Sommer v. Sommer

Decision Date14 October 1997
Docket NumberNo. 87159,87159
Citation1997 OK 123,947 P.2d 512
PartiesNicholas A. SOMMER, Respondent, v. Kay L. SOMMER, Petitioner.
CourtOklahoma Supreme Court

Eric J. Groves, Groves & Tague, Oklahoma City, for Petitioner.

Gomer Smith, Jr., Oklahoma City, for Respondent.

SUMMERS, Vice Chief Justice.

¶1 Our state constitution provides that "Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law." Okla.Const.Art. 2 § 13. The question before us is whether that provision is violated when past due court-ordered alimony payments are reduced to judgment, and that judgment is enforced by a contempt proceeding which could result in imprisonment. We conclude that a contempt proceeding to satisfy an award of support alimony is constitutionally permissible even though the payments have been reduced to judgment.

¶2 The 1985 divorce decree ordered Husband to pay Wife support alimony in the amount of $101,400.00 at the rate of $1,300 per month. In 1989 Ex-wife obtained a judgment in the amount of $7,068 based upon the past-due unpaid alimony. The decree was modified reducing the amount of alimony. Then in 1994 the she obtained a judgment in the amount of $29,000 based on past-due alimony payments.

¶3 She then brought a proceeding for indirect contempt, citing Ex-husband's failure to pay support alimony from 1990 through 1993. Ex-husband filed a motion in limine, seeking to exclude from evidence any non-payments of alimony that Ex-wife had reduced to judgment. The trial court sustained the motion in limine, and ruled that any alimony payment reduced to judgment could not be used to show contempt of the decree. The trial court then certified its order for our discretionary review.

¶4 This Court has jurisdiction of an appeal to review a sentence imposed for contempt of court occurring in a civil matter. Okla.Sup.Ct.R. 1.21(e)(1); Fulreader v. State, 408 P.2d 775 (Okla.1965). An order in contempt proceedings is not appealable by right until the judgment and sentence become final. First Nat. Bank and Trust Co. of Ada v. Arles, 1991 OK 78, 816 P.2d 537, 539; Hampton v. Hampton, 1980 OK 46, 609 P.2d 772. The order in this case is not final.

¶5 However, this Court may exercise its discretion to review certain interlocutory trial court orders when certified by the trial court. The order must affect a substantial part of the merits of controversy and be certified by the trial judge that an immediate appeal may materially advance the ultimate termination of the litigation. 12 O.S. 1991 § 952(b)(3). We have said that the term "merits" includes the real or substantial grounds of an action or defense, and excludes matters of practice, procedure, and evidence. Ellison v. Ellison, 1996 OK 64, p5, 919 P.2d 1, 2; Pierson v. Canupp, 1988 OK 47, 754 P.2d 548, 552 n. 8.

¶6 The trial court order does more than exclude evidence used to prove an alleged contempt. The order makes findings that (1) Ex-wife can no longer enforce unpaid support alimony payments by indirect contempt when the payments are reduced to judgment, (2) collection procedures available to a judgment creditor are not cumulative when the judgment is based upon unpaid alimony support, (3) an election by the judgment creditor to reduce the alimony arrearage to judgment is an election to forego collection by indirect contempt and, (4) a creditor loses the ability to use contempt to enforce alimony when the alimony is converted to a judgment. The trial court thus ruled that as a matter of law Ex-wife could not proceed on her contempt citation for alimony payments that had been reduced to judgment. 1 We previously granted certiorari and stayed further proceedings in contempt pending our resolution of the question. We now dissolve that stay, effective the date the mandate is filed in this Court.

¶7 In Oklahoma contempts are not governed by the common law, but by the Oklahoma Constitution and Statutes. Watson v. State ex rel. Michael, 1989 OK 116, 777 P.2d 945, 946. 2 Contempt has been statutorily classified as either indirect or direct. 21 O.S.1991 § 565; Woodworth v. Woodworth, 173 Okla. 554, 48 P.2d 1052, 1055 (1935). Direct contempt involves conduct in the presence of, or near, the court. 21 O.S.1991 § 565; Ex parte Plaistridge, 68 Okla. 256, 173 P. 646, 647 (1918). Indirect contempt includes "the willful disobedience of any process or order lawfully issued or made by a court; ...." Id.

¶8 We have said that disobedience of an order to pay alimony in a divorce proceeding constitutes indirect contempt of court. Ex parte Bighorse, 178 Okla. 218, 62 P.2d 487, 489 (1936); Wells v. Wells, 46 Okla. 88, 148 P. 723 (1915), (Syllabus by the Court). See Whillock v. Whillock, 550 P.2d 558 (Okla.1976) where we affirmed a judgment for contempt arising from the non-payment of alimony. In Ex Parte Chase, 141 Okla. 75, 284 P. 294 (1930) we observed that statutes expressly authorized the enforcement of an award of alimony by attachment and contempt. Id. 284 P. at 296, citing, C.O.S. 1921 §§ 506, 507. Our alimony statutes no longer use the term "attachment," but they do expressly authorize contempt proceedings for violation of a temporary order 3 and an order pertaining to the division of property pursuant to a divorce decree or separate maintenance action. 4 In addition, the Legislature has defined an indirect contempt to include the willful disobedience of any process or order lawfully issued or made by a court. Seay v. Howell, 311 P.2d 207, 208 (Okla.1957). The statutes thus authorize using a court's contempt powers to enforce an order directing the payment of alimony.

¶9 The people have proclaimed that debt shall not be the basis for imprisonment. Okla.Const. Art. 2 § 13. A constitutional scholar has stated that our prohibition of imprisonment for debt was derived from the Massachusetts Body of Liberties of 1641 and similar provisions in the Constitutions of Missouri, Alabama, Georgia, Maryland, Mississippi, and Texas. R.L. Williams, The Constitution of Oklahoma and Enabling Act, Art. 2 § 13 (2d ed.1941). See 5 Sources and Documents of United States Constitutions, 52 (W. Swindler ed., 1975). Although judicial process, i.e., the decree, is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines if that imprisonment is lawful. Thus this Court, as well as others, has examined the alimony claim underlying the judgment or decree and determined that it is not a "debt" within the meaning of that term in Art. 2 § 13.

¶10 For example, in Ex parte Bighorse, 178 Okla. 218, 62 P.2d 487 (1936) we said that:

It is the general rule supported by the weight of authority that alimony is not a debt within the constitutional or statutory provisions against imprisonment for debt, and generally there is no distinction between temporary and permanent alimony.

Id. 62 P.2d at 489, citing, Cain v. Miller, 109 Neb. 441, 191 N.W. 704, 30 A.L.R. 125 (1922) and the cases annotated therein.

In Commons v. Bragg, 183 Okla. 122, 80 P.2d 287 (1938) we again said that alimony was not a debt within the constitutional and statutory provisions against imprisonment for debt. We said that an order for the payment of alimony possesses different characteristics from an ordinary debt, since it is designed to secure the performance of a legal duty in which the public has an interest. Id. 80 P.2d at 290, citing, Cain v. Miller, supra.

¶11 Then in Potter v. Wilson, 1980 OK 51, 609 P.2d 1278, we explained in the context of the constitutional prohibition of Art. 2 § 13 that "debt" is sometimes defined as limited to contractual obligations, and that it is a technical term not coextensive in meaning with "judgment debt". Id. 609 P.2d at 1280. In accord with this teaching our Court of Criminal Appeals has said that Art. 2 § 13 prohibits imprisonment for breach of a contractual obligation. Ex parte Small, 92 Okl.Cr. 101, 221 P.2d 669, 678-679 (1950). Courts in other states have likewise concluded that when the claim underlying the judgment or decree is alimony the court's order may be enforced by contempt without violating constitutional restrictions on imprisonment for debt, because the nature of alimony is not a debt. 5

¶12 Pursuant to this type of analysis courts look not to the form the judicial process takes, but the nature of the claim underlying that process. In one case a party argued that marriage was a contract, support was a term of that contract, a breach thereof created a debt, and that debts were not subject to enforcement by contempt. State v. English, 101 S.C. 304, 85 S.E. 721, L.R.A. 1915F, 977 (1915). The South Carolina court disagreed, and explained that the duty of support also arose by statute, that society had a direct interest in the continued performance of the support obligation, and that husband's failure to pay was a breach of that public duty and not a mere debt owed to the wife. Id. 85 S.E. at 722. This language is similar to ours in Commons v. Bragg, supra. See also Middleton v. Middleton, 329 Md. 627, 620 A.2d 1363, 1366 (1993) where that court stated: "It is the substance of the obligation that the monetary claim represents, not the form that it takes, that is dispositive

[of whether the claim is a debt]." In addition to defining "debt" in such a way that does not include the alimony obligation, some courts have said that the contempt arises from a willful failure to obey the order of the court and pay the alimony, as opposed to imprisonment for debt. See e.g., Ensley v. Ensley, 239 Ga. 860, 238 S.E.2d 920 (1977).

¶13 The argument made here is that when the alimony decree-required payment is reduced to a judgment its nature is changed to a "judgment debt" and thus a debt for the purpose of Art. 2 § 13. In Doak v. Doak, 187 Okla. 507, 104 P.2d 563 (1940) we explained that our District Courts possess the power to issue execution to collect money adjudged to...

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