What's New in Oklahoma Law

Interesting developments from the Oklahoma Courts and Legislature.

If you would like to be notified when additions are made to this page, simply put your e-mail address in the box and click the submit button. Url-Minder will e-mail you each time a change is made.

March 11, 1998

DIVORCE SEMINAR REQUIREMENT UPHELD

The Oklahoma Supreme Court has upheld the constitutionality of requiring divorcing parents in Oklahoma to attend the "Helping Children Cope with Divorce" seminars. In Nelson v. Nelson, decided February 3, 1998, the husband was served with a divorce petition which notified him of his obligation to attend the seminar. Husband failed to answer the petition, and did not attend the seminar. In granting a default divorce, the court denied visitation to the husband, based upon his failure to attend.

On appeal, the husband argued that the requirement of attending the seminar was a violation of equal protection and due process. The Supreme Court denied the equal protection challenge, on the basis that the requirement applies to all divorcing parents, and is intended as a protection for children of divorcing parents.

The court further held that the simple requirement that divorcing parents attend the seminar was not a violation of due process, however, since nothing in the papers which were served on the husband notified the husband that he could be denied visitation based on his failure to attend, the court held that the trial court should have vacated its earlier decree when challenged by the husband.

The court went on to state that denial of visitation or custody is not the automatic result of failure to attend the mandated seminar. The standard to be always applied in determining custody and visitation issues is the "best interest of the child".

Nelson v. Nelson, 1998 OK 10, 69 OBJ 452 (2/3/98)

COMPENSATION BENEFITS AWARDED TO RAPE VICTIM

The Oklahoma Supreme Court has ruled that an employee who was forcibly raped by her supervisor while at work did suffer an "accidental injury" under the Workers Compensation Statutes, and was entitled to compensation not only for physical treatments she received, but also psychological treatment which grew out of the assault.

Wal-Mart Stores Inc. v. Reinholtz, 1998 OK 11, 69 OBJ 461 (2/3/98)

LAWYER’S NEGLIGENCE IS NOT GROUNDS FOR RELIEF

The Oklahoma Court of Civil Appeals has ruled that failure of a lawyer to file a pleading does not allow that lawyer’s client to attack the judgment.

In Board of Trustees of the Town of Davenport v. Wilson, 1998 OK CIV APP 4, 69 OBJ 520 (12/16/97) the defendants were served with summons and petition. Defendants failed to respond and default judgment was entered against them. On appeal, defendants argued that the reason no answer was filed was because of a failure on the part of defendant’s lawyer. The Court of Civil Appeals ruled that the lawyer’s failure to file a timely answer cannot be used as a basis for vacating the default judgment.

REVOCATION OF SUSPENDED SENTENCES BASED ON CALENDAR YEARS

The Oklahoma Court of Criminal Appeals has ruled that the State may move to revoke a suspended sentence within the term of calendar years of the defendant’s sentence.

In Hemphill v. State, the defendant was sentenced to five years suspended on May 22, 1991. In 1992, the District Court revoked one year of the defendant’s five year sentence. Defendant was incarcerated and, under Department of Corrections’ guidelines, served his one year in seven months. On February 13, 1996, the State filed a second motion to revoke suspended sentence, and, after hearing, the court did in fact revoke the balance of defendant’s five year sentence.

On appeal, defendant argued that, since he had served one year of his sentence in the course of seven months, the end of his five year suspended sentence should be five months prior to the five year anniversary of his original sentence. The Oklahoma Court of Criminal Appeals disagreed, stating that rules and regulations of the Department of Corrections cannot alter or modify a sentence of the District Court.

Hemphill v. State, 1998 OK CR 7, 69 OBJ 592 (2/5/98)

CREDITOR LIABLE FOR REPOSSESSOR’S ACTS

The Oklahoma Supreme Court has ruled that a creditor who hires an independent contractor to repossess a vehicle can be held liable for actual and punitive damages if the independent contractor breaches the peace or commits other illegal acts in repossessing the vehicle.

In Williamson v. Fowler Toyota, Inc., a car buyer was delinquent on payments, so the creditor sent an independent contractor to repossess the vehicle. The vehicle was located on Williamson’s lot, where it had been placed by the car buyer for repairs. The agent gained access to the vehicle by cutting a chain which locked the gate on Williamson’s lot. Williamson sued the creditor for actual and punitive damages. The trial court awarded $45.00 actual damages and $15,000 punitive damages.

On appeal, the defendant argued that an employer could not be held liable for the tortious or criminal acts of its independent agent. While this is the general rule of law in the State of Oklahoma, the Supreme Court held that creditors exercising their right to repossession under security agreements within the Uniform Commercial Code have a non-delegable duty to do so in a reasonable and lawful manner.

Williamson v. Fowler Toyota, Inc., 1998 OK 14 69 OBJ 758 (2/24/98)

COURT REQUIRES FATHER TO REIMBURSE CALIFORNIA

The Oklahoma Court of Civil Appeals has affirmed the trial court order that a man reimburse the State of California for amounts paid to support the man’s children.

In Harbuck v. State of California, the defendant was divorced in the State of California, with three children. Although there was never a formal child support order entered in the California divorce, the father worked and earned income in the State of Oklahoma for at least six of the years after the divorce decree.

The Oklahoma Court of Civil Appeals held that parents have a statutory and common law duty to support their minor children, even absent a specific order to do so. It held that the father was obligated to reimburse the State of California for amounts spent in support of his children.

Harbuck v. State of California, 1998 OK CIV APP 1169 OBJ 764 (12/16/97)

COURT HOLDS THAT WAIVER OF LATE PAYMENT MAY REQUIRE LATER DEMAND

Addressing an uncertain area of the law, the Oklahoma Supreme Court has ruled in Lucas v. Bishop that where a creditor on a contact for deed accepts late payments, such act may operate as a waiver for later defaults. In its opinion, the court stated

We conclude that the fairest way to deal with a waiver of prompt payment is to hold that the creditor has not waived his right to declare default, only that he waived his right to do so without notice that would give the debtor a reasonable time to cure the default before foreclosure would be appropriate.

 

In its opinion, the Supreme Court remanded the case to the trial court and stated that the trial court had the discretion and authority to allow the debtor to bring payments current in order to avoid foreclosure on the property.

Lucas v. Bishop, 1998 OK 1669 OBJ 847 (3/3/98)

October 25, 1997

No Bad Faith for Pre-Award Conduct

The Oklahoma Supreme Court has ruled that there can be no claim for bad faith failure to pay Workers Compensation insurance proceeds for conduct which occurred prior to an award by the Workers Compensation Court. In 1991, plaintiff sought to reopen his Workers Compensation claim, alleging a previous medical condition, which had been covered by Workers Compensation, had worsened. The employer's insurance company rejected the claim and contested its validity. The Workers Compensation Court later made an award on plaintiff's Workers Compensation claim, which the insurance company promptly paid. Plaintiff then filed action seeking damages for bad faith failure to pay claims for the earlier rejection. The Oklahoma Supreme Court held "There is no reason to allow a tort cause of action for a too aggressive defense of a Workers Compensation claim - especially where the claimant is no longer in the defendant's employ. A successful plaintiff in a personal injury action certainly has no cause of action against the defendant for the defendant's unsuccessful attempts to defeat an action against it. Anderson v. U.S. Fidelity & Guaranty Company, 68 OBJ 3340.

Contempt Proceedings Permissible, Even After Judgment

The Oklahoma Supreme Court has held that a person can be punished by contempt citation for failing to pay alimony, even if the alimony has previously been reduced to judgment. In Sommer v. Sommer, former husband was delinquent in payment of alimony. In 1994, former wife obtained a judgment in the amount of $29,000 for past due alimony. Later, former wife brought a contempt citation against former husband for failing to pay support alimony, including the support alimony which had previously been reduced to judgment. The trial court ruled that any amounts reduced to judgment could not later be used in contempt proceedings, as to do so would amount to potential imprisonment for a debt, which is prohibited by the State Constitution. The Supreme Court held "in sum, alimony in the nature of support may be enforced via a court's contempt powers after the alimony payments become due, even after support arrearages are reduced to judgment. For the purposes of Article II, Section 13, we view a contempt proceeding for willful failure to pay the judgment of arrearage as one for willful disobedience of the underlying support order. The Constitution is not offended". Sommer v. Sommer, 68 OBJ 3307.

Deadly Force Sometimes Allowed in Defense of Another

The Oklahoma Court of Criminal Appeals has ruled that the use of deadly force in the defense of another may be a defense to a manslaughter prosecution.

In a juvenile proceeding, the defendant was charged with first degree manslaughter after having shot and killed a man who was attacking the defendant's brother. For a homicide to be "justifiable" in the defense of another, Oklahoma Statutes allow that the person being protected be a "husband, wife, parent, child, master, mistress, or servant". Since one's brother is not included, the trial court held that the defense was not available to the juvenile.

The Oklahoma Court of Criminal Appeals held that "the proper statutory interpretation and application dictates that when the person sought to be defended does not fall into those specifically listed in [the statute]," then other Oklahoma Statutes, allowing use of "reasonable force" to prevent the commission of a crime, may be considered. Whether or not the force actually used was "reasonable" depends upon the facts of a particular case. OWM, Jr. v. State, 68 OBJ 3122.

Chemical Analysis of Beer Not Required in Prosecution of Minor

The Oklahoma Court of Criminal Appeals has held that chemical analysis is not required in order to prove that a substance is low-point beer.

Brian Tolle, age 17, was stopped October 15, 1996. The police officer noticed a tapped keg in the back seat of the vehicle that had the words "Olympia Beer Company". The officer pulled the tap and observed a "yellow foamy substance that smelled like beer".

The issue before the court was whether or not a chemical analysis was necessary to prove that the "yellow foamy substance" was beer, in order to charge defendant with minor in possession of low-point beer. The court held "nothing in the State Constitution or State Statutes, including the Evidence Code, designates the type of direct or circumstantial evidence required to prove a substance is low-point beer. State v. Tolle, 68 OBJ 3135.

October 3, 1997:

COURT OF CRIMINAL APPEALS ALLOWS DURESS AS A DEFENSE IN A MURDER PROSECUTION.

By a 3 - 2 vote, the Oklahoma Court of Criminal Appeals has ruled that a criminal defendant charged with first degree murder, conspiracy to commit first degree murder and solicitation to commit first degree murder can assert duress as a defense.

In the case of Spunaugle v. State of Oklahoma, 68 OBJ 2905, the defendant was convicted of the three count charge and sentenced respectively to death, ten years imprisonment and life imprisonment. At trial, the defendant raised the defense of duress, which was not challenged by the prosecution. On appeal, although not raised by the parties, the Oklahoma Court of Criminal Appeals felt the need to address the question of whether or not duress may be used as a defense to a murder prosecution.

Generally, specific statutes control over general statutes where there appears to be some conflict.

In Oklahoma, homicide is classified as "excusable" when committed by accident or in the heat of passion. Homicide is considered "justifiable" when resisting a murder attempt against the defendant, when in the lawful defense of a person or close family member, or when committed in an attempt to apprehend a person for committing a felony. These specific statutes are contrary to the general statutes which provide that a person committing a crime "while under the involuntary subjection to the power of superiors" (duress) is incapable of committing a crime. Another general statute provides that duress exonerates a person charged with a criminal act. A third general statute provides that a person is entitled to assert duress as a defense if that person was under a reason to believe that there was imminent danger of death or great bodily harm to himself or to a close family member.

The majority found that the statutory scheme of the general statutes indicated a legislative intent to allow duress to be used, even in a murder prosecution. According to the court "duress is an affirmative defense. The defendant bears the burden to present or elicit sufficient evidence to raise the defense, and if the defendant meets this burden, the burden then shifts to the State to disprove it beyond a reasonable doubt."

Also at issue at Spunaugle was the fact that one of the jurors apparently slept during part of the proceedings. At trial, the judge refused to remove the sleeping juror, stating that the juror had paid attention, "for the most part".

Finding that allowing a sleeping juror to continue on the panel was a fundamental mistake, the Court of Criminal Appeals stated "In a capital murder case in which the jury found guilt and set punishment at death, the participation of a juror who dosed during parts of the trial' is an unacceptable degradation of due process which requires reversal".

OKLAHOMA COURT OF APPEALS ALLOWS EVIDENCE OF "COLLATERAL SOURCE"

By a 3 - 0 decision, the Oklahoma Court of Appeals has allowed a verdict to stand in a personal injury case, where evidence of the plaintiff's "collateral source" was admitted at trial.

As a general rule evidence of collateral sources, such as health insurance policies or medical payments policies is not permitted to be presented to the jury, for fear of unfair prejudice. However, in Rucker v. Mid-Century Insurance Company, 68 OBJ 2955, the Court found that such evidence was admissible where the plaintiffs "opened the door".

In Rucker, the plaintiffs were involved in an automobile accident. The plaintiff testified that the defendant's failure to pay medical bills in a timely manner "led to considerable family stress and aggravation, and along with the accident, almost caused the [plaintiffs] to divorce." On cross-examination, the defendant's attorney was allowed to question the plaintiff as to whether or not medical bills were paid by plaintiff's own insurance.

In affirming the trial court, the Court of Appeals stated "The trial judge apparently concluded that defendant was not required to leave plaintiff's assertions in this regard unchallenged. We cannot say that the trial judge abused his discretion".

COURT OF APPEALS AFFIRMS "BEST INTEREST OF THE CHILD" ANALYSIS

Settling an apparent conflict between custody statutes involved in divorces and those involved in paternity actions, the Oklahoma Court of Criminal Appeals has stated that the "best interests of the child" standard is to be followed. In a paternity action brought by the Department of Human Services, the man who was shown to be the natural father of the minor child petitioned the trial court for custody. After using the "best interest of the child" standard, the court awarded custody to the natural father.

Natural mother appealed, claiming that Oklahoma Paternity Statutes grant custody of a minor child born out of wedlock to the mother. In this regard, the mother argued, the appropriate standard would be that of a modification of custody, which would require a showing that there had been a substantial change in condition, in addition to the "best interest" analysis.

In finding that the trial court used the proper analysis, the Court of Appeals stated "Clearly, Section 70 provides the statutory mandate for the use of the best interest of the child standard in the instant case. Moreover, it has been held many times the best interests of the child is a paramount issue in any custody proceeding". Department of Human Services ex rel Martin v. Chronister, 68 OBJ 2957.

August 3, 1997:

The Oklahoma Supreme Court has ruled that a person who develops a sexually-transmitted disease from their spouse, who contracted it from an extramarital affair, can sue the third-person in certain circumstances.

In Lockhart v. Loosen, decided 7\15\97, the following facts were present: Lockhart's husband engaged in sexual intercourse with Loosen, who knew that she had genital herpes. Lockhart's husband then transmitted the disease to Lockhart by intercourse.

Lockhart sued Loosen on several theories, including Common Law Negligence, Negligence Per Se and Infliction of Emotional Distress. The trial court ruled against Lockhart on the Emotional Distress claim, and Lockhart did not appeal that decision. Before the Supreme Court was the question of whether or not Lockhart could sue Loosen on either of the negligence claims.

The Per Se Claim:

Negligence Per Se (in and of itself) consists of the violation of a statute which causes harm to a person within the class sought to be protected by that statute. In this case, the Oklahoma Statutes provides:

It shall be unlawful and a felony for any person, after becoming
an infected person and before being discharged and pronounced
cured by a physician in writing, to marry any other person, or to
expose any other person by the act of copulation or sexual
intercourse to such venereal disease or to liability to contract the same.

The question then becomes "Is Lockhart within the class of persons sought to be protected by the statute?" On this point, the Supreme Court said that the "class" sought to be protected are those that engage in intercourse with infected persons. Since it was Lockhart's husband that fell within the class, and not Lockhart herself, she could not maintain the action for Negligence Per Se.

The Common Law Negligence Claim:

Common Law Negligence consists of: 1) a duty; 2) a violation of that duty; 3) harm to another; and 4) a causal connection between the violation and the harm. In order for there to be a causal connection, the negligent party must have been reasonably able to foresee the potential for the harm that occurred. In general, every person has a duty to act with reasonable care.

On this point, the Court held that Lockhart may proceed with the negligence claim, and, if all the elements are proven, prevail. In conclusion, the Court stated:

If Loosen knew the plaintiff's identity and recognized her as
someone with whom her sexual partner would later copulate
and she did not tell him she had herpes before he engaged in
sex with this third person, it can be found that a natural and
probable consequence of her silence is that Lockhart would
communicate this highly contagious disease to the third person.
Loosen's non-disclosure of the critical fact of her infection could
be deemed a breach of the ordinary care owed under the
circumstances and a direct cause of Lockhart's infection. The
plaintiff could then be said to have asserted a legally cognizable claim.

February 6, 1997:

The Oklahoma House Corrections Committee has approved a bill that would require the Department of Corrections to make public certain information regarding sex offenders in the State. The list is currently kept, which includes records that are currently public, but the Department is now prohibited from public disclosure. If the bill is made into law, persons desiring to search the list would have to travel to the Department Headquarters in Oklahoma City.

The Bill now goes to the full House. If passed, it would go to the Senate. If it passes the Senate, it would go to the Governor who could sign it into law, or veto the measure. If vetoed, the House and Senate would have the ability to override the veto.

To Marshall Dyer's Oklahoma Law Page