdraw her counterclaim for divorce to allow a chance for reconciliation. He also basically averred he only learned two days before the December 2 hearing on his motion to dismiss that his wife had tricked him because she really had no intention of withdrawing her counterclaim. The December 16 submission in sum, asked for disqualification of Judge Hart and reinstatement of his divorce action in its entirety.
¶8 The divorce trial/hearing was held on January 6, 1995 in husband's absence. A court minute signed by Judge Hart reflects that a witness was sworn and evidence heard. The court minute also shows that husband's motions to disqualify the trial judge and to reinstate his divorce suit were denied. The divorce decree journal entry filed the same date reflects husband's failure to appear, that he had notice of the hearing and that he was wholly in default. The decree goes on to, among other things: grant wife's counterclaim for divorce; give custody of the party's minor child to wife; deny husband all visitation with the child during the period of his imprisonment; make a property division; and order husband to pay an amount of child support to begin ninety (90) days after his release from incarceration.
¶9 Husband appealed. 3 The appeal was assigned to the Court of Civil Appeals (COCA) and an opinion issued which affirmed the trial court judgment. One issue raised by husband and rejected by the COCA was that reversible error had occurred because husband had been denied an opportunity to be heard in the trial court. We previously granted certiorari and now hold reversible error occurred because husband was denied a meaningful opportunity to be heard.
PART II. ANALYSIS.
¶10 The case of Johnson v. Scott, 1985 OK 50, 702 P.2d 56, involved a trial court dismissal of a prison inmate's small claims' action for failure of the inmate to appear at the hearing on the case. The inmate had filed for a writ of habeas corpus ad testificandum requesting the district court to require his warden to bring him to the small claims' hearing. Recognizing the inmate had constitutional rights to due process and access to the courts, this Court held the trial judge abused his discretion by failing to order the inmate into court to present his claim or to allow him to present the claim either by deposition upon written questions, by telephone or upon oral examination recorded by other than stenographic means. In other words, the inmate had been denied a meaningful opportunity to be heard in the presentation of his small claims' action by failure to bring him to court to present his claim or to make some type of alternative arrangement(s) for presentation of the claim. See also Harris v. State ex rel. Macy, 1992 OK 6, 825 P.2d 1320 ().
¶11 Although husband's divorce suit was not dismissed for his failure to appear at any hearing, it is plain that husband made timely request to be present at the hearing of the divorce case when it finally came on for trial. It is also plain that the request(s) were either ignored by the trial judge or can be deemed to have been denied by the lower court because no arrangement(s) were effectuated for husband's participation at the January 6, 1995 hearing. In our opinion, the view of the COCA that it cannot be considered an abuse of discretion to deny the application for writ of habeas corpus ad testificandum because it was vague and indefinite, is erroneous. The COCA held this view based on a determination the application was left blank as to the date and time of the hearing at which husband wanted to be present to testify. This view is wrong because it ignores the fact no hearing date had been set in the matter when the application was filed in the case and it fails to consider husband's express request made in his May 1994 motion to proceed, to be brought to court for hearing in conformity with his earlier filed application for writ of habeas corpus ad testificandum.
¶12 The COCA was also incorrect in apparently ruling that husband's application was somehow deficient because it failed to contain strict proof of the materiality of his testimony and the necessity of his attendance, citing Long v. State, 561 P.2d 991 (Okla.Crim.App.1977). To us, some testimony from husband would plainly be material--at a minimum concerning the visitation issues that were before the trial court. In fact, when the issue of visitation with a minor child is involved in a divorce case, the parties to the case have been granted a statutory right to notice and an opportunity to be heard. 43 O.S.1991, § 506. Section 506 is part of the Uniform...
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