In re Marriage of Owens

• Court: Supreme Court of Oklahoma
• Citation: 2023 OK 12
• Docket Number: 119920
• Parties: In re Marriage of v. A. OWENS, Respondent / Appellant. K. OWENS, Petitioner / Appellee,
• Decision Date: 14 February 2023

2023 OK 12

In re Marriage of

K. OWENS, Petitioner / Appellee,
v.
A. OWENS, Respondent / Appellant.

No. 119920

Supreme Court of Oklahoma

February 14, 2023

UNPUBLISHED OPINION

¶0 In this divorce proceeding, Wife (Respondent/Appellant) appeals the property division incorporated into the divorce decree. The parties initially agreed to a settlement after mediation, but Wife later changed her mind. Husband (Petitioner/Appellee) moved to enforce the settlement agreement, and the trial court held a hearing on the request. The trial court's divorce decree divided property between the parties based on information provided at the settlement conference and the hearing. Wife contended that the court's property division was unfair, and she appealed. This Court questioned the timeliness of Wife's appeal but allowed the appeal to proceed, reserving consideration of the timeliness issue until the decisional stage. We hold that Wife's appeal of the trial court's judgment was timely, and that the property division reached by the trial court was fair, just, and reasonable.

Joseph R. Farris, Tulsa, Oklahoma, for Petitioner/Appellee.

Melissa F. Cornell, Tulsa, Oklahoma, for Respondent/Appellant.

OPINION

KUEHN, J.

¶1 The issues before the Court are (1) whether Wife's appeal of the trial court's divorce decree was timely filed, and (2) whether the trial court's division of property in that decree was fair. We answer both questions in the affirmative.

BACKGROUND

¶2 Husband and Wife married in 1992. Husband filed for divorce in Tulsa County District Court in April 2019. The only disputed issues involve the division of property. In August 2020, after several months of discovery and with the advice of counsel, the parties agreed to mediation. Husband brought a spreadsheet to the meeting that listed proposed assets and liabilities. The mediator made handwritten amendments to the spreadsheet during the meeting. The parties agreed to the changes, and both parties signed the settlement agreement. The agreement valued the marital estate at just over $780,000: it provided that Husband receive assets valued at approximately $344,700, and Wife receive assets valued at approximately $435,600. Husband's attorney was to draft a decree memorializing the agreement. Wife's counsel subsequently informed Husband's counsel that Wife refused to honor the signed agreement. Soon thereafter, Wife's counsel withdrew from the case.

¶3 In September 2020, Husband filed a motion to enforce the mediation agreement. The Honorable James R. Huber, District Judge, set a hearing for mid-November. Wife hired new counsel, who entered an appearance in early October. Counsel's request for additional time to prepare was granted. The hearing was held December 9 and 16, 2020. The only witnesses called were Husband and Wife. Each presented documentary exhibits to support their respective arguments. The trial court's order granting the motion to enforce was filed in February 2021, and the court issued its Decree of Dissolution of Marriage in September 2021. Wife appeals the trial court's property division.

I. TIMELINESS OF THE APPEAL

¶4 Because the trial court's judgment was prepared by Husband's counsel, Husband was obligated to serve a copy of the judgment on Wife. 12 O.S. § 696.2. There is no question that Husband's counsel mailed a copy to Wife's counsel. Nor is there a dispute over when he sent it, or when Wife's counsel received it. The issue is whether any of this information -- obtained after the appeal was lodged - matters.

Section 990A(A) of Title 12, Oklahoma Statutes, provides:

An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment decree, or appealable order to be served upon the appellant and the court records do not reflect the service of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was served upon the appellant

12 O.S.2021, § 990A (A) (emphasis added).

¶5 Under this provision, if the party wishing to appeal also happens to have prepared the judgment, the 30-day clock begins on the date the judgment is filed with the court clerk. Otherwise, the appeal clock does not start until proof of service on the aggrieved party has been filed of record. There is a reward for promptness, however. If proof of service is filed within three business days of the filing of the judgment itself (as required by Section 696.2(B)), then the appeal start date is "backdated" to the earlier date. It is undisputed that Section 990A(A) applies to the type of judgment issued in this case. ^[1]

¶6 In this case, the trial court's judgment was filed with the court clerk on September 10, 2021. It includes a certificate of service which, although signed by Husband's counsel, contains only blanks where the date of service would be inserted. ^[2] Wife mailed her petition in error to this Court on October 13, 2021 -- more than 30 days after the filing of the judgment. ^[3] However, given the blank spaces on the certificate of service, it is not clear from the trial court record when Husband's counsel mailed the judgment to Wife's counsel.

¶7 We directed the parties to address the timeliness of the appeal in more detail. Husband's counsel states that he mailed the judgment to Wife's counsel on September 13. ^[4] Since this was no more than three business days after the filing of the judgment on September 10, Husband's counsel claims the 30-day appeal clock should start on the earlier date. ^[5] Wife does not dispute when Husband's counsel mailed the judgment. She merely claims that because his certificate of service was incomplete, the court record does not reflect that he did so, as Section 990A clearly seems to require. Wife's counsel says she received actual notice of the filing of the judgment on September 15. Relying on Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194, she claims that because the certificate of service was incomplete, appeal time should begin the day she received actual notice of the filing of the judgment (September 15), which renders her petition (October 13) timely.

¶8 We first consider whether Husband's incomplete certificate of service was sufficient to start the 30-day appeal clock under 12 O.S. § 990A (A). We then consider whether this Court's practice of inquiring into "actual notice" to determine timeliness of appeals should be continued.

A. The certificate of service was not sufficient to trigger the 30-day window described in § 990A(A).

¶9 We must determine whether, under Section 990A(A), "court records [] reflect" that service was accomplished within three business days after the judgment was filed. The requirements for proof of service are found in Rule 2(b)(iii), Rules of the District Courts, 12 O.S.2021, Ch. 2, App., which provides in relevant part (with emphasis added):

Proof of service, whether made by delivery or mail, shall be made by the certificate of an attorney of record, or if made by any other person, by the affidavit of such person. Such certificate or affidavit shall set forth the name of the person served and the date, place and method of service, and it shall be filed with the court clerk or it shall be endorsed upon the pleading, motion or instrument that is filed with the clerk....

¶10 Fair notice is fundamental to the guarantee of due process. We have held that proof of service, when required, is a slight burden when balanced against that fundamental right. Brooks v. Baltz, 2000 OK 73, ¶ 6, 12 P.3d 467, 469. We have also held that statutes granting the right of appeal should be liberally construed to achieve the intended goal. See, e.g., Jackson v. Huddleston, 1964 OK 238, ¶ 6, 397 P.2d 132, 134.

¶11 Wife contends that the timeliness of her appeal should be considered with reference to what is shown in the district court record as of the date the petition in error is filed, and not sometime after. We agree. From the trial court record available at the time Wife's petition in error was received by this Court, it simply is not clear when (indeed, if) Husband's counsel served a copy of the judgment on Wife. The fact that we now know he did, after receiving additional information from the parties, only underscores the problem with this Court's current practice of adjudicating the timeliness of appeals, which we discuss below. Because the district court record did not clearly reflect -- at the time Wife's petition in error was received by this Court -- that service was accomplished at all, we conclude that Wife's appeal is timely.

B. An aggrieved party's actual notice of the filing of an appealable order does not serve as a substitute for the obligations prescribed in 12 O.S. § 990A (A).

¶12 In several cases, this Court has departed from the language of Section 990A(A), and applied an "actual notice" test to determine if an appeal was timely filed. We now reconsider the rationale behind those cases.

¶13 Section 990A was amended in 1997 to include the language (excerpted above) at issue here. The current version makes record proof of service the trigger for starting the 30-day appeal clock. As noted above, if the party responsible for serving notice of the judgment files proof that he did so within three...