Pierson v. Canupp, 63027

Decision Date03 May 1988
Docket NumberNo. 63027,63027
Citation1988 OK 47,754 P.2d 548
PartiesLaura Canupp PIERSON, Appellee and Counter-Appellant, v. Otis CANUPP, Appellant and Counter-Appellee.
CourtOklahoma Supreme Court

Appeal from the District Court, Osage County; Mermon H. Potter, judge.

In three separate proceedings--for habeas corpus, custody modification and for consentless adoption--all focusing on the district court's cognizance to resolve the custody status of two minor children and on the children's eligibility for a consentless adoption by the mother's husband, the trial court--on mother's motion--treated the contests as companion cases and certified certain issues for immediate review. The father brings an "appeal" to challenge the validity of the certified interlocutory order. The mother's "counter-appeal" is from the court's refusal to assume jurisdiction in the adoption case.

THE FATHER'S QUEST FOR CORRECTIVE RELIEF IS DISMISSED AND THE TRIAL COURT'S ORDER REFUSING TO ASSUME JURISDICTION IN THE ADOPTION CASE IS AFFIRMED.

L. Wayne Woodyard, Pawhuska, for appellant and counter-appellee.

Robert A. Flynn, Tulsa, for appellee and counter-appellant.

OPALA, Justice.

Two questions are presented for our decision: Is the father's quest for corrective relief from the trial court's "certified interlocutory order" dismissible for his failure to establish an aggrieved-party status and because the trial judge's certification is ineffective to invest this court with reviewing cognizance? and Did the mother bring a timely appeal from the trial court's order that refused to assume jurisdiction in both the custody and the adoption contests? We answer the first question in the affirmative and dismiss the father's appeal; as for the second question, our answer is also in the affirmative with respect to the adoption case disposition. We hold that, while the mother's appeal was timely brought from that order, the trial court's decision was not clearly contrary to the law.

I THE PROCEDURAL HISTORY OF THE CASES
A. The Arizona Antecedents of the Custody Contest

The parties are the parents of two minor children. Divorced in Arizona in 1978, they were awarded joint custody. Four months after the divorce, custody was changed to the paternal grandparents. Following several more forensic battles, custody was eventually returned to the mother with visitation provisions made in favor of the father. The mother left Arizona in October or November of 1982 without the father's knowledge or consent. Shortly thereafter the Arizona court found the mother in contempt and issued a bench warrant for her arrest. Temporary custody of the children was then awarded to the father who was unable to learn of their whereabouts until March 1984.

B. The Father's Writ of Habeas Corpus

The father's quest for custody was by habeas corpus brought in the Oklahoma court. His claim was based on the Arizona bench warrant and temporary custody award. He sought to take the children back to Arizona where litigation over their custody could be continued. Although the writ was granted April 3, 1984, its enforcement was stayed for 30 days to allow the mother to go to Arizona with the children and to litigate her custody claim in that forum. In the event she failed to comply with the court's directive, custody of the children was to be given to the father. The mother's timely request for "reconsideration" 1 1 of this ruling was denied July 11, 1984 and she was again directed to seek relief in Arizona.

C. The Mother's Attempt to Gain Custody of the Children

The day of the habeas corpus hearing the mother filed a petition to have the trial court assume jurisdiction and determine her claim for custody. In its April 3, 1984 order granting the writ the trial court refused to assume jurisdiction of the mother's quest for a custody contest. "Reconsideration" of this ruling also was denied July 11, 1984.

D. The Mother's Petition for Adoption Without Consent of the Father

The mother next sought to have the children adopted by her present husband without the natural father's consent. The trial judge initially arrested further adoption proceedings until the Arizona court could determine the custody and jurisdictional contests. On August 31, 1984 he rendered judgment for the father declaring that the trial court lacked jurisdiction to decide the children's eligibility for a consentless adoption.

E. Consolidation of the Habeas Corpus, Custody Contest and Adoption Cases in the District Court and Certification of Common Issues for Interlocutory Review

Lastly, the mother sought to have the three separate proceedings treated as companion cases and to have issues common to all three "certified" for immediate review. The district court acceded to this request and on August 31, 1984 certified the cases under a stay of the habeas corpus order for an additional 30-day period. At the end of this limit, custody of the children was to be returned to the father if the mother did not take them to Arizona or obtain a longer stay order from the Oklahoma Supreme Court.

F. Nunc pro tunc clarification and correction of the April 3, 1984 and July 11, 1984 orders and the August 31, 1984 judgment

Because the record of the trial court proceedings was in dispute and fraught with ambiguities, 2 we authorized the mother to seek clarification by correction nunc pro tunc in a proceeding ordered to be conducted by the trial judge as this court's special master. The trial judge's authority to act was limited to matters contained in our October 24, 1984 order. 3 We sought to have him determine whether the writ had in fact been granted on April 3, 1984 and later withdrawn by the July 11, 1984 order. After a hearing, the trial court clarified the record by finding that its April 3, 1984 writ had not been modified by the later July 11, 1984 ruling.

There is nothing on this record to indicate error in the trial judge's nunc pro tunc findings. No contention is advanced by either party that the correction order is contrary to the proof adduced at the special master's hearing. The findings are clearly supported by the "record entry" of the writ's issuance, and the special master's ruling that the writ had not been withdrawn also stands uncontradicted either by the record or by testimony. In short, the record viewed in its entirety leaves us free from doubt that the writ had been issued on April 3, 1984 and remained undisturbed by the trial court's July 11, 1984 order.

While legal soundness of a trial judge's mid-appeal nunc pro tunc record correction ordered by this court is open to challenge either on motion or by an amended petition-in-error, 4 neither party here has sought corrective relief from the special master's findings. There is hence no contest about its validity or correctness.

II THE STATUS OF THE FATHER'S APPEAL

The father opposed the August 31, 1984 certification order as well as the trial judge's stay in habeas corpus. He now argues that the order was wrongly issued. Even if that order had been correctly rendered the father would lack an appealable interest because, as shown below, he is not aggrieved by any of the judicial actions he tenders for our review.

A proceeding to review a certified interlocutory order must comply with the terms of 12 O.S.1981 § 952(b)(3) 5 and Rules 1.50-1.56. 6 The provisions of § 952(b)(3) plainly require that an interlocutory order to be certified for our review affect a substantial part of the merits of the controversy. 7 Our power to review certified orders clearly is confined to those which deal with prejudgment issues on the merits of a controversy. Certification and review of an interlocutory order is impermissible when, as here, a disposition on the merits had already been effected. 8

Inasmuch as in this case the quest for assumption of jurisdiction in the custody modification contest and in habeas corpus had been finally resolved prior to the district court's August 31, 1984 "certification order", nothing is tendered for our "interlocutory" review. Moreover, any matter decided by the July 11, 1984 order clearly stood beyond the reach of our appellate cognizance at the time of the August 31, 1984 certification. More than 30 days had then lapsed from the date of that order.

The 30-day interim suspension granted by the trial court's August 31, 1984 order was to enable the mother to obtain a stay from this court. Since no stay was afforded her here and the 30-day period of suspension had now expired, this issue is moot.

The father's challenge to the validity of the certification order is dismissible. He is not aggrieved by the trial court's August 31st attempt to certify the case. 9 Moreover, because the certification does not tender for our review any interlocutory disposition on the merits of the case, it is ineffective to invest us with reviewing cognizance. 10

III THE STATUS OF THE MOTHER'S APPEAL
A. Timeliness of the Appeal

Although the mother was the primary movant for securing below the certified interlocutory order, she appears here as a "counter-appellant" rather than as petitioner for certiorari under the provisions of 12 O.S.1981 § 952(b)(3).

The mother failed to appeal from the July 11, 1984 terminal order in the habeas corpus and custody modification proceedings. The error, if any was made in that decision, is beyond the reach of our reviewing cognizance. Errors are not correctible unless an appeal is timely brought from the terminal disposition. No postdecisional quest for relief--other than one made by a timely and authorized new-trial motion--will enlarge the time for appellate review of errors made in a final order of the trial court. 11 The 30-day time limit for lodging an appeal cannot be extended by a certified interlocutory order addressed to an appealable decision. 12

In the adoption case final adjudication was rendered on August 31, 1984. Although the mother's "counter-appeal", directed to that decision, was timely...

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