Lepak v. McClain, 78950

• Decision Date: 22 December 1992
• Docket Number: No. 78950,78950
• Citation: 1992 OK 166,844 P.2d 852
• Parties: Greg LEPAK, Petitioner, v. The Honorable R.B. McCLAIN, Judge of the Garvin County District Court, Respondent.
• Court: Oklahoma Supreme Court

Page 852

844 P.2d 852

1992 OK 166

Greg LEPAK, Petitioner, v. The Honorable R.B. McCLAIN, Judge of the Garvin County District Court, Respondent.

No. 78950.

Supreme Court of Oklahoma.

Dec. 22, 1992.

Application to Assume Original Jurisdiction and Petition for Writ of Prohibition.

Application to assume original jurisdiction and petition for writ of prohibition directed to the Honorable R.B. McClain, Associate District Judge for Garvin County, prohibiting the exercise of judicial power pursuant to 12 O.S.1991, § 850 which may result in the incarceration of petitioner for the failure to make installment payments on a judgment debt.

APPLICATION TO ASSUME JURISDICTION GRANTED; WRIT OF PROHIBITION ISSUED.

Hal S. Whitten, Jr., John J. Ely, Jr., Oklahoma City, for petitioner.

John Spowls, Pauls Valley, for respondent.

ALMA WILSON, Justice:

The first impression issue presented in this original action is whether an application for citation for indirect civil contempt may be maintained to enforce compliance with an order, entered pursuant to 12 O.S.1991, § 850, directing a debtor to make installment payments on a money judgment. We hold in the negative.

Jerry Hervey, the plaintiff and judgment creditor below (Hervey), initiated the action below against Greg Lepak, d/b/a Red Sands Fence Company, the petitioner/defendant and judgment debtor below (Lepak), for breach of contract. Hervey took a default judgment against Lepak in the amount of $10,293.09 for actual damages, $10,000.00 for punitive damages, $1,250.00 for attorney fees and $110.60 for costs. At a post-judgment hearing on assets, the parties agreed that the money judgment should be paid in installments. The trial court entered an order directing Lepak to pay specified amounts on specified dates toward satisfaction of the judgment debt. Apparently Lepak did not make the ordered installment payments and Hervey filed an application for citation for indirect civil contempt, alleging that Lepak willfully and contumaciously violated the installment payment orders and seeking punishment of Lepak by monetary fine and imprisonment. Lepak moved for dismissal of the application for contempt citation on the grounds that the proceeding violates art. 2, § 13 of the Oklahoma Constitution. The trial court denied Lepak's dismissal motion and docketed Hervey's application for citation for contempt for trial on the merits. Lepak filed his application in this Court asking that we assume original jurisdiction and issue a writ of prohibition against further indirect civil contempt proceedings before the trial court.

Lepak asserts that the pending contempt proceeding may result in his incarceration for failure to make payments on a judgment debt and thus the contempt proceeding is contrary to the prohibition against imprisonment for debt in art. 2, § 13 of the Oklahoma Constitution. Hervey responds that the underlying purpose of the contempt proceeding is the preservation of the integrity of the district court order directing installment payments on the judgment debt and therefore the contempt proceeding is not violative of art. 2, § 13.

The central question in this controversy is whether art. 2, § 13 of the Oklahoma Constitution prevents the legislature from authorizing the use of the judicial contempt powers to coerce installment payments on a judgment debt. This question is squarely within the original jurisdiction of this court. ¹ A petition for writ of prohibition is an appropriate remedy to challenge the constitutionality of a statute vesting power in the district courts. ² This court will assume original jurisdiction and consider a petition for writ of prohibition where the trial court's use of judicial force is challenged even though the cause is otherwise properly cognizable by the inferior tribunal. ³ And, where the exercise of judicial power violates fundamental law, this court will issue a writ of prohibition to control the performance of judicial proceedings. ⁴

We assume original jurisdiction. We find that the Oklahoma Constitution, art. 2, § 13, prohibits the legislature from authorizing enforcement of a money judgment in an indirect civil contempt procedure as provided in the last sentence of 12 O.S.1991, § 850; and, that the constitutionally impermissible sentence is severable from the remainder of the statute. We hold that the last sentence of 12 O.S.1991, § 850 contravenes the express terms of the Oklahoma Constitution, art. 2, § 13; and, that the last sentence of 12 O.S.1991, § 850 is hereby severed and stricken from the statute.

Section 13 of Article 2 of the Oklahoma Constitution states:

Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.

The words of art. 2, § 13 must be given their plain, natural and ordinary meaning. ⁵ That no one may be imprisoned for nonpayment of a debt except a fine or a penalty is the obvious meaning of art. 2, § 13. ⁶ This meaning, apparent on the face of art. 2, § 13, must be accepted. ⁷ The clear prohibition against imprisonment for debt is mandatory because the words of art. 2, § 13 neither express nor imply an intent that the provision is directory only. ⁸

In determining the constitutionality of a legislative enactment, we look to the constitution to determine whether the legislature is prohibited from doing the act. ⁹ A mandatory provision in our constitution, art. 2, § 13 is a limitation upon the power of the legislature. The object of art. 2, § 13 is the protection of our resident citizens from body attachment by our governmental officials because of a failure to pay a debt. We will not adopt a strict or technical construction of our constitution so as to defeat the evident object and purpose of the constitutional provision, in order to uphold a legislative enactment. ¹⁰ Article 2, § 13 prevents the legislature from enacting any statute that would, directly or indirectly, ¹¹ authorize the body attachment of an individual for failure to pay a debt.

The challenged statute, 12 O.S.1991, § 850, states:

The judge after the hearing provided herein may order any property of the judgment debtor, not exempt by law, in his possession or under his control to be applied toward the satisfaction of the judgment, and may enforce the same by proceeding for contempt in case of refusal or disobedience.

The judge may further order the judgment debtor to pay to the judgment creditor or apply on the judgment installments, such portion of his non-exempt income, however or wherever earned or acquired, as the court may deem proper after due regard for any payments required to be made by the judgment debtor by virtue of law or prior order of a court or under wage assignments outstanding. Where the judgment debtor claims or is proved to be rendering services to or employed by a relative or other person or by a corporation owned or controlled by a relative or other person, without salary or compensation, or at a salary or compensation so inadequate as to satisfy the court that such salary or compensation is merely colorable and designed to defraud or impede the creditors of such debtor, the court may direct such debtor to make payments on account of the judgment, in installments, based upon a reasonable value of the services rendered by such judgment debtor under his said employment or upon said debtor's then earning ability. The court may from time to time, modify an order made under this section upon application of either party upon notice to the other. A failure or neglect to comply with an order of direction of the court, shall be punished as for contempt. [Emphasis added.]

On its face, it is clear that the two paragraphs of § 850 serve different purposes. The obvious purposes of the provisions contained in the first paragraph of § 850 are to require the delivery of the identified property owned by and in the possession or control of the judgment debtor toward the satisfaction of the judgment debt; and to enforce the order for delivery or turn over of property by incarceration, if the judgment debtor unjustly refuses to apply the identified property towards the satisfaction of a judgment. While the obvious purposes of the provisions contained in the second paragraph of § 850 are to require the judgment debtor to set aside and deliver a portion of his/her future income toward the satisfaction of the judgment debt; and to enforce the order for payment of future income by incarceration. It is the contempt provision in the second paragraph which we conclude is violative of the Oklahoma Constitution, art. 2, § 13.

The early decisions upholding the contempt provision in the first paragraph of § 850 differentiated orders to turn over property identified at a hearing on assets and orders to pay a judgment debt. The creditors' remedy of hearing on assets and turn over orders in the first paragraph of § 850 were adopted from Kansas in 1910. ¹² Prior to enactment of § 850, the Kansas statute had been upheld against an imprisonment for debt challenge. State ex rel. v. Burrows, 33 Kan. 10, 5 P. 449 (1885). The Kansas Supreme Court construed the contempt provisions to be applicable to orders directing the debtor to turn over identified property in his or her possession at the time the turn over order was entered, rather than an order to pay a debt.

As another ground of error, it is insisted by the appellant ... that the order made was one commanding the appellant to pay a debt, and that to commit him for contempt in failing to obey the order would, in effect, be imprisonment for debt. In such proceedings, "the judge may order any property of the judgment debtor, not exempt by law, in the hands of himself or any person or corporation, or due to the judgment debtor, to be applied towards the satisfaction of the judgment, and may enforce the same by proceedings for contempt, in case of refusal or disobedience." Section 490, Code. In this case the judge found that the...