White v. White

OPALA, Justice,

concurring in result:

The issue sought to be presented for review is whether the December 16,1976 contempt of court order for nonsupport rests on a void decree of September 25, 1976. The divorced father [father] no doubt hopes to secure this court’s pronouncement holding the contempt order unenforceable because its legal predicate — the divorce decree — is void on the face of the judgment roll.

The procedural posture of this appeal bars the father from the corrective relief he seeks. He is simply too late for any effective review.

We need not concern ourselves with the problem of whether the underlying decree is facially void or not. If the September 25, 1976 divorce decree is not void on the face of the judgment roll because evidence de-hors the record proper is in fact necessary to establish the jurisdictional infirmity in its rendition, the three-year limitation period for a direct attack had expired before the father launched it in his “rehearing motion” of December 21, 1976.1 If, on the other hand, the divorce decree is void on the face of the judgment roll, in that no proof dehors the record is needed to establish a fatal jurisdictional defect in it, no limitation period would apply,2 but another principle stands as a barrier to a successful attack. *703A facially void judgment may not be successively attacked, either directly or collaterally. Thé aggrieved litigant is allowed but a single “whack” at any facially void target.3 The father had that whack at it when he launched the attack by his “rehearing motion” of December 21, 1976 and met with the trial court’s adverse order of January 11, 1977. An appeal should have been brought directly from that order of denial. Absent such appeal the ruling implicit in the denial — that the judgment is not facially void — is now res judicata.4 Its res judi-cata effect cannot be avoided without showing here that a tenable legal ground within the meaning of 12 O.S.1971 § 1031 subdiv. 7 did actually exist for setting aside the denial on father’s June 17, 1977 vacation motion. That showing has not been made here.5

In summary, the appellant-father — too late here for any effective relief — stands before us in a veritable procedural straitjacket. His appeal fails. He is unable to show error in the trial court’s February 17, 1978 order refusing to vacate the January 11, 1977 denial of his rehearing motion. This is so because there is here no record of any “unavoidable casualty or misfortune” sufficient to make the January 11, 1977 denial legally vulnerable to attack and vacation. The denial must, be allowed to stand. It operates to bar relitigation of the attack on the grounds that the decree is facially void.

I am authorized to state that IRWIN, V. C. J., concurs in these views.

. Scoufos v. Fuller, Okl., 280 P.2d 720 [1955],

. 12 O.S.1971 § 1038 provides that “[a] void judgment may be vacated at any time . .” [emphasis supplied].

. Bruce v. Miller, Okl., 360 P.2d 508 [1961]; Brett v. Fielder et al„ 136 Okl. 222, 277 P. 216, 217 [1929]; syllabus 4 in Tippins v. Turben, 162 Okl. 136, 19 P.2d 605, 608 [1933],

. The doctrine of res judicata operates to bar successive jurisdictional attacks on the same grounds. Brett v. Fielder, supra note 3; Tippins v. Turben, supra note 3; Consolidated Motor Freight Terminal v. Vineyard, 193 Okl. 388, 143 P.2d 610, 614 [1943],

. Father did not demonstrate any grounds for relief under subdiv. 7, 12 O.S.1971 § 1031. It would take father’s proof of “unavoidable casualty or misfortune” that kept him from effective appearance in court on January 11, 1977 for him to succeed in having the January 11 order vacated. There is no requisite showing in this record.