Holleyman v. Holleyman

• Decision Date: 13 May 2003
• Docket Number: No. 95,584.,95,584.
• Citation: 78 P.3d 921,2003 OK 48
• Parties: Cynthia Jo HOLLEYMAN, now Ward, Plaintiff/Appellant, v. Randall Dexter HOLLEYMAN, Defendant/Appellee.
• Court: Oklahoma Supreme Court

78 P.3d 921

2003 OK 48

Cynthia Jo HOLLEYMAN, now Ward, Plaintiff/Appellant, v. Randall Dexter HOLLEYMAN, Defendant/Appellee.

No. 95,584.

Supreme Court of Oklahoma.

May 13, 2003.

Rehearing Denied June 26, 2003.

Supplemental Opinion on Denial of Rehearing October 14, 2003.

Jim Pearson, Oklahoma City, OK, for Plaintiff/Appellant.

William E. Liebel, James T. Gorton, Oklahoma City, OK, for Defendant/Appellee.

SUMMERS, J.

? 1 Our question involves the enforceability of a divorce decree by which the parties purport to agree "to leave the child support open after the minor child reaches the age of eighteen and/or complete high school ..." based on the needs of the child, if any. The parties agree that the child is a "special needs" child with some degree of retardation and seizure problems.

? 2 Mother and Father divorced in 1993 when their child was fifteen years old. Father stopped providing medical insurance in 2000. Mother then sought an order from the District Court to (1) compel Father to provide medical insurance, (2) pay additional child support, (3) reimburse Mother for payments made to maintain the insurance and for medical expenses, (4) pay child support payments that were unpaid since 1999, and (5) adjudicate future support amounts needed by the child. She alleged that at the time of the divorce the parties agreed that Father would provide support after the child was 21 years old.

? 3 Father responded to Mother's application with a motion to dismiss. He stated that he stopped making the child support payments in May of 1999 after the child graduated from high school at the age of 21 years. He argued that the District Court was without jurisdiction to order payments to support a child after the child has reached the age of 21 years.

? 4 The trial court heard argument of counsel and granted the motion to dismiss. Mother appealed and the judgment was affirmed by the Court of Civil Appeals. We vacate the opinion of the Court of Civil Appeals and reverse the judgment of the District Court.

? 5 The Father maintains that the decree is not a judgment by consent, or "consent decree." We have discussed the characteristics of a consent decree:

A consent judgment is the agreement of the parties entered upon the record with the sanction of the court. McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948). A consent decree in a divorce is the result of negotiations between the parties and subsequent settlement of the issues involved, which settlement is then presented to the court as a proposed judgment. Although it is not a judicial determination of the rights of the parties, it acquires the status of a judgment through the approval of the judge of the pre-existing agreement of the parties.

Whitehead v. Whitehead, 1999 OK 91, ? 9, 995 P.2d 1098, 1101, (note omitted and emphasis added).

Father's brief describes the events leading up to the decree: "After the parties had been litigating the trial for a matter of days, settlement discussions ensued between the parties and their respective counsel that led to the Journal Entry Order and Decree of Divorce ...." The record supports this description in that the decree states that the parties agreed to the provisions of the divorce decree "with regard to all issues." Decree of Divorce, O.R. at 9. The decree is a judgment by consent or a "consent decree."

? 6 Of course, characterizing the decree as a consent decree does not determine that the parties agreed to a particular matter. The controversy in the trial court centered on one provision of the 1993 divorce decree. It states that:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant shall pay child support in the amount of Four Hundred Dollars ($400.00) per month, deviated from the child support guidelines, attached hereto as Exhibit "A", as agreed upon by the parties. Due to the special needs of the minor child, the parties have agreed to leave the child support open after the minor child reaches the age of eighteen (18) and/or completes high school, and the Court will retain jurisdiction for either party to file an application for further support based upon the specific needs and requirements of the minor child, if any.

Id. O.R. at 11.

Mother claims that the trial court has jurisdiction to order more child support because of Father's agreement. Father claims that a District Court has no subject matter jurisdiction to compel child support payments for the support of children after they have reached the age of 21 years, and that subject matter jurisdiction cannot be created by an agreement of parties.

? 7 We have said that a parent has a legal duty to support his or her child until the child reaches the age of majority. State, ex rel. Dept. of Human Services ex rel. Jones v. Baggett, 1999 OK 68, ? 22, 990 P.2d 235, 244; Abrego v. Abrego, 1991 OK 48, 812 P.2d 806, 811. The divorce decree in this case was pronounced on June 17, 1993, and the relevant statute in effect at that time stated that:

Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years.

43 O.S.Supp.1993 ? 112(D), (eff. June 7, 1993).

Thus, at the time of the decree this statute-based obligation for child support did not extend beyond the child's nineteenth birthday. Id.

? 8 But the decree in this case is a consent decree, and parties to a consent decree may agree to obligations between themselves that exceed those required by law.

If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties. Stuart, 1976 OK 107, ? 14, 555 P.2d at 615. Such an agreement between the parties is enforceable and valid even though it does what a trial court cannot do, provided the agreement does not contravene public policy.

Whitehead v. Whitehead, 1999 OK 91, ? 10, 995 P.2d 1098, 1101, (emphasis added). Thus, when a trial court is requested to enforce a child-support obligation upon a parent an important issue must be addressed: What is the source of that obligation? Does the obligation spring from mandatory law or does it spring from a consensual agreement? We noted this distinction in Greeson v. Greeson, 1953 OK 111, 257 P.2d 276.

? 9 In Greeson we observed that a trial court did not possess statutory power to modify child support retroactively, but the parties could agree to such modification and incorporate such agreement in a judgment by consent. We explained that such a consent decree was judicially enforceable.

With this contention we agree. Under 12 O.S.1941 ? 1277 the court has authority to modify an order for child support prospectively. The court does not have authority to make the modifying order operate retroactively. Sango v. Sango, 121 Okl. 283, 249 P. 925; Reynolds v. Reynolds, 192 Okl. 564, 137 P.2d 914. Therefore, if the order of December 21, 1946 had been entered by the court upon the merits after a trial of the issues it would have been void insofar as it had the effect of relieving the defendant of liability for unpaid installments accrued up to the time of the entry of the order.

However, it is agreed that the order of December 21, 1946 was a consent order entered by the court upon the agreement and consent of the parties. While in its retroactive aspect it is void as a court order, yet being a consent order, it is in the nature of a contract, and in the absence of fraud or mistake, is a binding obligation between the parties thereto.

Greeson v. Greeson, 257 P.2d at 278. (emphasis added)

Just as parties may consent to a retroactive adjustment of their personal rights, they may also contract as to their personal rights in the future. For example, in Kittredge v. Kittredge, 1995 OK 30, 911 P.2d 903, we explained that a consent decree awarding the wife a percentage of the husband's future income in lieu of property division was enforceable, even though the statute would otherwise have prohibited an order to that effect:

The husband argues the trial court did not have the jurisdictional power to divide his future earnings because the consent of his rights even though he consented to the division. In Ettinger v. Ettinger, 637 P.2d 63, 65 (Okla.1981), this Court held that under section 1278 of title 12 of the Oklahoma Statutes (now Okla.Stat.tit. 43 ? 121), a district court did not have jurisdiction to divide a husband's future earning absent a recitation in the decree the parties intended to circumvent the statute. The Court, however, recognized that where the parties had entered into a consent agreement which sought to avoid the strictures of the statute, the district court would have jurisdiction to enter such an order. Further, an express waiver of statutory rights in the consent decree was not required, only an agreement "which seeks to avoid the strictures of Section 1278."

Kittredge v. Kittredge, 911 P.2d at 904. Thus, the parties may, as a general proposition, agree between themselves as to future child support payments.

? 10 Father further argues that a "consent decree may not leave anything for determination by the trial court." He relies upon language in Whitehead stating that: "If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties." Whitehead v. Whitehead, 1999 OK 91, at ? 10, 995 P.2d at 1101, emphasis added. This language addresses the finality of an obligation, and not whether the amount of an obligation may be contractually set for a future...