Yery v. Yery

• Court: Oklahoma Supreme Court
• Writing for the Court: HARGRAVE; IRWIN
• Citation: Yery v. Yery, 629 P.2d 357, 1981 OK 46 (Okla. 1981)
• Decision Date: 21 April 1981
• Docket Number: No. 53049,53049
• Parties: Ella Katherine YERY, Appellee, v. Richard Thomas YERY, Appellant.

Page 357

629 P.2d 357

1981 OK 46

Ella Katherine YERY, Appellee, v. Richard Thomas YERY, Appellant.

No. 53049.

Supreme Court of Oklahoma.

April 21, 1981.

Rehearing Denied June 22, 1981.

Appeal from the District Court, Oklahoma County; Homer Smith, Trial judge.

The District Court of Oklahoma County issued a decree of divorce providing for alimony, child support and division of property on the 3rd of September 1976. More than two years later, defendant-appellant responded to a motion to reduce alimony and child support arrearage to judgment by filing a motion to vacate the divorce decree, alleging the judgment to be either void or voidable. The District Court overruled the motion to vacate and issued judgment for arrearages. The defendant appeals the denial of his motion to vacate.

AFFIRMED.

Carl Hughes, Oklahoma City, for appellant.

David L. Russell, of Benefield, Travis, Russell & Freede, Oklahoma City, for appellee.

HARGRAVE, Justice.

Richard Thomas Yery brings this appeal from a judgment of the District Court of Oklahoma County, the Honorable Homer Smith, presiding, dated November 28, 1978. This appealed order awarded judgment against Mr. Yery for unpaid child support from September 1976 to October, 1978 in the amount of $15,600.00, in addition to an arrearage of $10,400.00 for alimony due and unpaid on a principal judgment of $48,000.00 in favor of the former wife, Ella Katherine Yery. The selfsame order denied appellant's motion to vacate or modify the original divorce judgment, alleged to be void as issued in absence of jurisdiction over the person of the defendant.

The plaintiff, Ella Katherine Yery, was an Oklahoma resident for three years prior to a trip to Weisbaden, Germany, at which time she married the defendant, Col. Richard Thomas Yery, in June of 1964. The children had been born of the marriage prior to 1972, when the couple were traveling from previous East Coast duty station of Colonel Yery to the West Coast in preparation for a transfer to Taipei, Taiwan. The couple stopped over in Oklahoma and after considering the past difficulties of the parties, plaintiff decided to remain in Oklahoma rather than continue on overseas. At that time, an agreed order for separate maintenance was entered in the District Court of Oklahoma County providing for a total sum of $500.00 per month to be paid to plaintiff. No issue was then raised pertaining to an infirmity in jurisdictional facts or venue.

The plaintiff rented an apartment in Oklahoma City and enrolled the children in a local school, obtained a job within the county, obtained a driver's license, and registered to vote within Oklahoma County. Appellant regularly paid the above mentioned separate maintenance funds to the plaintiff for thirteen months. In August of 1973, appellant returned to Oklahoma for four or five weeks and lived with the appellee as husband and wife for half of that period. The appellant husband was at the time enroute to his next duty station, Vandenberg Air Force Base. The couple decided to go to California and continue to attempt a reconciliation; failing that they agreed the wife would return to Oklahoma and the appellee would continue to provide the separate maintenance funds he had previously contributed. The return to California was made in September of 1973. The reconciliation attempt did not accomplish its goal and the plaintiff then removed herself to Oklahoma City.

The plaintiff thereafter filed her petition for divorce on November 8, 1974, alleging the statutory ground of incompatibility. The record demonstrates clearly that the defendant, Col. Yery, failed to claim the first summons issued. It is included in the record, as yet unopened, correctly addressed and stamped "unclaimed". Thereafter ensued an unusually complicated effort to effect service upon the Colonel. The difficulties in obtaining service are attested to by affidavits included in the record. While service of process under Calif. Civ. Procedure, T. 5 § 415.20(b) in the normal circumstances would be expeditious, the record compels the conclusion that Col. Yery utilized his position as a legal officer of the Armed Forces of the United States and his rank as full Colonel to evade service of process. The record demonstrates the Colonel instructed his subordinates to threaten process servers with incarceration, and issued an "opinion" that civil process could not be served upon Vandenberg Air Force Base. Despite these difficulties, plaintiff's counsel obtained service on the Colonel under CCP 415.20(b), providing for service by leaving copies at the usual place of business of the person served in the presence of a person apparently in charge of his office or place of business, at least 18 years of age, who was informed of the general nature of the papers. This service was made by sending a student to the office with a package containing the service papers. An affidavit of plaintiff counsel's California associate attests to this service, stating the provision of the California Civil Procedure requiring the service agent to notify the party served at the place of business of the general nature of the papers was accomplished in the best available manner, by attaching a written notice to the outside of the package. The attorney's affidavit states defendant's threat of incarceration of process servers foreclosed the verbal notification. The California attorney states that under the circumstances of this proceeding, given its surroundings, the written note conveyed the actual knowledge required by the statute.

Once service was accomplished, the case proceeded in the normal manner, the defendant appeared specially and made a motion to quash the summons, order and purported service on two grounds, those being defective service of process and lack of jurisdiction over the person of the defendant and this cause of action. This motion also alleged venue to be improper. The trial court overruled the motion to quash and plea to jurisdiction in October of 1975. The defendant then applied to this Court for a writ of prohibition, Cause No. 49,007, arguing the method of service in California was improper and there was no subject matter jurisdiction in the District Court of Oklahoma County, in a addition to the absence of jurisdiction over the person of the defendant. The Oklahoma Supreme Court, at that time, assumed jurisdiction over the cause and denied the petitioner's writ. Thereafter, the defendant demurred to the divorce petition after plaintiff filed a motion for default judgment. Nearly two months later, the defendant's attorney withdrew from the cause, at the request of the defendant.

Two months later, the trial court issued the decree of divorce which recites that the defendant did not appear for trial and had dismissed his attorney. The date of the decree is the third day of September, 1976.

The record in this appeal reflects no appeal or other post judgment actions were made by the defendant. The next 150 pages of the record reflect no matters other than garnishment proceedings by the former wife against the officer, Colonel Yery. The record reflects precious little success in collecting the funds owed the wife on the unappealed judgment for over two years; indeed until plaintiff filed a "motion to reduce child support arrearage to judgment and to verify alimony judgment arrearage," the defendant was silent in the record. Then, on November 28, 1978, more than two years after judgment, the defendant filed a motion to vacate or modify the District Court judgment of 3 September 1976, alleging exactly the same grounds of infirmity presented to this Court earlier in the petition for writ of prohibition of October, 1975. The District Court heard the motion to vacate and the motion to reduce arrearages to judgment and found that it had jurisdiction over the parties, and therefore denied the motion to vacate. The same journal entry enters judgment for unpaid alimony and child support.

The appellant's petition in error realleges the same errors as noted at the trial court level in the defendant's motion to vacate. Those grounds are: that the judgment is void for want of jurisdiction over the person of the defendant and over the subject of the action, and that the District Court erred in refusing to grant defendant's motion to vacate.

The trial court properly considered the motion to vacate the judgment more than two years after rendition under the grounds listed in that motion. The grounds cited are: mistake of the clerk, irregularity in obtaining a judgment, fraud practiced by the successful party in obtaining the judgment or order. These are causes for vacation under 12 O.S. 1971 § 1031, Third, Fourth, and Seventh. The proper method of attacking a judgment under ground Four and Seven of § 1031 is stated as being by petition, verified by affidavit with summons issued and served, as in the commencement of an action. Compliance with the above noted requirements is jurisdictional, and the court acquires no jurisdiction to vacate the judgment under causes listed in 12 O.S. 1971 § 1033 in the absence of compliance with its provisions. Sadberry v. Hope, 444 P.2d 175 (Okl.1968). Furthermore, 12 O.S. 1971 § 1038 specifies a limitation period of two years for vacation of a judgment for the Fourth and Seventh ground of 12 O.S. 1971 § 1031. The motion to vacate we are here concerned with was filed later than two years after judgment. The third ground mentioned in 12 O.S. 1971 § 1031 is mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. The limitation period of 12 O.S. 1971 § 1038 in which a party may obtain a vacation is three years. Under this basis for vacation, the motion was timely. Improper service has been held to be reachable in vacation proceedings under § 1031 Third. Westbrook v. Dierks, 292 P.2d 172 (Okl.1956). Inasmuch as the motion to vacate under § 1031 Third was timely filed, appellate examination of...