Nelson v. Nelson, 88764

Citation1998 OK 10,954 P.2d 1219
Decision Date03 February 1998
Docket NumberNo. 88764,88764
PartiesDebbie D. NELSON, Plaintiff/Appellee, v. Richard E. NELSON, Defendant/Appellant.
CourtSupreme Court of Oklahoma

Page 1219

954 P.2d 1219
1998 OK 10
Debbie D. NELSON, Plaintiff/Appellee,
Richard E. NELSON, Defendant/Appellant.
No. 88764.
Supreme Court of Oklahoma.
Feb. 3, 1998.

James H. Hadley, II, Pamela Pitcher-Hartley, Vinita, for Plaintiff/Appellee.

Bill R. Scarth, B. Ruth Kupcha, Claremore, for Defendant/Appellant.

Sam P. Daniel, Ronald W. Little, Tulsa, for Amicus Curiae.

¶1 KAUGER, Chief Justice:

¶2 Two issues are presented: 1) whether Administrative Order CV-95-1 1 and 43 O.S. Supp.1997 § 107.2 2 which require divorcing

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parents with children to attend classes intended to help minors to cope with divorce are constitutional; and 2) whether, under the facts presented, the husband was entitled to have his timely-filed motion to vacate sustained. We find the administrative order and the statute do not violate constitutional standards of equal protection or due process nor do they constitute a prohibited delegation of the legislative authority. However, the cause must be reversed in part, because the father did not have notice that his rights to visitation were in jeopardy. Under the facts presented, the trial court abused its discretion by refusing to vacate the default judgment. The cause is remanded and the trial court is ordered to consider the father's application for visitation.

¶3 On July 19, 1996, the plaintiff/appellee, Debbie D. Nelson (wife/mother), served the defendant/appellant, Richard E. Nelson (husband/father), with a petition for divorce. In the petition, the wife sought: custody of the couple's two minor children with the husband to have "reasonable visitation"; an award of child support and child care expenses computed in accordance with the Oklahoma Child Support Guidelines, 43 O.S. Supp.1995 § 118, et seq.; medical insurance and payment of a portion of any unpaid medical expenses of the children; an equitable division of marital property and debt; and attorney fees and costs. Because the husband believed that he and his wife were in the process of settling the issues presented in the divorce proceeding, he did not hire an attorney or file an answer.

¶4 Finding the husband in default, the trial court granted the divorce on November 4, 1996. Under the decree, the wife was given custody of the minor children, and the husband was denied visitation based on his failure to attend the course, "Helping Children Cope with Divorce." 3 The husband was ordered to pay $611.16 monthly for child support and sixty-six percent of any child care expenses. He was also required to provide medical insurance for the children and to pay a portion of any uncovered medical expenses. The decree divided marital property between the parties and awarded the wife $5,000.00 in lieu of alimony as property division. Each party was directed to discharge the debt on vehicles awarded as their separate property. Finally, the husband was ordered to pay the wife's attorney fee of $550.00. It is undisputed that the only pleading served on the husband was the petition. In that filing, there was nothing to put the husband on notice that he could be denied visitation with his children.

¶5 On November 27, 1996, the husband filed a motion to vacate the judgment and decree of divorce. 4 He asserted that: he did not file an answer because he believed that the property and child support issues would be settled; the child support awarded exceeded provisions of the Oklahoma Child Support Guidelines, 43 O.S. Supp.1995 § 118, et seq.; the division of property and debt was inequitable; and the decision to deny visitation based on his failure to attend the parenting seminar violated his right of association with his children and was not based on a consideration of the children's best interests.

¶6 A hearing on the motion to vacate was held on December 30, 1996, in which the husband requested that the decree be set aside as to all matters except for the portion of the judgment granting the parties' divorce. At the hearing, the husband acknowledged that he knew that he was required to attend the Children Coping With Divorce Seminar and that, after the decree was entered, he

Page 1223

completed the course. 5 All attempts of the husband to offer evidence on the actual value of the marital estate were overruled. The trial court did accept evidence of the husband's income. Nevertheless, this information was not considered in adjusting the child support obligations. Instead, the wife was ordered to prepare an order nunc pro tunc removing child care expenses from the amount of child support originally ordered. On March 4, 1997, an order was entered designating the husband's child support obligation at $409.86 rather than $611.19 and requiring him to pay sixty-six percent of any employment-related child care expenses.

¶7 The husband appealed and he requested that the cause be retained to address the constitutionality of Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2. The motion was granted on April 25, 1997. Family and Children's Services, Inc. was given leave to file an amicus brief on May 29,1997, 6 and the husband's final response was filed on June 27, 1997.



¶9 The husband argues that Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2, requiring the divorcing parents of a minor child to attend educational programs relating to the impact of divorce on a couple's children, are unconstitutional on equal protection and due process grounds. The wife and amicus curiae assert that neither the order nor § 107.2 violate constitutional standards.

¶10 The issue of the constitutionality of statutes similar to Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2 is one of first impression in Oklahoma and in the nation. 7 In other areas relating to divorce, state-enacted restrictions have been upheld, i.e., a one-year residency condition for maintaining an action for divorce, 8 and a waiting period between the time of filing and the entry of the final decree. 9 Additionally, there are established standards for the consideration of statutory enactments attacked on constitutional grounds.

A. Equal protection.

¶11 The equal protection clause of the fourteenth amendment requires that no state "deny to any person within its jurisdiction the equal protection of the laws." 10 Due process protections encompassed within the Okla. Const. Art. 2, § 7 11 are coextensive with those of its federal counterpart. The United States Constitution and the Oklahoma Constitution each contain built-in anti-discrimination components which afford protection against unreasonable or unreasoned classifications which serve no important governmental interests. 12 The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7. 13

Page 1224

¶12 There is a strong presumption which favors legislative enactments. A statute will be upheld unless it is clearly, palpably, and plainly inconsistent with fundamental law. 14 In testing the validity of a state statute which differentiates in treatment of one class paralleled with its treatment of another class, the statute is immune to an equal protection attack if the basis for the differentiation is neither arbitrary nor capricious, and it bears a reasonable relationship to a legitimate aim. 15 The Fourteenth Amendment does not require that equal protection be measured by exact equality of classification. 16 It does require that the classification rest on bona fide, not feigned differences, that the distinction have some relevance to the purpose for which the classification is made; and that the different treatments are not arbitrary. 17 Unless a classification jeopardizes the exercise of a fundamental right or it makes a classification on an inherently suspect characteristic, a classification which rationally furthers a legitimate state interest will withstand an equal protection challenge. 18

¶13 Administrative Order CV-95-1 and § 107.2 make a single distinction--parents, or persons standing in the parental role, who invoke the jurisdiction of the court in an action which will alter the character of the parental unit may be required to take an educational course intended to lessen the impact of the change on minor children--if minor children are not involved, the requirement does not apply. Recognizing the harmful impact of divorce on children and in attempt to minimize the involvement of minors in parental conflict, 19 statutes similar to the order and to § 107.2 have been enacted in a number of jurisdictions. 20

¶14 States may seek to protect and facilitate the parental bond through parental participation, 21 and they have a strong, traditional interest in setting the terms of and procedures for marriage and divorce. 22 The courses mandated by the order and by § 107.2 are educational and cover topics specifically related to children who are members of families experiencing divorce or other disruption of the family unit. Neither the statute nor the administrative order provide that failure to attend the course will result in visitation or custody being denied. 23 Rather, to the extent that the requirement places a duty on divorcing parents with minor children

Page 1225

which is not carried by persons without minor children, the distinction is justified by today's alarming divorce rates and the concurrent impact on our children. It reasonably relates to the government's legitimate concern that the best interests of minor children of divorcing families be served. We find that Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2 are not unconstitutional on equal protections grounds. 24

B. Due process.

¶15 The husband's due process attack on CV-95-1 and on § 107.2 is...

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