Nantz v. Nantz

OPALA, Justice,

with whom SIMMS, KAUGER and SUMMERS, JJ., join, dissenting.

The court today 1) sanctions judicial modification of support alimony obligations on grounds not authorized by law at the time of the monetary award’s adjudication and 2) holds free from constitutional infirmity the terms of 12 O.S.Supp.1987 § 1289(G), *1142enacted after this appeal was lodged,1 which provide that the “voluntary cohabitation” ground for alimony modification allowed by § 1289(D)2 are to be given retrospective effect. It is my view that, like other money judgments, support alimony awards — both as to accrued and unaccrued portions of the decreed obligation — embody vested rights that are constitutionally shielded from diminution by after-enacted legislation. I hence recede from the court’s pronouncement.

I.

CRITICAL FACTS IN LITIGATION

Appellant’s 1984 motion sought modification of a divorce decree’s monetary support alimony award. Movant relied upon obli-gee’s voluntary cohabitation, a ground first allowed by § 1289(D).3 The decree was rendered in January, 1979; the statute that authorized the modification sought below became effective October 1, 1979 — after the award’s rendition.4 The trial court held that the benefits of the § 1289(D) alimony reduction remedy did not avail to an obligor whose support duty stood decreed before the effective date of that enactment. I would today affirm the nisi prius ruling as a correct exposition of our fundamental law.

II.

JUDGMENTS ARE CONSTITUTIONALLY PROTECTED BY ART. V, § 54, OKLA. CONST.5 FROM THE EFFECT OF AFTER-ENACTED LEGISLATION

Monetary support alimony adjudicated in a divorce decree constitutes a judicially created pecuniary obligation which is protected from the effect of after-enacted legislation on a footing equal to a money judgment.6 The terms “judgment” and “decree” are synonymous. Judgments embody all the rights that necessarily accrue and absolutely vest in the creditor,7 because they signify a final determination of the parties’ rights in an action or proceeding.8

*1143An alimony award is in some features different from other adjudicated monetary obligations.9 It is not dischargeable in bankruptcy;10 it can be enforced by contempt; 11 and it may be modified or terminated.12 Despite these varying characteristics which are present in alimony awards but not in other money judgments, the protections affordable to the latter by Art. V, § 54, Okla. Const., also apply to the former with undiminished force.

There is no question that support alimony is modifiable and other money judgments are not. The issue here is what law must govern when the remedy of modification is sought in post-decree stages. Nothing in Stanfield v. Stanfield13 or in other extant jurisprudence supports the court’s conclusion today that when modification remedy is invoked, any new statutory ground not in force at the time the award was rendered can be available to the mov-ant as a legal basis for altering the alimony’s decreed value.14 Modifiability does not eo ipso vitiate the award’s fundamental nature qua adjudicated obligation for the payment of money that is protected by § 54 from changes made by after-enacted legislation.15

A judgment’s effect and validity must be governed by the law in force at the time of its rendition; neither can be adversely affected by later changes in the applicable law.16 Judgments comprise obligations of the highest nature known to law.17 Rights reflected in a judgment are constitutionally shielded from legislative interference by after-enacted statutes.18

That portion of a support alimony obligation which is unmodified and unterminated at the time of its accrual stands on a constitutional footing identical with any other money judgment and is hence protected absolutely by § 54.19 Section 54 clearly mandates that unaccrued installments be shielded also — not from modification or termination on pre-existing grounds — but from any new contingencies or conditions that have been imposed since the award’s rendition. Property interests in a judgment are “vested” rights that are constitutionally insulated from the effect of later-passed statutory changes.20 The legislature is powerless to burden judgments with conditions not present in the law at the time of adjudication. Judicial imposition of new conditions on prior judgments is equally prohibited by fundamental state law.21

Unaccrued monetary alimony also is protected by the “proceedings begun ” clause in § 54.22 That clause leaves unaffected by later-passed legislation any proceedings that were begun before the effective date of any new law. Efforts to enforce decreed alimony must be characterized as a proceeding begun under legislation in effect at the time the award was rendered. *1144Within the meaning and contemplation of § 54 every such proceeding continues in a pending status from the point of the alimony’s allowance until the award is fully satisfied by payment or terminated by the obligor’s death. In short, all quests for post-decree modification or termination of alimony are to be deemed proceedings begun when the award was rendered. The movant’s remedy — governed by the law in force at that time — stands unaffected by any subsequent changes.23 The judiciary as well as the legislature is prohibited by the unequivocal terms of § 54 from granting relief based on after-enacted legislation.24 Neither the courts nor the lawmaking body may burden unaccrued alimony liability with conditions upon the decreed obligation which were absent from the law at the time of adjudication.25

By providing in § 1289(G) that the § 1289(D) voluntary cohabitation ground for modifying alimony payments is applicable to awards rendered before the latter subsection’s effective date, the legislature has created a constitutionally impermissible escape hatch for some alimony obligors and has deprived the adversely affected creditors of their fundamental law’s protection under Art. V, § 54, Okla. Const.

III.

SECTION 1289(G)

VIOLATES THE SEPARATION OF POWERS DOCTRINE

The functions of government are divided by our fundamental law among three branches, each of which is forbidden from encroaching upon the powers and responsibilities of the other.26 Legislative power is mainly confined to making law, while the judiciary is invested primarily with adjudicative function — the authority to hear and determine forensic disputes.27

A judgment’s validity depends upon the jurisdiction of the court that renders it.28 If a judgment were rendered by a court without subject matter cognizance, the enactment of a statute that attempts to confer after-the-fact jurisdiction upon that court would constitute an invalid exercise by the legislature of judicial authority. 29 A law-making body lacks power to validate a judgment void when rendered. It is equally impotent retroactively to divest creditors of their vested rights in an adjudicated obligation.

Insofar as § 1289(G) sanctions changes in the terms of judgments rendered before the effective date of the statute in force at the time of rendition, it makes settled alimony claims vulnerable to readjudication upon grounds unknown at the time of the dispute’s termination. The subsection clearly depreciates the value of decreed monetary support awards. Legislative alteration of judicially determined civil liability constitutes an exercise of adjudicative power that does not reside in the lawmaking body.30

*1145IV.

SECTION 1289(G) VIOLATES ART. II, §§ 7,31 2332 AND 2433 AND ART. V, § 4634 OF THE OKLAHOMA CONSTITUTION

The rights that become vested in every judgment constitute private property within the meaning of Art. II, §§ 7, 23 and 24, Okla. Const.35 Sections 23 and 24 shield those rights from any taking for public use without just compensation as well as from taking for private use with or without compensation. Section 7 interdicts deprivation of property without due process of law. The terms of 12 O.S. Supp. 1987 § 1289(G),36 which authorize modification of judgments rendered before the section’s effective date, operate to extinguish vested or accrued property rights protected by the cited provisions of our fundamental law.37

Because § 1289(G) also impairs the enforcement of a narrow subclass of judgments — unaccrued monetary support alimony under awards rendered before the effective date of § 1289(D) — its terms violate Art. V, § 46, Okla. Const.38 The cited provision of our fundamental law absolutely and categorically mandates that statutory changes in the methods for collecting debts or enforcing judgments be made by legislation that affects all adjudicated obligations in like manner.39

V.

SUMMARY

Article V, § 54, Okla. Const., makes monetary support alimony awards — both as to *1146accrued and unaccrued installments — impervious and invulnerable to tinkering by after-enacted legislation. The § 1289(D) ground for modification, if enacted after the affected decree’s rendition, is not available to the obligor as a basis for modification. Recently enacted § 1289(G) violates the doctrine of separation of powers and offends Art. II, §§ 7, 23 and 24, as well as Art. V, §§ 46 and 54, Okla. Const.

I would continue to stand by the teachings of Smith40 and Holdsworth,41 which are both overruled by today's pronouncement; I would affirm the trial court’s order denying relief to. the obligor and strike down § 1289(G) as unconstitutional.

. The terms of 12 O.S.Supp.1987 § 1289(G), which became effective on June 3, 1987, provide:

The provisions of subsections (D) and (E) of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered. [Emphasis added.]

. The pertinent text of 12 O.S.Supp.1987 § 1289(D) provides:

The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances_ [The underscored terms became effective October 1, 1979 and are codified in 12 O.S. 1981 § 1289(D). They remain unchanged since their effective date.]

. For pertinent text of § 1289(D) see supra note 2.

. See Okl.Sess.Laws 1979, Ch. 278 § 1 at 793-794.

. The terms of Art. V, § 54, Okla. Const., provide:

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute. [Emphasis added.]

This section applies not only to repealed statutes but also to any legislative changes by amendment. See Lee v. Volkswagen of America, Inc., infra note 7 and Prudential Property and Casualty Company v. Grimes, Okl., 725 P.2d 1246, 1250 [1986].

. Stanfield v. Stanfield, 67 Okl. 56, 168 P. 912, 914 [1917].

. Lee v. Volkswagen of America, Inc., Okl., 743 P.2d 1067, 1069 [1987]; Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 594 [1985]; Mayhue v. Mayhue, Okl., 706 P.2d 890, 894 [1985]; Oklahoma Water Res. Bd. v. Central Okl. M.C. Dist., Okl., 464 P.2d 748, 755 [1969]. See also, Prudential Property and Casualty Company v. Grimes, supra note 5.

. Finnell v. Finnell, 113 Okl. 269, 230 P. 912, 913 [1924]; Henderson v. Arkansas, 71 Okl. 253, 176 P. 751, 753 [1918].

. Grattan v. Tillman, Okl., 323 P.2d 982, 984 [1958].

. 11 U.S.C. § 523(a)(5).

. 12 O.S. 1981 § 1276; Potter v. Wilson, Okl., 609 P.2d 1278, 1281 [1980],

. 12 O.S.Supp.1987 § 1289(B), (D) and (E); Dickason v. Dickason, Okl., 607 P.2d 674, 676 [1980]; Funnell v. Funnell, Okl., 584 P.2d 1319, 1322 [1978].

. See supra note 6.

. See Morley v. Hurst, 174 Okl. 2, 49 P.2d 546, 548 [1935] and Crump v. Guyer, 60 Okl. 222, 157 P. 321, 322 [1916],

. See Stanfield v. Stanfield, supra note 6.

. Mayhue v. Mayhue, supra note 7; Lee v. Volkswagen of America, Inc., supra note 7; Timmons v. Royal Glove Insurance Company, supra note 7; Dickason v. Dickason, supra note 12 at 677; Prudential Property and Casualty Company v. Grimes, supra note 5.

. Vaughn v. Osborne, 103 Okl. 59, 229 P. 467, 470 [1924].

. Art. V, § 54, Okla. Const., quoted at supra note 5. See also the authorities cited at supra note 7.

. Hammons v. Muskogee Medical Center Authority, Okl., 697 P.2d 539, 542 [1985].

. Lee v. Volkswagen of America, Inc., supra note 7; Timmons v. Royal Globe Insurance Co., supra note 7; Crump v. Guyer, supra note 14.

. See discussion in part III of this dissent.

. For the pertinent text of Art. V, § 54, Okla. Const., see supra note 5.

. See First Nat. Bank of Pauls Valley v. Crudup, Okl., 656 P.2d 914, 916 [1983]; State v. McCafferty, 25 Okl. 2, 105 P. 992, 996 [1909].

. State v. Worten, 167 Okl. 187, 29 P.2d 1, 4 [1934].

. Allgood v. Allgood, Okl., 626 P.2d 1323, 1325 [1981], is but one example of this court’s recognition that support alimony may not be modified on grounds that were not in force when the award was rendered.

.Art. IV, § 1, Okla. Const.; Puckett v. Cook, Okl., 586 P.2d 721, 722 [1978]; Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 573 [1944], appeal dismissed 322 U.S. 717, 64 S.Ct. 1288, 88 L.Ed. 1558.

The terms of Art. IV, § 1, Okla. Const., provide:

"The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." [Emphasis added.]

. Tweedy v. Oklahoma Bar Association, Okl., 624 P.2d 1049, 1054 [1981]; In re Courthouse of Okmulgee County, 58 Okl. 683, 161 P. 200, 201 [1916].

. Reynolds v. Brock, 122 Okl. 110, 250 P. 999, 1000 [1926].

. Reynolds v. Brock, supra note 28.

. Each separate department of government must use restraint to avoid encroaching upon the functions assigned to some other branch. See Sterling Refining Co. v. Walker, 165 Okl. 45, 25 P.2d 312, 318 [1933] and Earl v. Tulsa County Dist. Court, Okl., 606 P.2d 545, 547 [1980].

. The terms of Art. II, § 7, Okla. Const., provide:

“No person shall be deprived of life, liberty, or property, without due process of law.” [Emphasis added.]

. The pertinent terms of Art. II, § 23, Okla. Const., provide:

“No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner_”

. The pertinent terms of Art. II, § 24, Okla. Const., provide:

"Private property shall not be taken or damaged for public use without just compensation. * * *"

. The pertinent terms of Art. V, § 46, Okla. Const., provide:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing * * * providing or changing the methods for the collection of debts, or the enforcement of judgments * * * " [Emphasis added.]

. See Swatek v. Board of Regents of Oklahoma Colleges, Okl., 535 P.2d 295, 298 [1975], citing Graham v. City of Duncan, Okl., 354 P.2d 458, 461 [1960].

. See supra note 1 for the pertinent text and effective date of § 1289(G).

. See Reynolds v. Brock, supra note 28 at 1001 and Swatek v. Board of Regents of Oklahoma Colleges, supra note 35.

In Swatek, a paving district was established by a city ordinance that imposed assessments against each benefited lot, payable in annual installments, and created a lien upon each. After issuance of paving bonds, but before the last installments came due, the Board of Regents purchased land within the district. Owner of the bonds secured by affecting the property sought payment after the installments became delinquent. Because the installments were the only source from which the bonds could be paid, and since the owner was precluded by statute from foreclosing upon the liens against the Regents’ land, a reverse condemnation proceeding was filed. The court held that the land purchase by the Regents, made without satisfying the liens, amounted to a "taking” of property for public use without just compensation.

By analogy, just as the state was unable to purchase land after assessments were levied and under color of statute divest a lienholder of the right to payment, so is the legislature prohibited from using after-enacted legislation to divest judgment holders of the rights that became vested in them at the time of final adjudication.

.See supra note 34 for the pertinent text of Art. V, § 46, Okla. Const.

. See Maule v. Independent School District No. 9 of Tulsa County, Okl., 714 P.2d 198, 204 [1986]; Barrett v. Board of Com'rs of Tulsa County, 185 Okl. 111, 90 P.2d 442, 446-447 [1939]; see also, Prudential Property and Casualty Company v. Grimes, (Opala, J., concurring) supra note 5 at 1251.

. Smith v. Smith, Okl., 652 P.2d 297 [1982].

. Holdsworth v. Holdsworth, Okl., 720 P.2d 326 [1986].