Read v. Read

• Decision Date: 16 October 2001
• Docket Number: No. 92,930.,92,930.
• Citation: 2001 OK 87,57 P.3d 561
• Parties: Shawna K. READ, Plaintiff-Appellee/Counter-Appellant, v. Michael Ray READ, Defendant-Appellant/Counter-Appellee.
• Court: Oklahoma Supreme Court

57 P.3d 561

2001 OK 87

Shawna K. READ, Plaintiff-Appellee/Counter-Appellant, v. Michael Ray READ, Defendant-Appellant/Counter-Appellee.

No. 92,930.

Supreme Court of Oklahoma.

October 16, 2001.

As Amended February 11, 2002.

Rehearing Denied February 11, 2002.

Shannon Davis, Law Office of Shannon Davis, Tulsa, OK, for Plaintiff-Appellee/Counter-Appellant.

David H. Sanders, Sanders & Sanders, Tulsa, OK, for Defendant, Appellant/Counter-Appellee.

OPALA, J.

¶ 1 The dispositive issues¹ tendered for corrective relief on certiorari are (1) whether an earlier pronouncement by the Court of Civil Appeals in this case,² which affirmed the trial court's denial of former husband's motion to vacate the parties' divorce decree, operates in a post-decree contempt proceeding to bar relitigation of alleged jurisdictional defects in that decree, and (2) whether Read's constitutional protection against double jeopardy was violated by the proceedings to hold him in contempt a second time. We answer the first question in the affirmative and the second in the negative.

I ANATOMY OF LITIGATION

¶ 2 Shawna K. Read, now Shawna K. Dunn (Dunn), and Michael Ray Read (Read) were married on 16 May 1987 in Tulsa, Oklahoma. On or about 1 December 1987, a child was born of their marriage. Approximately seven months later, Read departed from the state of Oklahoma, leaving behind his wife and child who were not informed of his whereabouts.

¶ 3 On 26 February 1990, Dunn filed a petition for divorce in which she sought approval of service upon Read by publication. Although Dunn stated in the petition that she had a last known Oklahoma address for Read, she also alleged that she had had no contact with him since June 1988 and was unable to determine his whereabouts despite the exercise of due diligence. A hearing on the divorce petition was held on 30 April 1990. Read did not appear and Dunn was granted a default judgment. The decree recites that Dunn had timely but unsuccessfully attempted service of summons on Read and that service by publication was authorized and proper. Read was ordered to pay child support in the amount of $403.20 per month.

¶ 4 Over the next six and one-half years Read neither challenged the divorce decree nor complied with its order to pay child support. On 6 December 1996 Dunn filed her first application for contempt (first contempt). Read responded by filing a petition to vacate the divorce decree — the legal predicate for the child support order — alleging lack of personal jurisdiction over him in the divorce proceeding. Read's motion was denied and he appealed. The Court of Civil Appeals, Division III, affirmed and this court denied certiorari.³

¶ 5 While Read's appeal from the vacation quest's denial was pending, a non-jury trial was held on Dunn's contempt application. The trial court withheld a decision on the issue of contempt, but did commute the accrued unpaid child support to judgment (for the period from the date of the divorce decree through 28 April 1997 in the amount of $32,659.20 plus interest).

¶ 6 On 8 December 1998, the trial court finally reconvened to decide whether Read should be held in contempt.⁴ After hearing evidence and argument, the trial court found Read guilty and sentenced him to six (6) months in the Tulsa County Jail, subject to purge by the payment of $3,000.00.⁵ Read paid the purge fee and was not jailed. Dunn moved the trial court to reconsider the terms of the purge fee. Her motion was denied and Dunn counter-appealed.

¶ 7 As of mid-December 1998, Read had paid none of the commuted child-support arrearage other than the $3,000 purge fee, nor had he paid any further monthly child support. On 18 December 1998, Dunn filed a second contempt application (second contempt) covering all unpaid child support, including that which had been at issue in the first contempt proceeding. In response to Read's argument that this constituted double jeopardy, the trial court ordered Dunn to amend her application to cover only unpaid child support not covered by the first contempt order. ¶ 8 On the day set for jury trial, Read filed another motion to dismiss the proceeding, which in addition to again raising the double jeopardy issue, also challenged the facial validity of the divorce decree on a new jurisdictional ground: lack of judicial power to impose the particular child support obligation incorporated in the divorce decree.⁶ Read based this challenge on the fact that the divorce decree granted Dunn $403.20 per month in child support when the divorce petition had requested only $180.00 per month. The trial court rejected Read's double jeopardy defense insofar as it related to his failure to pay child support after the period of time covered by the first contempt order,⁷ but the record reflects no ruling upon Read's new jurisdictional ground of attack upon the divorce proceeding. Instead, the trial court ruled generally that it would not entertain any attack upon the validity of the divorce decree.⁸

¶ 9 A jury trial was then held on the second contempt application and Read was found guilty of nonsupport (for the period from 25 April 1997 through 31 January 1999). He was sentenced to six (6) months in the Tulsa County Jail, with the contempt subject to purge by the payment of $9,200.00. Unable to pay the purge fee, Read was incarcerated. A petition to this court for a writ of habeas corpus was denied.⁹ On 7 July 1999, the child support arrearage was commuted to judgment (in the amount of $59,412.28 through March 1999).

¶ 10 Read appealed from this second order of contempt, urging among other errors the trial court's refusal to dismiss the contempt application based upon the alleged jurisdictional defects in the divorce decree.¹⁰ He later amended his petition in error three times in order to also seek review of (1) the attorney's fee and costs awarded to Dunn in connection with the first contempt proceeding, (2) the attorney's fee and costs awarded to Dunn in connection with the second contempt proceeding, and (3) the judgment for child support arrearage entered against him in the second contempt proceeding for unpaid child support plus interest through March 1999.¹¹

¶ 11 The Court of Civil Appeals, Division Four, agreed with Read, holding that "the divorce decree was unenforceable as to child support in either contempt proceeding because the decree-based child support was entered without personal jurisdiction over [Read]." Accordingly, COCA vacated the divorce decree's determination of paternity and its order to pay child support as well as the various other judgments and orders tendered by Read for review. It then remanded the cause to the trial court to permit Read to be heard on the merits of any issue bearing on his liability for child support. COCA declined to decide Dunn's counter-appeal pending post-remand adjudication of Read's liability for child support.

¶ 12 We granted certiorari on Dunn's petition and now vacate COCA's opinion, affirm the orders tendered by Read for review, and remand the cause to COCA for a determination of Dunn's counter-appeal.

II ALLEGED ERRORS IN THE DIVORCE PROCEEDING ARE NO LONGER AMENABLE TO CORRECTIVE RELIEF

¶ 13 Read contends that the child support obligation — for nonpayment of which he has been twice held in contempt — is unenforceable because the divorce decree upon which it is predicated is void on the face of the judgment roll. Even if Read were correct, the procedural posture of this appeal bars him from obtaining the corrective relief he seeks.

¶ 14 We need not inquire into whether the divorce decree is or is not facially void. If it is facially valid because evidence dehors the judgment roll is necessary to establish the jurisdictional defect in its rendition, a direct attack upon it is now barred by the three-year limitation period applicable to statutory vacation proceedings.¹² If, on the other hand, the divorce decree is void on the face of the record proper,¹³ as Read urges, an attack upon it is not barred by any limitations period. As Read correctly points out, the terms of 12 O.S. Supp.1993 § 1038 provide that a facially void judgment may be vacated at any time.¹⁴ This does not mean, as Read would have us hold, that a facially void judgment may be subjected to successive attacks, direct or collateral.¹⁵ Rather, § 1038 merely provides that the passage of time does not operate to bar a quest to vacate a facially void judgment.

¶ 15 The law affords no more than a single opportunity to litigate a disputed question of a tribunal's jurisdiction.¹⁶ This "whack" at the divorce decree was taken by Read in his unsuccessful effort to vacate that judgment in 1996.¹⁷ Read appealed from that adverse decision and the Court of Civil Appeals, Division Three, affirmed. This court denied certiorari and, although the case raised a federal constitutional issue, Read did not seek review by the United States Supreme Court. The trial court's order denying Read's petition to vacate now stands as a complete bar to further attack upon the divorce decree under the doctrine of res judicata¹⁸ as well as that of settled law of the case.¹⁹ The divorce decree's validity is no longer subject to relitigation in the trial court nor is it amenable to review on appeal or certiorari.

¶ 16 The procedural straitjacket in which Read finds himself with respect to corrective relief from the divorce decree for lack of personal jurisdiction likewise bars him from challenging the decree for lack of the third element of jurisdiction — judicial power to render the particular decision. The doctrine of res judicata bars relitigation not only of those issues raised and decided but also of those issues which could have been raised and were not.²⁰ Res judicata applies to questions of jurisdiction.²¹ Moreover, an appellate court's decision settles not only all questions actually tendered for review but also all questions existing in the record and involved in the decision by...