Mills v. Mills

• Decision Date: 26 June 1973
• Docket Number: No. 43413,43413
• Citation: 1973 OK 74,512 P.2d 143
• Parties: James D. MILLS, Appellant, v. Mary Thomas MILLS, Appellee.
• Court: Oklahoma Supreme Court

Page 143

512 P.2d 143

James D. MILLS, Appellant, v. Mary Thomas MILLS, Appellee.

No. 43413.

Supreme Court of Oklahoma.

June 26, 1973.

Syllabus by the Court

1. A property settlement agreement incorporated by a divorce decree acquires the dignity of a judgment and can only be vacated or modified by compliance with the statutes.

2. Final judgments and decrees of a court of competent jurisdiction may not be interpreted or clarified by the Oklahoma Declaratory Judgment Act, 12 O.S.1961 §§ 1651--1657.

3. Where the parties to a divorce have waived the application of 12 O.S.1971 § 1278 by executing a property settlement agreement so dividing the property of the parties that the portion awarded to one spouse is not free from the claims or domination of the other, and the settlement agreement is specifically incorporated into the divorce decree, that statute does not render such a division void.

4. Upon showing of a need of discovery, complexity of the accounts in question and a fiduciary or trust relationship, a party may be entitled to an equitable accounting.

5. Where an original decree of divorce requires the husband to pay his wife a share of the net rental from a given or particular tract of real property acquired by the parties during coverture, only the rentals from such real property are subject to wife's action for an accounting and the wife is entitled to share only in the rentals therefrom when it appears that such property at last described has been rented in parcel with other real properties subsequently acquired by husband and his second wife.

6. A party to an appeal may not present matters on appeal which were not raised in the trial court.

Appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.

Action for Declaratory Judgment and Accounting. Judgment for divorced wife and husband appeals.

Reversed in part; sustained in part.

John Chiaf, Oklahoma City, for appellant.

James A. Peabody, Jack R. Durland, Jr., Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellee.

DOOLIN, Justice.

The pleadings and facts in this case frame for us, among other issues, a question of first import:

Are the declaratory judgment statutes available for the determination of rights established by final decree entered by a court of competent jurisdiction? (12 O.S.1971 § 1651 et seq.)

The Wife, plaintiff, and the Husband, defendant, were divorced October 31, 1952, in the District Court of Oklahoma County; and as a part of the divorce proceedings the parties had executed a contract and property settlement covering real and personal property located in at least two counties in Oklahoma, which had been accumulated by the parties during coverture. Both parties agree that the contract was incorporated in the decree of divorce, by the trial court in October of 1952.

Among the various tracts of land described in the contract was:

Lots 19, 20, 21, 22 and the N20 of Lots 23 and 24, Wert's Addition to Oklahoma City, Oklahoma.

which was incorporated into the decree and set over to the parties by the property settlement in the following manner: (We substitute H for Party of the First Part and W for Party of the Second Part):

'H shall have the control and management, and shall hold the title thereto, subject only to the right of W to part of the net rental and part of the net sale price, as herein provided, and H shall have sole discretion in the sale of said property and shall have the sole right and discretion in the leasing or renting of said property, and shall have the right to convey said property without the joining of W, provided, that any sale made shall be for an adequate consideration, and provided further, that H shall have and receive and keep all rents and income from said property, paying all taxes, expense of upkeep and any other cost and expense that may arise, without claim of W thereto, for a period of eight (8) years from this date, or for the period of time that the sons of the parties are in school pursuing their education and H is paying all their expenses and maintenance. At the expiration of eight (8) years from this date, or at such time as the sons of the parties have completed their education, whichever occurs first, H shall pay over to W--half of the net rents and income from the said property as said rents and income is collected and received, and in the event H shall sell the said property, at any time from and after this date, W shall be entitled to receive one-third of the net proceeds of the sale thereof.'

Plaintiff, Wife, also sought an accounting from the Defendant Husband, as to rents and profits from the real premises heretofore described. In addition to the rents and profits from last mentioned premises, the evidence as developed shows acquisition of adjoining property by second wife of Husband.

Wife's Petition seeking an accounting, determination of her interest in real property, costs, etc., was tested by Husband's demurrer and motion to separately state and number. The demurrer was overruled and the Husband was given time to answer. In his answer Husband made general denial, cited the divorce decree and incorporated property settlement and by way of separate defense denied that the Wife was entitled to determine her rights under the Decree or to seek construction of the same. Husband also denied that a justiciable controversy existed between the parties and that Plaintiff's interests were vested, undivided fee interests. He pleaded that he had previously fully accounted to the Plaintiff. At pretrial while discovery was continuing the parties agreed that Plaintiff sought (a) a declaratory judgment as to her property rights under the divorce decree and contract; and, (b) accounting of rental income from properties. Both parties announced at this time that they were ready for trial.

Trial was completed June 25, 1968. Findings of fact as requested by Wife and conclusions of law were entered by the court on July 16, 1968, the judgment and decree of the court being likewise entered on July 16, 1968. Such findings of fact and conclusions of law were favorable to the Wife; the court specifically found that a declaratory judgment action would lie and such statutes were applicable to interpret the decree of divorce entered in October of 1952. Further the court found and concluded that the property settlement executed by the Husband and Wife at the time of the original divorce had been merged in the decree. If then construed and interpreted the provisions of the original divorce decree fixing property rights in the parties and required the Husband to make certain payments to the Wife by way of an accounting.

We first address ourselves to the question of the applicability of declaratory judgment actions to decrees of divorce.

Early cases in Oklahoma, Finley v. Finley, 174 Okl. 457, 50 P.2d 643 (1935) and McRoberts v. McRoberts, 177 Okl. 156, 57 P.2d 1175 (1935) hold that settlement agreements between Husband and Wife are extinguished by entry of a divorce decree. They likewise preclude subsequent action based thereon holding that 12 O.S.1971, § 1279 is a bar to any claim of either party to the property of the other. In McRoberts, supra, it was stated that 'it (divorce decree) usually is held to mean just what it says.' Later in Jones v. Jones, 442 P.2d 319 (Okl.1968) we held:

'Property settlement agreement incorporated by divorce decree acquired dignity of judgment and could be vacated or modified only by compliance with the statutes, 12 O.S.1971 §§ 1031 and 1038.'

Since the trial court felt that the agreement was merged in the decree or incorporated therein, we will resist the opportunity of an exercise in semantics as to the difference between 'merged' and 'extinguished', but suffice it to say that no attempt by the Husband or Wife was made at the time of the decree of divorce to appeal or to vacate or modify the decree.

That the Federal statutes covering declaratory judgment actions have been used to interpret rights under an Oklahoma divorce decree is not questioned. Kelso v. Kelso, 10 Cir., 225 F.2d 918 and 246 F.2d 421. In passing we note that the Federal statute, 28 U.S.C. § 2201 et seq., predates the Oklahoma act and differs therefrom.

The briefs of the parties and our research indicate that there is conflict as to whether a court may entertain a declaratory judgment action to clarify or interpret final decrees. We find no case that would allow a declaratory judgment action to lie as a substitute for an appeal.

In National-Ben Franklin Fire Insurance Co. v. Camden Trust Company, 36 N.J.Super. 249, 115 A.2d 589 (1955), the New Jersey court held that where a justiciable controversy existed then its declaratory judgment act would grant relief to determine the significance and effect of a judgment, citing cases from California, Connecticut, Kentucky, Ohio and Tennessee. This position is ably argued by the Wife and disputed by the Husband in their briefs.

The Wife argues that §§ 1651 and 1657 of Title 12 O.S.1971 have made decrees of courts of record in this state subject to the relief of a declaratory judgment action. She states that 12 O.S.1971 § 1657 specifically excepts from the Oklahoma act decrees of the Corporation Commission, Industrial Court, other agencies, boards, etc., and that therefore courts of record are subject to the act. Appellee Wife cites 82 C.J.S. Statutes § 382, page 893, in support thereof:

'It is a general rule that an express exception excludes all others, that is, an exception in a statute amounts to affirmation of the application of its provisions to all other cases not excepted, but It is always proper in determining the applicability of this rule to inquire whether, in a particular cas, it accords with reason and justice.' (Emphasis supplied.)

We do not believe that our statute, 12 O.S.1971 § 1657, intended to place final judgments of courts of record, the strong right arm of the judiciary, subject to...