Lee v. Hester
| Decision Date | 02 March 1982 |
| Docket Number | 56053,Nos. 55966,s. 55966 |
| Citation | 642 P.2d 243,1982 OK 30 |
| Parties | Gail M. LEE, Petitioner, v. The Hon. Jon L. HESTER, Special Judge of the District Court of Oklahoma County, Oklahoma, Respondent. Charles Olin MOHR, Petitioner, v. The Hon. John M. AMICK, District Judge and the Hon. Charlie Y. Wier, Associate District Judge of the District Court of Oklahoma County, Oklahoma, Respondents. |
| Court | Oklahoma Supreme Court |
Original proceeding for a prerogative writ.
After an initial unrestricted assignment of two contested matrimonial cases to a special judge had come under challenge based on the statutory limitation of his adjudicative authority, the causes were reassigned to that judge to act as a "referee". Prohibition is sought to arrest reference proceedings. Causes consolidated for disposition.
WRIT GRANTED PROHIBITING UNRESTRICTED, ROUTINE AND INDISCRIMINATE DEPLOYMENT OF SPECIAL JUDGE PERSONNEL AS REFEREES IN CONTESTED MATRIMONIAL LITIGATION.
Karen A. Pepper Mueller, Carson, Rayburn & Hirsch, Oklahoma City, for petitioner Gail M. Lee.
Hal S. Whitten, Jr., Oklahoma City, for petitioner Charles Olin Mohr.
The issue here is whether contested matrimonial suits may be routinely and indiscriminately referred to a special judge for resolution of all issues.
The divorce cases which gave rise to the proceeding before us were initially assigned to a special judge. When the assignment came under challenge based on the statutory limitation, in 20 O.S.Supp.1978 § 123 A, 1 upon a special judge's adjudicative authority, they were transferred out. The same special judge was then re-assigned to the cases as "referee". He was ordered to hear the evidence and report all factual issues to one of the district judges. The parties objecting to the reference now seek a writ prohibiting the challenged special judge's deployment qua referee in these contested domestic cases. The respondents urge that the challenged reference is authorized by 20 O.S.Supp.1978 § 123 B. 2 We hold that although special judges may be used in contested matrimonial disputes as referees to aid the court with resolution of complex valuation or accounting issues, their routine and indiscriminate deployment for unrestricted reference of all issues in such disputes contravenes the clear command of 20 O.S.Supp.1978 § 123 A and the accepted equity practice under the statutes. It should be prohibited as an unauthorized use of judicial force.
Compulsory reference is not inappropriate as an aid to the judge in resolving-within the context of an equitable matrimonial dispute-complex issues of accounting or valuation. 3 In the absence of a contrary command in our fundamental or statutory law, courts have the power to avail themselves of devices necessary to the efficient performance of their constitutionally-mandated duties. 4
Oklahoma has no cogent precedent inhibiting compulsory references of complex accounting or valuation issues in a matrimonial case. Allen v. Allen 5-the authority invoked here to secure this court's approval for a blanket per se condemnation of compulsory references in divorce cases-is not to be regarded as a correct exposition of this state's present-day jurisprudence.
Allen was a divorce appeal decided on a confession of error. The vice of our pronouncement in that case lies in uncritically following a first-generation American legal encyclopedia's statement of the applicable national doctrine. The encyclopedic text singled out divorce-case references as universally inappropriate and condemned. This overlooked, of course, the English chancery practice and its continued survival in many states in a form that is largely unrestricted by statute. Oklahoma is most surely among those states. 6 Another problem with Allen today is that it was reached for decision some forty-five years before our district court came to be reconstituted as an omni-competent tribunal of first instance with "unlimited" cognizance. 7 The current sweep of district court's power no longer can be said to hinge on the presence of some specifically tailored legislative grant.
The only Oklahoma case that cites Allen with approval is North v. Byrnes. 8 North-an action at law-has no precedential force on the precise point before us here. It can give the aberrational Allen doctrine neither strength nor support. Because reference of complex accounting or valuation issues tendered in an equitable domestic dispute is permissible and hence is a fit subject for compulsory imposition-and because our present-day district court is vested with unlimited equitable cognizance-Allen can no longer be regarded as an effective barrier to every form of nonconsensual reference in matrimonial litigation.
Our conclusion is that the compulsory reference order under challenge here is impermissibly overbroad because (a) it allows unrestricted reference of the whole case and (b) it is not predicated upon the presence in the case of complex issues of accounting or valuation.
THE DISTRICT COURT PRACTICE OF MAKING ROUTINE AND
INDISCRIMINATE REFERENCES TO SPECIAL JUDGES OF ALL
Routine and indiscriminate use of special judges for unrestricted reference of contested matrimonial disputes contravenes both the clear command of § 123 A 9 and the accepted equity practice under our statutes. Prohibition will lie to arrest unauthorized application or excessive use of judicial force. State v. Evans, Okl., 319 P.2d 1112, 1116 (1957). The writ is accordingly granted; respondents are prohibited from assigning special judges to serve as referees in contested matrimonial disputes unless the spousal estate in suit and to be reached for division should consist of numerous items of property on which value must be placed, or present in the case are some other complex issues of accounting or valuation. 10 Whenever these adjudicatory elements be found in a controversy, special judges may be used to assist the court in resolving the issues properly to be referred.
Writ issued.
After WILLIAMS, J., had certified his disqualification, the Chief Justice designated Honorable LESTER REYNOLDS to sit by assignment as special justice in this case.
While I concur in the result of the majority opinion-that a writ of prohibition should issue to stop this unauthorized abdication of judicial duty-I disagree with its reasoning.
The majority bases its decision on the underlying premise that in equitable matters, compulsory reference is a discretionary power of the court. It sees this power as "inherited" from ancient chancellors and still existing as before, except where specifically restricted by statute. From this perspective, the majority finds the compulsory references before us unacceptable because they contravene "accepted equity practice" and 20 O.S.Supp.1978, § 123A. I disagree.
The power of compulsory reference is purely statutory. Title 12 O.S.1971, § 613 governs compulsory reference. It governs all actions whether at law or in equity, which are not otherwise controlled by specific statute.
Compulsory reference statutes are exclusive. There are no powers of reference independent of statutes. Whether the majority's view of the historical origin of this "inherited" power is correct or not, the power is now clearly limited by the confines of statute. There is no separate power of compulsory reference in "equity practice."
We have consistently recognized the rule that in all actions, equitable or legal, the power of the court to order a reference over the parties' objections is governed exclusively by statute. 1
Allen v. Allen, 85 Okl. 240, 205 P. 504 (1922), is controlling here. There also the trial court referred a divorce matter without consent of the parties. In reversing that action, it is true, as the majority points out, that the Allen court did not go into great historical detail on the subject of compulsory reference. It appears obvious to me that the court saw no need to do so, as it was a recognized fact at that time (and has remained so until this day) that in all actions, the power to refer by compulsion is derived from statute and the grounds are exclusively statutory.
The syllabus by the court states:
"The authority of a trial court to appoint a referee to take evidence, make findings of fact and conclusions of law, is derived from our statutes, and such provisions are included in sections 5018, 5019, R.L.1910 (now 12 O.S.1971, §§ 612, 613) and the provisions of the statute pertaining to the method and manner of the appointment of a referee must be complied with, otherwise such appointment is not legal and such referee has no authority to act."
The error of the trial court in referring the matter without the parties' consent was confessed by counsel and, noting that confession, the court stated:
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