HOLLEYMAN v. HOLLEYMAN

SUMMERS, J.

¶ 1 Our question involves the enforceability of a divorce decree by which the parties purport to agree "to leave the child support open after the minor child reaches the age of eighteen and/or complete high school . . ." based on the needs of the child, if any. The parties agree that the child is a "special needs" child with some degree of retardation and seizure problems.

¶ 2 Mother and Father divorced in 1993 when their child was fifteen years old. Father stopped providing medical insurance in 2000. Mother then sought an order from the District Court to (1) compel Father to provide medical insurance, (2) pay additional child support, (3) reimburse Mother for payments made to maintain the insurance and for medical expenses, (4) pay child support payments that were unpaid since 1999, and (5) adjudicate future support amounts needed by the child. She alleged that at the time of the divorce the parties agreed that Father would provide support after the child was 21 years old.

¶ 3 Father responded to Mother's application with a motion to dismiss. He stated that he stopped making the child support payments in May of 1999 after the child graduated from high school at the age of 21 years. He argued that the District Court was without jurisdiction to order payments to support a child after the child has reached the age of 21 years.

¶ 4 The trial court heard argument of counsel and granted the motion to dismiss. Mother appealed and the judgment was affirmed by the Court of Civil Appeals. We vacate the opinion of the Court of Civil Appeals and reverse the judgment of the District Court.

¶ 5 The Father maintains that the decree is not a judgment by consent, or "consent decree." We have discussed the characteristics of a consent decree:

A consent judgment is the agreement of the parties entered upon the record with the sanction of the court. McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948). A consent decree in a divorce is the result of negotiations between the parties and subsequent settlement of the issues involved, which settlement is then presented to the court as a proposed judgment. Although it is not a judicial determination of the rights of the parties, it acquires the status of a judgment through the approval of the judge of the pre-existing agreement of the parties.

Whitehead v. Whitehead, 1999 OK 91, ¶ 9, 995 P.2d 1098, 1101, (note omitted and emphasis added).

Father's brief describes the events leading up to the decree: "After the parties had been litigating the trial for a matter of days, settlement discussions ensued between the parties and their respective counsel that led to the Journal Entry Order and Decree of Divorce. . . ." The record supports this description in that the decree states that the parties agreed to the provisions of the divorce decree "with regard to all issues." Decree of Divorce, O.R. at 9. The decree is a judgment by consent or a "consent decree."

¶ 6 Of course, characterizing the decree as a consent decree does not determine that the parties agreed to a particular matter. The controversy in the trial court centered on one provision of the 1993 divorce decree. It states that:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant shall pay child support in the amount of Four Hundred Dollars ($400.00) per month, deviated from the child support guidelines, attached hereto as Exhibit "A", as agreed upon by the parties. Due to the special needs of the minor child, the parties have agreed to leave the child support open after the minor child reaches the age of eighteen (18) and/or completes high school, and the Court will retain jurisdiction for either party to file an application for further support based upon the specific needs and requirements of the minor child, if any.

Id. O.R. at 11.

Mother claims that the trial court has jurisdiction to order more child support because of Father's agreement. Father claims that a District Court has no subject matter jurisdiction to compel child support payments for the support of children after they have reached the age of 21 years, and that subject matter jurisdiction cannot be created by an agreement of parties.

¶ 7 We have said that a parent has a legal duty to support his or her child until the child reaches the age of majority. State, ex rel. Dept. of Human Services ex rel. Jones v. Baggett, 1999 OK 68, ¶ 22, 990 P.2d 235, 244; Abrego v. Abrego, 1991 OK 48, 812 P.2d 806 , 811. The divorce decree in this case was pronounced on June 17, 1993, and the relevant statute in effect at that time stated that:

Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years.

43 O.S.Supp. 1993 § 112[ 43-112](D), (eff. June 7, 1993).

Thus, at the time of the decree this statute-based obligation for child support did not extend beyond the child's nineteenth birthday. Id.

¶ 8 But the decree in this case is a consent decree, and parties to a consent decree may agree to obligations between themselves that exceed those required by law.

If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties. Stuart, 1976 OK 107, ¶ 14, 555 P.2d at 615. Such an agreement between the parties is enforceable and valid even though it does what a trial court cannot do, provided the agreement does not contravene public policy.

Whitehead v. Whitehead, 1999 OK 91, ¶ 10, 995 P.2d 1098, 1101, (emphasis added).

Thus, when a trial court is requested to enforce a child-support obligation upon a parent an important issue must be addressed: What is the source of that obligation? Does the obligation spring from mandatory law or does it spring from a consensual agreement? We noted this distinction in Greeson v. Greeson, 1953 OK 111, 257 P.2d 276 .

¶ 9 In Greeson we observed that a trial court did not possess statutory power to modify child support retroactively, but the parties could agree to such modification and incorporate such agreement in a judgment by consent. We explained that such a consent decree was judicially enforceable.

With this contention we agree. Under 12 O.S. 1941 § 1277[ 12-1277] the court has authority to modify an order for child support prospectively. The court does not have authority to make the modifying order operate retroactively. Sango v. Sango, 121 Okla. 283, 249 P. 925 ; Reynolds v. Reynolds, 192 Okla. 564, 137 P.2d 914. Therefore, if the order of December 21, 1946 had been entered by the court upon the merits after a trial of the issues it would have been void insofar as it had the effect of relieving the defendant of liability for unpaid installments accrued up to the time of the entry of the order.

However, it is agreed that the order of December 21, 1946 was a consent order entered by the court upon the agreement and consent of the parties. While in its retroactive aspect it is void as a court order, yet being a consent order, it is in the nature of a contract, and in the absence of fraud or mistake, is a binding obligation between the parties thereto.

Greeson v. Greeson, 257 P.2d at 278. (emphasis added)

Just as parties may consent to a retroactive adjustment of their personal rights, they may also contract as to their personal rights in the future. For example, in Kittredge v. Kittredge, 1995 OK 30 , 911 P.2d 903, we explained that a consent decree awarding the wife a percentage of the husband's future income in lieu of property division was enforceable, even though the statute would otherwise have prohibited an order to that effect:

The husband argues the trial court did not have the jurisdictional power to divide his future earnings because the consent of his rights even though he consented to the division. In Ettinger v. Ettinger, 637 P.2d 63, 65 (Okla. 1981), this Court held that under section 1278 of title 12 of the Oklahoma Statutes (now Okla.Stat.tit. 43 § 121), a district court did not have jurisdiction to divide a husband's future earning absent a recitation in the decree the parties intended to circumvent the statute. The Court, however, recognized that where the parties had entered into a consent agreement which sought to avoid the strictures of the statute, the district court would have jurisdiction to enter such an order. Further, an express waiver of statutory rights in the consent decree was not required, only an agreement "which seeks to avoid the strictures of Section 1278."

Kittredge v. Kittredge, 911 P.2d at 904. Thus, the parties may, as a general proposition, agree between themselves as to future child support payments.

¶ 10 Father further argues that a "consent decree may not leave anything for determination by the trial court." He relies upon language in Whitehead stating that: "If the agreement between the parties regarding support and maintenance is intended as final and binding, leaving nothing for determination by the court on the question of the amount of the allowance, such decree is not subject to modification without the consent of both parties." Whitehead v. Whitehead, 1999 OK 91, at ¶ 10, 995 P.2d at 1101, emphasis added). This language addresses the finality of an obligation, and not whether the amount of an obligation may be contractually set for a future determination. We have allowed consent decrees to possess obligations where the amount thereof is determined at a future date. Kittredge v. Kittredge, supra.

¶ 11 Once we recognize that parties may agree to alter their obligations the next steps are determining if such agreement did occur and the substance of the agreement. We use principles of contract law to make these determinations. We have said that we construe a consent judgment "as other contracts" and ascertain the intent of the parties.

An agreed judgment is in the nature of a contract and is to be construed as other contracts. Grayson v. Pure Oil Co., 189 Okla. 550, 118 P.2d 644; Insurance Service Co. v. Finegan, 196 Okla. 441, 165 P.2d 620. The intention of the parties is to be ascertained from the writing alone, if possible. 15 O.S. 1941 § 155.[ 15-155].

Greeson v. Greeson, 257 P.2d at 278 — 279.

¶ 12 Father points to the lack of specificity in an amount to be determined in the future. A lack of specificity in either the amount or scope of an obligation does not necessarily mean an absence of a judicially enforceable obligation. We have explained that even if a provision of a contract is too vague and indefinite to determine the intent of the parties, their conduct may supply the necessary information to determine intent of the parties. Bartlett v. Sterling Const. Co.,1972 OK 67, 499 P.2d 425, 429.

¶ 13 The intent of the parties at the time they entered into an agreement controls the meaning of their written contract, and the statutory rules for ascertaining intent are set out at 15 O.S. 2001 §§ 151[ 15-151] through 157. Founders Bank and Trust Co. v. Upsher,1992 OK 35, 830 P.2d 1355, 1361. The trial court made its decision in the context of a motion to dismiss challenging the jurisdiction of the trial court to award statutorily mandated support after a child has reached her majority. The trial court did not make findings of fact or law on the issue of the parties' intent, the essential elements of an agreement, or the contested portion of the divorce decree. Further, although Mother alleges that a judicially enforceable agreement exists, neither Father or Mother identify the relevant principles of contract law that may apply to the controversy in support of their respective positions. This Court will not exercise its appellate jurisdiction to make first instance determinations on disputed questions of fact or law. Oklahoma Public Employees Association v. Oklahoma Dept. of Central Services, 2002 OK 71, ¶ 21, 55 P.3d 1072, 1081; Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 42, 987 P.2d 1185, 1201. This cause must, therefore, be remanded to the trial court for further proceedings.

15 O.S. 2001 § 151[ 15-151]: "All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by law."
15 O.S. 2001 § 152[ 15-152]: "A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful."
15 O.S. 2001 § 153[ 15-153]: "For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied."
15 O.S. 2001 § 154[ 15-154]: "The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity."
15 O.S. 2001 § 155[ 15-155]: "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this article.
15 O.S. 2001 § 156[ 15-156] "When through fraud, mistake, or accident a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous part of the writing disregarded."
15 O.S. 2001 § 157[ 15-157]: "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others."

¶ 14 We note that while this matter was pending the Legislature added 43 O.S. 2001 § 112.1A[ 43-112.1A], and it provides that a court may order for the support of a child of any age in the event of certain disabilities. Because we reverse the judgment of the trial court and remand the matter to that court we need not request briefs from the parties or address the applicability of new § 112.1A, if any, to this controversy.

43 O.S. 2001 § 112.1A[ 43-112.1A] (eff. July 1, 2001).
§ 112.1A. Definitions — Child support — Parental rights and duties — Actions and jurisdiction
A. In this section:
1. "Adult child" means a child eighteen (18) years of age or older.
2. "Child" means a son or daughter of any age.
B. 1. The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:
a. the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support, and
b. the disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of the child.
2. A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is eighteen (18) years of age or older to receive the support directly.
C. 1. A suit provided by this section may be filed only by:
a. a parent of the child or another person having physical custody or guardianship of the child under a court order, or
b. the child if the child:
(1) is eighteen (18) years of age or older,
(2) does not have a mental disability, and
(3) is determined by the court to be capable of managing the child's financial affairs.
2. The parent, the child, if the child is eighteen (18) years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency.
D. 1. A suit under this section may be filed:
a. regardless of the age of the child, and
b. as an independent cause of action or joined with any other claim or remedy provided by this title.
2. If no court has continuing, exclusive jurisdiction of the child, an action under this section may be filed as an original suit.
3. If there is a court of continuing, exclusive jurisdiction, an action under this section may be filed as a suit for modification pursuant to Section 115 of this title.
E. In determining the amount of support to be paid after a child's eighteenth birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special consideration to:
1. Any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
2. Whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
3. The financial resources available to both parents for the support, care, and supervision of the adult child; and
4. Any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.
F. An order provided by this section may contain provisions governing the rights and duties of both parents with respect to the support of the child and may be modified or enforced in the same manner as any other order provided by this title.

¶ 15 The trial court dismissed the claims with two conclusions: first, that it did not possess subject matter jurisdiction, and secondly, that once a child reaches his or her majority the child is the proper party to bring a legal action against a parent for the parent's failure to pay support during that child's minority. A child does possess an independent right to maintain an action and to request support and maintenance. State Dept. of Human Services ex rel. K.A.G. v. T.D.G.,1993 OK 126, 861 P.2d 990, 993. Whether the disputed portion of the decree is in fact an agreement allowing Mother to act on the child's behalf, and the effect of such an agreement upon Father's right to challenge Mother's representative status, if any, was not addressed by the trial court. The trial court's order must be reversed on this point as well.

¶ 16 Generally, we use a de novo standard to review a trial court's dismissal of a party's petition for relief because such dismissal is usually based solely upon an issue of law and not fact. Miller v. Miller, 1998 OK 24, ¶ 15, 956 P.2d 887, 894. Father's motion to dismiss argued that no consent decree existed, and that the parties could not, as a matter of law, agree to subject matter jurisdiction. The trial court order determines that no subject matter jurisdiction existed.

¶ 17 That order is correct insofar as it determines a lack of jurisdiction to award statutory child support under Title 43. But district courts have jurisdiction to adjudicate the existence and effect of contracts. Here the Mother's claim is for enforcement of a contract she alleges to be in effect. She alleges consideration for the bargain by way of her agreeing to give up part of her statutorily calculated child support. The Father does not dispute this, but the trial court has never adjudicated the existence or non-existence of that alleged contract. The trial court did not determine whether Father agreed to pay child support after the child reached her majority. We will not determine in the first instance whether the decree contains such an agreement. Oklahoma Public Employees Association v. Oklahoma Dept. of Central Services, supra; Patel v. OMH Medical Center, Inc., supra. The Mother is entitled to her day in court to prove what, if anything, the parties agreed to, and whether the Father is in fact in breach of any agreement.

¶ 18 The opinion of the Court of Civil Appeals is vacated. The judgment of the District Court is reversed, and the matter is remanded to the District Court for further proceedings consistent with this opinion.

¶ 19 WATT, C.J., OPALA, V.C.J., HODGES, HARGRAVE, KAUGER, SUMMERS, JJ. — Concur

¶ 20 LAVENDER, BOUDREAU, WINCHESTER, JJ. — Dissent

OPALA, V.C.J., concurring.

¶ 1 The court holds that in this post-decree proceeding the district court has cognizance to determine the quantum of Father's obligation ( if any he have) to support his disabled adult child of a dissolved marriage. The dissent challenges for want of jurisdictional support the enforceability of Father's decree-imposed duty. Father's successful liability-defeating defense below calls on us here to retest the trial court's view that it lacked cognizance to enforce the decree-created obligation. I write separately to answer Father's jurisdiction-anchored argument for the correctness of the nisi prius dismissal and to respond to the dissent's analysis of Father's defense theory.

As I understand Father's argument on certiorari, he makes (1) a broad challenge to the district court's cognizance over the modification proceeding because it was "without jurisdiction" either (2) to impose the very obligation that was sought to be enforced in this proceeding or (3) to enforce the decree-imposed obligation for want of specificity in the interspousal agreement.

¶ 2 Even if it were true that the decree portion sought to be enforced is patently infirm, at least insofar as it imposes on Father a duty to support his disabled adult child, the district court would not be without jurisdiction to entertain Mother's quest for enforcement of that promise and for determination of the support's quantum. The district court is an omnicompetent tribunal of "unlimited jurisdiction." The constitutional breadth of its jurisdiction invests that court in this case with subject-matter cognizance over the claimed support for the parties' adult child. While the decree-imposed duty in contest may, for other reasons, be attacked as unenforceable, Father's jurisdiction-anchored defense does not defeat the trial court's cognizance over the subject matter of Mother's motion that will once again stand before it on remand. The dissent's analysis, if adopted, would undermine the stability of judgments and unsettle their present-day invulnerability to delayed and procedurally impermissible attacks for mere mistakes of law. Father's challenge, based on want of specificity in the decree-approved support promise, cannot be catapulted to the level of a jurisdiction-vitiating defect. Simply put, this case is not at all about jurisdiction but about post-remand enforceability of Father's decree-imposed duty.

Art. 7 § 7(a), Okla.Const. ( infra note).

I THE CRITICAL FACTS IN LITIGATION

¶ 3 Cynthia Jo (Mother or obligee) and Randall Dexter Holleyman (Father or obligor) were divorced by a 1993 consent decree. By its terms they agreed (a) to leave undetermined the quantum of Father's post-majority support obligation until the minor should reach the age of eighteen or complete high school and (b) to let the district court (upon either party's request) set the amount of Father's post-majority support obligation, based upon the then-established needs and requirements of the child-beneficiary. The divorced father stopped paying support when his child graduated from high school at the age of 21. By her post-decree proceeding now on review Mother moved to enforce Father's on-the-record, decree-approved promise to provide support for the parties' disabled offspring. After the trial court's dismissal ( for want of jurisdiction) of Mother's proceeding stood affirmed by the Court of Civil Appeals, we granted certiorari on Mother's petition.

¶ 4 The cognizance-related issues tendered by arguments on certiorari^fn3 call for a two-part analysis. In its first step we must ascertain whether the district court — in the exercise of its adjudicative authority over the parties' divorce — had the power to approve an issue-expanding interspousal agreement. If so, our second step should determine whether the approved agreement may be enforced in this post-decree modification proceeding Mother filed in her divorce case. For the reasons to be explained, I, like the court, resolve both issues by an affirmative answer.

II

THE DISTRICT COURT'S SUBJECT-MATTER JURISDICTION

A. The District Court Has A Constitutionally-Derived Unlimited Original Cognizance Over Mother's Claim To Father's Support For Her Disabled Adult Child ¶ 5 The district court's subject-matter jurisdiction is derived from the State's constitution. Under its provisions, the court serves as an omnicompetent, single-level, first-instance tribunal^fn4 with "unlimited original jurisdiction of all justiciable matters. . . ."^fn5 While that constitutionally-conferred jurisdiction is conceptually indivisible, even though its exercise stands carved into several separate dockets,^fn6 the full sweep of its cognizance cannot be abridged by either legislation or caselaw. It is the constitutional breadth of the district court's jurisdiction, not the parties' consent, that operates to invest the trial court with cognizance over Mother's claim for an adult child's support. The district court clearly erred in bottoming its dismissal on "lack of jurisdiction."

B.

The Impact of Docket Boundaries on Divorce-Related Issues

¶ 6 Interdocket boundaries cannot be invoked to restrict the tribunal's constitutional omnicompetence. ^fn7 They are merely procedural demarcation lines separating different remedial regimes (small claims, probate, jury or non-jury cases) or dividing discrete classes of litigation (domestic, civil, criminal or the like). Because interdocket boundaries are merely remedial (rather than jurisdictional), the district court's exercise of cognizance over any issue tendered for its judicature upon the wrong docket will not defeat its constitutionally-invested unlimited subject-matter jurisdiction. Neither may the docket boundary's extension render a judgment (or any of its parts) facially void as coram non judice.^fn8 Errors in crossing remedial interdocket lines, though perhaps correctible on direct appeal,^fn9 will not impress themselves as a fatal flaw upon the face of the judgment roll.^fn10 No remedial lines were crossed in this case.^fn11

¶ 7 Oklahoma's jurisprudential development has led to a very early post-statehood accommodation of expanded issues cognizable within the cases placed upon what is now the family-and-domestic docket of the district court. ^fn12 That docket has become the main channel for processing both divorce-and-family-status litigation as well as for all kinds of divorce-generated post-decree disputes. The district court's divorce-related authority includes approval of consent decrees^fn13 that confer upon the parties greater post-marital rights than those defined by statute.^fn14 There is hence no need to direct here that after remand the cause be re-processed along a different docket route.^fn15

¶ 8 In sum, there is no longer any doubt about the propriety of allowing the parties in a divorce suit to expand the litigation's scope by injecting into the decisional process extra-statutory issues generated by an interspousal agreement that settles either some or all marital rights in contest. In this stage of our jurisprudential development, it is much too late to restrict the family-and-domestic docket disputes solely to rights that are statutorily defined.^fn16 The district court's constitutionally-derived unlimited original jurisdiction of all justiciable matters cannot be shrunk by imprisoning its range of cognizance over divorce-related issues within the parameters circumscribed by the pre-1857 English-law antecedents.^fn17

III

THE EXTENT OF THE DISTRICT COURT'S SUBJECT-MATTER

JURISDICTION IN POST-DECREE STAGES

¶ 9 The district court's authority to approve an on-the-record agreement clearly includes the power to enforce the parties' pacts through post-decree modification proceedings brought upon the family-and-domestic docket (under the earlier-assigned cause number).

¶ 10 Once an interspousal agreement is approved and incorporated into the decree, the parties' private contract stands converted to a solemn judicially enforceable obligation of record which is no longer one of a purely private-law (or contractual) character.^fn18 Because a mid-divorce, on-the-record promise to provide support for one's disabled adult child may be enforced in post-decree proceedings, the claim falls within the family-and-domestic docket boundary.^fn19 In that sense and for that purpose this district court docket may be said to include all promise-generated, post-decree issues to the end that the same enforcement remedies stand accorded all decree-bottomed obligations — those that are solely statute-based as well as those that derive from approved interspousal pacts. ^fn20

¶ 11 We need not be concerned here about the custodial Mother's post-decree standing as a Hohfeldian^fn21 plaintiff to enforce Father's on-the-record promise. She is the obligee of a court-approved agreement as well as a co-contributor of support for her adult child. In that dual capacity she would be entitled to standing both as the beneficiary of an enforceable promise (if it proves to qualify under that category) as well as the actual provider of support for which legal liability will now extend to both parents.^fn22

IV

THE DISSENT'S VIEW OF THE DECREE-IMPOSED SUPPORT DUTY

AS A JURISDICTION-VITIATING FACIAL DEFECT RESTS ON THE

MISTAKEN NOTION THAT (1) THE INTERSPOUSAL CONTRACT WAS INDEFINITE, (2) IT WAS UNENFORCEABLE QUA CONTRACT

AND (3) ITS DECREE-IMPOSED DUTY STANDS SUSPENDED

IN A JURISDICTIONAL VACUUM

¶ 12 The dissent appears to argue that had the trial court not dismissed Mother's motion (for want of cognizance), the efforts to enforce Father's promise would have been in vain because the decree-rendering nisi prius court stood sans cognizance to transform the decreed obligation into an enforceable judgment for the latter's want of a requisite jurisdictional element — that of power to enter a support judgment in favor of an adult child.^fn23 The decree's facial invalidity also is urged to stem from the dissent's view that the terms of the interspousal agreement are indefinite and hence unenforceable as a contract.

A.

In the Absence of a Complete Judgment Roll, a Forensic Assessment of the

Decree's Facial Invalidity Is Impermissible

¶ 13 A judgment may not be attacked for facial invalidity when the entire (complete) judgment roll ^fn24 has not been incorporated into the record for review.^fn25 The record before us falls far short of what is necessary to establish a facial jurisdictional defect in the 1993 duty-creating decree.^fn26

B. A Mistake of Law Cannot Be Catapulted to the Level of a Jurisdictional Flaw

¶ 14 Even if a complete judgment roll were now before the court, an attack on the decree-imposed duty to provide support for the disabled adult child, based on an alleged facial flaw, would be impermissible. The defect Father invokes does not constitute an infirmity that would serve to divest the court of jurisdiction over the post-decree modification quest. The relied-on infirmity in the critical decree clause (if any there was) would at most constitute legal error, rather than a jurisdiction-vitiating defect. A facially apparent mistake of law will not taint the judgment roll by an imprint of facial invalidity.^fn27 Excessive use of the term "jurisdiction" — as mere synonym for error or for some other deficiency — introduces confusion into the law and undermines the district court's constitutional sweep of cognizance. This court's duty is to protect the stability of judgments rather than expose them to procedurally impermissible and hence unwarranted delayed attacks.

¶ 15 A district court has jurisdiction over unenforceable judgments to the same extent as it does over nonactionable claims.^fn28 When authority to deal with a subject is present, the manner and extent of the power's exercise, though patently excessive, must stand undisturbed, absent a direct attack timely launched within three years.^fn29 The interspousal agreement, even if deficient for lack of specificity, would no longer be vulnerable to an attack unless it be mounted for its facial invalidity.^fn30 Upon the record before us, that kind of attack is here clearly unwarranted. ^fn31

C. The Misplaced Reliance On Chapman v. Parr Places District Courts In A Pre-Statehood Jurisdictional Straitjacket

¶ 16 The dissent's reliance on Chapman v. Parr for the notion that courts exercising divorce cognizance are "without jurisdiction" when entertaining issues not authorized by statutory divorce law is an unwarranted extension of both Chapman and Irwin v. Irwin, the case on which Chapman is bottomed. Chapman dealt with the inapplicability of general venue statutes to divorce litigation. It refused to extend to divorce suits the common law's intrastate forum non conveniens doctrine. To that extent Chapman is still effective law. Insofar as Chapman appears to treat trial judges (sitting in divorce cases) as eunuchs fitted into a statutory straitjacket, its holding should be relegated to antiquarian lore as an aberrational exposition of post-statehood law. Chapman relies on Irwin, a pronouncement by the Supreme Court of the Territory of Oklahoma. Insofar as Chapman would deny the district court its power to entertain for approval agreement-generated issues, it is pure ipse dixit — a statement utterly unsupported by the text of Irwin or by any post-statehood jurisprudence of this court. The territorial court's pronouncement stands not only sans precedential effect, it is also imprisoned in territorial divorce law that is contrary to this court's extant (post-statehood) jurisprudence (as well as to the present-day statutory divorce-law regime).

1974 OK 46, 521 P.2d 799.

Supra note. The dissent also relies on Williams v. Williams,1975 OK 163, ¶ 9, 543 P.2d 1401, 1403. In Roesler v. Roesler,1982 OK 21, ¶ 4, 641 P.2d 550, 550-51, the court observes that "[w]hile divorce is wholly a creature of statute [citing Williams, supra], actions for divorce and division of property are of purely equitable cognizance." The quoted Roesler explanation correctly identifies the notion that Oklahoma judges who hear divorce cases are not in the straitjacket imposed by the English legal system's ecclesiastical or parliamentary antecedents.

Supra note.

See, e.g., Whitehead, supra note, at ¶ 10, at 1101 Dickason, supra note, at ¶¶ 9-13, at 677-78; Greeson, supra note, at ¶ 10, at 278.

D. Settled Common-Law Contract Jurisprudence Militates Against Attributing Lack Of Enforceability To The Decree-Imposed Support Obligation For Want Of Definiteness In Father's Promise ¶ 17 Even under pure contract law the lack of the assumed obligation's specificity would not preclude its enforceability if the trial court is able to determine, with a reasonable degree of certainty, what the parties had intended. A contract will not fail for lack of specificity in its terms if it is clear that the parties contemplated the open terms to be resolved in a specified manner and in a specified time. The parties' promise here under review specifies that the post-majority child support will be determined by the trial judge based upon the established needs and requirements of the disabled adult child when he reaches the age of 18 or graduates from high school. The decree-approved interspousal agreement in controversy clearly contemplates further proceedings to ascertain the quantum of Father's post-majority support obligation. The parties' agreement and the decree-imposed support duty are hence free from both legal infirmity and facial invalidity.

Brown v. Bivings, 1954 OK 301, ¶ 13, 277 P.2d 671, 673; Watts v. Elmore, 1946 OK 232, ¶ 8, 176 P.2d 220, 223; Webb v. Moran,1939 OK 369, ¶ 21, 96 P.2d 308, 312; Harlow Publishing Co. v. Patrick, 1937 OK 579 , ¶ 0 syl. 2, 72 P.2d 511, 181 Okla. 83. Once it is determined that the parties intended to form a binding agreement, the certainty of the terms is important only as a "basis for determining the existence of a breach and for giving an appropriate remedy." Restatement (Second) of Contracts § 33(2).

It is a settled principle that the law does not favor invalidation of agreements on the ground of uncertainty. A contract is not void for uncertainty because it fails to set out details as to the subject matter if it can be ascertained with a reasonable degree of certainty what the parties intended. Brown, supra note, at 673; Watts, supra note, at 223; Webb, supra note, at 312. This has long been the common law in Oklahoma. It is now codified in 12A O.S. 2001 § 2-204[ 12A-2-204] of the Uniform Commercial Code [UCC]. The terms of 12A O.S. 2001 § 2-204[ 12A-2-204](3) provide in pertinent part: "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy." According to the Uniform Commercial Code Comment that follows § 2-204, "Oklahoma courts have not previously required absolute certainty in all respects to grant relief. The agreement has been held sufficiently certain if the court could determine the intention of the parties. * * * Since the Oklahoma courts have previously been liberal in considering all the circumstances, and searching for the intention of the parties in enforcing an agreement, it does not appear that this section materially changes Oklahoma law." In sum, the common law that antedates the adoption of Article 2 of the UCC, much like the Article itself, supports the enforceability of contracts with terms that are indefinite but capable of being ascertained by methods agreed upon and known to both parties. The lack of specific terms does not necessarily invalidate contracts as long as the open or missing terms could be reduced to certainty by the use of extraneous evidence. 1 Corbin on Contracts, § 4.1, p. 533 n. 19 (1993).

E. The Common Law Of Contracts Is Not Implicated Here Because Mother Is Enforcing A Solemn Judicial Obligation, Not A Contract

¶ 18 Mother is enforcing here a solemn judicial obligation created by the merger of Father's promise in, and its incorporation into, the decree which now stands converted to judgment by caselaw that authorizes enforcement of approved interspousal agreements qua judgment. Because Father's promise to provide support for his disabled adult child (1) is not unenforceable as a contract lacking specificity and (2) is a vital part of the agreement incorporated into and merged in the decree, now invulnerable to attack for nonfacial defects, the district court is vested with authority to adjudicate the modification quest in the exercise of its (Mother-invoked) power to ascertain and enforce the quantum of Father's assumed obligation. F. According To The Mainstream Of American Jurisprudence On The Subject, A Promise To Support One's Disabled Adult Child Is Neither Contrary To Public Policy Nor Unenforceable ¶ 19 Although the early common law did not extend one's parental duty of support beyond a child's minority, the great majority of American jurisdictions, in which the statutory law is silent, has recognized an exception where, as here, the child is unable to care for itself upon attaining majority. This view is rested on common-law developments. While at the time of the 1993 decree the issue had neither been addressed by this court nor by the legislature, the parents' interspousal agreement that creates a support duty clearly is not contrary to public policy nor to the mainstream of American jurisprudence.

Chapman, supra note at ¶ 11, at 1374; Dickason, supra note, at ¶ 9, at 677; Acker, supra note, at ¶ 7, at 1219.

See cases cited in supra note.

See Part IV(D), supra.

See Part III, supra.

Nelson v. Nelson, 548 A.2d 109, 113 (D.C. 1988) (citing Annotation, Parent's Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948)).

See American Law Institute's Principles, supra note, Introduction at pgs. 39-40, §§ 3.13(1) ( Effect of a Parental Agreement on a Child-Support Award), 3.24(4) ( Duration of the Child-Support Obligation), 7.09 ( The Enforceability of a Separation Agreement), 7.10 ( Incorporation of the Terms of a Separation Agreement in a Decree). The pertinent terms of § 3.13(1) are: "The child-support terms of a parental agreement should be approved and adopted by the court unless the agreement provides for substantially less child support than would otherwise be awarded under this Chapter." The terms of § 3.24(4) state: "The parties may by agreement extend the duration of the child-support obligation." According to Comment h to § 3.24: "The parties may always agree to obligations to a child or to each other that exceed those imposed by law. This is a consistent theme in current law and in these Principles." Comment g to § 3.24 notes that the statutes of most states are silent as to post-majority support for disabled children , "in which case many courts have judicially extended the support obligation to adult disabled children." Id., citing in support Kamp v. Kamp, 640 P.2d 48, 50-51 (Wyo. 1982); Streb v. Streb., 774 P.2d 798, 800 (Alaska 1989); Koltay v. Koltay, 667 P.2d 1374, 1377 (Colo. 1983); Nelson, supra note, at 119; Castle v. Castle, 473 N.E.2d 803, 806-807 (Ohio 1984); Kinder v. Schlaegel, 404 S.E.2d 545 (W.Va. 1991), but noting a contrary view in Smith v. Smith, 447 N.W.2d 715 (Mich. 1989).

In Nelson, supra note, the court observes that in the absence of statute (a) the "trend among courts considering this issue is to recognize the parental duty of support for the adult disabled child as a natural extension of the common law obligation of support for minor children" ( id. at 116) and (b) that the vast majority of those courts "have found that the developing common law imposes such a duty" ( id. at 115).

¶ 20 An interspousal agreement that does not offend any public policy principles qualifies for judicial approval. The outer bounds of the district court's jurisdictional perimeter for decretal incorporation of approved agreements are co-extensive with their sanctioned terms. The critical terms in contest here are: (1) Father's promise-based assumption of post-majority support responsibility, (2) whose quantum is to be set after performance is due, (3) in a post-decree proceeding (4) which will be processed through and enforced by the trial court in the very same manner as if it were an imposed nonconsensual duty. None of these terms exceeds the district court's jurisdictional boundary. Their incorporation does not inject a fatal flaw into the judgment roll. Moreover, no judgment may be condemned for facial invalidity without a judicial inspection of the entire roll . The dissent's attempt to exempt consent decrees from the law's requirement (calling for a four-corners' examination of the record proper) rests neither on logic nor on extant authority. Mother's decree is clearly impervious to the dissent's attack on its facial fitness. Were we to follow today the dissent's analysis and were we to condemn — upon an incomplete judgment roll — the assailed part of the decree as unenforceable for facially apparent jurisdictional excess, Mother's adjudged rights would become impermissibly extinguished by interposition of after-pronounced jurisprudence. Because the validity, meaning, and effect of a judgment must always be assayed by the law in force at the time it was entered, judicial testing of these factors in an adjudged obligation must be kept free from impairment by after-enacted legislation and by after-promulgated caselaw.

See Part IV(B) supra.

See Part IV(A) supra.

Consent decrees are not an exempted rubric from the sine qua non four-corners' examination. The parties failed to stipulate as to (or even suggest that they agreed on) the contents of the complete judgment roll in the proceedings that led to the decree here under the jurisdictional scrutiny . The burden to show a flaw on the face of the judgment roll is cast on Father. Salazar, supra note, at ¶ 11, at 1061. It was his duty to have in the record the four corners of the judgment roll. The record for Mother's appeal is devoid of her stipulation that the decree is facially and fatally void. Nothing short of Mother's stipulated admission (or concession) will support the dissent's analysis.

Hedges v. Hedges, 2002 OK 92, ¶ 26, 66 P.3d 364, 374; Evans v. Evans, 1993 OK 59, ¶¶ 10-11, 852 P.2d 145, 149; Messenger v. Messenger, 1992 OK 27, ¶ 12, 827 P.2d 865, 870; Timmons v. Royal Globe Ins. Co., 1985 OK 76, ¶ 13, 713 P.2d 589, 594 n. 18; Mayhue v. Mayhue, 1985 OK 68, ¶ 6, 706 P.2d 890, 894; Nantz v. Nantz, 1988 OK, ¶ 6, 749 P.2d 1137 , 1143 (Opala, J., dissenting); Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶ 24, 732 P.2d 438, 449; Wootten v. Askew, 1983 OK 37, ¶ 8, 668 P.2d 1123, 1124-125, citing Crain v. Farmer's United Cooperative Pool, 1970 OK 134 , ¶ 13, 472 P.2d 882, 884 and Curtis v. Barby, 1961 OK 252, ¶¶ 31-32, 366 P.2d 616, 622; Bomford v. Socony Mobil Oil Co., 1968 OK 43 , ¶ 24, 440 P.2d 713, 720-21; American-first Title Trust Company v. Ewing, 1965 OK 98, ¶ 40, 403 P.2d 488, 496.

V SUMMARY OF MY VIEWS IN CONCURRENCE

¶ 21 Constitutional omnicompetence of the district court is not subject to legislative abridgement . The district court's "unlimited jurisdiction" includes the authority to resolve extra-statutory status- or promise-related issues generated by a decree-approved, on-the-record interparental agreement for post-majority support of a disabled child of the marriage. The issues settled by an interspousal agreement, though expanding the divorce suit's range of cognizable matters, neither defeat the court's subject-matter jurisdiction nor make the suit unqualified for processing upon the family-and-domestic docket as a post-decree dispute. The district court's authority extends to those issues, arising after the divorce decree, which were generated by an approved (and memorialized) mid-divorce agreement imposing on Father a duty to support his disabled adult child.

¶ 22 The parties in a divorce suit may expand the litigation's scope by injecting into the decisional process extra-statutory issues generated by their approved agreement which settles some or all marital rights in controversy. The district court's constitution-derived omnicompetent cognizance that unquestionably includes divorce suits may not be circumscribed by resort to pre-1857 English-law restrictions (once attached to ecclesiastical divorce judicature and to the now-defunct authority of the British Parliament to dissolve marriages by special acts). Nonprecedential pre-statehood jurisprudence that would make the district court impotent to consider any divorce-related issues outside of those specifically sanctioned by legislation cannot be regarded as a correct exposition of present-day Oklahoma law.

For the various English restrictions upon divorce judicature see supra note.

¶ 23 Settled common-law contract jurisprudence firmly militates against declaring Father's assumed obligation unenforceable because his promise was not in a definite amount. The case presents no real challenge to the trial judge's jurisdiction over Mother's post-decree child-support quest. The decree-imposed obligation is now invulnerable to any attack for want of jurisdiction other than one pressed on grounds of facial invalidity. The record for this certiorari review presents no facial appearance of any fatal jurisdictional flaw. Even an apparent mistake of law would not taint the judgment roll by an imprint of facial invalidity. If ordinary error were to become a facial jurisdictional infirmity no judgment would be safe from delayed and unwarranted attack. Public policy calls on this court to stabilize judgments and protect them from unauthorized assaults . The district court is not divested of jurisdiction to entertain Mother's quest for enforcement of Father's decree-imposed duty. District courts have jurisdiction of actions that are barred by limitations as well as of those in which enforceability of a decree is sought to be defeated on jurisdictional grounds.

¶ 24 This case is not at all about want of jurisdiction but rather about enforceability of Father's decree-imposed duty to support his disabled adult child. Even if, as Father urges, his decree-imposed duty were jurisdictionally flawed, the district court would have jurisdiction to accept or reject that defense. The trial court's dismissal "for want of jurisdiction" was clearly erroneous and must be reversed even if the nisi prius court, by its ruling's confusing phraseology, meant to accept Father's jurisdictional challenge. For the latter disposition there is here a total absence of record-supported facial invalidity.

¶ 25 I hence concur in reversing the nisi prius order and remanding the cause for post-remand proceedings to be consistent with today's pronouncement

BOUDREAU, J., with whom LAVENDER and WINCHESTER, JJ., join, dissenting:

¶ 1 I dissent because there is a major difference between enforcing an agreement between a husband and wife that obligates one or the other to pay child support after a child reaches majority, and enforcing an agreement which attempts to vest the court with jurisdiction to determine a child support obligation after the child reaches majority. Enforcing the latter agreement impermissibly allows the parties to confer jurisdiction upon the court to pronounce a particular decision that the Legislature has not currently extended to the court.

¶ 2 In this case, the trial court correctly determined that the parties did not enter into a legally enforceable agreement as to the terms of their obligations after the child reaches majority. They merely agreed that the court would "retain jurisdiction" to decide a post-minority application for child support. Their agreement reads, in pertinent part:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant shall pay child support in the amount of Four Hundred Dollars ($400.00), deviated from the child support guidelines, attached hereto as Exhibit "A", as agreed upon by the parties. Due to the special needs of the minor child, the parties have agreed to leave the child support open after the minor child reaches the age of eighteen (18) and/or completes high school, and the Court will retain jurisdiction for either party to file an application for further support based upon the specific needs and requirements of the minor child, if any.

(emphasis added).

¶ 3 While a court may have general jurisdiction of the subject matter of a class of actions, it does not necessarily follow that the court may hear and determine a particular case submitted for its consideration. A court must have the judicial power to decide a particular matter and to render a particular judgment in order to pronounce a valid judgment. Stork v. Stork, 1995 OK 61, 898 P.2d 732 , 738 n. 17; Petty v. Roberts, 1939 OK 560, 98 P.2d 602; Isenhower v. Isenhower, 1983 OK CIV APP 12, 666 P.2d 238. The parties may not confer upon the court the jurisdiction to pronounce a particular decision it enters.

The jurisdiction necessary to empower a court to render a valid judgment is of three types: (1) jurisdiction of the parties, (2) jurisdiction of the general subject matter and (3) judicial power to decide a particular matter and to render the particular judgment. If any one of these three requisites is lacking, the purported judgment is a nullity and is void. Kittredge v. Kittredge, 1995 OK 30, 911 P.2d 903.

¶ 4 "Divorce was not recognized at common law, where divorces were either ecclesiastically or legislatively granted. The right to divorce is recognized as purely a creature of statute." Chapman v. Parr, 1974 OK 46, 521 P.2d 799; Williams v. Williams, 1975 OK 163, 543 P.2d 1401, 1403. Accordingly, all rights of parties with respect to divorce are fixed by the statutory law of the state.

¶ 5 The relevant statute in this case provides:

Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years.

43 O.S.Supp. 1993 § 112[ 43-112](D) (eff. June 7, 1993).

¶ 6 In enacting this statute, the Legislature limited the authority of the trial court to issue a child support order. The authority of the trial court comes to an end when a child reaches eighteen years of age (or later, if the child is regularly and continuously attending highschool) and the court has no power to make or continue a provision for child support thereafter. Certainly the Legislature can extend the trial court's authority if it so desires, Lookout v Lookout, 1974 OK CIV APP 21, 526 P.2d 1405, but that power resides only with Legislature, not with the parties.

¶ 7 The concurring opinion goes to great lengths to stress that Oklahoma allows judicial approval of consent decrees that confer upon the parties greater post-marital rights than those defined by statute. This proposition of law cannot be seriously contested. Unquestionably the parties in a divorce action may, by agreement, expand the issues beyond what a trial court could. Whitehead v. Whitehead, 1999 OK 91, 995 P.2d 1098; Kittredge v. Kittredge, 1995 OK 30 , 911 P.2d 903. Likewise, there is no doubt that a parent can bind himself or herself by agreement to support a child beyond minority. However, that agreement may be enforced by the court only if the parties intend the agreement to be final and binding and only if the agreement leaves nothing for determination by the court on the question of the terms of the obligation. See Whitehead, 995 P.2d at 1101.

In arguing that even under pure contract law the lack of the assumed obligation's specificity would not preclude its enforcement, the concurring opinion cites § 2-204(3) of the Oklahoma Uniform Commercial Code, 12A O.S. 2001 §§ 1-101[ 12A-1-101] et seq. Section 2-204(3) applies only to transactions in goods and has no applicability to this case. Rather, this case is governed by the common law of contracts which requires a contract to be sufficiently definite in its significant terms to be enforceable. Edwards v. Board of Education of Oklahoma City, 1946 OK 183, 169 P.2d 1015 .

¶ 8 Before today, we had held that a trial court retains jurisdiction in a divorce action to enforce the parties' agreement that the wife would receive a certain percentage of the husband's future income in lieu of property division. Kittredge, supra. We had also held that a trial court retains jurisdiction to enforce the parties' agreement that the wife would receive "$650.00 per month . . . for such period as [the husband] continues to draw employment or retirement income from Burlington Northern and Army retirement." Whitehead, supra. In both Kittredge and Whitehead, the parties entered into a final agreement that left nothing for determination by the court on the question of the terms of the agreement.

¶ 9 Today, the majority opinion seems to say there is no difference between what the parties agreed to in Kittredge and Whitehead and what the parties agreed to in this case. In my view there is a major difference. In the former cases, the parties entered into fully executed agreements which left the trial court with nothing to do but enforce the agreed terms. In this case, the parties left the terms of their post-minority child support obligations open for the court to decide after the child reached majority.

¶ 10 While a trial court may approve and enforce any type of issue-expanding agreement offered by the parties in a divorce case, the trial court may not determine issues beyond the scope of its statutory authority, even when the parties attempt to confer such power on the court.

¶ 11 The concurring opinion argues that if there is an infirmity in the decree, it would at most constitute legal error rather than a jurisdictional-vitiating defect. I respectfully disagree. The critical clause in the decree, in my opinion, constitutes more than legal error or the erroneous exercise of judicial authority. It attempts to vest the court with a power that is not provided by statute. In this situation, jurisdiction is wanting.

¶ 12 The trial court's decision is void for lack of jurisdiction because the face of the judgment roll reveals that at least one of the three elements of jurisdiction is lacking, the judicial power to pronounce the particular decision that was entered. Stork v. Stork,1995 OK 61, 898 P.2d 732, 738. Accordingly, the decision may be attacked at any time in the same case or by an independent action. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, 981 P.2d 1244, 1249.

The concurring opinion argues that we lack a complete judgment roll on appeal and, accordingly, the 1993 decree cannot be attacked for facial invalidity. The judgment roll consists of "the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." 12 O.S. 2001 32.1. While generally this Court will not notice any instrument that is not part of the appellate record, uncontroverted facts outside that record which stand admitted in the parties' briefs may be considered to supplement the deficiently-assembled or incomplete judgment roll. First Federal Savings Loan Assn v. Nath, 1992 OK 129, 839 P.2d 1336 , 1342 note 32.
Neither party voiced an objection to the trial court's determination of the consent divorce decree's facial invalidity based upon an incomplete judgment roll, nor asserted that any missing documents, if presented there for inspection, would reveal anything legally significant relating to the condition of the decree's judgment roll. Nor was any objection ever raised before this Court on that ground. The record on appeal includes all essential items from the judgment roll of the 1993 decree: the mother's divorce petition, the father's answer, and the journal entry granting the decree. Although it does not contain the process and return, the parties stipulate in their briefs that they entered into and signed a consent divorce decree. The judgment roll of the consent divorce decree (aided by the parties admissions in their briefs) is complete enough to warrant a pronouncement that the decree is facially void.

¶ 13 In sum, a parent can bind himself or herself by agreement to support a child beyond minority, but the parents cannot confer jurisdiction on a court to decide, after the child has reached majority, the terms of post-minority child support. In the case in controversy, the trial court accurately apprehended that the parties did not enter into an agreement as to the terms of the their obligations after the child reaches majority, but merely agreed that the court could retain jurisdiction to decide their post-minority application for child support. The trial court correctly determined that it had no jurisdiction to decide the issue.

¶ 14 I would affirm the trial court.

SUPPLEMENTAL OPINION AFTER REHEARING'S DENIAL

KAUGER, J., with whom Watt, C.J. and Winchester, J. join, dissenting to the supplemental opinion on rehearing:

¶ 1 The majority determines that appellate costs in matrimonial matters are automatically taxable against the prevailing party. To reach this result, the majority: 1) ignores principles of statutory construction insofar as 12 O.S. 2001 § 978 and 43 O.S. 2001 § 110 are concerned; 2) overrules precedent specifically holding that this Court has the authority to divide appellate costs equitably; and 3) disregards the historical fact that matrimonial matters arise from chancery and are equitable in nature. Finally, an equitable division of costs would require nothing more than is already being done when trial courts determine the equitable division of attorney fees and expenses.

Title 12 O.S. 2001 § 978[ 12-978] provides:
"When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties."

Title 43 O.S. 2001 § 110[ 43-110] provides in pertinent part:
". . . C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.
D. The court may in its discretion make additional orders relating to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."

I. ¶ 2 TITLE 43 O.S. 2001 § 110[ 43-110] IS LATER IN TIME THAN 12 O.S. 2001 § 978[ 12-978] AND IS SPECIFICALLY APPLICABLE TO MATRIMONIAL PROCEEDINGS. ¶ 3 Where two or more enactments relate to the same subject matter, this Court's primary objective is to determine the latest expression of the legislative will. Under this rule of statutory construction, the most recent enactment will ordinarily prevail when there is an irreconcilable conflict between two statutes. When a special statute clearly includes the matter in controversy, the special statute controls over a statute of general applicability. Finally, our goal when considering two apparently conflicting legislative enactments dealing with the same subject matter is to consider them together as a harmonious whole and to give effect to each provision.

Public Serv. Co. of Oklahoma v. Northeastern Oklahoma Elec. Coop.,Inc., 2002 OK 29, ¶ 14, 49 P.3d 80; Grand River Dam Auth. v. State, 1982 OK 60, ¶ 24, 645 P.2d 1011.

Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge No. 188 v. Board of County Comm'rs of Tulsa County, 1998 OK 44, ¶ 13, 959 P.2d 979; Carter v. City of Oklahoma City, 1993 OK 134, ¶ 11, 862 P.2d 77; State ex rel. Trimble v. City of Moore, 1991 OK 97, ¶ 30, 818 P.2d 889.

McNeill v. City of Tulsa, 1998 OK 2, ¶ 9, 953 P.2d 329;Abbott v. Board of Trustees of Oscar Rose, Etc., 1978 OK 129, ¶ 7, 586 P.2d 1098.

¶ 4 The Legislature first enacted the provision for the equitable division of expenses in divorce-related proceedings, 43 O.S. 2001 § 110[ 43-110], in 1965. However, the language of 12 O.S. 2001 § 978[ 12-978], allowing costs on appeal, has been a part of Oklahoma law since 1910. Section 110 deals specifically with matrimonial matters while § 978 addresses costs generally. While there is an apparent conflict between the provisions as it relates to costs, this conflict can be avoided by simply abiding by the established rules of statutory construction — giving effect to the most recent expression of the legislative will, and allowing the specific statute to control over the more general.

II. ¶ 5 BINDING PRECEDENT SUPPORTS THE EQUITABLE DIVISION OF COSTS.

¶ 6 In 1936, almost thirty years before the Legislature allowed the equitable division of costs in a divorce proceeding, this Court held in syllabus three of Gilcrease v. Gilcrease, 1936 OK 50, ¶ 0, 54 P.2d 1056 :

"Notwithstanding the affirmance of the judgment of the trial court, this court may, in its discretion, tax the costs of appeal in a divorce proceeding against the prevailing party."

In decrying the efficacy of the Gilcrease opinion, the majority ignores well-settled law on another issue — a syllabus, authored by this Court, embodies the law. The Court's language is not ipse dixit the bare assertion of an individual. Rather, it is the statement of this Court and is more akin to being carved in stone. We regularly rely upon syllabi as what they are — Oklahoma law as expressed by this Court.

Box v. State Election Bd. of Oklahoma, 1974 OK 104, 526 P.2d 936;Turner v. Rector, 1975 OK 172, 544 P.2d 507; Perforators v. Hilligoss, 1964 OK 244, ¶ 38, 397 P.2d 113; Eckels v. Traverse, 1961 OK 139, ¶ 2, 362 P.2d 683. See also, Short v. Jones, 1980 OK 87, ¶ 3, 613 P.2d 452.

Black's Law Dictionary, 4th Ed. (1968).

Lawton v. International Union of Police Ass'n, 2002 OK 1, ¶ 9, 41 P.3d 371; Chickasaw Telephone Co. v. Drabek, 1996 OK 76, ¶ 7, 921 P.2d 333; Goldman v. Goldman, 1994 OK 111, ¶ 2, 883 P.2d 164.

¶ 7 The majority can only reach the result here by overruling precedent. If Gilcrease is to be overruled, the change in the law should be given prospective application. When a statute or rule of law appears obscure in its impact on the case at bar, our pronouncements are given prospective effect to protect those who would otherwise suffer.

When called upon to settle the meaning of not-so-readily intelligible or not-so-clearly settled legal norms that are a veritable trap for the unwary, the court will give its pronouncement purely prospective effect in order to save the parties from the unforeseen impact of an obscurely worded regime of rules. See, McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 1, 979 P.2d 252; Bushert v. Hughes, 1996 OK 21, ¶ 2, 912 P.2d 334; Manning v. State ex rel. Dept. of Public Safety, 1994 OK 62, ¶ 1, 876 P.2d 667; Hale v. Board of Cty.Comm'rs of Seminole County, 1979 OK 154, ¶ 4, 603 P.2d 764;Poafpybitty v. Skelly Oil Co., 1964 OK 162, ¶ 19, 394 P.2d 515.

¶ 8 Research does not reveal any cause subsequent to Gilcrease in which this Court has equitably divided costs. Nevertheless, the Court of Civil Appeals evidently did not consider the practice so "foreign" to Oklahoma practice. In Bingham v. Bingham, 1981 OK CIV APP 26, 629 P.2d 1297, the Court of Civil Appeals taxed the costs of the appeal equally between the parties.

Opinions released by the Court of Civil Appeals are persuasive only. Rule 1.200(c)(2), Rules of the Supreme Court, 12 O.S. 2001 Ch. 15, App. 1.

III. ¶ 9 MATRIMONIAL SUITS ARE EQUITABLE IN NATURE.

¶ 10 The majority does not dispute that matrimonial suits are equitable in nature. Nevertheless, by questionable statutory construction and only by overruling controlling precedent, it requires that, in the matter of taxing appellate costs, equity be taken out of the equation. The position is unsupported either by statute or by controlling precedent.

Moyers v. Moyers, 1962 OK 146, ¶ 0, 372 P.2d 844; Bouma v. Bouma, 1968 OK 35, ¶ 0, 439 P.2d 198.

IV. ¶ 11 NO ADDITIONAL BURDEN IS PRESENTED IF COSTS ON APPEAL ARE EQUITABLY DIVIDED.

¶ 12 Everyone agrees that the award of attorney fees and expenses never depends upon prevailing party status in matrimonial matters. Where no compelling or overriding equitable considerations exist, husband and wives are each required to bear their own counsel fee obligations and litigation related expenses. Where there is an equitable reason for a different division, the court may consider the financial means of the parties and whether frivolous claims were pursued.

Kerby v. Kerby, 2002 OK 91, ¶ 13, 60 P.3d 1038; Thielenhaus v. Thielenhaus, 1995 OK 5, ¶ 19, 890 P.2d 925; Harmon v. Harmon, 1083 OK 89, ¶ 19, 770 P.2d 1.

Daniel v. Daniel, 2001 OK 117, ¶ 24, 42 P.3d 863; Larman v. Larman, 1999 OK 83, ¶ 18, 991 P.2d 536.

Kerby v. Kerby, see note 12, supra; Casey v. Casey, 2002 OK 70, ¶ 26, 58 P.3d 763; Abbott v. Abbott, 2001 OK 31, ¶ 12, 25 P.3d 291.

¶ 13 Attorney fees and costs go together like bread and butter or mashed potatoes and gravy. Once you have to consider the equities for the award of attorney fees and expenses as is mandated by 43O.S. 2001 § 110, the trial court has made the precise determination required for the award of costs. Presumably, the equities would support the same award for costs as for counsel fees. Therefore, the equitable division of costs requires no mental exercise that is not already being done when attorney fees and costs are awarded.

Title 43 O.S. 2001 § 110[ 43-110], see note 2, supra.