McCrary v. McCrary

OPALA, Justice,

dissenting.

The court pronounces that the terms of 12 O.S.Supp.1982 § 1276.21 authorize a district court to enforce by contempt a one-sentence provision of its divorce decree directing that the husband “pay the back taxes due to the IRS for the years that the parties were married.” I must recede from today’s holding.

Section 1276.2 deals solely with orders “for the payment of money as part of a division of spousal property_” The divorce provision sought to be enforced in this case does not fall under the rubric of decisions authorized for contempt enforcement by the quoted statute. It is neither a support-related obligation nor a monetary award in lieu of property division.2 The order is in the nature of an indemnity clause designed to hold the wife harmless from joint federal tax liability which she may be called upon to discharge. Rather than dividing some intangible property or an intangible interest of the spousal estate, the decree clause in question merely orders the husband to address a purely negative asset — a potential liability in the form of an obligation that might be due to a third party. It is manifestly clear that the order cannot be enforced by the IRS. This is so because it was not a party to the divorce.3

There is also an insuperable impediment to the wife’s enforcement of the tax payment order. The decree determines neither the time for payment of the tax nor the specific amount that is due. Because the critical terms defining the husband’s allegedly breached obligation are missing, further proceedings doubtless will be necessary before performance by payment could be enforced. The tax payment provision, whose open-ended parameters must depend for content upon the will of a nonparty— the Internal Revenue Service — is neither an order nor a judgment. Until the husband’s tax obligation has been adjudged in definite terms and ordered paid at a stated time, it is unenforceable by any coercive process, legal or equitable. Contempt does not lie for failure to discharge a duty that is undefined by the order alleged to have been disobeyed.4 Judgments uncertain *273both as to the amount adjudged and as to the time the liability is to he satisfied will not support an execution.5

I would hence hold that a decree-imposed provision for payment of an unascertained obligation that may be due a third party is not enforceable by contempt.

. The terms of 12 O.S.Supp.1982 § 1276.2 provide:

"Any order for the payment of money as part of a division of spousal property pursuant to a divorce or separate maintenance action, if willfully disobeyed, may be enforced as an indirect contempt of court."

. Support-related obligations are enforceable by contempt. See Potter v. Wilson, Okl., 609 P.2d 1278, 1280 [1980]. Contempt is available under the terms of 12 O.S.Supp.1982 § 1276.2 to enforce a monetary award in lieu of property division.

. Kennedy v. Chadwell, 202 Okl. 491, 215 P.2d 548, 551-552 [1950]; Greco v. Foster, Okl., 268 P.2d 215, 219 [1954] and Ketchum v. Reidy, Okl., 312 P.2d 955, 958 [1957]. See also Gardner v. Gardner, Okl.App., 629 P.2d 1283, 1288 [1981].

. Plummer v. Superior Court of the City and County of San Francisco, 20 Cal.2d 158, 124 P.2d 5,8 [1942]; Ensch v. Ensch, 157 Kan. 107, 138 P.2d 491, 496 [1943]; State ex rel. Rosener v. Lasky, 552 S.W.2d 728, 730 [Mo.App.1977]; State v. Bailey, 132 Or. 350, 285 P. 809, 811 [1930]; Ex parte Slavin, 412 S.W.2d 43, 44 [Tex.1967] and Winn v. Winn, 218 Va. 8, 235 S.E.2d 307, 309 [1977].

In Bailey, supra, 285 P.2d at 811, the court said:

"... To justify a court in adjudging one guilty of contempt for the alleged violation of an order, the act complained of must be so clearly defined in the order that it will appear with reasonable certainty that the order has been violated; hence, orders which are uncertain and indefinite in their terms, will not sustain a judgment of guilty in contempt proceedings-”

In Winn, supra, 235 S.E.2d at 309, the wife brought contempt proceedings to enforce a provision of the marital settlement agreement incorporated into the divorce decree. The husband was held not to be in contempt under the *273general rule that "before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied.”

. Moroney v. Tannehill, 90 Okl. 224, 215 P. 938, 941 [1923].